Law Commons^™

Religious Liberty And The Politics Of Judicial Review, Robert A. Destro

Scholarly Articles

No abstract provided.

Political Speech—Restrictions On Ballot-Initiative Petitions, Buckley V. American Constitutional Law Foundation, Mark L. Rienzi

Scholarly Articles

The Supreme Court has repeatedly noted that ballot and election regulations raise difficult questions about the interplay between the First Amendment's heightened protection for political speech, and states' need to regulate ballots and elections to ensure fair and orderly democracy. When making the delicate judgments between protecting political speech and allowing states to regulate elections, the Court has traditionally stated precisely which test it was employing to evaluate individual restrictions. Last Term, in Buckley v. American Constitutional Law Foundation, the Court invalidated several of Colorado's restrictions on the signature-gathering process for ballot initiative petitions. In so doing, the Court failed …

The Real Reason For Religious Freedom, John H. Garvey

Scholarly Articles

No abstract provided.

The Architecture Of The Establishment Clause, John H. Garvey

Scholarly Articles

No abstract provided.

All Things Being Equal, John H. Garvey

Scholarly Articles

I will discuss the effect that the proposed Religious Equality Amendment might have on existing First Amendment law.

An Anti-Liberal Argument For Religious Freedom, John H. Garvey

Scholarly Articles

I want to consider why we protect freedom of religion as a constitutional right. The commonsense answer, which I think hits close to the truth, is that we protect it because religion is important. I will try to show that this answer is better than the alternatives which liberal theory offers.

Developments In Liability Theories And Defenses, Robert A. Destro

Scholarly Articles

Litigators with experience in the field of religious liberty believe that courts do not seem to take religious liberty claims and defenses very seriously; however, it is difficult to know why. To be sure, the anecdotal evidence is certainly there, not only in the reported cases, but also in the actual courtroom experiences of those who attempt to raise religious liberty claims and defenses. In one Texas tort case, a trial court judge stated that she would not permit the Church "to hide behind the first amendment;" in a Maryland case a number of years ago, I was asked by …

The Structure Of The Religious Liberty Guarantee, Robert A. Destro

Scholarly Articles

No abstract provided.

Cover Your Ears, John H. Garvey

Scholarly Articles

Lee v. Weisman holds that public schools cannot offer prayers at graduation ceremonies. It has another curious implication: according to George Dent, it also means that public schools must excuse religious dissenters from offensive parts of the currculum. I think this is an astute observation. The issues are not alike doctrinally Weisman is an Establishment Clause case; the curriculum cases are Free Exercise cases. But the schools cause similar harms in both cases; they do so mostly by exposing children to unwelcome ideas. Why is this so upsetting? Why object to hearing people talk? I want to make three observations: …

Black And White Images, John H. Garvey

Scholarly Articles

In 1989 the National Endowment for the Arts (the "NEA") caused a stir by funding two exhibitions of photographs by Robert Mapplethorpe and Andres Serrano. The pictures were vulgar and irreverent, and many people thought that the NEA should not sponsor them with tax money. Whether the NEA can actually control the content of speech that it pays for is a hard First Amendment question. I want to look at how Congress has tried to answer it. Congress seriously considered two solutions, and adopted one of them in 1990. Both rely on analogies drawn from the area of race relations. …

A Proposed Process For Managing The First Amendment Aspects Of Campus Hate Speech, William A. Kaplin

Scholarly Articles

For public institutions, attempts to regulate hate speech raise substantial legal issues under the First Amendment of the U.S. Constitution. For private institutions, which may not be bound by the First Amendment, attempts to regulate hate speech raise sensitive policy questions concerning the role of free expression on campus. Numerous articles (many of which are listed in the references below) have undertaken substantive analysis of these constitutional issues and policy questions. In contrast, this article explores a preliminary and overarching concern: the process by which a college or university addresses the problem of hate speech, and in particular the process …

‘Hate Speech’ On The College Campus: Freedom Of Speech And Equality At The Crossroads, William A. Kaplin

Scholarly Articles

This article focuses on the First Amendment implications of the hate speech problem, comparing the free speech values that may be endangered by attempts to regulate hate speech with the equality values that may be endangered if hate speech is left unchecked. I will also concentrate on processes that universities may devise to resolve these crucial value questions. My goal is to add order and balance to the differing points of view concerning hate speech, and to bring a measure of practicality and concreteness to what has often been a rather theoretical and abstract debate. In short, my focus will …

Churches And The Free Exercise Of Religion, John H. Garvey

Scholarly Articles

The first amendment says that "Congress shall make no law . . . prohibiting the free exercise" of religion. This rule is most often used to protect individuals (religious speakers, pacifists, people claiming public benefits). This is hardly surprising. We naturally think that free exercise is an individual right, as we think that religion is a personal and private affair. I want to dispute (more modestly, to qualify) that view. I will argue that we should (sometimes) see the freedom of religion as a group right, which can conflict with, and take precedence over, individual rights.

