Law Commons^™

The Invention Of First Amendment Federalism, Jud Campbell

Law Faculty Publications

When insisting that the Sedition Act of 1798 violated the First Amendment, Jeffersonian Republicans cast their argument in historical terms, claiming that the Speech and Press Clauses eliminated any federal power to restrict expression. Scholars, in turn, have generally accepted that Republicans had a consistent understanding of the First Amendment throughout the 1790s. But Founding Era constitutionalism was dynamic in practice, even while often conservative in rhetoric, and scholars have missed the striking novelty of the principal argument against the Sedition Act. Republicans had taken a rights provision and transformed it into a federalism rule.

Mostly ignored in the literature, …

Compelled Subsidies And Original Meaning, Jud Campbell

Law Faculty Publications

The rule against compelled subsidization of speech is at the forefront of modem First Amendment disputes. Challenges to mandatory union dues, laws preventing discrimination on the basis of sexual orientation, and the federal "contraceptive mandate" have all featured variants of the anti-subsidization principle, reasoning that the government cannot compel people to support the objectionable activities of others. But the literature currently fails to evaluate modem compelled-subsidy doctrine in terms of the original meaning of the First Amendment. This Essay takes up that task.

Approaching any question of original meaning requires a willingness to encounter a constitutional world that looks very …

What Did The First Amendment Originally Mean?, Jud Campbell

Law Faculty Publications

The First Amendment says that “Congress shall make no law … abridging the freedom of speech, or of the press.” For Americans, this language is familiar. But what exactly does it mean? How far do the speech and press clauses restrict governmental power? The founders, as we will see, answered these questions very differently than we typically do today. And the reasons why highlight fundamental shifts in American constitutional thought.

Natural Rights And The First Amendment, Jud Campbell

Law Faculty Publications

The Supreme Court often claims that the First Amendment reflects an original judgment about the proper scope of expressive freedom. After a century of academic debate, however, the meanings of speech and press freedoms at the Founding remain remarkably hazy. Many scholars, often pointing to Founding Era sedition prosecutions, emphasize the limited scope of these rights. Others focus on the libertarian ideas that helped shape opposition to the Sedition Act of 1798. Still more claim that speech and press freedoms lacked any commonly accepted meaning. The relationship between speech and press freedoms is contested, too. Most scholars view these freedoms …

Speech-Facilitating Conduct, Jud Campbell

Law Faculty Publications

Free speech doctrine generally protects only expression, leaving regulations of nonexpressive conduct beyond the First Amendment’s scope. Yet the Supreme Court has recognized that abridgments of the freedom of speech “may operate at different points in the speech process.” This notion of protection for nonexpressive conduct that facilitates speech touches on many of the most contentious issues in First Amendment law— restrictions on photography and audiovisual recording, limits on campaign contributions, putative newsgathering privileges for journalists, compelled subsidization of speech, and associational rights, to name just a few. Scholars, however, have generally approached these topics in isolation, typically focusing on …

A New Approach To Nineteenth-Century Religious Exemption Cases, Jud Campbell

Law Faculty Publications

Scholars frequently cite early nineteenth-century cases to ascertain the original meaning of the Free Exercise Clause. Previous studies, however, have ignored crucial trends in those decisions, thus leading to mistaken emphasis on the denial of religious accommodation claims. This Note argues that prevailing theological views, skepticism of courtroom declarations of religious belief, and contemporary notions of judicial deference better explain nineteenth-century cases than does a wholesale rejection of judicially enforceable religious exemptions. This novel approach clarifies previously unexplained tensions in early free exercise opinions. It also suggests that the Supreme Court’s holding in Employment Division v. Smith is inconsistent with …

Raiding Islam: Searches That Target Religious Institutions, John G. Douglass

Law Faculty Publications

On the morning of March 20, 2002, while television cameras recorded the events for the evening news, dozens of federal agents entered and searched the offices of several Islamic educational and religious organizations in Northern Virginia. The agents were searching, it appears, for evidence that those organizations contributed money to international groups known to have sponsored terrorist acts. By most public accounts, the targeted institutions were regarded as moderate and progressive voices in American Islam. For that reason, the searches sent shock waves through the American Muslim community. Muslims who had supported the Administration's domestic war on terrorism began to …

Smolla Argues Before The Highest Court: Cross-Burning Case Explores Free-Speech Controversy, John G. Douglass

Law Faculty Publications

A First Amendment advocate's greatest burden can be his own client. Those clients range from the offbeat to the dangerous, from pornographers to neo-Nazis. Yet in standing up for the disreputable client, the free speech advocate stands for one of more cherished freedoms: "If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson, 491 U.S. 397, 414 (1989). As one of the nation's leading First Amendment advocates, Allen Professor Rodney Smolla understands that burden …

