First Amendment Commons^™

Defamation 2.0, Cortelyou C. Kenney

Cornell Law Faculty Publications

There is a literal prohibition in the media bar that media lawyers cannot represent plaintiffs in suits for defamation. The stated principle behind this rule—a rule that can result in excommunication from the premier media law organization if it is violated—is that playing both sides of the defamation game is disloyal to traditional media actors because any chance of victory could inadvertently distort the law of defamation to increase the risk of frivolous suits against media outlets or other innocent third parties. But has the maxim finally gone too far?

Fueled by a new model where media profits are driven …

The Corporate Privacy Proxy, Shaakirrah R. Sanders

Cornell Law Review

This Article contributes to the First Amendment corporate privacy debate by identifying the relevance of agriculture security legislation, or ag-gag laws. Ag-gag laws restrict methods used to gather and disseminate information about commercial food cultivation, production, and distribution-potentially creating a "right" to control or privatize nonproprietary information about animal and agribusinesses. Yet, corporate privacy rights are unrecognized as a matter of U.S. constitutional law, which implicates the sufficiency of the justification for ag-gag laws. This Article ponders whether "security" acts as a proxy for an unrecognized right to corporate privacy in the ag-gag context. Part I of this Article surveys …

A Democratic Political Economy For The First Amendment, Nelson Tebbe

Cornell Law Review

In this Article, I begin building an interpretation of the First Amendment that promotes the practical conditions for a vital democracy. I argue that considerations of distributive justice do properly affect interpretation of free speech and religious liberty. This is true even assuming that those provisions have priority over ordinary law, including economic regulation.

Does The Clear And Present Danger Test Survive Cost-Benefit Analysis?, Cass R. Sunstein

Cornell Law Review

Under American regulatory law, the dominant contemporary test involves cost-benefit analysis. The benefits of regulation must justify the costs; if they do, regulation is permissible and even mandatory. Under American free speech law, in sharp contrast, an important contemporary test for the regulation of speech involves "clear and present danger." In general, officials cannot censor or regulate political speech on the ground that the benefits of regulation justify the costs. They may proceed only if the speech is likely to produce imminent lawless action. In principle, it is not simple to explain why the free speech test does not involve …

Listeners' Choices, James Grimmelmann

Cornell Law Faculty Publications

Speech is a matching problem. Speakers choose listeners, and listeners choose speakers. When their choices conflict, law often decides who speaks to whom. The pattern is clear: First Amendment doctrine consistently honors listeners' choices for speech. When willing and unwilling listeners' choices conflict, willing listeners win. And when competing speakers' choices conflict, listeners' choices break the tie. This Essay provides a theoretical framework for analyzing speech problems in terms of speakers' and listeners' choices, an argument for the centrality of listener choice to any coherent theory of free speech, and supporting examples from First Amendment caselaw.

You Are Not Cordially Invited: How Universities Maintain First Amendment Rights And Safety In The Midst Of Controversial On-Campus Speakers, Alyson R. Hamby

Cornell Law Review

Against a backdrop of national political turmoil, universities have experienced volatile reactions from their student bodies and outsiders in protest of the inflammatory speakers that schools host on their campuses. This Note discusses the tension between First Amendment protections and tort liability in the context of higher education. Specifically, it focuses on the interplay between controversial, on-campus speakers and the violent protests that arise in reaction to them. While examining this interaction, this Note emphasizes the legal duties of academic institutions in facilitating these on-campus speakers while also protecting their students’ constitutional rights and safety. In examining these conflicts, the …

Don't Take Me Out To That Ballpark: State Action, Government Speech, And Chief Wahoo After Matal, Robert H. Hendricks

Cornell Law Review

Close your eyes and imagine yourself driving to a concert. On the way, you pass a car bearing a license plate with the image of a Confederate flag. You pause, and ask . . . Did the state approve that license plate? Does the state endorse the use of the Confederate flag? You keep driving. Eventually you reach the concert and walk in. To your surprise, an Asian- American band named “The Slants” is opening. You pause, and ask . . . I thought the government approves trademarks? Does the Patent and Trademark Office endorse derogatory slurs? These questions strike …

A First Amendment Right To Corrupt Your Politician, Eugene Temchenko

Cornell Law Review

Are you dealing with state or federal agencies, to no avail? Do you need someone on top to advocate for you? You may have a right to buy your Governor’s help. It is well-established that the Constitution protects the right of political association, which includes contributions to candidates in return for ingratiation and access. Nonetheless, courts and scholars have generally limited this right to contributions to campaigns for public office. After McDonnell v. United States, that may change. Reading the McDonnell opinion in light of McCutcheon, this Note and other commentators conclude that the Supreme Court may have inadvertently created …

How To Think About Religious Freedom In An Egalitarian Age, Nelson Tebbe

Cornell Law Faculty Publications

No abstract provided.

