Law Commons^™

Sacred Cows, Holy Wars: Exploring The Limits Of Law In The Regulation Of Raw Milk And Kosher Meat, Kenneth Lasson

Kenneth Lasson

SACRED COWS, HOLY WARS Exploring the Limits of Law in the Regulation of Raw Milk and Kosher Meat By Kenneth Lasson Abstract In a free society law and religion seldom coincide comfortably, tending instead to reflect the inherent tension that often resides between the two. This is nowhere more apparent than in America, where the underlying principle upon which the first freedom enunciated by the Constitution’s Bill of Rights is based ‒ the separation of church and state – is conceptually at odds with the pragmatic compromises that may be reached. But our adherence to the primacy of individual rights …

Is The First Amendment Entrenched? Rawls’ Curious Claim, Gordon D. Ballingrud

Gordon D Ballingrud

. This paper addresses a claim made by John Rawls in Lecture VI of Political Liberalism: any American constitutional amendment, ratified through Article V, which overturned the First Amendment would be illegitimate and justly ruled unconstitutional by the Supreme Court. Addressing the apparent contradiction that a duly enacted constitutional amendment can be unconstitutional, this paper reconstructs and critiques Rawls claim along two lines. First, I address Rawls’ philosophical claim as to the de facto entrenchment of the First Amendment, and the mechanisms that Rawls implicitly and explicitly purports to entrench it. I also address the claim that a First …

Censorship 101, Sonja R. West

Popular Media

This article looks at censorship in the public school setting.

Using Social Media In Rulemaking: Possibilities And Barriers, Michael E. Herz

Online Publications

“Web 2.0” is characterized by interaction, collaboration, non-static web sites, use of social media, and creation of user-generated content. In theory, these Web 2.0 tools can be harnessed not only in the private sphere but as tools for an e-topia of citizen engagement and participatory democracy. Notice-and-comment rulemaking is the pre-digital government process that most approached (while still falling far short of) the e-topian vision of public participation in deliberative governance. The notice-and-comment process for federal agency rulemaking has now changed from a paper process to an electronic one. Expectations for this switch were high; many anticipated a revolution that …

Academic Freedom And Professorial Speech In The Post-Garcetti World, Oren R. Griffin

Seattle University Law Review

Academic freedom, a coveted feature of higher education, is the concept that faculty should be free to perform their essential functions as professors and scholars without the threat of retaliation or undue administrative influence. The central mission of an academic institution, teach-ing and research, is well served by academic freedom that allows the faculty to conduct its work in the absence of censorship or coercion. In support of this proposition, courts have long held that academic freedom is a special concern of the First Amendment, granting professors and faculty members cherished protections regarding academic speech. In Garcetti v. Ceballos, the …

Mania: The Lives, Literature, And Law Of The Beats, Ronald K.L. Collins, David M. Skover

Seattle University Law Review

The Beats introduced the counter-culture to twentieth century America. They were the first to break away from Eisenhower conformity, from the era of the Man in the Grey Flannel Suit. With them came an infusion of rebel spirit—a spirit that hearkened back to Walt Whitman—in their lives, literature, and law. Their literature spawned a remarkable chapter in American obscenity law. The prosecution of Allen Ginsberg’s epic poem, Howl, was the last of its kind in this nation; and the prosecution of William Burroughs’s Naked Lunch is one of the last times that a novel was charged as obscene. The First …

Religion, Division, And The First Amendment, Richard W. Garnett

Richard W Garnett

Nearly thirty-five years ago, in Lemon v. Kurtzman, Chief Justice Warren Burger declared that state programs or policies could excessive(ly) - and, therefore, unconstitutionally - entangle government and religion, not only by requiring or allowing intrusive public monitoring of religious institutions and activities, but also through what he called their divisive political potential. Chief Justice Burger asserted also, and more fundamentally, that political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. And from this Hobbesian premise about the inten(t) animating the First Amendment, he proceeded on the assumption that …

Judicial Review, Local Values, And Pluralism, Richard W. Garnett

Richard W Garnett

At the Federalist Society's 2008 National Student Symposium, a panel of scholars was asked to consider the question, does pervasive judicial review threaten to destroy local identity by homogenizing community norms? The answer to this question is yes, pervasive judicial review certainly does threaten local identity, because such review can homogenize[e] community norms, either by dragging them into conformity with national, constitutional standards or (more controversially) by subordinating them to the reviewers' own commitments. It is important to recall, however, that while it is true that an important feature of our federalism is local variation in laws and values, it …

Exposing Judges' Unaccountability And Consequent Riskless Wrongdoing: Pioneering The News And Publishing Field Of Judicial Unaccountability Reporting, Dr. Richard Cordero Esq.

