Law Commons^™

Common Schools And The Common Good: Reflections On The School-Choice Debate, Richard W. Garnett

Journal Articles

Thank you very much for this timely and important discussion on school choice, religious faith, and the public good.

First things first—Steven Green is right: The Cleveland school-voucher case is headed for the Supreme Court. And I am afraid that Mr. Green is also correct when he observes that the question whether the First Amendment permits States to experiment with meaningful choice-based education reform will likely turn on Justice O'Connor's fine-tuned aesthetic reactions to the minutiae of Ohio's school-choice experiment.

Putting aside for now the particulars of the Cleveland case, though, I would like to propose for your consideration a …

Restricting Hate Speech Against Private Figures: Lessons In Power-Based Censorship From Defamation Law, Victor C. Romero

Journal Articles

This article examines the debate between those who favor greater protection for minorities vulnerable to hate speech and First Amendment absolutists who are skeptical of any burdens on pure speech. The author also provides another perspective on the debate by highlighting the "public/private figure" distinction as an area within First Amendment law that acknowledges differences in power, a construct anti-hate speech advocates should use to further their cause. Specifically, the author places the "public/private figure" division in a theoretical and historical context and then provides empirical support for the thesis that whites enjoy a more prominent societal role and greater …

Religion At A Public University, Gerard V. Bradley

Journal Articles

On March 6, 2007, the College of William & Mary announced a “compromise” solution to its polite civil war over the historic Wren Chapel. In a joint statement with President Gene Nichol, the Board of Visitors declared that permanent display of the Christian cross within the Chapel would resume. The cross would be moved, however, from its former place at center stage on the Chapel altar. Accompanying the elocated display would be a plaque “explaining the College's Anglican roots.” The compromise further provided that, when needed during certain worship services, the cross could be moved back to the altar. When …

Voluntary Campaign Finance Reform, John C. Nagle

Journal Articles

Any effort to achieve voluntary campaign finance reform raises two questions: Is it really voluntary, and does it really work? In Part I of this Essay, I examine the voluntariness of "voluntary" campaign finance reform. Agreements like that reached by Clinton and Lazio last year—what I term "purely voluntary agreements"—satisfy most legal tests for voluntariness. By contrast, the voluntariness of spending limits and other campaign restrictions that are imposed as a condition for receiving government funding of a political campaign—what I term "governmentally induced agreements"—is more doubtful. The extant jurisprudence recognizes that Buckley prohibits governmental actions that are more coercive …

The Primacy Of Political Actors In Accommodation Of Religion, William K. Kelley

Journal Articles

This article focuses on the relationship between freedom of religion and the norm against non-establishment of religion in the context of government efforts to accommodate religious practices. It analyzes First Amendment doctrine in this area, and concludes that the Supreme Court has consistently been generous in permitting accommodations of religion when they are the product of judicial decisions; in other words, at least until recently the Court has been open to mandatory accommodations so long as they are ordered by judges. By contrast, the Court has long been suspicious of - and far from generous in permitting - accommodations as …

School Choice, The First Amendment, And Social Justice, Nicole Stelle Garnett, Richard W. Garnett

Journal Articles

This Article is intended to be a primer on the legality and morality of educational choice—"School Choice in a Nutshell," if you will. We are resigned to being pre-empted by the tireless work of grassroots activists, the choices of voters, and the decisions of judges. Still, we hope, in somewhat polemical fashion, to establish two basic claims. First, school choice, properly understood, is constitutional. And second, school choice is both sensible and just.

In the end, we believe "school choice . . . is essential to achieving equality of opportunity for American children, rich or poor. School choice treats the …

From Yoder To Yoda: Traditional, Modern And Postmodern Models Of Religion In U.S. Constitutional Law, Rebecca Redwood French

Journal Articles

No abstract provided.

The Political Spectator: Censorship, Protest And The Moviegoing Experience, 1912-1922, Samantha Barbas

Journal Articles

No abstract provided.

