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Public School Teachers Who Refuse To Use Preferred Names And Pronouns: A Brief Exploration Of The First Amendment Limitations In K-12 Classrooms, Suzanne Eckes

ConLawNOW

This article focuses on whether a teacher has a First Amendment right under both the free speech and free exercise clauses of the U.S. Constitution when refusing to use a student’s preferred name or pronoun in a public school classroom. The article begins by briefly summarizing a recent case from Kansas and then examines prior precedent involving teachers’ classroom speech and teachers’ rights to freely exercise their religious rights in public schools. It then briefly highlights how these issues have been addressed in previous pronoun cases and concludes with a discussion of related constitutional issues.

Why We Need Reed: Unmasking Pretext In Anti-Panhandling Legislation, Joseph Mead

ConLawNOW

The First Amendment severely disfavors content-based restrictions on speech in public areas. In its 2015 decision in Reed v. Town of Gilbert, the Supreme Court clarified the test for determining whether a speech restriction is content-based, ratcheting up the number of laws subject to strict scrutiny. While this decision has been criticized by some, I argue that, at least in the context of anti-panhandling legislation, Reed was a needed answer to local governments passing overly broad restrictions motivated by a desire to drive an unpopular type of speech from the city square. I use anti-panhandling ordinances from three local jurisdictions—the …

The Potential Tension Between A "Free Marketplace Of Ideas" And The Fundamental Purpose Of Free Speech, M. Neil Browne, Justin Rex, David L. Herrera

ConLawNOW

The authors argue that the marketplace of ideas is not competitive in the economic sense. Yet the Court often rules as if it is. What are the implications?

By assuming often that the idea market is competitive, Justices are committing the reification fallacy. They are treating an abstract belief or hypothetical construct as if it represented a concrete event or physical entity. In this instance, the Justices assume that existing markets are structured the same way idealized competitive markets are. In doing so, they treat the marketplace of ideas as inherently good, when in fact one must first determine what …

Preliminary Injunctions, Excessive Entanglement, And Prior Restraints: Should Courts Treat Potential Pretrial Religious Infringement The Same As Potential Pretrial Speech Infringement?, Conor Reilly

ConLawNOW

The virtually absolute ban on prior restraints against speech is, of course, cemented in the Supreme Court’s Free Speech jurisprudence. But the doctrine may potentially apply to another important First Amendment Clause: Establishment. In free speech cases, courts almost always refuse to restrict expression prior to a determination that it is protected. This Article argues that the courts should apply the same principle in cases implicating religious liberty.

First, this Article examines a case in which a district court granted a preliminary injunction in favor of a religious group, but also imposed severe restrictions on the group’s ability to practice …