Law Commons^™

A Matter Of Context: Casey And The Constitutionality Of Compelled Physician Speech, Scott W. Gaylord

Scott W. Gaylord

The last few years have seen an increasing number of States seek to regulate abortion procedures—from heart auscultation statutes to admitting privileges to minimum facility standards. One such regulation has involved “speech-and-display” statutes, which require physicians to conduct an ultrasound, display the sonogram images to a woman considering an abortion, and describe the anatomical features that are visible in the image. In addition to asserting traditional due process claims, physicians have challenged these ultrasound requirements on First Amendment grounds, arguing that speech-and-display laws compel physicians to engage in speech activity against their will and (sometimes) against their medical judgment.

Although …

"Kill The Sea Turtles" And Other Things You Can't Make The Government Say, Scott W. Gaylord

Scott W. Gaylord

In Pleasant Grove City v. Summum, the Supreme Court confirmed that there is no heckler’s veto under the government speech doctrine. When speaking, the government has the right to speak for itself and to select the views that it wants to express. But the Court acknowledged that sometimes it is difficult to determine whether the government is actually speaking. Specialty license plates have proven to be one of those difficult situations, raising novel and important First Amendment issues. Six circuits have reached four separate conclusions regarding the status of messages on specialty license plates. Three circuits have held that …

For-Profit Corporations, Free Exercise, And The Hhs Mandate, Scott W. Gaylord

Scott W. Gaylord

Under the Patient Protection and Affordable Care Act, most employers must provide their employees with health insurance that covers all FDA approved contraceptive methods and sterilization procedures (the “HHS mandate”). Across the country, individuals, religious schools, and corporations have sued to enjoin the mandate, arguing, among other things, that it violates the free exercise clause of the First Amendment and the Religious Freedom Restoration Act (“RFRA”). Federal district courts have reached conflicting decisions in the fifteen cases decided to date, leaving the Third, Fourth, Sixth, Seventh, Eighth, Tenth, and D.C. Circuits to sort out the complex relationship between the free …

Casey And A Woman's Right To Know: Ultrasounds, Informed Consent, And The First Amendment, Scott W. Gaylord, Thomas J. Molony

Scott W. Gaylord

Twenty years after Planned Parenthood of Southeastern Pennsylvania v. Casey was decided, courts across the country are being called on to apply the Court’s undue burden test to novel abortion regulations. The most recent wave of regulation involves the use of ultrasound technology. Twenty-two States currently require physicians to perform, offer to perform, or follow specific protocols when performing an ultrasound prior to any abortion procedure. National attention, however, has focused on the growing number of States that require physicians to display and describe the ultrasound images to a woman seeking an abortion. Three States—Texas, North Carolina, and Oklahoma—have already …

Unconventional Wisdom: The Roberts Court's Proper Support Of Judicial Elections, Scott W. Gaylord

Scott W. Gaylord

Conventional wisdom holds that the Roberts Court’s recent First Amendment decisions have created a crisis for the 22 states that use contested elections to select the members of their state judiciaries. As Justice Sandra Day O’Connor, who has become a leading critic of judicial elections since retiring from the Supreme Court, has stated, “[l]eft unaddressed, the perception that justice is for sale will undermine the rule of law that the courts are supposed to uphold.” Accordingly, to preserve the independence and integrity of their judiciaries, critics contend that states should adopt the “Missouri Plan” (or some similar form of merit …

Constitutional Threats In The E-Commerce Jungle: First Amendment And Dormant Commerce Clause Limits On Amazon Laws And Use Tax Reporting Statutes, Scott W. Gaylord

Scott W. Gaylord

Internet sales continue to increase as consumers take advantage of the convenience and price competition that e-commerce provides. Yet, as North Carolina and other

states have learned, frequently the “lower” prices available online result from the fact that many internet retailers, such as Amazon, do not collect sales tax on such purchases. In fact, under United States Supreme Court precedent, North Carolina and other states cannot require internet retailers such as Amazon that lack any physical presence in a state to collect sales tax.

But what many consumers do not know (or choose to ignore) is that they still owe …

When The Exception Becomes The Rule: Marsh And Sectarian Legislative Prayer Post-Summum, Scott W. Gaylord

Scott W. Gaylord

Across the country, federal, state, and local legislative bodies begin their meetings with prayer. Yet, as recent challenges to sectarian legislative prayer demonstrate, legislative prayer rests uneasily at the intersection of the Free Speech and Establishment Clauses. While the government has the right to speak for itself, many contend that it is precluded from engaging in paradigmatic religious activity, such as sectarian prayer. As a result, although legislative prayer has been part of the “fabric of our society” since at least the First Continental Congress, sectarian prayer teeters on the brink of unconstitutionality.

Despite the pervasiveness of legislative prayer and …

Licensing Facially Religious Government Speech: Summum's Impact On The Free Speech And Establishment Clauses, Scott W. Gaylord

Scott W. Gaylord

LICENSING FACIALLY RELIGIOUS GOVERNMENT SPEECH: SUMMUM’S IMPACT ON THE FREE SPEECH AND ESTABLISHMENT CLAUSES

Abstract

Scott W. Gaylord

It is the rare case that is decided solely on Free Speech grounds yet directly impacts the Supreme Court’s Establishment Clause jurisprudence. Pleasant Grove City v. Summum is such a case. Although all nine Justices concurred in the judgment—that a privately donated monument in a public park is a form of “government speech” that is not subject to scrutiny under the Free Speech Clause—the case spawned five different opinions as the Justices attempted to explain the proper scope of the Court’s decision …