Will The Supreme Court Sound The Death Knell For Political Patronage? An Analysis Of O'Hare Truck Services, Inc. V. City Of Northlake, Barbara J. Fick

Journal Articles

This article previews the Supreme Court case O'Hare v. City of Northlake, 518 U.S. 712 (1996). The author expected the Court to analyze whether political patronage infringes on First Amendment rights.

An Independent Contractor Speaks His Mind: Can He Lose His Government Contract? An Analysis Of Heiser V. Umbehr, Barbara J. Fick

Journal Articles

This article previews the Supreme Court case Heiser v. Umbehr, 515 U.S. 1172 (1995). The author expected the Court to consider whether, and to what extent, a governmental unit can take into account an independent contractor's poltical speech in making decisions regarding the award or termination of government contracts.

Foreword: Religious Participation In Public Debate, Matthew Steffey

Journal Articles

No abstract provided.

Is The New York Times "Actual Malice" Standard Really Necessary? A Comparative Perspective, Geoffrey Bennett, Russell L. Weaver

Journal Articles

In New York Times Co. v. Sullivan, the United States Supreme Court extended First Amendment guarantees to defamation actions. Many greeted the Court's decision with joy. After the decision, many years elapsed during which "there were virtually no recoveries by public officials in libel actions."

The most important component of the New York Times decision was its "actual malice" standard. This standard provided that, in order to recover against a media defendant, a public official must demonstrate that the defendant acted with "malice." In other words, the official must show that the defendant knew that the defamatory statement was false …

Protecting Religious Liberty: Judicial And Legislative Responsibilities, Gerard V. Bradley

Journal Articles

Is the First Amendment hostile to religion? Answering that question requires at least the usual professorial ration of caveats. I assure you that I will directly answer the question. I submit, though, that the caveats constitute a more important, deeper response, a response which questions the question itself. Were I more radical in my intellectual sympathies, I would propose to deconstruct the question.

Beguiled: Free Exercise Exemptions And The Siren Song Of Liberalism, Gerard V. Bradley

Journal Articles

From all the talk about our religious pluralism—how extensive, indelible, inarbitrable it is—one would expect that establishing one definition of religious liberty would be the mother of all civic disturbances. Wrong. We have a common definition of religious liberty. I can demonstrate our agreement with one exhibit: the immensely broad based denunciation of the 1990 Supreme Court decision, Employment Division v. Smith. Two counsellors at a drug rehabilitation center (Alfred Smith and Galen Black) appealed Oregon’s denial of unemployment benefits. Oregon cited the “misconduct” that led to their discharges. Their “misconduct” consisted of using the hallucinogenic drug peyote. Peyote …

Efficiency And Image: Advertising As An Antitrust Issue, Elizabeth B. Mensch, Alan David Freeman

Journal Articles

No abstract provided.

Free Speech And Compulsory Union Fees: An Analysis Of Lehnert V. Ferris Faculty Association, Barbara J. Fick

Journal Articles

This article previews the Supreme Court case Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507 (1991). The author expected the case to address the line between those types of activities that effectuate a union's duties as collective bargaining representative, and thus can be charged to non-members, and those activities that are not related to collective bargaining and therefore are not chargeable to objecting non-members.

Federal Labor Rights And Access To Private Property: The Nlrb And The Right To Exclude, Dianne Avery

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No abstract provided.

Protecting The Rationality Of Electoral Outcomes: A Challenge To First Amendment Doctrine, James A. Gardner

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No abstract provided.

The Jurisprudence Of Free Speech In The United States And The Federal Republic Of Germany, Donald P. Kommers

Journal Articles

This Article compares the constitutional thought of the United States Supreme Court and the West German Federal Constitutional Court in the area of free speech. The primary focus is on cases dealing with governmental restraints on speech arising out of concern for internal security' and commentary affecting the reputation of public figures. These cases reflect major lines of German and American free speech thought. The objective of this Article is to compare the concepts of free speech that have evolved in the opinions of the two tribunals and to consider the significance of the separate doctrinal paths taken by each …

Conspiracy And The First Amendment, David B. Filvaroff

Journal Articles

No abstract provided.

