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Speaker Discrimination: The Next Frontier Of Free Speech, Michael Kagan 2015 University of Nevada, Las Vegas -- William S. Boyd School of Law

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

Scholarly Works

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 ...


Corporate Piety And Impropriety: Hobby Lobby's Extension Of Rfra Rights To For-Profit Corporations, Amy Sepinwall 2015 University of Pennsylvania

Corporate Piety And Impropriety: Hobby Lobby's Extension Of Rfra Rights To For-Profit Corporations, Amy Sepinwall

Amy J. Sepinwall

In Burwell v. Hobby Lobby, the Supreme Court held, for the first time, that the Religious Freedom Restoration Act (RFRA) applied to for-profit corporations and, on that basis, it allowed Hobby Lobby to omit otherwise mandated contraceptive coverage from its employee healthcare package. Critics argue that the Court’s novel expansion of corporate rights is fundamentally inconsistent with the basic principles of corporate law. In particular, they contend that the decision ignores the fact that the corporation, as an artificial entity, cannot exercise religion in its own right, and they decry the notion that the law might look through the ...


Free Expression, In-Group Bias, And The Court's Conservatives: A Critique Of The Epstein-Parker-Segal Study, Todd E. Pettys 2015 University of Iowa

Free Expression, In-Group Bias, And The Court's Conservatives: A Critique Of The Epstein-Parker-Segal Study, Todd E. Pettys

Todd E. Pettys

In a recent, widely publicized study, a prestigious team of political scientists concluded that there is strong evidence of ideological in-group bias among the Supreme Court’s members in First Amendment free-expression cases, with the current four most conservative justices being the Roberts Court’s worst offenders. Beneath the surface of the authors’ conclusions, however, one finds a surprisingly sizable combination of coding errors, superficial case readings, and questionable judgments about litigants’ ideological affiliations. Many of those problems likely flow either from shortcomings that reportedly afflict the Supreme Court Database (the data set that nearly always provides the starting point ...


2007 National Lawyer’S Convention The Federalist Society And Its Federalism And Separation Of Powers Practice Groups Present A Panel Debate On Federalism: Religion, Early America And The Fourteenth Amendment, John Eastman, Marci Hamilton, William H. Pryor Jr. 2014 University of Massachusetts School of Law

2007 National Lawyer’S Convention The Federalist Society And Its Federalism And Separation Of Powers Practice Groups Present A Panel Debate On Federalism: Religion, Early America And The Fourteenth Amendment, John Eastman, Marci Hamilton, William H. Pryor Jr.

University of Massachusetts Law Review

Transcript of the Federalist Society and its Federalism and Separation of Powers Practice Groups panel debate at the 2007 National Lawyers Convention including panelists Dean John Eastman of Chapman University School of Law, Professor Marci Hamilton of the Benjamin N. Cardozo School of Law, and moderated by Hon. William H. Pryor Jr. of the U.S. Court of Appeals, Eleventh Circuit.


In Impartiality We Trust: A Commentary On Government Aid And Involvement With Religion, Thomas J. Cleary 2014 University of Massachusetts School of Law

In Impartiality We Trust: A Commentary On Government Aid And Involvement With Religion, Thomas J. Cleary

University of Massachusetts Law Review

Ultimately, because true neutrality is not possible, nearly all government interaction with religion is to some degree friendly or hostile. One could argue, therefore, that government interaction with religion is inherently friendly or hostile in nature. As a consequence, establishing neutrality as the ideal misses the mark and has produced a swinging pendulum in the Supreme Court’s jurisprudence. At one end of its arc the pendulum produces hostility towards religion and at the other end of the arc it produces friendliness towards religion. This is reflected in case law and in both early and modern government practices. Ultimately, the ...


Conscience, Coercion, And The Constitution: Some Thoughts, Dwight G. Duncan 2014 University of Massachusetts School of Law

Conscience, Coercion, And The Constitution: Some Thoughts, Dwight G. Duncan

University of Massachusetts Law Review

As a consequence, this article will argue that the most viable constitutional strategy for protecting conscientious objectors is to bracket the question of whether it is religiously motivated. Rather, it will focus simply on the question of whether it is a sincerely held moral conviction, while seeking to expand existing freedom of speech case law under the First Amendment to the United States Constitution to maximize protection for people of conscience from being obliged to act contrary to their conscience.


Qualified Immunity: 1983 Litigation In The Public Employment Context, Erwin Chemerinsky 2014 Touro College Jacob D. Fuchsberg Law Center

Qualified Immunity: 1983 Litigation In The Public Employment Context, Erwin Chemerinsky

Touro Law Review

No abstract provided.


The Week After, Lawrence K. Karlton 2014 Touro College Jacob D. Fuchsberg Law Center

The Week After, Lawrence K. Karlton

Touro Law Review

No abstract provided.


First Amendment Cases In The October 2004 Term, Joel M. Gora 2014 Touro College Jacob D. Fuchsberg Law Center

First Amendment Cases In The October 2004 Term, Joel M. Gora

Touro Law Review

No abstract provided.


A Collision Course Between The Right Of Publicity And The First Amendment: The Third And Ninth Circuit Find Ea Sports’S Ncaa Football Video Games Infringe Former Student-Athletes Right Of Publicity, Michael Feinberg 2014 Seton Hall University

A Collision Course Between The Right Of Publicity And The First Amendment: The Third And Ninth Circuit Find Ea Sports’S Ncaa Football Video Games Infringe Former Student-Athletes Right Of Publicity, Michael Feinberg

Seton Hall Circuit Review

No abstract provided.


