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Articles 1 - 30 of 34
Full-Text Articles in Law
Politics At The Pulpit: Tax Benefits, Substantial Burdens, And Institutional Free Exercise, Lloyd Hitoshi Mayer
Politics At The Pulpit: Tax Benefits, Substantial Burdens, And Institutional Free Exercise, Lloyd Hitoshi Mayer
Lloyd Hitoshi Mayer
More than fifty years ago, Congress enacted a prohibition against political campaign intervention for all charities, including churches and other houses of worship, as a condition for receiving tax deductible contributions. Yet the IRS has never taken a house of worship to court for alleged violation of the prohibition through political comments from the pulpit, presumably at least in part because of concerns about the constitutionality of doing so. This decision is surprising, because a careful review of Free Exercise Clause case law - both before and after the landmark Employment Division v. Smith decision - reveals that the prohibition …
Pornography As Pollution, John C. Nagle
Pornography As Pollution, John C. Nagle
John Copeland Nagle
Pornography is often compared to pollution. But little effort has been made to consider what it means to describe pornography as a pollution problem, even as many legal scholars have concluded that the law has failed to control internet pornography. Opponents of pornography maintain passionate convictions about how sexually-explicit materials harm both those who are exposed to them and the broader cultural environment. Viewers of pornography may generally hold less fervent beliefs, but champions of free speech and of a free internet object to anti-pornography regulations with strong convictions of their own. The challenge is how to address the widespread …
Town Of Greece And City Of Saguenay: Non-Establishment Principles With Or Without An Establishment Clause, 14 First Amend. L. Rev. 343 (2016), Donald L. Beschle
Town Of Greece And City Of Saguenay: Non-Establishment Principles With Or Without An Establishment Clause, 14 First Amend. L. Rev. 343 (2016), Donald L. Beschle
Donald L. Beschle
No abstract provided.
Testimony On Unmanned Aircraft Systems Rules And Regulations, Stephen E. Henderson
Testimony On Unmanned Aircraft Systems Rules And Regulations, Stephen E. Henderson
Stephen E Henderson
Rlupia And The Limits Of Religious Institutionalism, Zachary A. Bray
Rlupia And The Limits Of Religious Institutionalism, Zachary A. Bray
Zachary Bray
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 …
Wikileaks And The Institutional Framework For National Security Disclosures, Patricia L. Bellia
Wikileaks And The Institutional Framework For National Security Disclosures, Patricia L. Bellia
Patricia L. Bellia
WikiLeaks’ successive disclosures of classified U.S. documents throughout 2010 and 2011 invite comparison to publishers’ decisions forty years ago to release portions of the Pentagon Papers, the classified analytic history of U.S. policy in Vietnam. The analogy is a powerful weapon for WikiLeaks’ defenders. The Supreme Court’s decision in the Pentagon Papers case signaled that the task of weighing whether to publicly disclose leaked national security information would fall to publishers, not the executive or the courts, at least in the absence of an exceedingly grave threat of harm.
The lessons of the Pentagon Papers case for WikiLeaks, however, are …
Law, Religion, And Politics: Understanding The Separation Of Church And State, Richard Garnett
Law, Religion, And Politics: Understanding The Separation Of Church And State, Richard Garnett
Richard W Garnett
Professor Richard Garnett, of University of Notre Dame Law School, presented on the topic Law, Religion, and Politics: Understanding the Separation of Church and State. This workshop was presented as part of the Hesburgh Lecture Series through the Alumni & Friends of University of Notre Dame and was co-sponsored by the Notre Dame Alumni Club of Miami. This workshop examined how to understand the Constitution's "separation of church and state" and what it requires of religious believers and institutions.
Neutrality And The Good Of Religious Freedom: An Appreciative Response To Professor Koppelman, Richard W. Garnett
Neutrality And The Good Of Religious Freedom: An Appreciative Response To Professor Koppelman, Richard W. Garnett
Richard W Garnett
This paper is a short response to an address, “And I Don’t Care What It Is: Religious Neutrality in American Law,” delivered by Prof. Andrew Koppelman at a conference, “The Competing Claims of Law and Religion: Who Should Influence Whom?”, which was held at Pepperdine University in February of 2012. In this response, it is suggested – among other things – that “American religious neutrality” is, as Koppelman argues, “coherent and attractive” because and to the extent that it is not neutral with respect to the goal and good of religious freedom.
