Campaign Finance Regulation and the Marketplace of Emotions

This essay examines the validity, in light of new empirical research, of the free speech theory the U.S. Supreme Court uses to justify the doctrines it currently employs to assess the constitutionality of campaign finance regulations. The Court’s model, which Professor McDonald terms the theory of \u27stimulated democratic deliberation,\u27 assumes that an unlimited quantity of campaign-related communications will result in increased public deliberation about ideas and better informed citizens, which in turn will result in better decisions about candidates for political office. In short, this model assumes that rational thought and deliberation about important issues of the day drive voter decision-making. McDonald examines new research by neuroscientists, political psychologists and political scientists which suggests that this model is neither an accurate description of the nature of campaign-related communications nor their affect on average voters. These studies conclude that human emotion, and not reason, plays the dominant role in voter decision-making, and that political strategists are increasingly taking advantage of such findings to target and manipulate voter decisions with emotional appeals contained in political advertising. McDonald argues that the Court should update its theoretical model to more accurately reflect these realities, which in turn would warrant doctrinal modifications to give the government greater constitutional latitude to impose reasonable campaign finance regulations

Getting Beyond Religion as Science: Unstifling Worldview Formation in American Public Education

Since ancient times, Western civilization has witnessed a great debate over a simple but profound question: From whence did we come? Two major worldviews have dominated that debate: a theistic worldview holding that we, and the world in which we live, are the purposeful product of a supernatural creator; and a materialistic worldview holding that we are the product of unintelligenta nd random naturaflo rces. This debate rose to the fore with Darwin\u27s publication of his theory of evolution and the development of the modern scientific establishment. In America, it initially took its most conspicuous form in efforts by creationists to ban the teaching of evolution in American public schools, and then to have creationism taught as science. After legal setbacks based on the Establishment Clause of the First Amendment, that effort morphed into the intelligent design movement of the past couple of decades. That movement\u27s aim to gain a place in the science curriculum recently stalled with a court ruling that it was, like the creationists before it, attempting to teach religious concepts as science. Most recently, a notable group of scientists and atheists have reversed the trend of defending science against religious attacks and launched a very public and aggressive campaign against religion itself Prominent scientists and other believers have responded with works attempting to reconcile science and faith. This Article proposes a solution to the religion as science wars in American public schools, as well as to the failure of those schools not only to prepare American youths to understand and participate in this vital debate, but also to make informed and thoughtful decisions regarding their own worldviews. Due to confusion about applicable Establishment Clause Law or otherwise, most public schools fail to educate students about the important role of religion in our society, including religious perspectives on the most fundamental question regarding our existence-the nature of our origins. The solution proposed herein is one that some, including presidential candidates, have suggested, but no one has articulated how and whether it can be legally done: Teaching a basic philosophy of origins course that is geared to upper level high school students that teaches and explores various origins accounts from both scientific and religious perspectives. This Article suggests the contours of such a course and explains how one could be offered consistent with First Amendment requirements. By examining this subject utilizing the time-honored discipline ofphilosophical analysis, which not only considers the empirical evidence properly demanded by science but other sources of human knowledge as well, American youth would be better prepared to take part in this dialogue and to appreciate the perspectives of others. It is also hoped that such an approach would relieve much of the pressure placed on the science curriculum by those religious citizens who view it, and the generally secular agenda of public education, as promoting a worldview at odds with their most deeplyheld convictions

