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Full-Text Articles in Law
The First Amendment And Military Justice: Threats To Political Neutrality, Joshua Paldino
The First Amendment And Military Justice: Threats To Political Neutrality, Joshua Paldino
Notre Dame Law Review Reflection
This backdrop illustrates a throughline that runs throughout, and creates tension within, the Military Justice system. On the one hand, there is a need to protect the individual rights of servicemembers. This concern is driven (in part) by the intuition reflected in Judge O’Connor’s opening sentences—those sworn to protect constitutional liberties should surely enjoy the benefits of that which they protect. On the other, individual rights protections must yield, to some degree, to the needs of military life and military exigency. Of course, "to some degree" is the space in which debate and maneuverability resides. But while discretionary space certainly …
Incidental Burdens On First Amendment Freedoms, Charles F. Capps
Incidental Burdens On First Amendment Freedoms, Charles F. Capps
Notre Dame Law Review Reflection
The Supreme Court is currently reconsidering the question when, if ever, the Free Exercise Clause requires exemptions to neutral laws of general applicability. This Essay proposes an answer that is based on the idea—which this Essay labels the “Principle of Consistency”—that the First Amendment requires comparable levels of protection for speech and religious exercise. Other scholars applying the Principle of Consistency have discussed the implications of United States v. O’Brien, which prescribed intermediate scrutiny for incidental burdens on speech, for the problem of exemptions under the Free Exercise Clause. But no one has discussed the implications of two lines …
A Variable Number Of Cheers For Viewpoint-Based Regulations Of Speech, R. George Wright
A Variable Number Of Cheers For Viewpoint-Based Regulations Of Speech, R. George Wright
Notre Dame Law Review Reflection
If there is one thing we think we know about the First Amendment, it is that speech restrictions based on viewpoint are especially objectionable. The Supreme Court has declared that “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” For this proposition, the Court has on one occasion cited thirteen of its own precedents.
Much more broadly, the Court has also held that a government “has no power to restrict expression because of its message, its …
Why Section 230 Is Better Than The First Amendment, Eric Goldman
Why Section 230 Is Better Than The First Amendment, Eric Goldman
Notre Dame Law Review Reflection
47 U.S.C. § 230 (“Section 230”) immunizes Internet services from liability for third-party content. This immunity acts as a crucial legal foundation for the modern Internet. However, growing skepticism about the Internet has placed the immunity in regulators’ sights.
If the First Amendment mirrors Section 230’s speech protections, narrowing Section 230 would be inconsequential. This Essay explains why that is not the case. Section 230 provides defendants with more substantive and procedural benefits than the First Amendment does. Because the First Amendment does not backfill these benefits, reductions to Section 230’s scope pose serious risks to Internet speech.
Islam And Religious Freedom: The Experience Of Religious Majorities And Minorities, Brett G. Scharffs
Islam And Religious Freedom: The Experience Of Religious Majorities And Minorities, Brett G. Scharffs
Notre Dame Law Review Reflection
It seems likely that change in Islam will be affected both by outside and internal sources, as was the case for the Catholic Church and its journey to Dignitatis Humanae. However, one thing the Catholic experience suggests is that meaningful and profound change does not simply come from outside pressures; it comes from authentic and sincere evaluation and interpretation by insiders of a religious tradition of that tradition itself. Thus, if Islam is going to come to embrace religious freedom as an important value, this will be the result, significantly if not primarily, of Muslims interpreting their own sacred …
Is There A Place For Islam In The West? Adjudicating The Muslim Headscarf In Europe And The United States, Andrea Pin
Is There A Place For Islam In The West? Adjudicating The Muslim Headscarf In Europe And The United States, Andrea Pin
Notre Dame Law Review Reflection
Part I of this short Article explains the relevance of the Micropole and Achbita decisions; Part II explores the common line of reasoning behind them; and, finally, the conclusion analyzes their impact within the European scenario of religious freedom—especially for Muslims—and contrasts them with the United States’ approach to the topic.
#Academicfreedom: Twitter And First Amendment Rights For Professors, Michael H. Leroy
#Academicfreedom: Twitter And First Amendment Rights For Professors, Michael H. Leroy
Notre Dame Law Review Reflection
This Essay asks: is every tweet from a professor protected as a form of academic freedom by the First Amendment? Professor Salaita’s watershed case poses sharply conflicting positions on academic freedom for faculty members. In support of Professor Salaita, a faculty committee at the University of Illinois asserts: “Regardless of the tweets’ tone and content, they are political speech—part of the robust free play of ideas in the political realm that the [University] Statutes insulate from institutional sanction, even in the case of ideas we may detest.”
To answer my research question, I explore how courts rule on First Amendment …
Mccutcheon V. Federal Election Commission, Stephen M. Degenaro
Mccutcheon V. Federal Election Commission, Stephen M. Degenaro
Notre Dame Law Review Reflection
McCutcheon v. Federal Election Commission involved a challenge to limits imposed on the amount a donor may contribute during a single election cycle. In McCutcheon, the Court was presented with the question of whether the aggregate limits placed on contributions to candidate and noncandidate committees either lacked a cognizable constitutional interest or were unconstitutionally too low. In a five to four decision, the Supreme Court held that the aggregate limits on campaign contributions burden substantial First Amendment rights without furthering a permissible government interest.
Lane V. Franks, Katie Jo Baumgardner
Lane V. Franks, Katie Jo Baumgardner
Notre Dame Law Review Reflection
On June 19, 2014, the U.S. Supreme Court expanded the scope of public employee free speech with its decision in Lane v. Franks. The Court granted certiorari in order “to resolve discord among the Courts of Appeals as to whether public employees may be fired—or suffer other adverse employment consequences—for providing truthful subpoenaed testimony outside the course of their ordinary job responsibilities.” The unanimous Lane decision, which affirmed in part and reversed in part an opinion by the Eleventh Circuit, held that the First Amendment protects a public employee from retaliatory employer discipline where the employee testifies at trial, pursuant …