Dr. Richard Cordero Esq.

This study analyzes official statistics of the Federal Judiciary, legal provisions, and other publicly filed documents. It discusses how federal judges’ life-appointment; de facto unimpeachability and irremovability; self-immunization from discipline through abuse of the Judiciary’s statutory self-policing authority; abuse of its vast Information Technology resources to interfere with their complainants’ communications; the secrecy in which they cover their adjudicative, administrative, disciplinary, and policy-making acts; and third parties’ fear of their individual and close rank retaliation render judges unaccountable. Their unaccountability makes their abuse of power riskless; the enormous amount of the most insidious corruptor over which they rule, money!, …

Exposing Judges' Unaccountability And Consequent Riskless Wrongdoing: Pioneering The News And Publishing Field Of Judicial Unaccountability Reporting, Dr. Richard Cordero Esq.

Dr. Richard Cordero Esq.

This study analyzes official statistics of the Federal Judiciary, legal provisions, and other publicly filed documents. It discusses how federal judges’ life-appointment; de facto unimpeachability and irremovability; self-immunization from discipline through abuse of the Judiciary’s statutory self-policing authority; abuse of its vast Information Technology resources to interfere with their complainants’ communications; the secrecy in which they cover their adjudicative, administrative, disciplinary, and policy-making acts; and third parties’ fear of their individual and close rank retaliation render judges unaccountable. Their unaccountability makes their abuse of power riskless; the enormous amount of the most insidious corruptor over which they rule, money!, …

Exposing Judges' Unaccountability And Consequent Riskless Wrongdoing: Pioneering The News And Publishing Field Of Judicial Unaccountability Reporting, Dr. Richard Cordero Esq.

Dr. Richard Cordero Esq.

This study analyzes official statistics of the Federal Judiciary, legal provisions, and other publicly filed documents. It discusses how federal judges’ life-appointment; de facto unimpeachability and irremovability; self-immunization from discipline through abuse of the Judiciary’s statutory self-policing authority; abuse of its vast Information Technology resources to interfere with their complainants’ communications; the secrecy in which they cover their adjudicative, administrative, disciplinary, and policy-making acts; and third parties’ fear of their individual and close rank retaliation render judges unaccountable. Their unaccountability makes their abuse of power riskless; the enormous amount of the most insidious corruptor over which they rule, money!, …

Speech As A Weapon: Planned Parenthood V. American Coalition Of Life Activists And The Need For A Reasonable Listener Standard, Alex J. Berkman

Touro Law Review

No abstract provided.

The Disincorporation Proclamation: Emancipating The Establishment Clause From The Fourteenth Amendment, Martin Wishnatsky

Martin Wishnatsky

No abstract provided.

"Rfra Exemptions From The Contraception Mandate: An Unconstitutional Accommodation Of Religion", Frederick Mark Gedicks, Rebecca G. Van Tassell

Frederick Mark Gedicks

Litigation surrounding use of the Religious Freedom Restoration Act to exempt employers from the Affordable Care Act’s “contraception mandate” is moving steadily towards eventual resolution in the U.S. Supreme Court. Both opponents and supporters of the mandate, however, have overlooked Establishment Clause limits on such exemptions. The fiery religious-liberty rhetoric surrounding the mandate has obscured that RFRA is a “permissive” rather than “mandatory” accommodation of religion—that is, a voluntary government concession to religious belief and practice that is not required by the Free Exercise Clause. Permissive accommodations must satisfy Establishment Clause constraints, notably the requirement that the accommodation not impose …

The Categorical Approach To Protecting Speech In American Constitutional Law, Daniel A. Farber

Daniel A Farber

Symposium: An Ocean Apart? Freedom of Expression in Europe and the United States. This Article was originally written in French and delivered as a conference paper at a symposium held by the Center for American Law of the University of Paris II (Panthèon-Assas) on January 18-19, 2008.

Anonymity Is The Battlefield: Practical And Legal Considerations In The Fight For Free Expression On The Web, Dan Massoglia

Dan Massoglia

No abstract provided.

