Digital Commons Network^™

The Constitution According To Justices Scalia And Thomas: Alive And Kickin', Eric J. Segall

Eric J. Segall

No abstract provided.

Employee Speech & Management Rights: A Counterintuitive Reading Of Garcetti V. Ceballos, Elizabeth Dale

Elizabeth Dale

In the two years since the decision came down, courts and commentators generally have agreed that the Supreme Court's decision in Garcetti v. Ceballos sharply limited the First Amendment rights of public employees. In this Article, I argue that this widely shared interpretation overstates the case. The Court in Garcetti did not dramatically change the way it analyzed public employees' First Amendment rights. Instead, it restated the principles on which those claims rest, emphasizing management rights and the unconstitutional conditions doctrine. By making those two theories the centerpiece of the decision, the Court in Garcetti defined public employee speech rights …

Globally Speaking - Honoring The Victims' Stories: Matsuda's Human Rights Praxis, Berta E. Hernández-Truyol

Berta E. Hernández-Truyol

Globally speaking, international law and the vast majority of domestic legal systems strive to protect the right to freedom of expression. The United States’ First Amendment provides an early historical protection of speech—a safeguard now embraced around the world. The extent of this protection, however, varies among states. The United States stands alone in excluding countervailing considerations of equality, dignitary, or privacy interests that would favor restrictions on speech. The gravamen of the argument supporting such American exceptionalism is that free expression is necessary in a democracy. Totalitarianism, the libertarian narrative goes, thrives on government control of information to the …

Religious Freedom, Church-State Separation, & The Ministerial Exception, Carl H. Esbeck, Thomas C. Berg, Kimberlee Wood Colby, Richard W. Garnett

Richard W Garnett

The Hosanna-Tabor case concerns the separation of church and state, an arrangement that is often misunderstood but is nevertheless a critical dimension of the freedom of religion protected by the First Amendment to our Constitution. For nearly a thousand years, the tradition of Western constitutionalism - the project of protecting political freedom by marking boundaries to the power of government - has been assisted by the principled commitment to religious liberty and to church-state separation, correctly understood. A community that respects - as ours does - both the importance of, and the distinction between, the spheres of political and religious …

Accommodation, Establishment, And Freedom Of Religion, Richard W. Garnett

Richard W Garnett

This short essay engages the argument that it would violate the First Amendment’s Establishment Clause to exempt an ordinary, nonreligious, profit-seeking business – such as Hobby Lobby – from the Affordable Care Act’s contraceptive-coverage rules. In response to this argument, it is emphasized that the First Amendment not only permits but invites generous, religion-specific accommodations and exemptions and that the Court’s Smith decision does not teach otherwise. In addition, this essay proposes that laws and policies that promote and protect religious freedom should be seen as having a “secular purpose” and that because religious freedom, like clean air, is an …

Sacred Cows, Holy Wars: Exploring The Limits Of Law In The Regulation Of Raw Milk And Kosher Meat, Kenneth Lasson

Kenneth Lasson

SACRED COWS, HOLY WARS Exploring the Limits of Law in the Regulation of Raw Milk and Kosher Meat By Kenneth Lasson Abstract In a free society law and religion seldom coincide comfortably, tending instead to reflect the inherent tension that often resides between the two. This is nowhere more apparent than in America, where the underlying principle upon which the first freedom enunciated by the Constitution’s Bill of Rights is based ‒ the separation of church and state – is conceptually at odds with the pragmatic compromises that may be reached. But our adherence to the primacy of individual rights …

Section 1983 Civil Rights Litigation In The October 2005 Term, Martin Schwartz

Martin A. Schwartz

No abstract provided.

Is Prayer Constitutional At Municipal Council Meetings?, Thomas A. Schweitzer

Thomas A. Schweitzer

The author discusses Galloway v. Town of Greece, a case which challenges official prayers at town council meetings. To provide the necessary background information for understanding the issues in Galloway, the author begins with a brief discussion of two other cases, Lemon v. Kurtzman and Marsh v. Chambers. The author then examines the district and circuit court decisions in Galloway and the Establishment Clause issues posed by the case. Next, the author notes issues raised by other lower court decisions involving legislative prayer after Marsh. Towards the end of the article, to clarify and decide the constitutional issues, the author …

Taming The "Feral Beast": Cautionary Lessons From British Press Reform, Lili Levi