Distinction Without A Difference: A Reappraisal Of The Doctrine Of Prior Restraint, Marin Roger Scordato

Scholarly Articles

For nearly 60 years, the doctrine of prior restraint has held a central position in first amendment jurisprudence. A law that acts as a prior restraint on speech comes under such searching judicial scrutiny that it almost always is invalidated. Professor Marin Scordato makes a frontal attack on the existing prior restraint doctrine in this Article. ie first maintains that the traditional definition of prior restraint defies the common-sense meaning of the term. Then he examines the policy justifications for identifying prior restraints by their asserted tendency to produce constitutionally undesirable results compared with their definitional opposites, subsequent sanctions. He …

Nudity, Obscenity And Pornography: The Streetcars Named Lust And Desire, George P. Smith Ii

Scholarly Articles

No abstract provided.

Free Exercise And The Values Of Religious Liberty, John H. Garvey

Scholarly Articles

One thing that has always bothered me about free exercise jurisprudence is that it rests on values we have seldom tried to state, much less justify. In a way this is not surprising. We have only recently abandoned the assumption, which may never have been true, that Americans share a common understanding of language about God and transcendent values. That understanding made it unnecessary to define for nonspeakers a meaning that even believers have trouble putting into words. But today we are probably not "a religious people whose institutions presuppose a Supreme Being-at least not if "religious" is supposed to …

Comment: Zauderer V. Office Of Disciplinary Counsel, Geoffrey R. Watson

Scholarly Articles

No abstract provided.

Note: Exit Polls And The First Amendment, Geoffrey R. Watson

Scholarly Articles

This Note examines the constitutionality and the wisdom of these state laws and congressional proposals. Part I traces the history of exit polls and election-night projections. Part II argues that restrictions on the collection or dissemination of exit poll data, whether designed to prevent disruption at the voting area or to protect the integrity of the vote, violate the first amendment. Part III concludes that a uniform poll-closing time coupled with voluntary network restraint would both allay legitimate concerns about election-night predictions and comport with first amendment values.

Violent Pornography: Degradation Of Women Versus Right Of Free Speech, Lisa G. Lerman

Scholarly Articles

No abstract provided.

Children And The First Amendment, John H. Garvey

Scholarly Articles

If children possess moral and political rights against the state, theories about these rights have scarcely progressed beyond first principles. The state must retain power to regulate education and some aspects of family life. Parents sometimes have a final say concerning what a child may do and experience. Professor Garvey offers an account of the way in which these and other realities shape the child's rights of free expression under the first amendment.

Flag Salute, Patriotic Exercises, And Students’ Rights, William A. Kaplin, Edward P. Jesella Jr.

Scholarly Articles

The public school system is the major American social institution responsible for the transmission of our democratic heritage to present and future generations. In fulfilling this responsibility, the schools often confront problems involving their duty to inculcate students with a sense of patriotism. Probably the most controversial questions have concerned compulsory flag saluting and participation in patriotic exercises. Can a school demand that students salute the flag?

Questions such as this arise under circumstances where students, allegedly exercising First Amendment rights, clash with school authorities engaged in the promulgation and enforcement of school rules. This interplay of educational order and …

The Development Of The Right Of Assembly: A Current Socio-Legal Investigation, George P. Smith Ii

Scholarly Articles

It will be the purpose of this article to assay the historical evolution of the freedom of assembly, noting first its development in England and later in America and finally its current position in the twentieth century. Even though the rights of free speech, association, and religion are inescapably drawn into case discussions of freedom of assembly, effort will be made to confine the consideration to the pertinent assembly problems. In addition to considering the fundamental legal propositions embodied in this right, as well as its raison d'etre, thought and discussion will be given to the sociological interpretations of the …

The Law Of Obscenity And Military Practice, Harvey L. Zuckman

Scholarly Articles

In recent years, problems surrounding the law of obscenity have become increasingly important and this development has resulted in a corresponding awareness of these problems by the courts, both state and federal. This awareness is now being extended into the military legal field. Two recent decisions, one by the United States Court of Military Appeals and the other by an Army board of review, have focused attention on the military's handling of obscenity problems under the Uniform Code of Military Justice. These recent decisions encompass issues occurring in civilian practice as well as issues peculiar to the military. Before any …

Obscenity In The Mails, Harvey L. Zuckman

Scholarly Articles

For nearly one hundred years the federal government has had as one of its functions the suppression of mail trade in obscene and pornographic matter. The first federal enactment in this field provided that the mailing of an obscene book, pamphlet, picture, print, or other publication with knowledge of its nature was a misdemeanor. The present postal obscenity law' dates back to 1873 and is sometimes referred to as the Comstock Law because of the support given its passage by the notorious Anthony Comstock, agent for the New York Society for the Suppression of Vice. While its original wording would …

Censorship Of Defamatory Political Broadcasts: The Port Huron Doctrine, Harvey L. Zuckman

Scholarly Articles

No abstract provided.