Religious freedom, in the American tradition, is not …
Brief Of The Catholic University Of America School Of Canon Law, The Lutheran Church-Missouri Synod, The Queens Federation Of Churches, And The Serbian Orthodox Church In North And South America, As Amici Curiae In Support Of Petitioners, Richard W. Garnett, David H. Hyams
Brief Of The Catholic University Of America School Of Canon Law, The Lutheran Church-Missouri Synod, The Queens Federation Of Churches, And The Serbian Orthodox Church In North And South America, As Amici Curiae In Support Of Petitioners, Richard W. Garnett, David H. Hyams
Richard W Garnett
This brief addresses the importance of the principle of church autonomy and the protections provided by the First and Fourteenth Amendments and this Court's precedents regarding religious denominations' internal mandatory dispute-resolution procedures.
Common Schools And The Common Good: Reflections On The School-Choice Debate, Richard W. Garnett
Common Schools And The Common Good: Reflections On The School-Choice Debate, Richard W. Garnett
Richard W Garnett
No abstract provided.
Changing Minds: Proselytism, Freedom, And The First Amendment, Richard W. Garnett
Changing Minds: Proselytism, Freedom, And The First Amendment, Richard W. Garnett
Richard W Garnett
Proselytism is, as Paul Griffiths has observed, a topic enjoying renewed attention in recent years. What's more, the practice, aims, and effects of proselytism are increasingly framed not merely in terms of piety and zeal; they are seen as matters of geopolitical, cultural, and national-security significance as well. Indeed, it is fair to say that one of today's more pressing challenges is the conceptual and practical tangle of religious liberty, free expression, cultural integrity, and political stability. This essay is an effort to unravel that tangle by drawing on the religious-freedom-related work and teaching of the late Pope John Paul …
Recent Decision Note, Thomas L. Shaffer
Obscenity In The Supreme Court: A Note On Jacobellis V. Ohio, Joseph O'Meara, Thomas L. Shaffer
Obscenity In The Supreme Court: A Note On Jacobellis V. Ohio, Joseph O'Meara, Thomas L. Shaffer
Thomas L. Shaffer
No abstract provided.
Book Review: The Great Dissent: How Oliver Wendell Holmes Changed His Mind – And Changed The History Of Free Speech In America, By Thomas Healy, Jamie Cameron
Jamie Cameron
Thomas Healy’s The Great Dissent re-treads the familiar story of US Supreme Court Justice Holmes’s First Amendment conversion between March and November 1919, when he launched his marketplace of ideas theory and strong-form version of the clear and present danger doctrine. Healy’s book demonstrates that fresh perspectives on this vital and ever-intriguing change of mind or transformation on Holmes’s part remain possible. The review offers its own perspective by highlighting the process of “reverse mentoring” which took place, in which the older jurist was mentored on free speech issues by the emerging thought leaders of the day – Laski, Frankfurter, …
Commentary: Private Clubs And Public Interests: A View From San Francisco, Herma Hill Kay
Commentary: Private Clubs And Public Interests: A View From San Francisco, Herma Hill Kay
Herma Hill Kay
No abstract provided.
