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First Amendment

2012

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Articles 1 - 30 of 92

Full-Text Articles in Law

Drone Federalism: Civilian Drones And The Things They Carry, Margot E. Kaminski Dec 2012

Drone Federalism: Civilian Drones And The Things They Carry, Margot E. Kaminski

Articles

Civilian drones are scheduled to be permitted in the national airspace as early as 2015. Many think Congress should establish the necessary nationwide regulations to govern both law enforcement and civilian drone use. That thinking, however, is wrong. This Essay suggests drone federalism instead: a state-based approach to privacy regulation that governs drone use by civilians, drawing on states’ experience regulating other forms of civilian-on-civilian surveillance. This approach will allow necessary experimentation in how to best balance privacy concerns against First Amendment rights in the imminent era of drone-use democratization. This Essay closes by providing some guidance to states as ...


To Drink The Cup Of Fury: Funeral Picketing, Public Discourse And The First Amendment, Steven J. Heyman Nov 2012

To Drink The Cup Of Fury: Funeral Picketing, Public Discourse And The First Amendment, Steven J. Heyman

All Faculty Scholarship

In Snyder v. Phelps, the Supreme Court held that the Westboro Baptist Church had a First Amendment right to picket the funeral of a young soldier killed in Iraq. This decision reinforces a position that has become increasingly prevalent in First Amendment jurisprudence – the view that the state may not regulate public discourse to protect individuals from emotional or dignitary injury. In this Article, I argue that this view is deeply problematic for two reasons: it unduly sacrifices the value of individual personality and it tends to undermine the sphere of public discourse itself by negating the practical and normative ...


With Religious Liberty For All: A Defense Of The Affordable Care Act's Contraception Coverage Mandate, Frederick Mark Gedicks Oct 2012

With Religious Liberty For All: A Defense Of The Affordable Care Act's Contraception Coverage Mandate, Frederick Mark Gedicks

Faculty Scholarship

The “contraception mandate” of the Patient Protection and Affordable Care Act of 2010 poses a straightforward question for religious liberty jurisprudence: Must government excuse a believer from complying with a religiously burdensome law, when doing so would violate the liberty of others by imposing on them the costs and consequences of religious beliefs that they do not share? To ask this question is to answer it: One's religious liberty does not include the right to interfere with the liberty of others, and thus religious liberty may not be used by a religious employer to force employees to pay the ...


Smile For The Camera - The Long Lost Photos Of The Supreme Court At Work—And What They Reveal., Sonja R. West Oct 2012

Smile For The Camera - The Long Lost Photos Of The Supreme Court At Work—And What They Reveal., Sonja R. West

Popular Media

In a day when even our cellphones can capture images unobtrusively, why were we forced to stare at pixels on our computer screens or at a static televised image of the Supreme Court’s exterior? In 2012, why is there a wall of separation between the American people and their high court?

For decades, the debate over cameras in the court has gone something like this: the press pleads for permission and the court says no; academics make policy arguments that the court ignores; and Congress threatens to force cameras into the court, but the justices don’t blink. The ...


Public Forum 2.1: Public Higher Education Institutions And Social Media, Robert H. Jerry Ii, Lyrissa Barnett Lidsky Oct 2012

Public Forum 2.1: Public Higher Education Institutions And Social Media, Robert H. Jerry Ii, Lyrissa Barnett Lidsky

UF Law Faculty Publications

Like most of us, public colleges and universities increasingly are communicating via Facebook, Second Life, YouTube, Twitter and other social media. Unlike most of us, public colleges and universities are government actors, and their social media communications present complex administrative and First Amendment challenges. The authors of this article — one the dean of a major public university law school responsible for directing its social media strategies, the other a scholar of social media and the First Amendment — have combined their expertise to help public university officials address these challenges. To that end, this article first examines current and likely future ...


Free Expression And Censorship: The Evolving Role Of American Companies In The Age Of The Internet, Daniel Witt Oct 2012

Free Expression And Censorship: The Evolving Role Of American Companies In The Age Of The Internet, Daniel Witt

In the Balance

No abstract provided.


