Vol 46. No.3 Spring 2022 | School of Law | SIU

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Vol 46. No.3 Spring 2022

ARTICLES

Verbal Bullying in School: The Constitutional and Psychological Argument that Government Intervention Makes Things Worse

Artem M. Joukov & Samantha M. Caspar.........................................................417

American public schools and colleges work with law enforcement to curb bullying of almost any kind. These well-intended measures aim to protect students, yet they restrict broad categories of expression likely protected by the U.S. Constitution. With social media at their fingertips, pupils have endless ways to violate anti-bullying laws and regulations, and imposing these controls may legally harm the speaker more than it protects the psyche of the listener. We document how enforcing anti-bullying regulations in schools has done little to curb psychological problems among attendees and how it may rob them of certain opportunities to develop psychological coping mechanisms helpful to becoming functional adults.

Dershowitz Misses the Mark on Free Speech: A Critique of the Case against the New Censorship

Michael Conklin...........................................................................................................461

This is a review of Alan Dershowitz’s new book, The Case Against the New Censorship. The book discusses novel points on the subject, such as how the demographics of anti-free speech advocates are cause for additional concern and some tactical advice for arguing in favor of free speech. Unfortunately, the problems present in the book outweigh these benefits. For example, public and private censorship is conflated throughout the book, and no practical solution to the alleged decrease in free speech is provided. This review mainly focuses on the importance of the public/private distinction, including what private companies such as Facebook and Twitter can learn from the harms of government censorship and the rare entanglement exception in which a private company can be held liable for First Amendment violations.

“Wolves and Grizzlies and Bears, Oh My!”: Exploring Historical and Contemporary Contexts for Justice Kennedy’s Founding Era Application of the Personal Right to Bear Arms

Mark W. Smith...................................................................................................... 467

This article focuses attention on an oft-neglected dimension of the individual right to bear arms enshrined in the Second Amendment: the right to self-defense against animals. Although the right to self-defense against criminals and resistance to tyranny have been heavily analyzed as a foundational concern in forming the Second Amendment right, the Amendment’s role in protecting people, livestock and crops from animal attacks has been given short shrift. But many of the same concerns that motivated the Founders to keep their guns at the ready for protection from animals, though less in the public eye today, still exist in one form or another.

In the Colonial and Founding eras, defense against wild animal attacks, and protection of home and property against depredation by wild creatures, as well as hunting for sustenance and as a source of income, were some of the most frequent reasons for firearm use.
Though attacks by animals are now rarer than they were, they continue to occur today, and firearms remain a valuable defensive tool against them. And while subsistence and market hunting, common during the Founding period, are less prevalent today, recreational hunting is common, and game still forms an important part of the diet of many Americans and provides a reliable source of high-quality protein.
The importance of the right to bear arms for protection against wild animals in the Founding Period confirms that the Second Amendment right was intended to extend beyond the home. The continued need for firearms for self-defense, the protection of crops and livestock, and hunting reaffirms the wisdom of that decision.

The Full Monty: Analyzing the Constitutionality of Ordinances that Only Punish Women for Being Topless in Public

Max Birmingham......................................................................................... 495

Public female-only topless bans are constitutional, as most courts have upheld. This Article addresses two concerns surrounding the equal protection clause of the Fourteenth Amendment: First, whether an ordinance expressly punishing women—but not men—for being topless in public violates the Equal Protection Clause; and second, whether an ordinance targeting women and criminalizing exposure of “the female breast” is unconstitutional.
The Equal Protection Clause makes no distinction between classifications (sex, race, ancestry, alienage, inter alia) and other discriminatory practices. Nor does the text require equal treatment or equal rights. Rather, it requires equality only in the “protection of the laws.” Female topless ordinances do note create any violation of the Equal Protection clause as it treats all females equally.
Public attitudes about gender and sexuality are constantly changing and evolving. Notwithstanding, there is a legitimate governmental interest in protecting the moral sensibilities of the public. A substantial segment of society that does not wish to be subjected to exhibitionists. The barometer of societal sentiment towards this matter is through the democratic process.

Who Decides: What the Constitution Says About Parental Authority and the Rights of Minor Children to Seek Gender Transition Treatment

F. Lee Francis............................................................................................... 535

Who Decides: What the Constitution Says About Parental Authority and the Rights of Minor Children to Seek Gender Transition Treatment?

Transgender advocates argue that minor children ought to be able to make their own decisions regarding transition. Advocates further argue that such a choice should be permitted without parental consent. The minor children’s transgender moment has the potential to drastically erode the traditional understanding of parental rights. What individuals such as Elliot Page, Caitlyn Jenner, and Laverne Cox all have in common is the fact that they were adults when they transitioned, not children. Children, this article asserts, are mentally incapable of understanding the full effect of transition and the damage inflicted by gender transition treatment and surgery.

As such, this paper argues that the Constitution, when originally understood, does not contemplate nor grant any rights to minor children. While this paper contends that minors do not have any expressed rights under the Constitution to make decisions regarding their upbringing, common law principles do empower and support the proposition that parental rights to control and direct the upbringing of minor children are impliedly granted by the Constitution and the common law. It is further argued, here, that parental rights are not tantamount to some inexorable command but may be limited by the state when the state’s interest is patently sufficient.

 

NOTES

Stateless Citizens: The Impact of Criminal Record’s Collateral Consequences on Voting and Employment

James A. Jones II.................................................................................................. 567

Collateral consequences act as additional civil punishments imposed on criminal offenders after completing the terms of their sentences. Collateral consequences prevent individuals with criminal records from voting, accessing government housing and assistance, obtaining gainful employment, fully participating in civic duties, and wholly reintegrating into society. Furthermore, extensive research suggests that collateral consequences increase recidivism and have no real relation to public safety. This note explores the history of collateral consequences that impact voting and employment, examines efforts at both the state and federal level to limit those impacts, and offers suggestions for reforms that would go a step further.

A Tale of Two Procedures: Federal and Illinois Pleading Requirements

Schuyler Frashier..................................................................................................... 589

Civil procedure is a central part of the United States legal system. The federal rules of civil procedure are taught in law schools across the country to ensure that law students know the rules that govern courts. However, in the United States, there are at least fifty one different code of civil procedure. This note explores the differences between federal civil procedure and Illinois civil procedure by comparing motions to dismiss. Understanding the subtle differences in federal and state civil procedure can have an important impact on the outcome of cases.