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Articles 1 - 30 of 557
Full-Text Articles in Entire DC Network
Who Is A Minister? Originalist Deference Expands The Ministerial Exception, Jared C. Huber
Who Is A Minister? Originalist Deference Expands The Ministerial Exception, Jared C. Huber
Notre Dame Law Review
The ministerial exception is a doctrine born out of the Religion Clauses of the First Amendment that shields many religious institutions’ employment decisions from review. While the ministerial exception does not extend to all employment decisions by, or employees of, religious institutions, it does confer broad—and absolute—protection. While less controversy surrounds whether the Constitution shields religious institutions’ employment decisions to at least some extent, much more debate surrounds the exception’s scope, and perhaps most critically, which employees fall under it. In other words, who is a "minister" for purposes of the ministerial exception?
Protecting "Sincerely Held Religious Beliefs": Lessons From Mississippi Hb 1523, Lindsay Krout Roberts
Protecting "Sincerely Held Religious Beliefs": Lessons From Mississippi Hb 1523, Lindsay Krout Roberts
Mississippi College Law Review
The United States Supreme Court's revolutionary ruling in Obergefell v. Hodges, which guaranteed marriage equality for homosexual couples in every state, gave life to a new challenge in the area of free exercise of religion: to what extent should persons with religious objections to same-sex marriages be forced to participate in them? Should a Christian baker be legally required to bake a wedding cake for a homosexual marriage to which he or she objects? Must a county clerk with religious objections to homosexual marriage sign a marriage license for a same-sex couple?
In an attempt to pre-empt these types of …
The Ideology Of Press Freedom, Hannah Bloch-Wehba
The Ideology Of Press Freedom, Hannah Bloch-Wehba
Faculty Scholarship
This Article offers a critical account of the law of press freedom. American law and political culture laud the press as an institution that plays a vital role in democracy: guarding against corruption, facilitating self-governance, and advocating for free expression. These democratic functions provide justification for the law of press freedom, which defends the media’s autonomy and shields the press from outside interference.
But the dominant accounts of the press’s democratic role are only partly accurate. The law of press freedom is grounded in large part in journalism’s professional commitments to objectivity, public service, and autonomy. These idealized characterizations, flawed …
Defending Pornography: Free Speech, Sex, And The Fight For Women's Rights (2024), Nadine Strossen
Defending Pornography: Free Speech, Sex, And The Fight For Women's Rights (2024), Nadine Strossen
Books
Named a Notable Book by The New York Times Book Review in 1995, Defending Pornography examines a key question that has divided feminists for decades: is censoring pornography good or bad for women? Nadine Strossen makes a powerful case that increasing government power to censor sexual expression, beyond the limits that the First Amendment sensibly permits (for example, outlawing child pornography) would do more harm than good for women and others who have traditionally been marginalized due to sex or gender, She explains how the very anti-porn laws pushed by some feminists have led to the censorship of LGBTQ+ and …
Democratic Erosion And The United States Supreme Court, Jenny Breen
Democratic Erosion And The United States Supreme Court, Jenny Breen
Utah Law Review
For many decades, confidence in American institutions and political culture consistently led scholars to sideline questions about “regime change” in the United States. And for many years, that approach seemed justified. Democratic institutions were firmly rooted and stable, and American voters participated in free and fair elections that resulted in the peaceful transfer of power between parties and candidates. Then came the campaign of Donald Trump and all that has followed since, including open challenges to the most basic and fundamental democratic norms. These changes have led many voters, commentators, and scholars to ask: Is democracy eroding in the United …
“We Do No Such Thing”: 303 Creative V. Elenis And The Future Of First Amendment Challenges To Public Accommodations Laws, David Cole
Georgetown Law Faculty Publications and Other Works
In 303 Creative v. Elenis, the Supreme Court ruled that a business had a right to refuse to design a wedding website for a same-sex couple. But properly understood, the decision’s parameters are narrow, and the decision should have minimal effect on public accommodations laws.
Courting Censorship, Philip A. Hamburger
Courting Censorship, Philip A. Hamburger
Faculty Scholarship
Has Supreme Court doctrine invited censorship? Not deliberately, of course. Still, it must be asked whether current doctrine has courted censorship — in the same way one might speak of it courting disaster.
The Court has repeatedly declared its devotion to the freedom of speech, so the suggestion that its doctrines have failed to block censorship may seem surprising. The Court’s precedents, however, have left room for government suppression, even to the point of seeming to legitimize it.