Regulating Student Cyberspeech

Part I of this Article will provide the First Amendment background for thinking about these disputes. It will explain how the Court has interpreted that amendment to provide primary and secondary students in American public schools with free speech rights, albeit not as broad as they enjoy in their capacities as ordinary citizens of our country. It has given public school administrators special power to regulate student speech as necessary to achieve the task the people have assigned them - the effective education of their children. When cyberbullying occurs then, as it often does, completely or partially off of school grounds, the first major question courts have to answer is what speech rules to apply to such disputes. Are they governed by the less speech protective rules applicable to students, or the more speech protective rules applicable to citizen speech in general? This question is critical because, as in many other areas of free speech analysis, the doctrinal rules applicable to a given dispute often dictate the outcome. The other major question courts are grappling with is the proper standards to apply on the merits of a given dispute once they have determined what set of rules governs it. Part II will provide a brief overview of what lower courts are doing in the area of student cyberspeech, particularly when it occurs off campus, when discipline imposed by school officials for engaging in it is challenged as a violation of the First Amendment. I say lower courts because the U.S. Supreme Court has recently declined to provide them with much-needed guidance in this area, at least for the time being, even though that court was presented with petitions for certiorari squarely presenting several important questions for review. It will describe how the courts are in disarray in terms of deciding whether ordinary or student speech rules govern these disputes, with most federal district courts taking the position that the latter govern all of them without regard to whether the speech occurred on or off campus, while most courts of appeals that have weighed in to date have decided student speech rules apply only if the speaker could have foreseen her speech would have reached school grounds. On the merits of these disputes, because most courts are applying a substantial disruption standard to them derived from Tinker v. Des Moines Index. Cinty. Sch. Dist.7 under either of these choice of rules approaches (and regardless of whether they constitute cyberdissing or cyberbullying cases), they are essentially allowing school sanctions to stand if they determine the speech caused a substantial disruption at school or at least had the potential to cause such a disruption even if it did not do so in actuality. If they determine that neither of these conditions are met, then they are concluding that the sanction violated the First Amendment. Part III will examine the choice of rules question and whether the current approaches being taken by the courts make sense. It will conclude that it is indefensible for courts to be taking the position that student speech rules, and particularly the Tinker disruption standard, apply to these disputes regardless of the geographic location of the speech. It will also conclude that a reaching the campus foreseeability standard for off campus speech is also incompatible with First Amendment jurisprudence, as well as with desirable constitutional policy. Drawing parallels to public employee speech cases, I will argue that student speech rules can apply to off campus speech that is related to school relationships or activities, and where the speech implicates legitimate and substantial functional interests of the school. Under this analysis, I will conclude that cyberdissing cases are appropriately evaluated under the function-sensitive standards of student speech rules regardless of whether such communications occur on or off campus, and cyberbullying cases may or may not be adjudicated under such standards depending upon the nature of the content at issue and the geographic location of such speech. Moreover, I will argue that there also exist many other types of potential student cyberspeech disputes where a proper choice of rules determination will depend upon the type of speech at issue and the nature of the functional interests of a school that such speech may implicate. Finally, Part IV will examine the particular rules of decision that should apply to student cyberdissing and cyberbullying disputes once it is determined that they can be adjudicated by reference to student speech rules. Here, I will contend that for cyberdissing disputes, a basic application of the Tinker disruption standard, as most courts are doing, is simply inadequate to account for the free speech interests that may be implicated by such cases. I will propose alternative merits standards, derived from both the public employee and student speech cases, that better account for such interests. I will also argue, as other commentators sensibly have, that the Tinker disruption standard being applied by the courts is not the appropriate one to adjudicate most typical student cyberbullying disputes. Except in certain circumstances, the principal standard that should be applied is the nebulous invasion of rights standard that was also announced in Tinker. Here I will attempt to give this standard content that is appropriately sensitive to both the functional interests of the school, as well as the free speech interests of adolescent students accused of cyberbullying other students. In the end, it is my hope that the analytical framework I have outlined in this Article for dealing with student cyberspeech disputes will prove useful in assisting school officials and courts to determine both when function sensitive student speech standards are applicable to them, as well as what those rules should be for the various sorts of disputes that may arise

A Reluctant Apology for Plessy: A Response to Akhil Amar

A response to the article Plessy v. Ferguson and the Anti-Canon, by Akhil Amar, published in the November 2011 issue of the Pepperdine Law Review, is presented. Topics include an examination of Justice Henry Billings Brown\u27s decision in the case, the constitutionality of segregating U.S. citizens by race, and the impact of public opinion on U.S. Supreme Court decisions