Membership Lists, Metadata, And Freedom Of Association’S Specificity Requirement, Katherine J. Strandburg 2014 NELLCO

Membership Lists, Metadata, And Freedom Of Association’S Specificity Requirement, Katherine J. Strandburg

New York University Public Law and Legal Theory Working Papers

Revelations of massive aggregation of telephone call records by the NSA have led to widespread debate about the legality, effectiveness, and normative desirability of such broad-based government data collection. This article contends that mass collection of so-called “metadata” as a means to investigate associations impinges on the First Amendment right to associate freely. Such programs thus should, like government demands for membership lists of expressive associations, be subjected to First Amendment scrutiny. While the Fourth Amendment has been the focus of much of the debate about metadata surveillance, the right to freedom of association may provide independent and potentially stronger ...


Ferguson — What Now?, Timothy Zick 2014 College of William & Mary Law School

Ferguson — What Now?, Timothy Zick

Popular Media

No abstract provided.


Opening The Schoolhouse Gate: Why The Supreme Court Should Adopt The Standard Announced In Tatro V. Supreme Court Of Minnesota To Permit The Regulation Of Non-Curricular Student Speech In Professional Programs, Mark A. Cloutier 2014 Boston College Law School

Opening The Schoolhouse Gate: Why The Supreme Court Should Adopt The Standard Announced In Tatro V. Supreme Court Of Minnesota To Permit The Regulation Of Non-Curricular Student Speech In Professional Programs, Mark A. Cloutier

Boston College Law Review

Free speech in public schools has long been a divisive and intriguing issue. The topic is particularly contentious in post-secondary education where many of the maturity-driven and family surrogate rationales for restricting student speech fall away. Furthermore, with the advent of the Internet and the explosion of social media, it is now nearly impossible to draw a meaningful line between student speech rights on school grounds and student speech rights beyond them. This Note examines what happens when a student enrolled in a post-secondary program violates an established code of conduct or professional ethics using a non-curricular form of Internet ...


The Cost Of Public Protest, Timothy Zick 2014 College of William & Mary Law School

The Cost Of Public Protest, Timothy Zick

Popular Media

No abstract provided.


The Case For Defamatory Opinion, Adam Lamparello 2014 SelectedWorks

The Case For Defamatory Opinion, Adam Lamparello

Adam Lamparello

The law should not allow revenge porn in the name of the First Amendment, just as it should not allow private citizens to purchase AK-47’s in the name of the Second Amendment. Citizens can abuse fundamental rights just as governments can infringe them. At some point, courts have to acknowledge that the First Amendment was not intended to give people a fundamental right to trash an individual’s reputation while seeking cover under the self-serving blanket of opinion and taste. It is one thing to stroll into a courthouse with a shirt that says Fuck the Draft, but quite ...


Zick On Public Protest And Ferguson, Timothy Zick 2014 College of William & Mary Law School

Zick On Public Protest And Ferguson, Timothy Zick

Popular Media

No abstract provided.


The Case For Defamatory Opinion, Adam Lamparello 2014 SelectedWorks

The Case For Defamatory Opinion, Adam Lamparello

Adam Lamparello

The law should not allow revenge porn in the name of the First Amendment, just as it should not allow private citizens to purchase AK-47’s in the name of the Second Amendment. Citizens can abuse fundamental rights just as governments can infringe them. At some point, courts have to acknowledge that the First Amendment was not intended to give people a fundamental right to trash an individual’s reputation while seeking cover under the self-serving blanket of opinion and taste. It is one thing to stroll into a courthouse with a shirt that says Fuck the Draft, but quite ...


Moral Panics And Body Cameras, Howard M. Wasserman 2014 Washington University in St. Louis

Moral Panics And Body Cameras, Howard M. Wasserman

Washington University Law Review Commentaries

This Commentary uses the lens of "moral panics" to evaluate public support for equipping law enforcement with body cameras as a response and solution to events in Ferguson, Missouri in August 2014. Body cameras are a generally good policy idea. But the rhetoric surrounding them erroneously treats them as the single guaranteed solution to the problem of excessive force and police-citizen conflicts, particularly by ignoring the limitations of video evidence and the difficult questions of implementing any body camera program. In overstating the case, the rhetoric of body cameras becomes indistinguishable from rhetoric surrounding responses to past moral panics.


Speak Up: Issue Advocacy In Increasingly Politicized Times, Sally Wagenmaker 2014 Pepperdine University

Speak Up: Issue Advocacy In Increasingly Politicized Times, Sally Wagenmaker

The Journal of Business, Entrepreneurship & the Law

This article first provides a brief primer on current constraints affecting Section 501(c)(3) and 501(c)(4) organizations' communications within the context of what has become known as “issue advocacy.” It then sets forth the problem of increasing politicization of nonprofits' issue advocacy activities. The article next evaluates related constitutional tensions for politically tinged issue advocacy, through the lens of the Supreme Court's free speech decisions. It concludes by addressing how the IRS's different content-based standards for issue advocacy are susceptible to abuse, are otherwise constitutionally suspect, and therefore warrant reform.


City Court, City Of Rochester, People V. Barton, Kerri Grzymala 2014 Touro College Jacob D. Fuchsberg Law Center

City Court, City Of Rochester, People V. Barton, Kerri Grzymala

Touro Law Review

No abstract provided.


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