Law Commons^™

Hess V. Indiana Revisited: A Panel Discussion With Case Participants (Video), Ralph F. Gaebler, Richard Vaughan

Maurer Law Events

On November 19th, 2004, a panel discussion was held in the Moot Court Room of the Indiana University-Bloomington School of Law. The topic of the discussion was the landmark United States Supreme Court case, Hess v. Indiana. The case is particularly relevant to the law school because two members of the faculty (Tom Schornhorst and Pat Baude) served as lawyers to the defendant Greg Hess. Additionally, the protest and arrest took place half a block from the law school in front of the University's administration building (Bryan Hall) in 1970.

Joining Professors Schornhorst and Baude on the panel are three …

The Pluralistic Foundations Of The Religion Clauses, Steven H. Shiffrin

Cornell Law Faculty Publications

Contemporary Supreme Court interpretations suggest that the religion clauses are primarily rooted in the value of equality. The United States Supreme Court has argued that in the absence of discrimination against religion (or the presence of other constitutional values), there is no violation of the Free Exercise Clause when a statute inadvertently burdens religion. Similarly, equality values have played a strong role in the Court's Establishment Clause jurisprudence. Many distinguished commentators have pointed to the equality focus and have argued that it gives insufficient attention to the value of religious liberty. Professor Shiffrin argues that these commentators are right in …

Religious Liberty In America And Beyond: Celebrating The Legacy Of Roger Williams On The 400th Anniversary Of His Birth, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Cross Burning, Hate Speech, And Free Speech In America, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

A Moderate Defense Of Hate Speech Regulations On University Campuses, W. Bradley Wendel

Cornell Law Faculty Publications

The regulation of hate speech on public and private university campuses is a fiercely contested and divisive issue. Professor Bradley Wendel defends the middle ground in this debate. This Essay argues that concerns about abuses of power by those in positions of authority are unfounded when an institution possesses greater expertise in a domain than the citizens who are affected by the institution’s decision, provided that the institution is acting on the basis of reasons that are shared by the affected individual.

Not For Attribution: Government's Interest In Protecting The Integrity Of Its Own Expression, Helen L. Norton

Faculty Scholarship

Public entities increasingly maintain that the First Amendment permits them to ensure that private speakers’ views are not mistakenly attributed to the government. Consider, for example, Virginia’s efforts to ban the Sons of Confederate Veterans’ display of the Confederate flag logo on state-sponsored specialty license plates. Seeking to remain neutral in the ongoing debate over whether the Confederate flag is a symbol of “hate” or “heritage,” Virginia argued that the state would be wrongly perceived as endorsing the flag if the logo appeared on a state-issued plate adorned by the identifier “VIRGINIA.” The Fourth Circuit was unpersuaded, holding that the …

Another Of Roger William's Gifts: Women's Right To Liberty Of Conscience: Joshua Verin V. Providence Plantations, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

Supreme Court Watch, Reginald Oh

Law Faculty Articles and Essays

Professor Oh briefly describes Locke v. Davey in which the U.S. Supreme Court, in its 2003-04 term, attempted to clarify its First Amendment jurisprudence on the religion clauses. In a 7-2 decision, the Court held that the State of Washington did not violate the First Amendment Free Exercise Clause by denying government financial aid to college students seeking to pursue a course of study in religious devotional studies.

Ub Viewpoint – Journalists May Face Contempt For Protecting Sources, Eric Easton

All Faculty Scholarship

No abstract provided.

Adjudicative Speech And The First Amendment, Christopher J. Peters

All Faculty Scholarship

While political speech - speech intended to influence political decisions - is afforded the highest protection under the First Amendment, adjudicative speech - speech intended to influence court decisions - is regularly and systematically constrained by rules of evidence, canons of professional ethics, judicial gag orders, and similar devices. Yet court decisions can be as important, both to the litigants and to society at large, as political decisions. How then can our practice of severely constraining adjudicative speech be justified as consistent with First Amendment principles?

This Article attempts to answer that question in a way that is informative about …

First Amendment Decisions - 2002 Term, Joel Gora

Faculty Scholarship

No abstract provided.