This Article is especially critical of the state action doctrine best known from Blum v. Yaretsky. That doctrine mistakenly elevates coercion …
This Comment Is Gay: How Banning Lgbtq-Themed Books Violates First Amendment Rights, Michael Karam
This Comment Is Gay: How Banning Lgbtq-Themed Books Violates First Amendment Rights, Michael Karam
Upper Level Writing Requirement Research Papers
No abstract provided.
Qualified Immunity And The Unintentional, Or Intentional, Chill On Free Speech, Madison Heiney
Qualified Immunity And The Unintentional, Or Intentional, Chill On Free Speech, Madison Heiney
Indiana Journal of Law and Social Equality
No abstract provided.
Incombustible Ideas: Evaluating The Impact Of Federal Court Opinions Regarding Book Banning In Public-School Libraries, Noah T. Holloway
Incombustible Ideas: Evaluating The Impact Of Federal Court Opinions Regarding Book Banning In Public-School Libraries, Noah T. Holloway
Indiana Journal of Law and Social Equality
No abstract provided.
Video Games And The First Amendment, Eli Pales
Video Games And The First Amendment, Eli Pales
Northwestern Journal of Technology and Intellectual Property
The video game industry is massive, with an annual revenue of $180 billion worldwide; $60 billion of that in America alone. For context, the industry’s size is greater than that of the movie, book, and music industries combined. Yet, despite this market dominance, the video game industry is relatively new. Only in the 2011 decision of Brown v. Entertainment Merchants Association did the Supreme Court extend First Amendment protection to games. Still, the Court failed to define the scope of the game medium. As understood by an average person, a video game could be something as simple as Pac-Man or …
Levels Of Free Speech Scrutiny, Alexander Tsesis
Levels Of Free Speech Scrutiny, Alexander Tsesis
Indiana Law Journal
Inconsistencies abound throughout current exacting, strict, and most exacting scrutiny doctrines. Formalism also runs throughout recent cases that have opportunistically relied on the First Amendment in matters peripherally concerned with core principles of free speech. Jurisprudence that relies on the exacting scrutiny standard remains significantly under-theorized. The uncertainty creates doctrinal flux that shifts from case-to-case. The same unexplained malleability appears in the most exacting scrutiny jurisprudence. The Court, moreover, sometimes refers to these two standards as equivalent to strict scrutiny. On the other hand, during the last decade, and most recently in 2021, various opinions have also used exacting scrutiny …
Mandating Repair Scores, Aaron Perzanowski
Mandating Repair Scores, Aaron Perzanowski
Articles
Restrictions on the repair of consumer goods have generated no shortage of policy proposals. This Article considers the empirical and legal case for one particular intervention—requiring firms to calculate and disclose their products’ scores on a uniform reparability index. These repair scores would provide consumers with salient information at or before the point of sale, enabling them to compare products on the basis of the ease and cost of repair. There is considerable empirical research, including assessments of France’s implementation of a similar requirement in recent years, suggesting that repair scores would both inform and empower consumers. Despite likely First …
Rectifying An Empty Gesture: Why Placement On Paid Administrative Leave Should Constitute "Adverse Employment Action" For The Purposes Of A First Amendment Retaliation Claim, Andrew White
University of Cincinnati Law Review
No abstract provided.
The Censorship Constraint And Rulemaker State Action: Are Section 230'S Immunity Provisions Unconstitutional Content-Based Regulations?, Scot A. Reader
The Censorship Constraint And Rulemaker State Action: Are Section 230'S Immunity Provisions Unconstitutional Content-Based Regulations?, Scot A. Reader
West Virginia Law Review
Even casual watchers of T.V. crime dramas understand the Fourth Amendment’s exclusionary rule. Under this rule, evidence obtained by the police in a search of a criminal suspect’s premises that exceeds the scope of a judicial warrant is almost always inadmissible in the suspect’s criminal trial. The rule is designed to deter unreasonable governmental intrusion into private affairs and applies without regard for the suspect’s guilt or innocence. This Article proposes that the First Amendment includes an analogous rule against governmental censorship. Under this rule, content-based speech regulations exceed the legislature’s speech rulemaking warrant and are almost always invalid. This …
“Alexa, Am I A Murderer?”: An Analysis Of Whether The First Amendment Protects Smart Speaker Communications, Josie A. Bates
“Alexa, Am I A Murderer?”: An Analysis Of Whether The First Amendment Protects Smart Speaker Communications, Josie A. Bates
Arkansas Law Review
State v. Bates poses interesting First Amendment questions that go far beyond the case itself, such as whether communications to and from smart speakers are protected under the First Amendment and, if so, whether the government must therefore meet a heightened standard before obtaining information from these devices. But currently, there are no definite answers. Thus, this analysis will attempt to answer these questions as well as offer general guidance for the future of First and Fourth Amendment law in the age of ever-changing technological advancements and never-ending criminal accusations.
