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Articles 1 - 30 of 75
Full-Text Articles in Law
Censorship 101, Sonja R. West
Censorship 101, Sonja R. West
Popular Media
This article looks at censorship in the public school setting.
Government Nonendorsement, Nelson Tebbe
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 …
Secondary Speech And The Protective Approach To Interpretive Dualities In The Roberts Court, Nat Stern
Secondary Speech And The Protective Approach To Interpretive Dualities In The Roberts Court, Nat Stern
Scholarly Publications
No abstract provided.
Corporations, Taxes, And Religion: The Hobby Lobby And Conestoga Contraceptive Cases, Steven J. Willis
Corporations, Taxes, And Religion: The Hobby Lobby And Conestoga Contraceptive Cases, Steven J. Willis
UF Law Faculty Publications
Beginning in 2013, the federal government mandated that general business corporations include contraceptive and early abortion coverage in large employee health plans. Internal Revenue Code Section 4980D imposes a substantial excise tax on health plans violating the mandate. Indeed, for one company – Hobby Lobby – the expected annual tax is nearly one-half billion dollars. Dozens of “for profit” businesses have challenged the mandate on free exercise grounds, asserting claims under the First Amendment as well as under the Religious Freedom Restoration Act.
So far, courts have been reluctant to hold corporations have religious rights of their own; as a …
Section 5: First Amendment & Separation Of Powers, Institute Of Bill Of Rights Law, William & Mary Law School
Section 5: First Amendment & Separation Of Powers, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 1: Moot Court: Town Of Greece V. Galloway, Institute Of Bill Of Rights Law, William & Mary Law School
Section 1: Moot Court: Town Of Greece V. Galloway, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Gary Wall, Plaintiff-Appellant V. James Wade, Et Al., Defendants-Appellees: Reply Brief Of Appellant, Tillman J. Breckenridge, Robert M. Luck Iii, Patricia E. Roberts
Gary Wall, Plaintiff-Appellant V. James Wade, Et Al., Defendants-Appellees: Reply Brief Of Appellant, Tillman J. Breckenridge, Robert M. Luck Iii, Patricia E. Roberts
Appellate and Supreme Court Clinic
No abstract provided.
Stop This Insanity, Inc., Et Al., Appellants, V. Federal Election Commission, Appellee: Reply Brief Of Appellants, Dan Backer, Patricia E. Roberts, Tillman J. Breckenridge, Tara A. Brennan
Stop This Insanity, Inc., Et Al., Appellants, V. Federal Election Commission, Appellee: Reply Brief Of Appellants, Dan Backer, Patricia E. Roberts, Tillman J. Breckenridge, Tara A. Brennan
Appellate and Supreme Court Clinic
No abstract provided.
Deconstructing And Reconstructing Hot News: Toward A Functional Approach, Jeffrey L. Harrison, Robyn Shelton
Deconstructing And Reconstructing Hot News: Toward A Functional Approach, Jeffrey L. Harrison, Robyn Shelton
UF Law Faculty Publications
Hot news is factual, time-sensitive information ranging from baseball scores to the outbreak of war. In recent years, hot news has found its own niche among legal scholars and courts. When deconstructed, though, hot news is simply information and, like most information, it has a public good character. The problem ultimately is that news is non-excludable and non-rivalrous – discoverers or creators of hot news cannot exclude others from using the news and hot news is not destroyed when used. This means it may be produced at levels that are less than optimal.
The critical element in hot news is …
Gary Wall, Plaintiff-Appellant V. James Wade, Et Al., Defendants-Appellees: Brief Of Appellant, Tillman J. Breckenridge, Robert M. Luck Iii, Patricia E. Roberts
Gary Wall, Plaintiff-Appellant V. James Wade, Et Al., Defendants-Appellees: Brief Of Appellant, Tillman J. Breckenridge, Robert M. Luck Iii, Patricia E. Roberts
Appellate and Supreme Court Clinic
No abstract provided.
Advancing An Adaptive Standard Of Strict Scrutiny For Content-Based Commercial Speech Regulation, Nat Stern, Mark Joseph Stern
Advancing An Adaptive Standard Of Strict Scrutiny For Content-Based Commercial Speech Regulation, Nat Stern, Mark Joseph Stern
Scholarly Publications
No abstract provided.
Stop This Insanity, Inc., Et Al., Appellants, V. Federal Election Commission, Appellee: Brief Of Appellants, Dan Backer, Patricia E. Roberts, Jessica L. Delaney, Bryan U. Gividen, Tillman J. Breckenridge
Stop This Insanity, Inc., Et Al., Appellants, V. Federal Election Commission, Appellee: Brief Of Appellants, Dan Backer, Patricia E. Roberts, Jessica L. Delaney, Bryan U. Gividen, Tillman J. Breckenridge
Appellate and Supreme Court Clinic
No abstract provided.
