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Originalism & Judicially-Enacted Religious Exemptions: Revisiting Employment Division Of Oregon V. Smith, Eric Russell Coykendall

CGU Theses & Dissertations

In the 1963 case Sherbert v. Verner , the Supreme Court read the First Amendment’s Free Exercise Clause to mean that, in certain cases, religious believers should be exempted from otherwise applicable laws. In 1990, the Supreme Court essentially overturned that framework in the case Employment Division of Oregon v. Smith . The Smith case has proved quite controversial, and numerous public-interest law firms, especially those that defend religious litigants, have regularly asked the Court to overturn it in favor of a re-application of the Sherbert precedent. Their contention is often that the Smith ruling is inconsistent with the original …

Imperative Protection Or Veiled Persecution? Balancing §230 Immunity And The First Amendment In The Censorship Of Social Media, Emily A. Middleton Valdés

New England Journal of Political Science

In the new age of fast-paced digital news, the primary platform for political discourse has evolved from the static town square to an ever-expanding, broadly accessible, and immediately available forum of global proportions. As traditional publishers scramble to adapt to this shift, social networking platforms like Twitter and Meta (“Facebook”) have become harbors of unverified, even dangerous, information. This position has prompted the creation of “fact-checkers,” which attempt to identify and block information deemed subjectively inappropriate from disseminating into the public. Other industry leaders, like Google, have adopted a similar policy of censoring information and choosing market winners, through the …

Back To The Sources? What’S Clear And Not So Clear About The Original Intent Of The First Amendment, John Witte Jr.

Faculty Articles

This Article peels through these layers of founding documents before exploring the final sixteen words of the First Amendment religion clauses. Part I explores the founding generation’s main teachings on religious freedom, identifying the major principles that they held in common. Part II sets out a few representative state constitutional provisions on religious freedom created from 1776 to 1784. Part III reviews briefly the actions by the Continental Congress on religion and religious freedom issued between 1774 and 1789. Part IV touches on the deprecated place of religious freedom in the drafting of the 1787 United States Constitution. Part V …

First Amendment Knowledge And Competence In United States Residents, Cynthia J. Najdowski, Kimberly M. Bernstein

Psychology Faculty Scholarship

Lacking adequate knowledge about one's rights could inhibit the likelihood of exercising one's rights or lead one to unwittingly violate laws that place legitimate limits on these rights. Thus, the present research examines First Amendment knowledge as well as competence to apply this knowledge in relevant circumstances. Results revealed that one-quarter of participants failed a test of objective knowledge on First Amendment rights. Furthermore, participants' belief in their ability varied depending on their level of knowledge, in line with the Dunning–Kruger effect. Participants also failed to transfer their limited objective knowledge to “real-world” situations, exhibiting impaired First Amendment competence. These …

Free Speech In The Internet Era: Reviewing Policies Seeking To Modify Section 230 Of The Communications Decency Act Of 1996, Jacob Cordeiro

Senior Honors Projects

Section 230 of the Communications Decency Act (CDA), has for over two decades provided “interactive computer services” a legal liability shield for defamatory or otherwise actionable user-generated content posted on their platforms and, for lawsuits stemming over unequal enforcement of their content policies provided enforcement efforts are taken in “good faith.” This law, passed in the early days of the Internet, incubated the Internet and social media, giving it the regulatory freedom it needed to grow into a platform where hundreds of millions of Americans can exchange ideas and engage in political and social discourse. Yet, for all the good …

Free-Speech Rights Versus Property And Privacy Rights: "Ag-Gag" Laws And The Limits Of Property Rights, Ian Drake

Department of Political Science and Law Faculty Scholarship and Creative Works

Beginning in the 1990s, private agricultural firms, research institutions, and their political allies began seeking governmental protection from undercover investigations conducted by animal rights activists. Some state governments responded by enacting statutes that regulate undercover investigatory behavior, creating statutory prohibitions on trespasses and on evidence gathering without permission and requiring undercover investigators to quickly turn over evidence of animal abuse or face civil and criminal fines and penalties (Lin 2015, 474). To date, three such state laws-popularly known as ag-gag laws, a term used by critics of the laws-have been successfully challenged based on claims that they violate First Amendment …

Self-Determination In American Discourse: The Supreme Court’S Historical Indoctrination Of Free Speech And Expression, Jarred Williams

Honors Theses

Within the American criminal legal system, it is a well-established practice to presume the innocence of those charged with criminal offenses unless proven guilty beyond a reasonable doubt. Such a judicial framework-like approach, called a legal maxim, is utilized in order to ensure that the law is applied and interpreted in ways that legislative bodies originally intended.

