Digital Commons Network^™

Overcoming Obstacles To Religious Exercise In K-12 Education, Lewis M. Wasserman

Lewis M. Wasserman

Overcoming Obstacles to Religious Exercise in K-12 Education Lewis M. Wasserman Abstract Judicial decisions rendered during the last half-century have overwhelmingly favored educational agencies over claims by parents for religious accommodations to public education requirements, no matter what constitutional or statutory rights were pressed at the tribunal, or when the conflict arose. These claim failures are especially striking in the wake of the Religious Freedom Restoration Acts (“RFRAs”) passed by Congress in 1993 and, to date, by eighteen state legislatures thereafter, since the RFRAs were intended to (1) insulate religious adherents from injuries inflicted by the United States Supreme Court’s …

The First Amendment Structure For Speakers And Speech, Charles W. Rhodes

Charles W Rhodes

A noticeable trend in the Roberts Court’s free speech decisions is heightened attention to the dimensions of the First Amendment. From holding false factual statements, violent video games, and depictions of animal cruelty are covered by the First Amendment, to determining that a legislator’s vote, governmental acceptance of a monument, and a law school’s refusal to allow access to military recruiters are not, the Court has highlighted the importance of evaluating both the scope of the First Amendment and the appropriate attribution of communicative efforts. But the Court has failed to announce an overarching structural framework for resolving these prefatory …

Anatomy Of The Reasonable Observer, Jessie Hill

Jessie Hill

The “reasonable observer”—the fictional person from whose perspective we are to judge whether a governmental display or practice violates the Establishment Clause—has been under fire for decades. Primarily, critics argue that the reasonable observer, as conceived by the Supreme Court, is incapable of representing a community perspective because he does not sufficiently resemble a flesh-and-blood person. This criticism can be further articulated as two specific complaints: first, that too much knowledge is imputed to the reasonable observer, making him more omniscient than the average passerby; and second, that the reasonable observer, like the average judge, is biased toward a majoritarian …

Gay Talk: Protecting Free Speech For Public School Teachers, Stephen J. Elkind, Peter D. Kauffman

Stephen J Elkind

In Garcetti v. Ceballos, the Supreme Court held that public employees are not entitled to free speech when speaking “pursuant to their official duties.” In most situations, this strips teachers of First Amendment protection when they discuss controversial subjects, such as homosexuality, with their students. To ensure their classrooms are tolerant and accepting environments for homosexual and questioning youth, teachers need free speech protection against adverse employment action their schools might take. The Garcetti Court, acknowledging that “expression related to academic scholarship and classroom instruction implicates” unique constitutional concerns, explicitly left open whether its decision applied in the education …

Mirror, Mirror On The Wall, Who Are You To Say Who Is Fairest Of Them All?, Ashley R. Brown

Ashley R Brown

No abstract provided.

A Corporation Has No Soul - The Business Entity Law Response To Challenges To The Contraceptive Mandate Under The Ppaca, Thomas E. Rutledge

Thomas E. Rutledge

The most contentious matter in the implementation of the Patient Protection and Affordable Care Act (the “PPACA”) is not a question of health care, but rather one of the law of business organizations. The dispute has been over the requirement that group health insurance plans provide, on a no-cost sharing basis, coverage for a variety of procedures and prescription medicines involving contraception and what are described as “abortificants.”

The class of suits subject to this discussion were filed by what are not religious organizations but rather for-profit business ventures, asserting that they should be exempt from the requirements of the …

Internet Control Or Internet Censorship? Comparing The Control Models Of China, Singapore, And The United States To Guide Taiwan’S Choice, Jeffrey Li

Jeffrey Li

Internet censorship generally refers to unjustified online speech scrutiny and control by the government or government-approved measures for Internet control. The danger of Internet censorship is the chilling effect and the substantial harm on free speech, a cornerstone of democracy, in cyberspace. This paper compares China’s blocking and filtering system, the class license system of Singapore, and the government-private partnership model of the United States to identify the features, and pros and cons of each model on the international human rights. By finding lessons from each of the model, this paper suggests Taiwan should remain its current meager internet control …

The Shield Of Rights, The Sword Of Disorder: Robert H. Jackson And Civil Liberties, George B. Crawford

George B. Crawford

No abstract provided.