Freedom Of Expression And Location: Are There Constitutional Dead Zones?, Brian Slattery
Freedom Of Expression And Location: Are There Constitutional Dead Zones?, Brian Slattery
Brian Slattery
Do reporters have the right to conduct interviews in courthouse hallways? May political activists hand out leaflets in shopping centres? Are journalists entitled to attend disciplinary hearings in the chambers of the law society? Do advertisers have the right to place ads on public buses? These questions have one thing in common: they all concern the exercise of freedom of expression in certain locations — courthouses, shopping centres, private offices, buses. But do all locations without exception benefit from the guarantee of freedom of expression in section 2(b) of the Canadian Charter of Rights and Freedoms, or do some fall …
Whistleblowing And Freedom Of Conscience: Towards A New Legal Analysis, Richard Haigh, Peter Bowal
Whistleblowing And Freedom Of Conscience: Towards A New Legal Analysis, Richard Haigh, Peter Bowal
Richard Haigh
Most of us have an instinctive understanding of what “whistleblowing” is: the act of alerting the public to scandal, danger, malpractice, corruption or other immoral or unethical behaviour. For a long time, whistleblowers were treated poorly – today, they are now acknowledged, and sometimes even admired, but there is still some way to go. We believe that a strongly developed and distinct freedom of conscience, as expressed in s. 2(a) of the Canadian Charter of Rights and Freedoms, could go some way towards achieving that goal. In law, however, conscience is often treated as inseparable from religion, without any meaningful …
If You Fly A Drone, So Can Police, Stephen E. Henderson
If You Fly A Drone, So Can Police, Stephen E. Henderson
Stephen E Henderson
A Critique Of Hobby Lobby And The Supreme Court's Hands-Off Approach To Religion, Samuel J. Levine
A Critique Of Hobby Lobby And The Supreme Court's Hands-Off Approach To Religion, Samuel J. Levine
Samuel J. Levine
Over the past several decades, the United States Supreme Court has demonstrated an increasing refusal to engage in a close evaluation of the religious nature of Free Exercise and Establishment Clause claims, instead deferring to adherents’ characterizations of the substance and significance of a religious practice or belief. The Supreme Court’s hands-off approach, which it has justified on both constitutional and practical grounds, has attracted considerable scholarly attention, producing a substantial and growing body of literature assessing and, at times, critiquing the Court’s approach.
Part I of this Essay provides a brief overview for analyzing the Supreme Court’s hands-off approach …
A Critique Of Hobby Lobby And The Supreme Court's Hands-Off Approach To Religion, Samuel J. Levine
A Critique Of Hobby Lobby And The Supreme Court's Hands-Off Approach To Religion, Samuel J. Levine
Samuel J. Levine
Over the past several decades, the United States Supreme Court has demonstrated an increasing refusal to engage in a close evaluation of the religious nature of Free Exercise and Establishment Clause claims, instead deferring to adherents’ characterizations of the substance and significance of a religious practice or belief. The Supreme Court’s hands-off approach, which it has justified on both constitutional and practical grounds, has attracted considerable scholarly attention, producing a substantial and growing body of literature assessing and, at times, critiquing the Court’s approach.Part I of this Essay provides a brief overview for analyzing the Supreme Court’s hands-off approach to …
Where's The Harm?: Free Speech And The Regulation Of Lies, Lyrissa Barnett Lidsky
Where's The Harm?: Free Speech And The Regulation Of Lies, Lyrissa Barnett Lidsky
Lyrissa Barnett Lidsky
False factual information has no First Amendment value, and yet the United States Supreme Court has accorded lies a measure of First Amendment protection. The First Amendment imposes something in the nature of a presumption against government interference in public discourse. This presumption is rooted in suspicion of the State's ability to distinguish facts from falsehoods as well as its motives for doing so. However, the presumption against regulation of false speech is not absolute. It can be overcome when verifiably false speech poses a direct threat of harm to individual interests. Unlike other countries, the United States has never …
Between Semiotic Democracy And Disobedience: Two Views Of Branding, Culture And Intellectual Property, Sonia Katyal
Between Semiotic Democracy And Disobedience: Two Views Of Branding, Culture And Intellectual Property, Sonia Katyal
Sonia Katyal
Even though most scholars and judges treat intellectual property law as a predominantly content-neutral phenomenon, trademark law contains a statutory provision, section 2(a), that provides for the cancellation of marks that are “disparaging,” “immoral,” or “scandalous.” This provision has raised intrinsically powerful constitutional concerns, which invariably affect two central metaphors that are at war within trademark law: the marketplace of goods, which premises itself on the fixedness of intellectual properties, and the marketplace of ideas, which is premised on the very fluidity of language itself. Since the architecture of trademark law focuses only on how marks communicate information about a …
Getting Faith Out Of The Gutters: Resolving The Debate Over Political Campaign Participation By Religious Organizations Through Fiscal Subsidiarity, W. Edward Afield
Getting Faith Out Of The Gutters: Resolving The Debate Over Political Campaign Participation By Religious Organizations Through Fiscal Subsidiarity, W. Edward Afield
W. Edward "Ted" Afield
No abstract provided.