Religion And Social Coherentism, Nelson Tebbe

Cornell Law Faculty Publications

Today, prominent academics are questioning the very possibility of a theory of free exercise or non-establishment. They argue that judgments in the area can only be conclusory or irrational. In contrast to such skeptics, this Essay argues that decisionmaking on questions of religious freedom can be morally justified. Two arguments constitute the Essay. Part I begins by acknowledging that skepticism has power. The skeptics rightly identify some inevitable indeterminacy, but they mistakenly argue that it necessarily signals decisionmaking that is irrational or unjustified. Their critique is especially striking because the skeptics’ prudential way of working on concrete problems actually shares …

Associations And The Constitution: Four Questions About Four Freedoms, Nelson Tebbe

Cornell Law Faculty Publications

When should a constitutional democracy allow private associations to discriminate? That question has become prominent once again, not only in the United States but abroad as well. John Inazu provides a provocative answer in his impressive Article, The Four Freedoms and the Future of Religious Liberty. According to his proposal, “strong pluralism,” associations should have a constitutional right to limit membership on any ground, including race. Strong pluralism articulates only three limits: It does not apply to the government, to commercial entities, or to monopolistic groups. In this Response, I raise four questions about Four Freedoms. First, I ask why …

Speech Engines, James Grimmelmann

Cornell Law Faculty Publications

Academic and regulatory debates about Google are dominated by two opposing theories of what search engines are and how law should treat them. Some describe search engines as passive, neutral conduits for websites’ speech; others describe them as active, opinionated editors: speakers in their own right. The conduit and editor theories give dramatically different policy prescriptions in areas ranging from antitrust to copyright. But they both systematically discount search users’ agency, regarding users merely as passive audiences.

A better theory is that search engines are not primarily conduits or editors, but advisors. They help users achieve their diverse and individualized …

The End Of Religious Freedom: What Is At Stake?, Nelson Tebbe

Cornell Law Faculty Publications

In recent work, Steven Smith argues that the American tradition of religious freedom is newly imperiled and may even be nearing exhaustion. This Review puts to one side the substance of that argument and focuses instead on what the stakes might be, should it turn out to be correct. It concludes that the consequences would not be as severe as many people fear.

Religious Exceptionalism And Human Rights, Laura S. Underkuffler

Cornell Law Faculty Publications

The liberal-democratic governmental compact assures that citizenship, political power, and civic participation in all of its forms will be afforded to all citizens on an equal basis. In particular, simple identity—as a presumptive matter—cannot be the basis for the denial of human rights. It is on this simple yet elegant principle that all civil-rights laws are founded.

Freedom of religion presents a particularly complex problem in this context. On the one hand, it is—itself—a universally recognized member of the human rights family, and is protected under civil-rights laws. On the other hand, it is— because of its possible invocation by …

Government Nonendorsement, Nelson Tebbe

Cornell Law Faculty Publications

What are the constitutional limits on government endorsement? Judges and scholars typically assume that when the government speaks on its own account, it faces few restrictions. In fact, they often say that the only real restriction on government speech is the Establishment Clause. On this view, officials cannot endorse, say, Christianity, but otherwise they enjoy wide latitude to promote democracy or denigrate smoking. Two doctrines and their accompanying literatures have fed this impression. First, the Court’s recent free speech cases have suggested that government speech is virtually unfettered. Second, experts on religious freedom have long assumed that there is no …

Free Exercise Of Religion Before The Bench: Empirical Evidence From The Federal Courts, Michael Heise, Gregory C. Sisk

Cornell Law Faculty Publications

We analyze various factors that influence judicial decisions in cases involving Free Exercise Clause or religious accommodation claims and decided by lower federal courts. Religious liberty claims, including those moored in the Free Exercise Clause, typically generate particularly difficult questions about how best to structure the sometimes contentious relation between the religious faithful and the sovereign government. Such difficult questions arise frequently in and are often framed by litigation. Our analyses include all digested Free Exercise and religious accommodation claim decisions by federal court of appeals and district court judges from 1996 through 2005. As it relates to one key …

Ideology "All The Way Down"? An Empirical Study Of Establishment Clause Decisions In The Federal Courts, Gregory C. Sisk, Michael Heise

Cornell Law Faculty Publications

No abstract provided.

Religion, School, And Judicial Decision Making: An Empirical Perspective, Michael Heise, Gregory C. Sisk

Cornell Law Faculty Publications

We analyze various influences on judicial outcomes favoring religion in cases involving elementary and secondary schools and decided by lower federal courts. A focus on religion in the school context is warranted as the most difficult and penetrating questions about the proper relationship between Church and State have arisen with special frequency, controversy, and fervor in the often-charged atmosphere of education. Schools and the Religion Clauses collide persistently, and litigation frames many of these collisions. Also, the frequency and magnitude of these legal collisions increase as various policy initiatives increasingly seek to leverage private and religious schools in the service …

Smith In Theory And Practice, Nelson Tebbe

Cornell Law Faculty Publications

Employment Division v. Smith controversially held that general laws that were neutral toward religion would no longer be presumptively invalid, regardless of how much they incidentally burdened religious practices. That decision sparked a debate that continues today, twenty years later. This symposium Essay explores the argument that subsequent courts have in fact been less constrained by the principal rule of Smith than advocates on both sides of the controversy usually assume. Lower courts administering real world disputes often find they have all the room they need to grant relief from general laws, given exceptions written into the decision itself and …