Comrades Or Foes: Did The Chinese Break The Law Or New Ground Ground For The First Amendment, Artem M. Joukov
Comrades Or Foes: Did The Chinese Break The Law Or New Ground Ground For The First Amendment, Artem M. Joukov
West Virginia Law Review
Prior to exiting the White House, President Trump placed a variety of restrictions on Chinese-owned social media applications, TikTok and WeChat, threatening to greatly curtail their influence in the United States. While couching his actions in the context of national security, the former president engaged in viewpoint discrimination in plain violation of the First Amendment to the United States Constitution. The court rulings in favor of TikTok and WeChat were encouraging and should stem the tide of future government regulations of social media platforms. This article discusses how the decisions fit into the greater context of First Amendment jurisprudence and …
States Have Long Tried To Ban Ideas From The Classroom: The Current Road Brings A Fresh Evil, Leonard Niehoff
States Have Long Tried To Ban Ideas From The Classroom: The Current Road Brings A Fresh Evil, Leonard Niehoff
Other Publications
Efforts by state and local officials to ban ideas and books from public school classrooms are nothing new. Recent attempts to do so, however, have a uniquely pernicious characteristic. The current wave of bans doesn’t just seek to censor thoughts or words; it seeks to censor identity.
Regulating Off-Campus Student Expression: Mahanoy Area School District V. B.L.: The Good News For College Student Journalists, Leslie Klein, Jonathan Peters
Regulating Off-Campus Student Expression: Mahanoy Area School District V. B.L.: The Good News For College Student Journalists, Leslie Klein, Jonathan Peters
Scholarly Works
This essay argues that the 2021 U.S. Supreme Court case Mahanoy Area School District v. B.L. protects off-campus college student journalism (if not published in a school-sponsored outlet) from school censorship and punishment—thanks to the majority opinion's reliance on in loco parentis principles. In short, Mahanoy made clear that K-12 students generally have diminished First Amendment rights on campus because parents have delegated to teachers and staff some of their supervisory authority. That reasoning applies with less force when students speak off campus, and it applies with no force if the speaker is a legal adult, as nearly all college …
How Scotus's Recent Decision On The Cheerleader Case Impacts Public School Students' Due Process Rights For Their Off-Campus Conduct, Abby Efron
St. Mary's Law Journal
No abstract provided.
Revisiting Employment Division V. Smith, Blaine L. Hutchison
Revisiting Employment Division V. Smith, Blaine L. Hutchison
University of Cincinnati Law Review
The Supreme Court wrongly decided Employment Division v. Smith. Without briefing or argument over the Free Exercise Clause’s meaning, Smith eliminated the constitutional right to exercise religion and replaced it with an equal protection rule. The decision threatens religious freedom and encourages conflict. The Supreme Court should revisit Smith. This article shows that the majority’s arguments in Smith fail and contradict the Free Exercise Clause’s text, purpose, and original meaning.
The Smith majority gave no sound legal or policy reason for its decision. Indeed, the decision conflicted with settled precedents that no party questioned. Nor did it determine …
The First Amendment And Military Justice: Threats To Political Neutrality, Joshua Paldino
The First Amendment And Military Justice: Threats To Political Neutrality, Joshua Paldino
Notre Dame Law Review Reflection
This backdrop illustrates a throughline that runs throughout, and creates tension within, the Military Justice system. On the one hand, there is a need to protect the individual rights of servicemembers. This concern is driven (in part) by the intuition reflected in Judge O’Connor’s opening sentences—those sworn to protect constitutional liberties should surely enjoy the benefits of that which they protect. On the other, individual rights protections must yield, to some degree, to the needs of military life and military exigency. Of course, "to some degree" is the space in which debate and maneuverability resides. But while discretionary space certainly …
The First Amendment And Online Access To Information About Abortion: The Constitutional And Technological Problems With Censorship, John Villasenor
The First Amendment And Online Access To Information About Abortion: The Constitutional And Technological Problems With Censorship, John Villasenor
Northwestern Journal of Technology and Intellectual Property
To what extent could an abortion-restrictive state impede access to online information about abortion? After Dobbs, this question is no longer theoretical. This essay engages with this issue from both a legal and technological perspective, analyzing First Amendment jurisprudence as well as the technological implications of state-level online censorship. It concludes that the weight of Supreme Court precedent indicates that state attempts to censor information regarding out-of-state abortion services would violate the First Amendment. That said, the essay also recognizes that as Dobbs itself upended precedent, it is unclear what Supreme Court would do when ruling on questions regarding …
The Connick/Garcetti Split: Is Public Employee Association A Matter Of Public Concern?, Austin J. Wishart
The Connick/Garcetti Split: Is Public Employee Association A Matter Of Public Concern?, Austin J. Wishart
University of Cincinnati Law Review
No abstract provided.
