Law Commons^™

When Immigrants Speak: The Precarious Status Of Non-Citizen Speech Under The First Amendment, Michael Kagan

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The legal protection of free speech for immigrants in the United States is surprisingly limited, and it may be under more threat than is commonly understood. Although many unauthorized immigrants have become politically active in campaigning for immigration reform, their ability to speak out publicly may depend more on political discretion than on the Constitutional protections that we normally take for granted. Potential threats to immigrant free speech may be seen in three areas of law. First, a broad claim has been made by the Department of Justice that immigrants who have not been legally admitted to the country have …

Speaker Discrimination: The Next Frontier Of Free Speech, Michael Kagan

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Citizens United v. FEC articulated a new pillar of free speech doctrine that is independent from the well-known controversies about corporate personhood and the role of money in elections. For the first time, the Supreme Court clearly said that discrimination on the basis of the identity of the speaker offends the First Amendment. Previously, the focus of free speech doctrine had been on the content and forum of speech, not on the identity of the speaker. This new doctrine has the potential to reshape free speech law far beyond the corporate speech and campaign finance contexts. This article explores the …

Do Immigrants Have Freedom Of Speech?, Michael Kagan

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The Department of Justice recently argued that immigrants who have not been legally admitted to the United States have no right to claim protections under the First Amendment. If the DOJ argument is right, then most of the 11 million unauthorized immigrants in the U.S. could be censored or punished for speaking their minds – as many of them have in support of comprehensive immigration reform and the Dream Act. This Essay explores the complicated and conflicted case law governing immigrants’ free speech rights, and argues that, contrary to the DOJ position, all people in the United States are protected …

A Word Of Warning From A Woman: Arbitrary, Categorical, And Hidden Religious Exemptions Threaten Lgbt Rights, Leslie C. Griffin

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Religious exemptions have already undermined women’s rights. Now exemptions threaten gays and lesbians. The Constitution protected women’s equality and liberty until religious exemptions eroded them. Today, as gays and lesbians stand on the threshold of marriage equality, religious exemptions threaten to diminish their hard-earned constitutional right. For this reason, I argue it is past time to reject the religious exemption theory of religious liberty, which privileges religion over civil and constitutional rights, in favor of neutral laws that govern all. Religious exemptions pervade American law in numerous ways that are harmful to civil rights.

In this essay, I identify three …

Smith And Women's Equality, Leslie C. Griffin

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No abstract provided.

Snyder V. Phelps: Searching For A Legal Standard, Leslie C. Griffin

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No abstract provided.

Teaching Freedom: Exclusionary Rights Of Student Groups, Joan W. Howarth

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Progressive, anti-subordination values support robust First Amendment protection for high school and university students, including strong rights of expressive association, even when those rights clash with educational institutions' nondiscrimination policies. The leading cases addressing the conflicts between nondiscrimination policies and exclusionary student groups are polarized and distorted by their culture war context. That context tainted the leading authority, Boy Scouts of America v. Dale, and is especially salient in the student expressive association cases, many of which are being aggressively litigated by religious groups with strong anti-homosexuality goals. The strength of these First Amendment claims can be difficult to recognize …

Pleasant Grove V. Summum: Losing The Battle To Win The War, Ian C. Bartrum

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This short essay explores the potential doctrinal implications of the Supreme Court's recent decision in Pleasant Grove v. Summum.

Against Legislation: Garcetti V. Ceballos And The Paradox Of Statutory Protection For Public Employees, Ruben J. Garcia

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In Garcetti v. Ceballos, the Supreme Court denied constitutional protection to a deputy prosecutor named Richard Ceballos. In reaching its decision, the Court pointed to the plethora of statutory protections that were available to government whistleblowers. A closer examination of these statutory alternatives reveals that they will not protect Ceballos. This is the paradox of statutory protection in labor and employment law-more sometimes is less for vulnerable workers.

This Article places the Garcetti case in the historical trajectory of worker protection—from no protection to statutory protection. This Article argues for a move toward constitutional and international protection …

No Law Respecting The Practice Of Religion, Leslie C. Griffin

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No abstract provided.

No Reason To Live: Dilution Laws As Unconstitutional Restrictions On Commercial Speech, Mary Lafrance

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Traditionally, trademark and unfair competition laws have protected trademark owners against unauthorized uses of their marks that are likely to confuse or mislead consumers about the origin of goods or services. If a particular use is not likely to confuse or mislead, then it is not actionable under traditional infringement regimes. When applied to commercial speech, as opposed to noncommercial expression, traditional trademark and unfair competition laws generally have survived scrutiny under the First Amendment, because these laws restrict only commercial speech that is false or misleading.