Cross-Burning Case Explores Free-Speech Controversy, John G. Douglass

Law Faculty Publications

Virginia v. Black was Smolla's first oral argument before the Supreme Court, but his appearance on the national stage of First Amendment controversy was nothing new. Among academics, Smolla has long been regarded as a leading First Amendment voice. His publications include a widely-used casebook, top law review articles, plays, short stories, a forthcoming novel, and a nonfiction work that became the script for a popular movie. As a litigator of two decades experience, he has argued First Amendment appeals in dozens of state and federal courts around the nation. Early in his career, he had a knack for finding …

The Status Of Constitutional Religious Liberty At The End Of The Millennium, Kurt T. Lash

Law Faculty Publications

I have the privilege of introducing the 1998 Bums Lecture Symposium- Religious Liberty in the Next Millennium: Should We Amend the Religion Clauses of the United States Constitution? My role in this Symposium is to acquaint you with the religion clauses of the Constitution- where they came from- where they've been- and where they seem to be today. Our Symposium contributors, Professors Kent Greenawalt and Robert George will discuss just where they think the religion clauses should go in the future.

Power And The Subject Of Religion, Kurt T. Lash

Law Faculty Publications

Under the First Amendment, "Congress shall make no laws respecting an establishment of religion or prohibiting the free exercise thereof." Nevertheless, congressional actors have on occasion enacted laws that expressly make religion the subject of legislation. Many scholars justify these laws on the grounds that Congress at the time of the Founding had an implied power to legislate on religion if necessary and proper to an enumerated end.

Professor Lash argues that the "implied power" theory cannot withstand historical scrutiny. Whatever "implied power" arguments may have emanated from the original Constitution, those arguments were foreclosed by the adoption of the …

Civilizing Religion, Kurt T. Lash

Law Faculty Publications

Is it appropriate to restrict abortion at any stage in pregnancy on the ground that human life is sacred? Should the public square be open to biblical arguments against homosexuality? Or, to frame the issue in a more scholarly fashion: What role may religious arguments play, if any, either in public debate about what political choices to make or as the private basis of a political choice? In his recent book, Religion in Politics: Constitutional and Moral Perspectives, Michael Perry addresses these questions as a matter of constitutional law and political morality. Perry has been down this road before, most …

The Second Adoption Of The Establishment Clause: The Rise Of The Non-Establishment Principle, Kurt T. Lash

Law Faculty Publications

In the 70 years since Gitlow first incorporated the First Amendment protections of speech and press against the states, the Establishment Clause has been a boon to incorporation's enemies and an embarrassment to its friends. Scholars who make the historical case for general incorporation either ignore, or carefully distinguish, the case of the Establishment Clause. Anti-incorporationists, on the other hand, use the case against incorporation of the Establishment Clause as their cause celebre. In fact, so wonderfully ambiguous is the history surrounding this opening line of the Bill of Rights that originalists use it to attack incorporation, and nonoriginalists use …

The Right To Religion-Based Exemptions In Early America: The Case Of Conscientious Objectors To Conscription, Ellis M. West

Political Science Faculty Publications

One of the more controversial decisions handed down by the Supreme Court in recent years was its decision in the case of Employment Division, Oregon v. Smith, which raised the basic issue of whether the free exercise clause of the First Amendment guarantees a right to religion-based exemptions, i.e., whether it gives persons and groups a prima facie right to be exempt from having to obey valid laws when they have religious reasons for noncompliance. More specifically, in Smith, two Native Americans claimed that their prosecution for using an illegal drug, peyote, was precluded by the free exercise clause …

The Case Against A Right To Religion-Based Exemptions, Ellis M. West

Political Science Faculty Publications

When, if ever, does the free exercise clause of the first amendment give an individual or organization the right to disobey with impunity a valid law of the state? This question is being discussed with increasing frequency and intensity because of the growing number of persons and groups who are going to the courts and claiming such a right on the grounds that the application of certain laws to them would burden their free exercise of religion. Almost all the individuals and some of the groups who claim such a right do so because the laws to which they object …

A School Board's Authority Versus A Student's Right To Receive Information, Timothy L. Coggins

Law Faculty Publications

This note examines the considerations which led the United States Supreme Court to determine that a school board's authority over the administration of the schools is not absolute if the exercise of this authority violates the constitutional rights of the students. Second. the note explores the development of a student's right to receive information through a school library as a guarantee of the first amendment, a right that cannot be ignored by a school board when the board removes books which it considers to be inappropriate either because of the ideas presented in the books or because of the local …