Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

2022

Constitutional Law

First Amendment

Notre Dame Law Review

Articles 1 - 3 of 3

Full-Text Articles in Law

Put Mahanoy Where Your Mouth Is: A Closer Look At When Schools Can Regulate Online Student Speech, Courtney Klaus Dec 2022

Put Mahanoy Where Your Mouth Is: A Closer Look At When Schools Can Regulate Online Student Speech, Courtney Klaus

Notre Dame Law Review

This Note proposes a way to approach online student speech in three different contexts: cyberbullying, online threats, and other kinds of incendiary speech. Each approach is informed by a combination of lower court precedent, historical trends, and Supreme Court dicta to piece together when exceptions to online student speech protection may apply. Each analysis provides an explanation of how Tinker can and should be used to justify school discretion over particular kinds of online speech. Part I provides the history behind how the First Amendment has been used to protect public school student speech and discusses the unique issues the …


How Favored, Exactly? An Analysis Of The Most Favored Nation Theory Of Religious Exemptions From Calvary Chapel To Tandon, Luray Buckner May 2022

How Favored, Exactly? An Analysis Of The Most Favored Nation Theory Of Religious Exemptions From Calvary Chapel To Tandon, Luray Buckner

Notre Dame Law Review

In this Note, I argue that Justice Kavanaugh’s most favored nation test for religious exemptions actually differs from the one employed by the majority of the Court in Tandon. The majority’s formulation of the test is vague and explicitly requires courts to engage in a fact-intensive comparability analysis. Practically, lower courts applying Tandon to religious exemption questions have exploited this comparability step to rule against religious claimants generally, but more specifically to deny them strict scrutiny. Because the Tandon test was formulated to apply to all free exercise claims, the test is necessarily framed in more general terms and …


Establishment’S Political Priority To Free Exercise, Marc O. Degirolami Apr 2022

Establishment’S Political Priority To Free Exercise, Marc O. Degirolami

Notre Dame Law Review

Americans are beset by disagreement about the First Amendment. Progressive scholars are attacking the venerable liberal view that First Amendment rights must not be constricted to secure communal, political benefits. To prioritize free speech rights, they say, reflects an unjust inflation of individual interest over our common political commitments. These disagreements afflict the Religion Clauses as well. Critics claim that religious exemption has become more important than the values of disestablishment that define the polity. Free exercise exemption, they argue, has subordinated establishment.

This Article contests these views. The fundamental rules and norms constituting the political regime—what the Article calls …