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Leaving The Dale To Be More Fair: On Cls And First Amendment Jurisprudence, Mark Strasser
Leaving The Dale To Be More Fair: On Cls And First Amendment Jurisprudence, Mark Strasser
Mark Strasser
In Christian Legal Society of the University of California, Hastings College of Law v. Martinez, the Supreme Court upheld the Hastings College of Law’s requirement that all recognized student groups have an open membership policy. The decision has been criticized for a variety of reasons, e.g., that the Court conflated the First Amendment tests for speech and association. What has not been adequately explored is the degree to which the Court has modified limited purpose public forum analysis in the university context over the past few decades, resulting in a jurisprudence that is virtually unrecognizable in light of the more …
Whistleblowing, Public Employees, And The First Amendment, Mark Strasser
Whistleblowing, Public Employees, And The First Amendment, Mark Strasser
Mark Strasser
Recent revelations of extensive public wrongdoing illustrate the need for whistleblower protection so that governmental wrongdoing is more likely to come to light. While there is some statutory protection of whistleblowing as long as certain conditions have been met, a separate issue is the degree to which the Constitution protects whistleblowers under the First Amendment. Ironically, the constitutional protections for whistleblowers have decreased over the past several decades, leaving an impoverished system of protection for discussions of great public interest. This article analyzes the respects in which First Amendment protections for matters of great public import were once fairly robust …
The Onslaught On Academic Freedom, Mark Strasser
The Onslaught On Academic Freedom, Mark Strasser
Mark Strasser
The United States Supreme Court has long recognized the importance of academic freedom both within and outside of the classroom. However, in a case having nothing to do with the academy, Garcetti v. Ceballos, the Court cast into doubt the validity of an entire line of cases, almost inviting the circuits to rewrite First Amendment doctrine in the entire area. The circuits have responded, creating a jurisprudence that threatens to bring about the negative consequences discussed over the past half-century. This article explores the First Amendment protections of academic freedom, explaining how Garcetti and the courts interpreting it have eviscerated …
Advocacy, True Threats, And The First Amendment, Mark Strasser
Advocacy, True Threats, And The First Amendment, Mark Strasser
Mark Strasser
Brandenburg v. Ohio is thought by many to represent an extremely speech-protective doctrine. Yet, much of the protection offered by Brandenburg can easily be swallowed up by the true threat doctrine, which provides the basis for a robust exception to First Amendment protections. Both the Brandenburg protections and the true threat exception are important to maintain—the great challenge for the Court is to include both within the formulation and articulation of First Amendment jurisprudence so that sufficient protection is afforded to the implicated societal and the individual interests represented by each. Regrettably, rather than provide helpful guidelines that would establish …