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Full-Text Articles in Law
The Free Exercise Clause: How Redundant, And Why?, Daniel O. Conkle
The Free Exercise Clause: How Redundant, And Why?, Daniel O. Conkle
Articles by Maurer Faculty
This article responds to Professor Mark Tushnet's article, "The Redundant Free Exercise Clause?" Although its analysis and specific conclusions are distinctive, the article reaches a general conclusion similar to Tushnet's - namely, that the contemporary Free Exercise Clause is largely redundant, in that it provides little protection that is not afforded independently by other First Amendment doctrines. The article first contends that the core principle of the contemporary Free Exercise Clause, the nondiscrimination requirement of Employment Division v. Smith, might be subsumed, perhaps entirely, within the free speech principle that disfavors content discrimination. To that extent, the Free Exercise Clause …
Are We Buyers Or Hosts? A Memetic Approach To The First Amendment, Jeffrey E. Stake
Are We Buyers Or Hosts? A Memetic Approach To The First Amendment, Jeffrey E. Stake
Articles by Maurer Faculty
The First Amendment is often analyzed using the metaphor of the marketplace of ideas. Making use of memetic analysis, this article suggests that ideas should not be treated as inert products that we choose but as living things that sometimes exert some influence over their environment. Some of the ideas are more adept at surviving than others, and the ones that survive will not necessarily be good for humans. To account for the ability of some memes to replicate dangerously, the First Amendment should be read to allow governments to punish a speaker who advocates or threatens physical injury (other …