First Amendment Commons^™

Religious Exemptions, Third-Party Harms, And The False Analogy To Church Taxes, Christopher C. Lund

Kentucky Law Journal

No abstract provided.

The Costs Of Conscience, Micah Schwartzman, Nelson Tebbe, Richard Schragger

Kentucky Law Journal

No abstract provided.

Religious Exemptions, Harm To Others, And The Indeterminacy Of A Common Law Baseline, Elizabeth Sepper

Kentucky Law Journal

No abstract provided.

Putting The "Exercise" Back In Free Exercise, Eric J. Segall

Kentucky Law Journal

No abstract provided.

Religious Accommodations And Third-Party Harms: Constitutional Values And Limits, Kathleen A. Brady

Kentucky Law Journal

No abstract provided.

Permissible Accommodation Or Impermissible Endorsement? A Proposed Approach To Religious Exemptions And The Establishment Clause, Gary J. Simson

Kentucky Law Journal

No abstract provided.

Religious Liberty Versus Rights Of Others, Arnold H. Loewy

Kentucky Law Journal

No abstract provided.

Tinker Tortured: The Scope Of Student Off-Campus Viral Speech Rights In The Federal Circuits, Kevin Nathaniel Troy Fowler

Kentucky Law Journal

No abstract provided.

Rluipa And The Limits Of Religious Institutionalism, Zachary A. Bray

Law Faculty Scholarly Articles

What special protections, if any, should religious organizations receive from local land use controls? The Religious Land Use and Institutionalized Persons Act (“RLUIPA”)—a deeply flawed statute—has been a magnet for controversy since its passage in 2000. Yet until recently, RLUIPA has played little role in debates about “religious institutionalism,” a set of ideas that suggest religious institutions play a distinctive role in developing the framework for religious liberty and that they deserve comparably distinctive deference and protection. This is starting to change: RLUIPA’s magnetic affinity for controversy has begun to connect conflicts over religious land use with larger debates about …

A Benign Prior Restraint Rule For Public School Classroom Speech, Scott R. Bauries

Law Faculty Scholarly Articles

This Article is a contribution to a symposium on schools and free speech. It advances the claim that the First Amendment doctrines that apply to the classroom should adopt a benign prior restraint rule. In the case of teacher classroom speech, the Garcetti rule should apply where the government’s action in interfering with the speech constitutes a prior restraint—the First Amendment should not reach such interference. In cases where a teacher first speaks and then is later punished for that speech, however, basic notions of due process and the dangers of arbitrary governmental decision making are far more pressing, and …

A Uniform Test Isn't Here Right Now, But Please Leave A Message: How Altering The Spence Symbolic Speech Test Can Better Meet The Needs Of An Expressive Society, Caitlin Housley

Kentucky Law Journal

No abstract provided.

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 …

Brief Of Amicus Curiae Id Software Llc In Support Of Respondents, Paul E. Salamanca, James T. Drakeley, D. Wade Cloud Jr., Kevin J. Keith, J. Griffin Lesher, Amy Yeung

Law Faculty Advocacy

No abstract provided.

Grounding Cyberspeech: Public Schools' Authority To Discipline Students For Internet Activity, Sarah O. Cronan

Kentucky Law Journal

No abstract provided.

Silence At The Schoolhouse Gate: The Diminishing First Amendment Rights Of Public School Employees, Neal H. Hutchens

Kentucky Law Journal

No abstract provided.

Quo Vadis: The Continuing Metamorphosis Of The Establishment Clause Toward Realistic Substantive Neutrality, Paul E. Salamanca

Law Faculty Scholarly Articles

For years, the rhetoric of substantive neutrality has dominated interpretation of the Establishment Clause. Under this approach, courts and commentators purport to ask whether a public policy under scrutiny is likely to affect religious choices in an unacceptable way. In fact, so broadly has this approach been taken that both separationists and accommodationists resort to it freely, although with radically differing perceptions as to when policy becomes unacceptable. Arguably, however, adherents to this approach have paid insufficient attention to religious behavior per se. Had they paid sufficient attention to this phenomenon, they would have been forced to acknowledge that little …

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 …

Prior Restraint In Wartime, Paul E. Salamanca

Law Faculty Popular Media

In this article for Bench & Bar Magazine (the Kentucky Bar Association's magazine), Professor Paul E. Salamanca discusses the First Amendment during times of war or conflict.

Religion, Establishment, And The Northwest Ordinance: A Closer Look At An Accommodationist Argument, Thomas Nathan Peters

Kentucky Law Journal

No abstract provided.

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, …

Meredith Corp. V. Fcc: The Demise Of The Fairness Doctrine, Donna J. Schoaff

Kentucky Law Journal

No abstract provided.

The Establishment Clause And Nativity Scenes: A Reassessment Of Lynch V. Donnelly, Richard S. Myers

Kentucky Law Journal

No abstract provided.

Stanley + Ferber = The Constitutional Crime Of At-Home Child Pornography Possession, Josephine R. Potuto

Kentucky Law Journal

No abstract provided.

Justice Sanford And Modern Free Speech Analysis: Back To The Future?, Philip J. Prygoski

Kentucky Law Journal

No abstract provided.

The Civil Rights Pornography Ordinances--An Examination Under The First Amendment, Valerie J. Hamm

Kentucky Law Journal

No abstract provided.

Freedom Of Speech: The Case Of The "Corrupt" Campaign Promise, Martha Dugan Rehm

Kentucky Law Journal

No abstract provided.

Stone V. Graham: A Fragile Defense Of Individual Religious Autonomy, J. David Smith Jr.

Kentucky Law Journal

No abstract provided.

Free Press-Fair Trial: Restrictive Orders After Nebraska Press, Doug Rendleman

Kentucky Law Journal

No abstract provided.

The End Of The "Commercial Speech" Exception--Good Riddance Or More Headaches For The Courts?, Francis H. Heller

Kentucky Law Journal

No abstract provided.