Dilution laws, however, do not restrict speech that is false or misleading. Dilution …

Of Metaphor, Metonymy, And Corporate Money: Rhetorical Choices In Supreme Court Decisions On Campaign Finance Regulation, Linda L. Berger

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This Article examines the metaphorical and metonymical framing of corporate money in Supreme Court decisions about campaign finance regulation. Metaphorical influences (corporation as a person, spending money as speech, marketplace of ideas as the model for First Amendment analysis) affected early decisions about the regulation of corporate spending in election campaigns. Later, a metonymical move to isolate corporate money and then to focus on its malevolent tendencies displaced the earlier view of corporate money as speech. This movement was best depicted in McConnell v. Federal Election Commission, 540 U.S. 93 (2003), the Supreme Court's 2003 decision on the Bipartisan Campaign …

What Is The Sound Of A Corporation Speaking? How The Cognitive Theory Of Metaphor Can Help Lawyers Shape The Law, Linda L. Berger

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This article argues that better understanding of metaphor's cognitive role can help lawyers shape judicial decision-making. As a way of exploring metaphor's contribution to shaping the law, the article focuses on how a particular lawsuit was influenced by metaphor, in particular, by the primary metaphor that a corporation is a person within the more complex metaphorical system suggested by the marketplace of ideas model for First Amendment protection. After describing the cognitive theory of metaphor and examining the metaphors underlying First Amendment protection for corporate speech, the article analyzes the use of metaphor in the briefs filed in the U.S. …

Common Ground: Robert Jackson, Antonin Scalia, And A Power Theory Of The First Amendment, Jay S. Bybee

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There are few cases that contrast more starkly than Justice Robert Jackson's opinion for the Court in West Virginia State Board of Education v. Barnette and Justice Antonin Scalia's majority opinion in Employment Division v. Smith. Although we praise Barnette for its soaring defense of the Free Speech Clause and excoriate Smith for its crabbed reading of the Free Exercise Clause, in fact, Justice Jackson and Justice Scalia are not so far apart. When we read Barnette and Smith in context, we will find that Justice Jackson and Justice Scalia treaded common ground with respect to the First Amendment. …

First Amendment Freedoms And The Encryption Export Battle: Deciphering The Importance Of Bernstein V. United States Department Of Justice, 176 F.3d 1132 (9th Cir. 1999), David Mcclure

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For many years, a battle has raged over export restrictions on strong encryption products. Encryption ensures confidential and secure communications among individuals, and the Commerce Department and the State Department have long restricted its export because of national security concerns. Industry and privacy groups have fought against the restrictions for various reasons, ranging from the desire to sell encryption software in new markets to preventing government from accessing personal communications between individuals. Daniel Bernstein, a computer science graduate student, challenged these restrictions in 1996, placing himself in the center of this ongoing battle. In 1999, the Ninth Circuit Court of …

"We Do Not Preach, We Teach.": Religion Professors And The First Amendment, Leslie C. Griffin

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No abstract provided.

Constitutional Limits On Regulating Private Militia Groups, Thomas B. Mcaffee

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Read in a historical context, the Second Amendment provides clear answers to only a few of the questions regarding the appropriate limits of state regulatory power to restrict organizing and training private militia groups. Moreover, a basic analysis of the original materials yields conclusions that may be disappointing to both critics and sympathizers of the private militia movement. Critics may be unhappy with the conclusion that the individual right to bear arms offers important protection to at least some activities of private militia members. Sympathizers may be equally disappointed with the conclusion that activities which include full-scale preparation for a …

Taking Liberties With The First Amendment: Congress, Section 5, And The Religious Freedom Restoration Act, Jay S. Bybee

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In 1993 Congress enacted the Religious Freedom Restoration Act (“RFRA”), which provided that government, including the United States and the states, “shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability” except where the government can demonstrate that the burden furthers “a compelling governmental interest” and is “the least restrictive means of furthering that interest.”

Unfortunately, whatever consistency RFRA might bring to the substance of church-state relations comes at the expense of clarity in federal-state relations. This is unfortunate because the First Amendment does not address church-state relations; it concerns …

When First Amendment Values And Competition Policy Collide: Resolving The Dilemma Of Mixed-Motive Boycotts, Kay P. Kindred

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In a representative democracy, government must protect the rights of its citizens to express ideas, to voice grievances, and to seek to influence government. The first Amendment safeguards these fundamental political rights from government intrusion. In a free market economy, government must protect trade and commerce from activities and influences that lead to increased concentrations of economic power or that otherwise tend to restrain competition. The antitrust laws, specifically the Sherman Act, seek to safeguard the competitive process from restrictive trade practices. Conflict arises when efforts to influence government threaten to undermine competition.

Nowhere is the clash between First Amendment …