Class Actions, Heightened Commonality, And Declining Access To Justice, A. Benjamin Spencer
Class Actions, Heightened Commonality, And Declining Access To Justice, A. Benjamin Spencer
Scholarly Articles
A prerequisite to being certified as a class under Rule 23 of the Federal Rules of Civil Procedure is that there are "questions of law or fact common to the class." Although this “commonality” requirement had heretofore been regarded as something that was easily satisfied, in Wal-Mart Stores, Inc. v. Dukes the Supreme Court gave it new vitality by reading into it an obligation to identify among the class a common injury and common questions that are "central" to the dispute. Not only is such a reading of Rule 23’s commonality requirement unsupported by the text of the rule, but …
Back To The Bad Old Days: President Putin's Hold On Free Speech In The Russian Federation, Rebecca Favret
Back To The Bad Old Days: President Putin's Hold On Free Speech In The Russian Federation, Rebecca Favret
Law Student Publications
This paper addresses new laws promulgated in Russia that restrict freedom of speech. Each implicitly reflects the Kremlin's hostility toward political dissidence in the aftermath of serious protests following President Putin's reelection and elections to the legislature. Disturbed by the outcry, which took place in cities across Russia but also infiltrated the Internet, the Russian legislature passed strict laws censoring Internet speech, prohibiting behavior and speech deemed "extremist," and curbing the size and type of public gatherings.
The new legislation is examined through the lens of some of the Kremlin's most infamous and recent targets: namely, the Internet blacklist and …
The Supreme Court's Theory Of Private Law, Nathan B. Oman, Jason M. Solomon
The Supreme Court's Theory Of Private Law, Nathan B. Oman, Jason M. Solomon
Faculty Publications
In this Article, we revisit the clash between private law and the First Amendment in the Supreme Court’s recent case, Snyder v. Phelps, using a private-law lens. We are scholars who write about private law as individual justice, a perspective that has been lost in recent years but is currently enjoying something of a revival.
Our argument is that the Supreme Court’s theory of private law has led it down a path that has distorted its doctrine in several areas, including the First Amendment–tort clash in Snyder. In areas that range from punitive damages to preemption, the Supreme Court has …
Religions As Sovereigns: Why Religion Is "Special", Elizabeth Clark
Religions As Sovereigns: Why Religion Is "Special", Elizabeth Clark
Faculty Scholarship
Commentators increasingly challenge religion’s privileged legal status, arguing that it is not “special” or distinct from other associations or philosophical or conscientious claims. I propose that religion is “special” because it functions metaphorically as a legal sovereign, asserting supreme authority over a realm of human life. Under a religion-as-sovereign theory, religious freedom can be understood as at least partial deference to a religious sovereign in a system of shared or overlapping sovereignty. This Article suggests that federalism, which also involves shared sovereignty, can provide a useful heuristic device for examining religious freedom. Specifically, the Article examines a range of federalism …
The First Amendment’S Global Dimension, Timothy Zick
The First Amendment’S Global Dimension, Timothy Zick
Popular Media
No abstract provided.
Free Exercise Of Religion Before The Bench: Empirical Evidence From The Federal Courts, Michael Heise, Gregory C. Sisk
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 …
Free Speech, Fair Election, And Campaign Finance Laws: Can They Co-Exist?, Joel Gora
Free Speech, Fair Election, And Campaign Finance Laws: Can They Co-Exist?, Joel Gora
Faculty Scholarship
No abstract provided.
Technological Intermediaries And Freedom Of The Press, Christina Mulligan
Technological Intermediaries And Freedom Of The Press, Christina Mulligan
Faculty Scholarship
No abstract provided.
Is Prayer Constitutional At Municipal Council Meetings?, Thomas A. Schweitzer
Is Prayer Constitutional At Municipal Council Meetings?, Thomas A. Schweitzer
Scholarly Works
The author discusses Galloway v. Town of Greece, a case which challenges official prayers at town council meetings. To provide the necessary background information for understanding the issues in Galloway, the author begins with a brief discussion of two other cases, Lemon v. Kurtzman and Marsh v. Chambers. The author then examines the district and circuit court decisions in Galloway and the Establishment Clause issues posed by the case. Next, the author notes issues raised by other lower court decisions involving legislative prayer after Marsh.