The central aim of this piece in relation to the First Amendment of the United States Constitution is to investigate whether the Supreme Court of the United States has utilized a specific legal maxim within cases that dispute government speech or expression regulation. …

Lawyers For White People?, Jessie Allen

Articles

This article investigates an anomalous legal ethics rule, and in the process exposes how current equal protection doctrine distorts civil rights regulation. When in 2016 the ABA Model Rules of Professional Conduct finally adopted its first ever rule forbidding discrimination in the practice of law, the rule carried a strange exemption: it does not apply to lawyers’ acceptance or rejection of clients. The exemption for client selection seems wrong. It contradicts the common understanding that in the U.S. today businesses may not refuse service on discriminatory grounds. It sends a message that lawyers enjoy a professional prerogative to discriminate against …

The Intersection Of Free Speech And Abortion: How Federal Courts Are Influencing Doctrine To Further Anti-Abortion Goals, Gina Tan

Political Science

Maintaining the accessibility to abortion has been a longstanding battle. While funding for Crisis Pregnancy Centers is increasing, states are cutting funding for abortion clinics (Ludden, 2015) and they are closing at a rate of 1.5 each week (Redden, 2015). Since Roe v. Wade (1973), hundreds of cases have been brought to challenge its legality and limit it as much as possible. The inability to challenge Roe directly has led many conservative legislators to play abortion politics by proxy, regulating what goes on inside and outside clinics, and the federal courts’ play a pivotal role in reviewing these regulations. During …

From The Legal Literature: Criminalizing Propaganda: J. Remy Green’S Argument To Digitize Brandenburg, Francesca Laguardia

Department of Justice Studies Faculty Scholarship and Creative Works

No abstract provided.

Petitioning And The Making Of The Administrative State, Maggie Blackhawk

All Faculty Scholarship

The administrative state is suffering from a crisis of legitimacy. Many have questioned the legality of the myriad commissions, boards, and agencies through which much of our modern governance occurs. Scholars such as Jerry Mashaw, Theda Skocpol, and Michele Dauber, among others, have provided compelling institutional histories, illustrating that administrative lawmaking has roots in the early American republic. Others have attempted to assuage concerns through interpretive theory, arguing that the Administrative Procedure Act of 1946 implicitly amended our Constitution. Solutions offered thus far, however, have yet to provide a deeper understanding of the meaning and function of the administrative state …

Masterpieces Or Simply Wedding Cakes? Exploring The Boundaries Of Freedom Of Speech Through United States Supreme Court Case Masterpiece Cakeshop V. Colorado Civil Rights Commission, Margaret Mclean Quick

Honors Theses and Capstones

No abstract provided.

In God We Trust: Reconciling Religiosity In A Secular Nation, Tess Saperstein

Compass: An Undergraduate Journal of American Political Ideas

Since its founding, the United States has been composed of a diversity of religions, making religious tolerance and the separation of church and state necessary for the maintenance of a peaceful coexistence. It is inscribed in the First Amendment of the Constitution that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Nonetheless, despite a clear institutional differentiation between religious and nonreligious spheres of society, the United States has remained, on the whole, a devout nation. In 2016, 89 percent of Americans reported that they believe in God and 72 percent said they …

2017 Constitution Day Essay Contest 1st Place--Donald Trump: The Modern Day Killer Of The First Amendment, Ryann Schoenbaechler

Constitution Day Essay Contest

No abstract provided.

2017 Constitution Day Essay Contest 3rd Place--The Fine Line Between Criticism And Control: How The Trump Administration Is Weakening Freedom Of The Press, Michael Di Girolamo

Constitution Day Essay Contest

No abstract provided.

2017 Constitution Day Essay Contest Honorable Mention--Liberty And Responsibility, Callum Case

Constitution Day Essay Contest

No abstract provided.

Speech On College Campuses: Methods, Motives, And Movements, Sam Minter

CMC Senior Theses

Are campus movements concerning free speech—from Berkeley in the 1960s to the campaign against political correctness today—really about speech? Are movements really concerned with civil liberties on campus or are their calls for free speech excited by partisan motives? While free speech movements are never purely driven by civil libertarian concerns, they should not be considered simply partisan either. Campus speech movements have frequently united activists across the ideological spectrum, which suggests that these movements aren’t only sectarian in nature. It also confirms that these movements are in fact about speech, because those advocating for it have a wide range …

2017 Constitution Day Essay Contest Honorable Mention--On The Consequences Of “Free Speech”, Duncan Barron

Constitution Day Essay Contest

No abstract provided.