Lili Levi

Abstract: As technology undermines the economic model supporting traditional newspapers, power shifts from the watchdog press to those it watches. Worldwide calls for increased press “responsibility” are one result. Pending British press reform provides a troubling example with far-ranging implications for freedom of the press. Under the guise of modest press self-regulation, the U.K. is currently poised to upend 300 years of press freedom via the recently-approved Royal Charter for Self-Regulation of the Press. The Royal Charter was adopted in response to the moral panic engendered by Britain’s tabloid phone-hacking scandal. An example of 20^th Century regulation poorly fitted …

The Worst Test Of Truth: The "Marketplace Of Ideas" As Faulty Metaphor, Thomas W. Joo

Thomas W Joo

In his famous dissent in Abrams v. United States, Justice Holmes proclaimed that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” This Article critiques the basic argument against speech regulation that has developed from the “marketplace of ideas” metaphor: that speech should be “free” because markets are “free,” and because free markets produce “truth.” These assertions about markets are taken for granted, but they portray markets and market regulation inaccurately; thus economic markets provide a poor analogy for the deregulation of speech.

First Amendment jurisprudence invokes the …

Begging To Be Constitutional, Magali Sanders

Magali J Sanders

This comment argues that a City of Miami ordinance prohibiting begging, soliciting, and panhandling in the Downtown business district is constitutional because it is aimed at combating the secondary effects of soliciting. Traditionally, courts have analyzed content-based and content-neutral speech restrictions using strict and intermediate scrutiny tests, respectively.

This comment urges courts to use the secondary effects test applied in City of Renton v. Playtime Theatres, Inc., where the court upheld a zoning ordinance prohibiting adult movie theatres from locating within a certain distance of residential homes. The court focused on the purpose of the ordinance, which was to …

Religious Associations: Hosanna-Tabor And The Instrumental Value Of Religious Groups, Ashutosh Bhagwat

Ashutosh Bhagwat

In its 2012 decision in Hosanna-Tabor Evangelical Church & Sch. V. EEOC, the Supreme Court held that the Religion Clauses of the First Amendment require recognition of a “ministerial exception” to general antidiscrimination statutes (in that case, the ADA), because religious institutions must have autonomy in selecting their ministers. In the course of its analysis, however, the Court made a very interesting move. In response to the government’s argument that the case could be resolved under the general First Amendment right of association, the Court responded that this position was “untenable,” and indeed “remarkable,” because the very existence of …

The New Religious Institutionalism Meets The Old Establishment Clause, Gregory P. Magarian

Gregory P. Magarian

Recent religious liberty scholarship spotlights the legal rights of churches and similar religious institutions, as distinct from the rights of individual religious believers. Advocates of “the new religious institutionalism” argue that religious institutions need robust legal rights in order to effectuate their institutional functions and advance religious believers’ interests. The Supreme Court recently fanned the new institutionalist flame by holding, in Hosanna Tabor Evangelical Lutheran Church v. EEOC, that the Constitution protects churches from legal liability for employment discrimination in hiring ministers. In this essay, Professor Magarian considers a complication that advocates of the new religious institutionalism have generally ignored: …

Nonprofits, Speech, And Unconstitutional Conditions, Lloyd Hitoshi Mayer

Lloyd Hitoshi Mayer

This Article proposes a new constitutional framework for approaching the issue of speech-related conditions on government funding accepted by nonprofits and demonstrates its application by reviewing the Court’s landmark decisions in this area. It argues that speech rights are generally inalienable as against the government under the First Amendment, and therefore any abridgement of such rights by the government—whether direct or indirect—is subject to strict scrutiny. As a result, the government is not permitted to buy an organization’s speech absent a compelling governmental interest in doing so and then only if the purchase is done in a manner that is …

The Heroic Corporation And First Amendment Romanticism: A Response To Professorsredish And Neuborne, Tamara R. Piety

Tamara R. Piety

Response to book reviews of my book "Brandishing the First Amendment" by Martin Redish and Burt Neuborne.

The First Thing We Do, Jorge R. Roig

Jorge R Roig

Beit Din's Gap-Filling Function: Using Beit Din To Protect Your Client, Michael A. Helfand

Michael A Helfand

This article considers how rabbinical courts play an important gap-filling role by providing parties with a forum to adjudicate a subset of religious disputes that could not be resolved in court. Under current constitutional doctrine, civil courts cannot adjudicate disputes that turn on religious doctrine and practice. By contrast, rabbinical courts can resolve such disputes--and the decisions of rabbinical courts can then be enforced by civil courts even as those same civil courts could not resolve the dispute in the first instance. In this way, rabbinical courts--like other religious arbitration tribunals--fill a void created by constitutional law, ensuring that parties …