Defining Religion Down: Hasanna-Tabor, Martinez, And The U.S. Supreme Court, Carl H. Esbeck Oct 2012

Defining Religion Down: Hasanna-Tabor, Martinez, And The U.S. Supreme Court, Carl H. Esbeck

Faculty Publications

While two recent Supreme Court cases on religious freedom appear sharply at odds, in one material respect they harmonize around an understanding that religion is fully protected only when exercised in private. CLS v. Martinez involved Hastings College of Law. Hastings' regulation of extracurricular organizations was unusual in requiring that any student can join an organization. This all-comers rule had a discriminatory impact on organizations with exclusionary memberships, such as the Christian Legal Society (CLS) which required subscribing to a statement of faith and conduct. The Court acknowledged the discriminatory effect, but said that the Free Speech Clause protects speech ...


Public Forum 2.1: Public Higher Education Institutions And Social Media, Robert H. Jerry Ii, Lyrissa Lidsky Oct 2012

Public Forum 2.1: Public Higher Education Institutions And Social Media, Robert H. Jerry Ii, Lyrissa Lidsky

Faculty Publications

Public colleges and universities increasingly are using Facebook, Second Life, YouTube, Twitter, and other social media communications tools. Yet public colleges and universities are government actors, and their creation and maintenance of social media sites or forums create difficult constitutional and administrative challenges. Our separate experiences, both theoretical and practical, have convinced us of the value of providing guidance for public higher education institutions wishing to engage with their constituents-including prospective, current, and former students and many others-through social media.

Together, we seek to guide public university officials through the complex body of law governing their social media use and ...


Balancing And The Unauthorized Disclosure Of National Security Information: A Response To Mark Fenster's Disclosure Effects: Wikileaks And Transparency, Mary-Rose Papandrea Oct 2012

Balancing And The Unauthorized Disclosure Of National Security Information: A Response To Mark Fenster's Disclosure Effects: Wikileaks And Transparency, Mary-Rose Papandrea

Boston College Law School Faculty Papers

In his recent article, Disclosure’s Effects: WikiLeaks and Transparency, Mark Fenster argues that WikiLeaks demonstrates the “impossibility” of balancing the public benefits of national-security-information disclosure with the effects of the disclosure on the nation’s national security and foreign policy interests. This article is a continuation of Professor Fenster’s previous work examining the costs and benefits of transparency. In his prior work, he fleshes out the criticisms of the current transparency regime that appear somewhat fleetingly here: namely, that we should question the assumption that transparency promotes an informed and engaged electorate as well as better, more responsive ...


The Role Of Charity In A Federal System, Brian D. Galle Sep 2012

The Role Of Charity In A Federal System, Brian D. Galle

Boston College Law School Faculty Papers

This Article critiques the prevailing justification for subsidies for the charitable sector and suggests a new alternative. Existing rationales are based on an economic model that assumes a single government whose decisions are guided by a single median voter. I argue that this theory is unpersuasive when translated to federal systems, such as the United States, in which there may instead be thousands of competing local governments.

I then attempt to construct a theory of the charitable sector that takes account of interactions between charity, local government, and national government. In this revised account, charity is most important when federalism ...


Religion, Government, And Law In The Contemporary United States, Daniel O. Conkle Aug 2012

Religion, Government, And Law In The Contemporary United States, Daniel O. Conkle

Articles by Maurer Faculty

In this Essay, I discuss the relationship between religion and government in the contemporary United States, addressing the period from the 1940s to the present. In so doing, I explore questions of religious liberty, including the protection of religious “free exercise” as well as the constitutional prohibition on the establishment of religion, a prohibition that sometimes - but not always - has been construed to require a “wall of separation” between church and state. I focus especially on the Supreme Court’s evolving interpretations of the First Amendment during this period, which, I suggest, were influenced by broader religious, cultural, and political ...


Chick-Fil-A And The Problem Of Soft Censorship, Nathan B. Oman Jul 2012

Chick-Fil-A And The Problem Of Soft Censorship, Nathan B. Oman

Popular Media

No abstract provided.


First Amendment Protection For Union Appeals To Consumers, Michael Harper Jul 2012

First Amendment Protection For Union Appeals To Consumers, Michael Harper

Faculty Scholarship

This article explains why decisions of the National Labor Relations Board under President Obama holding non-picketing secondary appeals to consumers not to be illegal under the National Labor Relations Act were necessary under a 1988 decision of the Supreme Court, Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council. The article also explains why both the Supreme Court decision and the Board’s recent decisions were compelled by the first amendment and could not be based on the language of § 8(b)(4)(ii)(B) of the National Labor Relations Act as interpreted by the Court in ...