Symbolic Counter-Speech, Howard M. Wasserman

Faculty Publications

No abstract provided.

Searching For The Soul Of Judicial Decisionmaking: An Empirical Study Of Religious Freedom Decisions, Gregory C. Sisk, Michael Heise, Andrew P. Morriss

Cornell Law Faculty Publications

During the past half century, constitutional theories of religious freedom have been in a state of great controversy, perpetual transformation, and consequent uncertainty. Given the vitality of religious faith for most Americans and the vigor of the enduring debate on the proper role of religious belief and practice in public society, a searching exploration of the influences upon judges in making decisions that uphold or reject claims implicating religious freedom is long overdue. Many thoughtful contributions have been to the debate about whether judges should allow their religious beliefs to surface in the exercise of their judicial role. Yet much …

The Special Public Purpose Forum And Endorsement Relationships: New Extensions Of Government Speech, 31 Hastings Const. L.Q. 71 (2004), Mary Jean Dolan

UIC Law Open Access Faculty Scholarship

No abstract provided.

Hasta La Vista, Baby: Es Hora De Decir Adios A La Ley De Libelo Y Calumnia De 1902, 73 Rev. Jur. U.P.R. 59 (2004), Alberto Bernabe

UIC Law Open Access Faculty Scholarship

No abstract provided.

Institutions Of Learning Or Havens For Illegal Activities: How The Supreme Court Views Libraries, 25 N. Ill. U. L. Rev. 1 (2004), Raizel Liebler

UIC Law Open Access Faculty Scholarship

The role of libraries in American society is varied: libraries act as curators and repositories of American culture's recorded knowledge, as places to communicate with others, and as sources where one can gain information from books, magazines and other printed materials, as well as audio-video materials and the Internet. Courts in the United States have called libraries "the quintessential locus of the receipt of information, "'places that are "dedicated to quiet, to knowledge, and to beauty," and "a mighty resource in the free marketplace of ideas." These positive views of libraries are often in sharp contrast with views by some …

Free The Fortune 500! The Debate Over Corporate Speech And The First Amendment, Rodney A. Smolla

Scholarly Articles

Examines the lessons to be learned in the U.S. Supreme Court landmark free speech case in "Nike Inc. v. Kasky".

Davey And The Limits Of Equality, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.

Regulating Intimidating Speech, Alexander Tsesis

Faculty Publications & Other Works

No abstract provided.

Thoughts On Smith And Religious-Group Autonomy, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.

Dissent And Disestablishment: The Church/State Settlement Of The New American Republic, Carl H. Esbeck

Faculty Publications

This paper has two aims. They are more in the nature of history than law. The first aim is to show that since the fourth century Western civilization has presupposed that there are not one but two sovereigns. Each has a jurisdiction of legitimate operation, and while there are areas of shared cognizance, there are other subject matter areas in which each is noncompetent to perform the tasks of the other. The second aim of this paper is to uncover historical figures that advanced a proposition concerning religious freedom that became the American church-state settlement.

Political Representation And Accountability Under Don't Ask, Don't Tell, Tobias Barrington Wolff

All Faculty Scholarship

The U.S. military's Don't Ask, Don't Tell policy constitutes a singular type of speech regulation: an explicit prohibition on identity speech by a defined population of individuals that mandates a state of complete social invisibility in both military and civilian life. The impact of such a regulation upon the public speech values protected by the First Amendment should not be difficult to apprehend. And yet, as the tenth anniversary of the policy approaches, First Amendment scholars have largely ignored this seemingly irresistible subject of study, and the federal courts have refused to engage with the policy's implications for public speech …

Fire, Metaphor, And Constitutional Myth-Making, Robert Tsai

Articles in Law Reviews & Other Academic Journals

From the standpoint of traditional legal thought, metaphor is at best a dash of poetry adorning lawyerly analysis, and at worst an unjustifiable distraction from what is actually at stake in a legal contest. By contrast, in the eyes of those who view law as a close relative of ordinary language, metaphor is a basic building block of human understanding. This article accepts that metaphor helps us to comprehend a court's decision. At the same time, it argues that metaphor plays a special role in the realm of constitutional discourse. Metaphor in constitutional law not only reinforces doctrinal categories, but …

