Law Commons^™

The Antidote Of Free Speech: Censorship During The Pandemic, Christopher Keleher

Catholic University Law Review

Free speech in America stands at a precipice. The nation must decide if the First Amendment protects controversial, unconventional, and unpopular speech, or only that which is mainstream, fashionable, and government-approved. This debate is one of many legal battles brought to the fore during Covid-19. But the fallout of the free speech question will transcend Covid-19.

During the pandemic, the federal government took unprecedented steps to pressure private entities to push messages it approved and squelch those it did not. The Supreme Court will soon grapple with the issue of censorship during the pandemic. This article examines this litigation, along …

In The Name Of Diversity: Why Mandatory Diversity Statements Violate The First Amendment And Reduce Intellectual Diversity In Academia, Daniel M. Ortner

Catholic University Law Review

In the 1950s and 1960s in many parts of the country, a professor could be fired or never hired if he refused to denounce communism or declare loyalty to the United States Constitution. The University of California system took the lead in enforcing these loyalty oaths. These loyalty oaths were challenged all the way up to the United States Supreme Court and were soundly rejected, establishing the centrality of academic freedom and open inquiry on the university campus. So why are loyalty oaths making their resurgence in the form of mandatory diversity statements? Universities have begun requiring faculty members to …

At The Intersection Of Religious Organization Missions And Employment Laws: The Case Of Minister Employment Suits, Jarod S. Gonzalez

Catholic University Law Review

Reviewing the intersection of a religious organization’s right to select employees based on their goals and mission and modern employment law, this article argues that the analysis of the ministerial exception will depend on the type of suit brought. Specifically, the Article identifies five analytical categories: (1) employment discrimination/employment retaliation claims; (2) breach of employment contract claims; (3) whistleblower claims; (4) tort claims; and (5) miscellaneous claims.

The Article begins by describing the ministerial exception and ecclesiastical abstention doctrines that exist under the First Amendment through the lens of the Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church & School …

Hopeful Clarity Or Hopeless Disarray?: An Examination Of Town Of Greece V. Galloway And The Establishment Clause, Krista M. Pikus

Catholic University Law Review

Reviewing Establishment Clause jurisprudence of the Supreme Court, this article notes that the current state of this area of law is in hopeless disarray and argues that the Court should resolve this confusion by employing a few proposed solutions. The article begins by reviewing and analyzing the confusion surrounding modern Establishment Clause jurisprudence. The article then discusses what interpretation of the Establishment Clause should be controlling: strict-separationism, nonpreferentialism, enhanced federalism, or the incorporation doctrine. Next, the article details what is wrong with modern establishment clause jurisprudence, namely, the Court’s inconsistent application of different tests to assess government action under the …

Millennials, Equity, And The Rule Of Law: 2014 National Lawyers Convention, How First Amendment Procedures Protect First Amendment Substance, Erik S. Jaffe, Aaron H. Caplan, Robert A. Destro, Todd P. Graves, Alan B. Morrison, Eugene Volokh, David R. Stras

Catholic University Law Review

A panel, at the National Lawyers Convention, discussed procedure as it relates to First Amendment rights. The panel set forth how First Amendment procedures have historically protected First Amendment substance and discussed modern applications of the issue. For example, the prior restraint doctrine, overbreadth doctrine, the allocation of the burden of proof and relaxation of ripeness rules have important implications for challenging restrictions on speech and defending against libel and defamation.

The interaction of free speech and due process is often seen in litigation involving civil harassment orders, or civil protection orders. In many jurisidictions the definition of harassment permits …

Injury-In-Fact In Chilling Effect Challenges To Public University Speech Codes, Jennifer L. Bruneau

Catholic University Law Review

Campus speech codes began to spring up on university campuses during the 1980s and continue to operate today. The codes regulate various forms of arguably offensive speech, including speech regarding race, gender, sexual orientation, ideology, views, and political affiliation. Numerous litigants have challenged the chilling effect these policies have on student and faculty speech, but in cases where the challenged code has not yet been enforced, some courts find that the plaintiff has not met the “injury-in-fact” requirement for Article III standing. The Supreme Court has not ruled on standing requirements in speech code challenges and lower courts are divided. …