Prayer Amendment: A Justification, Charles E. Rice

Journal Articles

It is customary for each house of Congress to open its daily sessions with prayer delivered by its Chaplain. One might conclude that if the lawmakers of the nation are entitled to ask for divine blessing upon their work, so are the rest of us, including school children. Not so. For the Supreme Court of the United States has drawn the line. Legislators may pray, so far at least, but school children may not. Thus it was that the courts intervened to prevent the holding of "a period for the free exercise of religion" in the Netcong, New Jersey, public …

A Union Member's Right Of Free Speech And Assembly: Institutional Interests And Individual Rights, James B. Atleson

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No abstract provided.

Reason And Passion: The Constitutional Dialectic Of Free Speech And Obscenity, John M. Finnis

Journal Articles

In recent obscenity cases, the Supreme Court has been attempting to define the constitutional meaning of "speech." This is not as banal a statement as it may seem, for there are critics, both on and off the Court, who think that the Court's task is to define "freedom."

Some advocate boundless freedom in this area. For them, obscenity raises no special problems of definition, and is simply an exercise of speech or press presenting dangers which are remote and disputable, rather than clear and present. From this point of view, the only relevant distinction is that between "speech" and "conduct." …

The Conscientious Objector And The First Amendment: There But For The Grace Of God . . ., John Henry Schlegel

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No abstract provided.

Obscenity In The Supreme Court: A Note On Jacobellis V. Ohio, Joseph O'Meara, Thomas L. Shaffer

Journal Articles

According to the opinion of Mr. Justice Brennan in Jacobellis v. Ohio, the Supreme Court itself must weigh and decide the issues in obscenity cases; it must decide whether the disputed material is obscene; and it must decide this according to the standards of the community, that is, the whole country—all 50 States. In other words, the Court must apply a national standard. This note is addressed primarily to that opinion.

The Meaning Of "Religion" In The School Prayer Cases, Charles E. Rice

Journal Articles

It is not my purpose here to discuss the possible extensions of the school prayer decisions. Rather, I am concerned only with the thought that the unqualified incorporation of the broad definition of religion into the establishment clause is perhaps the root fallacy in the Court's reasoning. In order to avoid an institutionalization of agnosticism as the official public religion of this country, the Court ought to acknowledge that nontheistic religions are not entitled to such unqualified recognition under the establishment clause as to bar even a simple governmental affirmation that in fact the Declaration of Independence is true when …

Direct Restraint On The Press, Thomas L. Shaffer

Journal Articles

If I were to suggest that the public force be used to silence and hide sources of information about government as Mr. Cooper's committee, the Supreme Court of New Jersey, the United States Attorney General, and United States Senator Morse have suggested, I could begin with impressive authority. If I were to suggest nothing at all, as the organized press has done, I could begin with swelling rhetoric on the nature of man. But for my suggestion, direct restraint on the press, the only thing at hand is a fable, the story of a crisis that nearly prevented the marriage …

Recent Decision Note, Thomas L. Shaffer

Journal Articles

The Supreme Court of Colorado heard on appeal a tax dispute between the State Board of Equalization and Arapahoe County and, in announcing a decision in favor of the board, delayed publication of its formal written opinion for one week. At the time the decision was announced the opinion had been written, but had not been prepared for publication. Four days later respondent published an editorial in his newspaper attacking the decision, suggesting that it was inspired by political rather than legal considerations, and intimating that popular disapproval might result in a written opinion mitigating some of the decision's rigor. …

Freedom Of Inquiry Versus Authority: Some Legal Aspects, Joseph O'Meara

Journal Articles

I am to discuss some legal aspects of freedom of inquiry versus authority. It raises the issue of free speech; for inquiry is not free - it is confined and frustrated - if one must keep the fruits of inquiry to one's self. The contest between freedom and authority, even in a democracy, is an unequal contest, with the advantage on the side of authority; for authority has power and power has the drop on freedom. This is why eternal vigilance is the price of liberty. Freedom has its dangers. There is no doubt about that. The risk is still …