The Constitutional Politics Of The Establishment Clause, Richard Albert Jul 2012

The Constitutional Politics Of The Establishment Clause, Richard Albert

Boston College Law School Faculty Papers

In these reflections presented at a Symposium hosted by Duquesne University School of Law on "The Future of the Establishment Clause in Context: Neutrality, Religion, or Avoidance?" I examine the constitutional politics driving the interpretation of the Establishment Clause. I suggest that the Supreme Court’s recent case law on taxpayer standing may signal a return to the founding design of the Establishment Clause. At the founding, the Establishment Clause constrained the actions of only the national government, disabled only Congress from establishing a religion, and vigorously protected the sovereignty of states. Each of these three signposts - national interdiction, congressional ...


The Separation Of Higher Powers, Richard Albert Jul 2012

The Separation Of Higher Powers, Richard Albert

Boston College Law School Faculty Papers

The very first words of the very first amendment to the United States Constitution continue to frustrate the quest for constitutional clarity. The Bill of Right’s Establishment Clause commands in plain terms that “Congress shall make no law respecting an establishment of religion,” but the legal interpretation and political implications of the Clause remain contested today as ever before. What may government require of religion? What may religion demand of government? How much of its independence must religion cede to government? And how closely may government collaborate with religion? These enduring questions admit of no definitive answers, at least ...


New Technologies And Constitutional Law, Thomas Fetzer, Christopher S. Yoo Jun 2012

New Technologies And Constitutional Law, Thomas Fetzer, Christopher S. Yoo

Faculty Scholarship at Penn Law

No abstract provided.


Of Speech And Sanctions: Toward A Penalty-Sensitive Approach To The First Amendment, Michael Coenen Jun 2012

Of Speech And Sanctions: Toward A Penalty-Sensitive Approach To The First Amendment, Michael Coenen

Journal Articles

Courts confronting First Amendment claims do not often scrutinize the severity of a speaker’s punishment. Embracing a “penalty-neutral” understanding of the free-speech right, these courts tend to treat an individual’s expression as either protected, in which case the government may not punish it at all, or unprotected, in which case the government may punish it to a very great degree. There is, however, a small but important body of “penalty-sensitive” case law that runs counter to the penalty-neutral norm. Within this case law, the severity of a speaker’s punishment affects the merits of her First Amendment claim ...


Privacy Rights: The Virtue Of Protecting A False Reputation, John A. Humbach May 2012

Privacy Rights: The Virtue Of Protecting A False Reputation, John A. Humbach

Pace Law Faculty Publications

What is the virtue of protecting a false reputation? The thesis of this paper is that there is none. There is none, at least, that justifies the suppression of free speech. Yet, there is a growing trend to see the protection of reputation from truth as a key function of the so-called “right of privacy.”

Unfortunately, people often do things that they are not proud of or do not want others to know about. Often, however, these are precisely the things that others want or need to know. For our own protection, each of us is better off being aware ...


Social Media, Public School Teachers, And The First Amendment, Mary-Rose Papandrea May 2012

Social Media, Public School Teachers, And The First Amendment, Mary-Rose Papandrea

Boston College Law School Faculty Papers

Education officials around the country are grappling with issues surrounding public school teachers’ use of social media. Typically concerned that social media makes it easier for teachers to engage in inappropriate communications with their students, officials have adopted guidelines that prohibit K-12 teachers from using social media to communicate with their students for noncurricular purposes. In addition, teachers are frequently punished for content they or others post on social media even when their students and the school community were not the intended audience. Current doctrine leaves unclear how much authority schools have to restrict their teachers’ use of social media ...


Ideology "All The Way Down"? An Empirical Study Of Establishment Clause Decisions In The Federal Courts, Gregory C. Sisk, Michael Heise May 2012

Ideology "All The Way Down"? An Empirical Study Of Establishment Clause Decisions In The Federal Courts, Gregory C. Sisk, Michael Heise

Cornell Law Faculty Publications

No abstract provided.