Two Wrongs Make A Right: Hybrid Claims Of Discrimination, Ming Hsu Chen

Publications

This Note reinterprets and recontextualizes the pronouncement in Employment Division v. Smith (Smith II) that exemptions from generally applicable laws will not be granted unless claims of free exercise are accompanied by the assertion of another constitutional right. It argues that when Arab American Muslims, and others who are of minority race and religion, bring claims for exemption from generally applicable laws on the basis of free exercise and equal protection principles, they ought to be able to invoke Smith II's hybridity exception, thus meriting heightened judicial scrutiny and increased solicitude from courts.

Not For Attribution: Government's Interest In Protecting The Integrity Of Its Own Expression, Helen Norton

Publications

Public entities increasingly maintain that the First Amendment permits them to ensure that private speakers' views are not mistakenly attributed to the government. Consider, for example, Virginia's efforts to ban the Sons of Confederate Veterans' display of the Confederate flag logo on state-sponsored specialty license plates. Seeking to remain neutral in the ongoing debate over whether the Confederate flag is a symbol of "hate" or "heritage," Virginia argued that the state would be wrongly perceived as endorsing the flag if the logo appeared on a state-issued plate adorned by the identifier "VIRGINIA." The Fourth Circuit was unpersuaded, holding that the …

Free Speech And Valuable Speech: Silence, Dante, And The 'Marketplace Of Ideas', James Boyd White

Articles

This Essay is a slightly expanded version of the inaugural Mellinkoff Lecture in Law and Humanities, presented at the UCLA School of Law last April in honor of the memory of Professor David Mellinkoff, the distinguished author of ground-breaking work on the nature of legal language. It addresses four related questions. What is the nature of the kind of speech and expression that realizes most completely the human capacity for finding and expressing meaning? How does our own world of public speech measure up to that standard? How, indeed, does our own talk in the law measure up, especially our …

The Landmark Free-Speech Case That Wasn't: The Nike V. Kasky Story, David Skover, Ronald Collins

Faculty Articles

Written as the Foreword to a Symposium entitled Nike v. Kasky and the Modern Commercial Speech Doctrine, this piece tells the background stories that brought the Nike v. Kasky players to the steps of the U.S. Supreme Court and beyond. Subsequently, it explores the principles and perspectives at tension in the Nike controversy, and charts the lessons of the Nike story - legal, political, and cultural.

Assimilation, Toleration, And The State's Interest In The Development Of Religious Doctrine, Richard Garnett

Journal Articles

Thirty-five years ago, in the context of a church-property dispute, Justice William Brennan observed that government interpretation of religious doctrine and judicial intervention in religious disputes are undesirable, because when civil courts undertake to resolve [doctrinal] controversies..., the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern. This statement, at first, seems wise and fittingly cautious, even unremarkable and obvious. On examination, though, it turns out to be intriguing, elusive, and misleading. Indeed, Justice Brennan's warning presents hazards of its own, and its premises - if …

Protecting The Lady From Toledo: Post-Usa Patriot Act Electronic Surveillance At The Library, Susan Nevelow Mart

Publications

Library patrons are worried about the government looking over their shoulder while they read and surf the Internet. Because of the broad provisions of the USA PATRIOT Act, the lack of judicial and legislative oversight, the potential for content overcollection, and the ease with which applications for pen register, section 215 orders, or national security letters can be obtained, these fears cannot be dismissed.

If The Shoe Fits: Kasky V. Nike And Whether Corporate Statements About Business Operations Should Be Deemed Commercial Speech, Jason A. Cade

Scholarly Works

This Note argues that the Kasky court was correct to recognize that today's commercial speech encompasses communications beyond traditional advertisements about products or services. Corporations are aware that a sizeable number of consumers rely on their statements about their business operations when making investment and purchasing decisions. In order to ensure the accuracy of these statements, and thereby protect the integrity of the market, this speech is properly considered commercial speech.