Towards the end of the article, to clarify and decide the constitutional issues, the author …
The New American Privacy, Richard J. Peltz-Steele
The New American Privacy, Richard J. Peltz-Steele
Faculty Publications
Conventional wisdom paints U.S. and European approaches to privacy at irreconcilable odds. But that portrayal overlooks a more nuanced reality of privacy in American law. The free speech imperative of U.S. constitutional law since the civil rights movement shows signs of tarnish. And in areas of law that have escaped constitutionalization, such as fair-use copyright and the freedom of information, developing personality norms resemble European-style balancing. Recent academic and political initiatives on privacy in the United States emphasize subject control and contextual analysis, reflecting popular thinking not so different after all from that which animates Europe’s 1995 directive and 2012 …
The “Law Of The First Amendment” Revisited, Robert A. Sedler
The “Law Of The First Amendment” Revisited, Robert A. Sedler
Law Faculty Research Publications
No abstract provided.
Inflammatory Speech: Outrage Versus Intimidation, Alexander Tsesis
Inflammatory Speech: Outrage Versus Intimidation, Alexander Tsesis
Faculty Publications & Other Works
No abstract provided.
Should Public Buildings Be Used For Worship, Stephen Wermiel
Should Public Buildings Be Used For Worship, Stephen Wermiel
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Freedom Of Expression In Post-Soviet Russia, Jeffrey D. Kahn
Freedom Of Expression In Post-Soviet Russia, Jeffrey D. Kahn
Faculty Journal Articles and Book Chapters
This Article assesses the freedom of expression in Russia and prospects for its future: what has the Russian state promised its citizens, in what legal forms have those promises been made, and how well are those paper promises being kept in practice? The Article considers recent state actions and statutes enacted to regulate speech, association, and other forms of expression, and determines that these are possible because of the very weak separation of powers in the Russian Federation. The Article concludes by looking at the European Convention on Human Rights as one hope for a power capable of exerting influence …
Roe's Race: The Supreme Court Decision, Legal History, And The Racial Politics Of Abortion, Mary Ziegler
Roe's Race: The Supreme Court Decision, Legal History, And The Racial Politics Of Abortion, Mary Ziegler
Scholarly Publications
Questions of race and abortion have shaped current legal debates about defunding Planned Parenthood and banning race-selection abortion. In these discussions, abortion opponents draw a close connection between the eugenic or population-control movements of the twentieth century and the contemporary abortion-rights movement. In challenging legal restrictions on abortion, abortion-rights activists generally insist that their movement and its predecessors have primarily privileged reproductive choice.
Notwithstanding the centrality of race to abortion politics, there has been no meaningful history of the racial politics of abortion that produced or followed Roe v. Wade. This Article bridges this gap in the abortion discussion by …
Unequal Treatment Of Religious Exercises Under Rfra: Explaining The Outliers In The Hhs Mandate Cases, Mark L. Rienzi
Unequal Treatment Of Religious Exercises Under Rfra: Explaining The Outliers In The Hhs Mandate Cases, Mark L. Rienzi
Scholarly Articles
Ongoing conflict over the contraceptive mandate promulgated by the Department of Health and Human Services ("HHS") has resulted in more than two dozen lawsuits by profit-making businesses and their owners seeking protection under the Religious Freedom Restoration Act ("RFRA"). To date, the businesses and their owners are winning handily, having obtained preliminary relief in seventeen of the cases, and being denied relief in only six. Last month, in fact, a panel of the D.C. Circuit Court of Appeals took the extraordinary step of reconsidering and reversing its own prior ruling and granting a preliminary injunction to a business seeking RFRA's …
God And The Profits: Is There Religious Liberty For Money-Makers?, Mark L. Rienzi
God And The Profits: Is There Religious Liberty For Money-Makers?, Mark L. Rienzi
Scholarly Articles
Is there a religious way to pump gas, sell groceries, or advertise for a craft store? Litigation over the HHS contraceptive mandate has raised the question whether a for-profit business and its owner can engage in religious exercise under federal law. The federal government has argued, and some courts have found, that the activities of a profit-making business are ineligible for religious freedom protection.
This article offers a comprehensive look at the relationship between profit-making and religious liberty, arguing that the act of earning money does not preclude profit-making businesses and their owners from engaging in protected religious exercise.
Many …
Neutral No More: Secondary Effects Analysis And The Quiet Demise Of The Content-Neutrality Test, Mark L. Rienzi
Neutral No More: Secondary Effects Analysis And The Quiet Demise Of The Content-Neutrality Test, Mark L. Rienzi
Scholarly Articles
When the Supreme Court introduced the “secondary effects” doctrine to allow for zoning of adult businesses, critics fell into two camps. Some, like Justice Brennan, predicted dire consequences for the First Amendment, particularly if the doctrine were used in political speech cases. Others, like Professor Laurence Tribe, predicted secondary effects analysis would be limited to sexually explicit speech, and would not threaten the First Amendment. The modern consensus is that the doctrine has, in fact, been limited to cases about sex.
Recent cases demonstrate, however, that the impact of the secondary effects doctrine on the First Amendment has been broader …