Odious Discrimination And The Religious Exemption Question, Laura S. Underkuffler

Cornell Law Faculty Publications

Recently, claims have been asserted that religious exemptions should be afforded to individuals who object to providing public and commercial services to gay and lesbian individuals, as otherwise mandated by law (e.g., municipal clerks who must grant same-sex marriage licenses, or commercial vendors who are asked to serve at same-sex weddings). This article argues that just as religious exemptions of this sort are not granted for discrimination on the basis of race, religion, national origin, or gender, they should not be granted for discrimination on the basis of sexual orientation or transgender status. Discrimination on the basis of an individual's …

Condemning Religion: Rluipa And The Politics Of Eminent Domain, Christopher Serkin, Nelson Tebbe

Cornell Law Faculty Publications

Should religious landowners enjoy special protection from eminent domain? A recent federal statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA), compels courts to apply a compelling interest test to zoning and landmarking regulations that substantially burden religiously owned property. That provision has been controversial in itself, but today a new cutting-edge issue is emerging: whether the Act’s extraordinary protection should extend to condemnation as well. The matter has taken on added significance in the wake of Kelo, where the Supreme Court reaffirmed its expansive view of the eminent domain power. In this Article, we argue that RLUIPA should …

Privatizing And Publicizing Speech, Nelson Tebbe

Cornell Law Faculty Publications

When and how should governments be permitted to use private-law mechanisms to manage their public-law obligations? This short piece poses that question in the context of Summum, which the Supreme Court decided earlier this year, and Buono, which it will hear in the fall. In both cases, the government manipulated formal property rules in order to fend off constitutional challenges. In Summum, the government took ownership of a religious symbol in the face of a free speech challenge, while in Buono it shed ownership of land containing another sectarian symbol in an effort to moot an Establishment Clause problem. Although …

Commerce In Religion, Bernadette Meyler

Cornell Law Faculty Publications

As this Symposium Article contends, religion increasingly overlaps with the commercial sphere, and courts are obligated to determine whether or not to adopt an entirely hands-off approach simply because the specter of religion lurks on the horizon. Whereas the jurisprudence of the European Court of Human Rights tends to accept its member states' separation of commercial elements out from the protections more generally accorded to religion, the U.S. Supreme Court has treated the two spheres as overlapping. To the extent that each court does consider religious transactions in terms of commercial relations, each also arrives at a very different conception …

Excluding Religion: A Reply, Nelson Tebbe

Cornell Law Faculty Publications

This short piece replies to three prominent scholars who have offered thoughtful responses to my article, Excluding Religion. It first takes up their invitation to explore some of the ramifications of the article for legal and political theory, albeit in a limited way. Second, it revisits the article’s central argument - namely, that governments ought to have greater constitutional leeway to deny aid to religious actors and entities than is commonly thought - and shows how that proposal emerges from the conversation intact. Third, the reply defends certain limits on the practice of excluding religion, particularly the presumptive prohibition on …

Eclecticism, Nelson Tebbe

Cornell Law Faculty Publications

This short piece comments on Kent Greenawalt's new book, Religion and the Constitution: Establishment and Fairness. It argues that although Greenawalt's eclectic approach carries certain obvious costs, his theory cannot be evaluated without comparing its advantages and disadvantages to those of its competitors. It concludes by giving some sense of what that comparative calculus might look like.

Excluding Religion, Nelson Tebbe

Cornell Law Faculty Publications

This Article considers whether government may single out religious actors and entities for exclusion from its support programs. The problem of selective exclusion has recently sparked interest in lower courts and in informal discussions among scholars, but the literature has not kept pace. Excluding Religion argues that government generally ought to be able to select religious actors and entities for omission from support without offending the Constitution. At the same time, the Article carefully circumscribes that power by delineating several limits. It concludes by drawing out some implications for the question of whether and how a constitutional democracy ought to …

Thoughts On Commercial Speech: A Roundtable Discussion, Ronald K.L. Collins, Steven H. Shiffrin, Erwin Chemerinsky, Kathleen M. Sullivan

Cornell Law Faculty Publications

Adam Liptak, the legal affairs writer for The New York Times, moderates a lively discussion about commercial speech between three esteemed constitutional scholars: Professor Erwin Chemerinsky of Duke University School of Law; Professor Kathleen Sullivan of Stanford Law School; and Professor Steve Shiffrin of Cornell Law School. These scholars debate the proper definition of defining commercial speech, how the corporate identity of a speaker and the content of the speech determines the level of First Amendment protection, whether it is possible to demarcate commercial speech from political speech, and the problems of paternalism and viewpoint discrimination in this complex and …

Religious Exemptions And The Common Good: A Reply To Professor Carmella, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.

Through A Glass Darkly: Van Orden, Mccreary, And The Dangers Of Transparency In Establishment Clause Jurisprudence, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.

The Court's Purpose: Secular Or Anti-Strife?, Bernadette Meyler

Cornell Law Faculty Publications

No abstract provided.