U.S. Asylum Law As A Path To Religious Persecution, Jack C. Dolance Ii

Jack C Dolance II

U.S. asylum law protects against persecution “on account of . . . religion.” But must the law protect a non-believer seeking religious asylum in the United States? Many may instinctively answer “no,” for a non-believer is by most definitions not “religious.” Such a response misses the mark however — at least in the context of U.S. asylum law, which is subject to the First Amendment. The protection of religious liberty enshrined in the First Amendment embodies freedom from persecution on account of one’s “religion” — in whatever form that religion may take. In the asylum context, then, “religion” must be …

Tactics, Strategies & Battles—Oh My!: Perseverance Of The Perpetual Problem Regarding Preaching To Public School Pupils & Why It Persists, Casey S. Mckay

Casey Scott McKay

After reviewing the history of the religious war on Darwin’s Theory of Evolution, my article, “Tactics, Strategies & Battles—Oh My!: Perseverance of the Perpetual Problem Regarding Preaching to Public School Pupils & Why it Persists,“ examines why such a seemingly well-settled issue survives and, to some extent, succeeds.

First, by exploiting common misconceptions among the American public, lawmakers are able to take advantage of ignorance driven by strong emotions. Next, religious special interests groups, with seemingly unlimited funds, thrust propaganda supported by worldwide media reinforcement on an already vulnerable American public. Thus, irresponsible state legislators, caught between a rock and …

For-Profit Corporations, Free Exercise, And The Hhs Mandate, Scott W. Gaylord

Scott W. Gaylord

Under the Patient Protection and Affordable Care Act, most employers must provide their employees with health insurance that covers all FDA approved contraceptive methods and sterilization procedures (the “HHS mandate”). Across the country, individuals, religious schools, and corporations have sued to enjoin the mandate, arguing, among other things, that it violates the free exercise clause of the First Amendment and the Religious Freedom Restoration Act (“RFRA”). Federal district courts have reached conflicting decisions in the fifteen cases decided to date, leaving the Third, Fourth, Sixth, Seventh, Eighth, Tenth, and D.C. Circuits to sort out the complex relationship between the free …

The First Amendment Right To Bare All: How Should Courts Apply The Secondary Effects Doctrine To Strip Bars And Other Sexually Oriented Businesses?, Andrew L. Arons

Andrew L Arons

The U.S. Supreme Court has developed a deferential First Amendment Doctrine that can be used to uphold laws that target speakers on the basis of the content of their speech. This so-called “secondary effects” doctrine relies on a fictional premise: state and local laws that target certain forms of speech are actually aimed at the adverse secondary effects of the speech. The doctrine supposedly applies to any form of speech that produces secondary effects. It also theoretically permits targeted speakers to challenge the constitutionality of such laws by disproving the existence of secondary effects. Nevertheless, lower courts have impliedly limited …

Testing The Social Media Waters - First Amendment Entanglement Beyond The Schoolhouse Gates, Lily M. Strumwasser

Lily M Strumwasser

Dear Editor:

I am a third-year student at The John Marshall Law School in Chicago, Illinois, where I serve as the executive student publications editor of The John Marshall Law Review. In September 2013, I will work as an associate at Seyfarth Shaw in its labor and employment practice group. I am writing to submit my article, "Testing The Social Media Waters - First Amendment Entanglement Beyond The Schoolhouse Gates" My article considers the contours of student free speech rights within the context of public schools. I think and hope you will find it to be interesting and …

“People Who Aren’T Really Reporters At All, Who Have No Professional Qualifications”: Defining A Journalist And Deciding Who May Claim The Privileges, Jonathan Peters

Jonathan Peters

In July, a federal appeals court ruled that a New York Times reporter must testify in the criminal trial of a former CIA officer accused of improperly disclosing classified information. In May, the DOJ confirmed it had obtained months of phone records of AP reporters and a “portfolio of information” about a Fox News correspondent. Criticism from the press and public was swift, and in response, the administration attempted to reas- sure the press that it would not be conscripted into the service of law enforcement. President Obama urged Congress to rein- troduce a federal shield bill that would allow …

Are Same-Sex Marriages Really A Threat To Religious Liberty?, Eric Alan Isaacson

Eric Alan Isaacson

Some have contended that same-sex couples' marriages pose a grave danger to the religious liberty of social conservatives whose faith traditions do not bless same-sex unions. Those who oppose recognizing same-sex couples' right to marry have even contended that their clergy and churches might be subject to hate-crime prosecutions and loss of tax-exempt status if same-sex couples may lawfully marriage. This article seeks to answer those objections, pointing out that many limitations on religious marriages -- such as Roman Catholic doctrine barring remarriage by those who are civilly divorced -- parallel religious rules similarly limiting or withholding recognition from same-sex …

Clinton, Campaigns, And Corporate Expenditures: The Supreme Court's Recent Decision In Citizen's United And Its Impact On Corporate Political Influence, Glen M. Vogel

Glen M Vogel

The public’s ability to discuss and debate the character and fitness of presidential candidates is at the core of the First Amendment’s prohibition that “Congress shall make no law… abridging the Freedom of Speech.” Despite the existence of this fundamental right, articulated so eloquently in our founding document, in November of 2002, Congress made political speech a felony for one class of speakers – corporations and unions. Under the McCain-Feingold Campaign Finance Reform Law, corporations and unions were prohibited from spending their own funds in support of or against a candidate for political office. Violators of this ban faced up …