Right To Write - Free Expression Rights Of Pennsylvania's Creative Students After Columbine, Barbara Brunner
Right To Write - Free Expression Rights Of Pennsylvania's Creative Students After Columbine, Barbara Brunner
Barbara Brunner
This comment analyzes the current state of students' free speech rights in the context of creative writing assignments and examines potential First Amendment applications to the Pennsylvania System of School Assessment (PSSA), a statewide, mandatory, standards-based exam administered to Pennsylvania public school students. The PSSA, which currently contains a writing assessment for students in sixth, ninth, and eleventh grades requiring students to write essays in response to prompts, is scored anonymously by private entities under contract with the Pennsylvania Department of Education. Those private subcontractors have "red-flagging" procedures in place to identify essays containing imagery or themes that indicate imminent …
Constitutional Law, Thomas E. Baker
Constitutional Law, Thomas E. Baker
Thomas E. Baker
This 1981 article discusses principles of federal constitutional law. Professor Baker notes that the constitutional decisions of the courts of appeals will continue to increase in number and importance as the burgeoning federal caseload grows. Professor Baker analyzes how the Fifth Circuit dealt with constitutional principles in the year preceding the article. The article commences with a discussion of cases dealing with justiciability issues. The justiciability issues discussed include standing, mootness, advisory opinions, political questions, ripeness, and Eleventh Amendment issues. Next, Professor Baker discusses cases construing the Commerce Clause. Next, the article discusses cases dealing with due process issues, both …
Speech And The Truth-Seeking Value, Brian C. Murchison
Speech And The Truth-Seeking Value, Brian C. Murchison
Brian C. Murchison
Courts in First Amendment cases long have invoked the truth-seeking value of speech, but they rarely probe its meaning or significance, and some ignore it altogether. As new cases implicate questions of truth and falsity, thorough assessment of the value is needed. This Article fills the gap by making three claims. First, interest in truth-seeking has resurfaced in journalism, politics, philosophy, and fiction, converging on a concept of provisional or “functional” truth. Second, the appeal of functional truth for the law may be that it clarifies thinking about a range of human priorities—survival, progress, and character—without insisting on truth in …
A Jurisdictional Perspective On New York Times V. Sullivan, Howard M. Wasserman
A Jurisdictional Perspective On New York Times V. Sullivan, Howard M. Wasserman
Howard M Wasserman
New York Times v. Sullivan, arguably the Supreme Court's most significant First Amendment decision, marks its fiftieth anniversary next year. Often overlooked in discussions of the case's impact on the freedom of speech and freedom of the press is that it arose from a complex puzzle of constitutional, statutory, and judge-made jurisdictional and procedural rules. These kept the case in hostile Alabama state courts for four years and a half-million-dollar judgment before the Times and its civil rights leader co-defendants finally could avail themselves of the structural protections of federal court and Article III judges. The case's outcome and the …
Dusty Order: Law Enforcement And Participant Cooperation At Burning Man, Manuel A. Gomez
Dusty Order: Law Enforcement And Participant Cooperation At Burning Man, Manuel A. Gomez
Manuel A. Gómez
Media depictions of Burning Man focus on the picturesque and eccentric appearance of the weeklong affair. The event is sometimes misportrayed as a lawless environment where participants are encouraged to engage in rowdy behavior. Most carnivalesque events offer an escape from reality and are generally thought to enable unruly conduct. Despite stereotypes, Burning Man is a different beast. Not only is the crime rate in Black Rock City lower than any other city of comparable size, but Burners show a high level of cooperative and law abiding behavior that helps maintain the social order without depending on official means of …
Extending Copyright Protection To Combat Free-Riding By Digital News Aggregators And Online Search Engines, Nancy Whitmore
Extending Copyright Protection To Combat Free-Riding By Digital News Aggregators And Online Search Engines, Nancy Whitmore
Nancy J. Whitmore
No abstract provided.
The Right To Be Forgotten V. Free Speech (Symposium) (Forthcoming), Edward Lee
The Right To Be Forgotten V. Free Speech (Symposium) (Forthcoming), Edward Lee
Edward Lee
No abstract provided.