Wikileaks And The Institutional Framework For National Security Disclosures, Patricia L. Bellia Apr 2012

Wikileaks And The Institutional Framework For National Security Disclosures, Patricia L. Bellia

Journal Articles

WikiLeaks’ successive disclosures of classified U.S. documents throughout 2010 and 2011 invite comparison to publishers’ decisions forty years ago to release portions of the Pentagon Papers, the classified analytic history of U.S. policy in Vietnam. The analogy is a powerful weapon for WikiLeaks’ defenders. The Supreme Court’s decision in the Pentagon Papers case signaled that the task of weighing whether to publicly disclose leaked national security information would fall to publishers, not the executive or the courts, at least in the absence of an exceedingly grave threat of harm.

The lessons of the Pentagon Papers case for ...


Implications Of Libel Doctrine For Nondefamatory Falsehoods Under The First Amendement, Nat Stern Apr 2012

Implications Of Libel Doctrine For Nondefamatory Falsehoods Under The First Amendement, Nat Stern

Scholarly Publications

No abstract provided.


Democratizing The Economic Sphere: A Case For The Political Boycott, Theresa J. Lee Mar 2012

Democratizing The Economic Sphere: A Case For The Political Boycott, Theresa J. Lee

Lecturer and Other Affiliate Scholarship Series

The political boycott, though recently under attack through litigation aimed at compelled disclosure regimes, is a critical tool in constructing American democracy. Defining political boycotts as those refusals by consumers to buy goods or patronize business in order to effect political or social change, this Article is the first paper to place the political boycott at home in all three classic theories underlying the First Amendment: the marketplace of ideas, democracy and self-governance, and self-expression and autonomy. It also places the boycott alongside current campaign finance doctrine via Citizens United v. FEC. Just as money amassed by corporations in the ...


First Amendment Privacy And The Battle For Progressively Liberal Social Change, Anita L. Allen Mar 2012

First Amendment Privacy And The Battle For Progressively Liberal Social Change, Anita L. Allen

Faculty Scholarship at Penn Law

No abstract provided.


(Government) Speech Spaces, Timothy Zick Feb 2012

(Government) Speech Spaces, Timothy Zick

Popular Media

No abstract provided.


Architectural Trusteeship, Timothy Zick Feb 2012

Architectural Trusteeship, Timothy Zick

Popular Media

No abstract provided.


Speech And Spatiality, Timothy Zick Feb 2012

Speech And Spatiality, Timothy Zick

Popular Media

No abstract provided.


The New Victims Of The Old Anti-Catholicism, Christopher C. Lund Feb 2012

The New Victims Of The Old Anti-Catholicism, Christopher C. Lund

Law Faculty Research Publications

Santayana once said that those who cannot remember the past are condemned to repeat it, the implication being that we can avoid future mistakes by paying better attention to past ones. Perhaps this is so. Or perhaps it is as George Bernard Shaw once said-that we learn from history only that we learn nothing from history. Yet one thing is surely clear. To the extent that modern injustices have identifiable historical antecedents, we rightly stand doubly condemned for them.

This Essay looks at four modern church-state cases which span the First Amendment spectrum. The plaintiffs are religiously diverse-one is a ...


Citizens United And The Ineluctable Question Of Corporate Citizenship, Amy J. Sepinwall Feb 2012

Citizens United And The Ineluctable Question Of Corporate Citizenship, Amy J. Sepinwall

Legal Studies and Business Ethics Papers

As a result of the Supreme Court's decision in Citizens United, corporations and individuals now enjoy the same rights to spend money on advertisements supporting or opposing candidates for office. Those concerned about the role of money in politics have much to decry about the decision. But the threat to democracy posed by allowing wealthy corporations to function as political speakers arises under the same regime that allows wealthy individuals to do so. If we are not prepared to limit individuals' expenditures on political speech, we will have to find a way to distinguish individuals' and corporations 'free speech ...


Selling Land And Religion, Eang L. Ngov Jan 2012

Selling Land And Religion, Eang L. Ngov

Faculty Scholarship

Thousands of religious monuments have been donated to cities and towns. Under Pleasant Grove City v. Summum, local, state, and federal governments now have greater freedom to accept religious monuments, symbols, and objects donated to them for permanent display in public spaces without violating the Free Speech Clause. Now that governments may embrace religious monuments and symbols as their own speech, the obvious question arises whether governments violate the Establishment Clause by permanently displaying a religiously significant object. Fearing an Establishment Clause violation, some governmental bodies have privatized religious objects and the land beneath them by selling or transferring the ...