Fighting Words Today, R. George Wright
Fighting Words Today, R. George Wright
Pepperdine Law Review
For some time, the familiar free speech exception known as the “fighting words” doctrine has been subject to severe judicial and scholarly critique. It turns out, though, that the fighting words doctrine, in general, is neither obsolete nor in need of radical limitation. The traditionally neglected “inflict injury” prong of the fighting words doctrine can and should be vitalized, with only a minimal loss, if not an actual net gain, in promoting the basic purposes of freedom of speech in the first place. And the “reactive violence” prong can and should be relieved of its historic biases and dubious assumptions. …
Religious Freedom Vs. Compelled Vaccination: A Case-Study Of The 2018-2019 Measles Pandemic Or The Law As A Public Health Response, Barbara Pfeffer Billauer Esq.
Religious Freedom Vs. Compelled Vaccination: A Case-Study Of The 2018-2019 Measles Pandemic Or The Law As A Public Health Response, Barbara Pfeffer Billauer Esq.
Catholic University Law Review
Following the recent decision in Roman Catholic Diocese v. Cuomo,[1] clear guidance regarding the state’s powers to act during a pandemic is wanting. I look here to the 2018–2019 global measles epidemic, with a focus on the New York and Israeli experiences, for that guidance. Measles rates increased dramatically during the 2018–2019 season, both in the United States and globally. This phenomenon reflects a general decline in worldwide vaccination and an increase in vaccine resistance stoked by anti-vax groups. In the United States, the epidemic targeted ultra-Orthodox Jewish communities, as it did in Israel. This Article evaluates the …
Reckless Abandon: The Shadow Of Model Rule 8.4(G) And A Path Forward, Margaret Tarkington
Reckless Abandon: The Shadow Of Model Rule 8.4(G) And A Path Forward, Margaret Tarkington
St. John's Law Review
(Excerpt)
In August 2016, the American Bar Association’s (“ABA”) Board of Governors approved Model Rule of Professional Conduct (“MRPC”) 8.4(g) as a model for state adoption. The Rule makes it professional misconduct for a lawyer to engage in “harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.” Curbing harassment and discrimination is a critically important goal. However, the actual Rule as promulgated reaches far beyond prohibiting sexual harassment and unlawful discrimination. Instead the comments to the Rule define discrimination and harassment broadly to prohibit speech …
The Local Community Standard: Modernizing The Supreme Court's Obscenity Jurisprudence, Jacob S. Gordon
The Local Community Standard: Modernizing The Supreme Court's Obscenity Jurisprudence, Jacob S. Gordon
Helm's School of Government Conference - 2021-2024
Paper presentation on the Supreme Court's outdated case law on obscenity and how it needs to be modernized to in order to combat the dissemination of inappropriate materials in the age of decentralized digital media.
Republication Liability On The Web, Jeffrey Standen
Republication Liability On The Web, Jeffrey Standen
Marquette Law Review
The tort of defamation evolved in an era where defamatory speech was published in books, magazines, newspapers, or other printed documents. The doctrines that are antecedent to the tort, such as publication, fault, defamation per se, presumed damages, and republication liability, similarly presumed that most defamation would appear in written form in a published work. Similarly, the significant limitations on defamation liability that were produced by a succession of Supreme Court constitutional precedent, including restrictions on prior restraint, heightened fault standards, expanded “public” classes, the “fact/opinion” dichotomy, and the “truth/substantial truth” burden shifting, also were based on a publishing world …
Aba Model Rule 8.4(G), Discriminatory Speech, And The First Amendment, Bruce Green, Rebecca Roiphe
Aba Model Rule 8.4(G), Discriminatory Speech, And The First Amendment, Bruce Green, Rebecca Roiphe
Articles & Chapters
The ABA adopted Model Rule 8.4(g), which targets certain speech and conduct that are based on “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.” In particular, according to the accompanying comment, Rule 8.4(g) reaches speech that is “derogatory and demeaning” or that “manifests bias or prejudice towards others” and is “harmful” (including, presumably, emotionally harmful). This rule targets a significant amount of speech that would be constitutionally protected if it were uttered by a nonlawyer. This article argues that there is no justification for treating lawyers differently from others in many …