2017 Constitution Day Essay Contest 2nd Place, Kelsey Mattingly

Constitution Day Essay Contest

No abstract provided.

2017 Constitution Day Essay Contest Honorable Mention--On Freedom Of Expression, Emily Baehner

Constitution Day Essay Contest

No abstract provided.

How Civility Works, Keith Bybee

Institute for the Study of the Judiciary, Politics, and the Media at Syracuse University

Is civility dead? Americans ask this question every election season, but their concern is hardly limited to political campaigns. Doubts about civility regularly arise in just about every aspect of American public life. Rudeness runs rampant. Our news media is saturated with aggressive bluster and vitriol. Our digital platforms teem with expressions of disrespect and trolls. Reflecting these conditions, surveys show that a significant majority of Americans believe we are living in an age of unusual anger and discord. Everywhere we look, there seems to be conflict and hostility, with shared respect and consideration nowhere to be found. In a …

The Republic Of Ignorance, Daniel R. Denicola

Philosophy Faculty Publications

Ignorance is trending. Despite universal compulsory education; despite new tools for learning and great advances in knowledge; despite breathtaking increases in our ability to store, access, and share a superabundance of information - ignorance flourishes. [excerpt]

The Minefield: Designing And Implementing Human Resource Policies In The Age Of Social Media, Christopher R. Mcmillan

The Graduate Review

Human resource managers have had to navigate a minefield of laws and regulations while continuing to manage the traditional business functions of the employer. Now, human resource departments across the nation are tasked with managing the traditional employee-employer relationship in light of an ever-changing technological and legal landscape. Businesses across the nation have had to adjust to a rise in the use of social-media and have suffered the consequences of instantaneous communication between employees and the media. These same businesses must reconcile the need to protect its goodwill and livelihood, while incorporating the safeguards provided by legislation and regulations in …

Lobbying And The Petition Clause, Maggie Blackhawk

All Faculty Scholarship

Contrary to popular opinion, the Supreme Court has not yet resolved whether lobbying is constitutionally protected. Belying this fact, courts, Congress, and scholars mistakenly assume that lobbying is protected under the Petition Clause. Because scholars have shared the mistaken assumption that the Petition Clause protects the practice of “lobbying”, no research to date has looked closely at the Petition Clause doctrine and the history of petitioning in relation to lobbying. In a recent opinion addressing petitioning in another context, the Supreme Court unearthed the long history behind the right to petition and argued for the importance of this history for …

Operation Judicial Review: A Comparative Analysis Of The Role Of The Judiciary In Domestic And Foreign Detention And Material Support Cases During The War On Terror, Tyler Mitchell

Renée Crown University Honors Thesis Projects - All

The Bush and Obama administrations have pursued a military campaign during the War on Terror in which “the world is a battlefield.” The globalized nature of contemporary warfare has tested the limits of constitutional protections for individuals under the control of the United States government. My distinction thesis focuses on the extension of constitutional rights and, in turn, the maintenance of the separation of powers during the War on Terror. I provide a comparative analysis of the role of the judiciary to reconcile constitutional First Amendment free speech & association and habeus corpus rights with federal executive & legislative counterterrorism …

A Quantum Congress, Jorge R. Roig

Jorge R Roig

Occupy Mall Street? How The Court Conditioned Public Space Where People Go, Anthony Maniscalco

Dissertations, Theses, and Capstone Projects

This thesis explores the tension between practicable space and property rights. That tension has frequently animated legal contests over political expression in privately owned, publicly accessible marketplaces in the United States. Do American marketplaces function as marketplaces of ideas? Should they? In order to examine those questions, I survey the Supreme Court's considerations of expressive activity on public and commercial property, in particular, shopping centers. I begin by developing indications of public space, as well as noting the challenges for civic inclusion within the modern political sphere. Next, I survey historical practices of public space within (Western) marketplaces. Those practices …

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 …

Essay: Curing A Monumental Error: The Presumptive Unconstitutionality Of Ten Commandment Displays, Peter Irons

Oklahoma Law Review

No abstract provided.

The First Amendment And Commercial Speech, C. Edwin Baker

All Faculty Scholarship

After a quick summary of constitutional treatment of commercial speech, this essay outlines four reasons why commercial speech should be denied First Amendment protection. Working from the claim that the primary rationale for constitutional protection of speech is the mandate that government respect individual freedom or autonomy, the essay argues: 1) that the individual does not choose, but rather the market dictates the content of commercial speech; 2) that the commercial speech should be attributed to an artificial, instrumentally entity – the business enterprise – rather than the flesh and blood person whose liberty merits protection; 3) market exchanges involve …