Incitement, Threats, and Constitutional Guarantees: First Amendment Protections pre- and post-Elonis

[Excerpt] While the First Amendment to the United States Constitution protects the freedom of expression, individuals issuing threats or advocating illegal conduct may be subject to punishment. What constitutes proscribable speech has long been evolving, and the recent jurisprudence suggests that First Amendment protections are more robust for advocacy of illegal conduct than for threats. Elonis v. United States provided the Court with a golden opportunity to clarify First Amendment threat jurisprudence; however, those hoping for an illuminating analysis cannot help but be disappointed. Part I of this Article discusses the developing First Amendment jurisprudence regarding the regulation of incitement, focusing on how constitutional protections for such speech have increased over time. Part II discusses the constitutional limitations on the regulation of threats, noting the Court\u27s consistent refusal to address what kind of subjective intent is necessary in order for an individual to be convicted of having made a threat. Part III focuses on Elonis in particular, explaining how the case wasted the opportunity to clarify a number of First Amendment issues. The article concludes by pointing to several areas the Court may be forced to address in the not-too-distant future, including some of the confusions created by the Elonis opinion itself

Mission Impossible: On Baker, Equal Benefits, and the Imposition of Stigma

In Baker v. State, the Vermont Supreme Court held that the state constitution required same-sex couples be afforded the same benefits and protections that married couples receive. While the state did not need to recognize same-sex marriage, at the very least, it needed to create a parallel system providing equal benefits. Professor Mark Strasser argues that a civil union alternative ultimately would not meet the court\u27s requirements because it cannot possibly provide this requisite equality. His central concern is the differing treatment that same-sex marriage and domestic partnerships receive from other states. Additionally, Professor Strasser notes that such a system would fail to meet the requirement of equality due to the stigma attaching to civil union status. He concludes that such a parallel system would have all the legitimacy of separate but equal

Traditional Surrogacy Contracts, Partial Enforcement, and the Challenge for Family Law

Surrogacy remains controversial. Several states ban commercial surrogacy while several other states permit it, subject to certain conditions. In addition, many state legislatures simply have not spoken to the legality of surrogacy agreements. Courts have addressed whether such contracts are enforceable in individual instances, either as a matter of public policy or, perhaps, because of a claimed breach of contract. Part II of this Article traces the development of the jurisprudence regarding the enforcement of surrogacy agreements, noting how there seemed to be a consensus within the parameters set by state law. Part III addresses a few recent decisions in which traditional surrogacy contracts were enforced, in whole or in part. This Article concludes by noting some of the counterintuitive implications of these latter decisions and explaining how some of these undesirable effects might be avoided