Wikileaks Would Not Qualify To Claim Federal Reporter’S Privilege In Any Form, Jonathan Peters

Jonathan Peters

This article addresses whether WikiLeaks could claim a federal reporter’s privilege if the U.S. government or a U.S. entity tried to compel one of the site’s staff members to disclose the source(s) of any documents it has released. After exploring the origins of the First Amendment-based privilege, I argue that WikiLeaks would not be able to claim it. First, the website does not engage in investigative reporting. Second, it has not taken steps consistently to minimize harm. I also discuss congressional attempts to pass a federal shield law, paying special attention to H.R. 985 and S. 448, the two most …

Wikileaks, The First Amendment, And The Press, Jonathan Peters

Jonathan Peters

This article focuses on one question: When can the government, consonant with the First Amendment, punish the publication of classified information related to national security? To that end, Part I outlines the constitutional standards that could apply to such a prosecution of WikiLeaks. Part II discusses whether WikiLeaks is part of the press and whether that matters for constitutional purposes. Part III concludes by urging the Justice Department to consider carefully whether it should prosecute WikiLeaks.

How Much Does A Belief Cost?: Revisiting The Marketplace Of Ideas, Gregory Brazeal

Gregory Brazeal

Justice Oliver Wendell Holmes, Jr. is often credited with creating the metaphor of “the marketplace of ideas,” though he did not use the exact phrase and his argument for free speech was not based on distinctively economic reasoning. Truly economic investigations of the marketplace of ideas have progressed in step with developments and trends in the law and economics literature. These investigations have tended to be one-sided, with writers focusing primarily either on the production of ideas (for example, Posner) or their consumption (for example, behavioral law and economics), without considering in depth how producers and consumers interact. This may …

An Unlikely Solution: Securities Fraud Regulation As A Model For Protecting Fortunetelling As Free Speech, Daniel Hare

Daniel Hare

No abstract provided.

Noncitizens And Citizens United, James Ianelli

James Ianelli

No abstract provided.

Culture, Religion, And Indigenous People, David S. Bogen, Leslie F. Goldstein

David S. Bogen

The Constitution treats culture, religion, and government as separate concepts. Different clauses of the First Amendment protect culture and religion from government. For several decades, the Supreme Court of the United States interpreted the First Amendment as offering religion greater protection against interference than was offered to culture, but the Supreme Court largely dissolved these constitutional differences when confronted with issues posed by the religious practices of Native Americans. With some indigenous Americans, the lines between culture, religion, and even government blur – challenging the Supreme Court’s assumptions about the Constitution. The uniqueness of the claims of Native Americans pushed …

Cross Burning A Hate Speech Under The First Amendment To The United States Constitution, Wilson Huhn

Wilson R. Huhn

Under the First Amendment of the Constitution of the United States, ‘hate speech’ is constitutionally protected unless the circumstances of the case indicate that the speaker intended to threaten violence or provoke an immediate act of violence. While a person may be removed from a classroom or fired from employment for engaging in ‘hate speech’, under the First Amendment a person may be charged with a crime only if their statements constitute a threat or provocation of immediate violence. Moreover, even in cases where it is clear that a person is threatening violence or that violence is imminent, the person …

On Boy Scouts And Anti-Discrimination Law: The Associational Rights Of Quasi-Religious Organizations, Erez Reuveni

Erez Reuveni

This paper proposes a tripartite legal approach to analyzing the rights of private, expressive associations. Current law views private associations through a binary lens - either an organization is "religious," or it is "secular." But this dichotomy fails to account for organizations whose animating expressive purpose is both religious and secular. Using the Boy Scouts of America as a case study, this paper develops a third category of private associations, quasi-religious groups, and articulates why the category is necessary and how quasi-religious groups would fit within existing First Amendment jurisprudence. First, the article reviews numerous cases involving the Boy Scouts …

What Is The Sound Of A Corporation Speaking? How The Cognitive Theory Of Metaphor Can Help Lawyers Shape The Law, Linda L. Berger

Linda L. Berger

No abstract provided.

"Simply So Different": The Uniquely Expressive Character Of The Openly Gay Individual After Boy Scouts V. Dale, Nancy J. Knauer

Nancy J. Knauer

Boy Scouts v. Dale was uniformly considered a set back for gay rights. Undeniably, it was not a good result for James Dale or other openly gay individuals who would like to participate in the largest youth organization in the U.S. This Article views Boy Scouts v. Dale in a different light and suggests that the expressive character of the openly gay individual endorsed by the majority may signal an opportunity to argue for greater First Amendment protections. The majority recognized that a single avowal of homosexuality imbues the openly gay individual with a uniquely expressive character. Wherever he goes, …