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Are Two Clauses Really Better Than One? Rethinking The Religion Clause(S), 80 U. Pitt. L. Rev. 1 (2018), Donald L. Beschle

Donald L. Beschle

The First Amendment begins with two references to the relationship between government and religion. The prohibition on establishment of religion and the guarantee of free exercise of religion, despite their obvious interaction, are generally regarded as separate clauses, and analyzed under tests developed under one or the other. The current state of Establishment Clause doctrine and Free Exercise doctrine is sharply contested and by no means clear. Supreme Court justices will usually classify a religious freedom case as either presenting non-establishment or free exercise issues. Having done so, they will apply the test framed for that clause. But does that …

Ex Post Modernism: How The First Amendment Framed Nonrepresentational Art, Sonya G. Bonneau

Sonya G Bonneau

Nonrepresentational art repeatedly surfaces in legal discourse as an example of highly valued First Amendment speech. It is also systematically described in constitutionally valueless terms: nonlinguistic, noncognitive, and apolitical. Why does law talk about nonrepresentational art at all, much less treat it as a constitutional precept? What are the implications for conceptualizing artistic expression as free speech?

This article contends that the source of nonrepresentational art’s presumptive First Amendment value is the same source of its utter lack thereof: modernism. Specifically, a symbolic alliance between abstraction and freedom of expression was forged in the mid-twentieth century, informed by social and …

Propaganda, Xenophobia, And The First Amendment, Rodney A. Smolla, Stephen A. Smith

Rod Smolla

No abstract provided.

Assessing The Velocity, Scale, Volume, Intensity And “Creedal Congruence” Of Immigrants In Setting A Nation’S Admissions Policy, David Barnhizer

David Barnhizer

Table of Contents Death of the “Melting Pot” The Rejection of Assimilation and the Rise of “Identity Sects” Western Europe and the US Face Significant Challenges to Their Creeds and Cultures The Radicalizing Search for Identity and Meaning The Velocity, Scale and Difference of Migrant Entry Into Dissimilar Cultures Assimilation Is Not Easy Under the Best of Circumstances ISIS, al-Qaeda and The Old Man of the Mountain What Are the Creedal Values For Which Western Nations Should Expect Commitment from Immigrants and Citizens? “Warning! Do Not Approach!” Beyond Non-Assimilation to Cultural Transformation The Right to Preserve a “Cultural Ecosystem” The …

Cross, Crucifix, Culture: An Approach To The Constitutional Meaning Of Confessional Symbols, Frederick Mark Gedicks, Pasquale Annicchino

Frederick Mark Gedicks

In the United States and Europe the constitutionality of government displays of confessional symbols depends on whether the symbols also have nonconfessional secular meaning (in the U.S.) or whether the confessional meaning is somehow absent (in Europe). Yet both the United States Supreme Court (USSCt) and the European Court of Human Rights (ECtHR) lack a workable approach to determining whether secular meaning is present or confessional meaning absent. The problem is that the government can nearly always articulate a possible secular meaning for the confessional symbols that it uses, or argue that the confessional meaning is passive and ineffective. What …

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 …

Emerging Technologies And Dwindling Speech, Jorge R. Roig

Jorge R Roig

First Amendment Based Copyright Misuse, David S. Olson

David S. Olson

We are at a crossroads with respect to the underdeveloped equitable defense of copyright misuse. The defense may go the way of its sibling, antitrust-based patent misuse, which seems to be in a state of inevitable decline. Or—if judges accept the proposal of this Article—courts could reinvigorate the copyright misuse defense to better protect First Amendment speech that is guaranteed by statute, but that is often chilled by copyright holders misusing their copyrights to control others’ speech. The Copyright Act serves First Amendment interests by encouraging authors to create works. But copyright law can also discourage the creation of new …

First Amendment Investigations And The Inescapable Pragmatism Of The Common Law Of Free Speech, Lawrence Rosenthal

Lawrence Rosenthal

Scholars have struggled to explain our sprawling First Amendment doctrine – once described by Justice Stevens as “an elaborate mosaic of specific judicial decisions, characteristic of the common law process of case-by-case adjudication.” The position that has gained the most traction in recent scholarship has stressed the primacy of governmental motive – this school of thought argues that the degree of scrutiny to be afforded a challenged regulation is based on an assessment of the likelihood that the regulation reflects a governmental motive to burden disfavored speech or speakers.

This article offers a challenge to the purposivist account. It begins, …

The Freedom Of Intimate Association In The Twenty First Century, Nancy C. Marcus

Nancy C Marcus

This article contends that recent developments in the Supreme Court's jurisprudence have created a historic opportunity for the Court to revisit and clarify its freedom of intimate association doctrine. The article traces the history of the freedom of intimate association, explaining how the Supreme Court in Roberts v. United States Jaycees, the first decision explicitly articulating a right to intimate association, failed to describe the parameters and contours of that right with enough precision to sufficiently guide later decisions. The article describe the resulting split among the circuits in their efforts to implement Roberts' intimate association guidelines, with some circuits …