Law Commons^™

Individual Academic Freedom: An Ordinary Concern Of The First Amendment, Scott R. Bauries

Law Faculty Scholarly Articles

Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us, and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.

There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court's customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same …

Snyder V. Phelps: A Hard Case That Did Not Make Bad Law, Paul E. Salamanca

Law Faculty Scholarly Articles

In Snyder v. Phelps, the Court stood by the First Amendment in hard times. A religious group conducted a protest some 1,000 feet from a fallen marine's funeral, holding such pickets as “God Hates the USA,” “Thank God for Dead Soldiers,” and “You're Going to Hell.” Despite the empathy that virtually anyone would feel for the marine's grieving father, the Court held by a vote of eight to one that his action for intentional infliction of emotional distress and intrusion upon seclusion could not survive, owing largely to the public nature of the issues the protesters had raised. “Hard …

Video Games As A Protected Form Of Expression, Paul E. Salamanca

Law Faculty Scholarly Articles

Video games, like motion pictures, failed to qualify for First Amendment protection until well after they emerged as a medium. Today, a number of courts have held that such games constitute a form of expression and do not fall into any recognized category of unprotected speech. Nevertheless, a number of commentators have called for limited constitutional protection for video games, predicating their arguments on a variety of grounds, including the alleged deleterious effects of such games on children. This Article responds to these commentators and defends recent decisions extending protection to video games.

Choice Programs And Market-Based Separationism, Paul E. Salamanca

Law Faculty Scholarly Articles

The Supreme Court's recent decision in Zelman v. Simmons-Harris appears to clear the way for a wide variety of educational and charitable choice plans. In this decision, the Court upheld against Establishment Cause Challenge a formally neutral school choice program that encompassed a wide variety of options in the public and private sector, including private sectarian schools. The Court reasoned that, when the government makes aid available to a broad class of recipients without regard to their religious or non-religious affiliation, and when the recipients have a genuine choice as to whether to obtain that aid from a religious or …

The Application Of Product Liability Principles To Publishers Of Violent Or Sexually Explicit Material, Richard C. Ausness

Law Faculty Scholarly Articles

There have been a number of tragic incidents during the past few years in which mentally unstable teenagers have carried guns into school and shot teachers and fellow students. These schoolyard killings have generated an intense debate about the problem of violence in our society. Some social commentators have attributed teenage violence to the widespread availability of firearms, while others blame parental neglect, lack of discipline in the schools, or the declining influence of religion and morality in contemporary culture. However, another source of concern is the popular media, which stands accused of purveying sex and violence on a massive …

Some Realistic Thinking About Secular Effects, Paul E. Salamanca

Law Faculty Scholarly Articles

Notwithstanding complaints about incoherence in Establishment Clause doctrine, courts by and large administer the Clause responsibly. They do so by mediating between a number of powerful considerations, none of which can ever be entirely disregarded. These considerations include, but are not limited to, separation of church and state, the value of religiosity, the imperative of affording equal treatment to religious and similarly situated nonreligious entities, and the proper role of courts in a democratic political system. This is not to say that courts cannot overstep their bounds and provoke an adverse reaction from other powerful elements within the polity. It …

The Role Of Religion In Public Life And Official Pressure To Participate In Alcoholics Anonymous, Paul E. Salamanca

Law Faculty Scholarly Articles

If religion is an innate aspect of the human experience, it should not be surprising that Alcoholics Anonymous (A.A.), a widely known and arguably religious support group for problem drinkers, has become a common and effective means of combating alcoholism. Also, it should not be surprising that probation officers, parole officers, judges, bar overseers, wardens, and myriad others exercising state authority routinely push individuals toward A.A. Arguably, however, official referral of problem drinkers to A.A. violates current interpretations of the Establishment Clause because of the quasi-religious nature of the program.

Although separationism helps both church and state, our Constitution does, …