Religious Pretenders In The Courts: Unmasking The Imposters, John O. Hayward

John O. Hayward

When courts decide First Amendment “Free Exercise” cases, they often are confronted with the daunting task of defining what exactly is a “religion.” This article examines how judicial definitions and interpretations of religious faith have evolved over many decades, including legal recognition of Wicca (modern day witchcraft) and Hare Krishna as “religions,” as well as courts steering clear of the issue whenever possible, for example, when faced with an adherent of the “Church of Body Modification” who claims her employer’s dress code violates her religion. It also explores how courts have sought to uncover deception and fraud hiding behind disingenuous …

Overcoming Obstacles To Religious Exercise In K-12 Education, Lewis M. Wasserman

Lewis M. Wasserman

Overcoming Obstacles to Religious Exercise in K-12 Education LEWIS M. WASSERMAN Abstract Judicial decisions rendered during the last half-century have overwhelmingly favored educational agencies over claims by parents for religious accommodations to public education requirements, no matter what constitutional or statutory rights were pressed at the tribunal, or when the conflict arose. These claim failures are especially striking in the wake of the Religious Freedom Restoration Acts (“RFRAs”) passed by Congress in 1993 and, to date, by eighteen state legislatures thereafter, since the RFRAs were intended to (1) insulate religious adherents from injuries inflicted by the United States Supreme Court’s …

A Comprehensive Approach To Bridging The Gap Between Cyberbullying Rules And Regulations And The Protections Offered By The First Amendment For Off-Campus Student Speech, Vahagn Amirian

Vahagn Amirian

No abstract provided.

Overcoming Obstacles To Religious Exercise In K-12 Education, Lewis M. Wasserman

Lewis M. Wasserman

Overcoming Obstacles to Religious Exercise in K-12 Education Lewis M. Wasserman Abstract Judicial decisions rendered during the last half-century have overwhelmingly favored educational agencies over claims by parents for religious accommodations to public education requirements, no matter what constitutional or statutory rights were pressed at the tribunal, or when the conflict arose. These claim failures are especially striking in the wake of the Religious Freedom Restoration Acts (“RFRAs”) passed by Congress in 1993 and, to date, by eighteen state legislatures thereafter, since the RFRAs were intended to (1) insulate religious adherents from injuries inflicted by the United States Supreme Court’s …

"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 …

Lost In The Compromise: Free Speech, Criminal Justice, And Attorney Pretrial Publicity, Margaret Tarkington

Margaret C Tarkington

Publicity by the prosecution and defense in the criminal proceedings against George Zimmerman again raised the question of the appropriate scope of First Amendment protection for attorney pretrial publicity. The Supreme Court, the Model Rules of Professional Conduct, and many scholars have viewed restrictions on attorney pretrial publicity as a compromise between the constitutional guarantees of free speech and a fair trial. Nevertheless, scholars advocate widely divergent levels of free speech protection for attorney pretrial publicity—ranging from core free speech protection to extremely limited protection. Traditional First Amendment doctrines fail to elucidate the proper scope of free speech rights for …

The First Amendment Structure For Speakers And Speech, Charles W. Rhodes

Charles W Rhodes

A noticeable trend in the Roberts Court’s free speech decisions is heightened attention to the dimensions of the First Amendment. From holding false factual statements, violent video games, and depictions of animal cruelty are covered by the First Amendment, to determining that a legislator’s vote, governmental acceptance of a monument, and a law school’s refusal to allow access to military recruiters are not, the Court has highlighted the importance of evaluating both the scope of the First Amendment and the appropriate attribution of communicative efforts. But the Court has failed to announce an overarching structural framework for resolving these prefatory …

Anatomy Of The Reasonable Observer, Jessie Hill

Jessie Hill

The “reasonable observer”—the fictional person from whose perspective we are to judge whether a governmental display or practice violates the Establishment Clause—has been under fire for decades. Primarily, critics argue that the reasonable observer, as conceived by the Supreme Court, is incapable of representing a community perspective because he does not sufficiently resemble a flesh-and-blood person. This criticism can be further articulated as two specific complaints: first, that too much knowledge is imputed to the reasonable observer, making him more omniscient than the average passerby; and second, that the reasonable observer, like the average judge, is biased toward a majoritarian …

Visual Gut Punch: Persuasion, Emotion, And The Constitutional Meaning Of Graphic Disclosure, Ellen P. Goodman

ellen p. goodman

The ability of government to “nudge” with information mandates, or merely to inform consumers of risks, is circumscribed by First Amendment interests that have been poorly articulated in the relevant law and commentary. New graphic cigarette warning labels supplied courts with the first opportunity to assess the informational interests attending novel forms of product disclosures. The D.C. Circuit enjoined them as unconstitutional, compelled by a narrative that the graphic labels converted government from objective informer to ideological persuader, shouting its warning to manipulate consumer decisions. This interpretation will leave little room for graphic disclosure and is already being used to …

The Conspiracy Origin Of The First Amendment, Steven R. Morrison

Steven R Morrison

Scholars and jurists have misunderstood the import of three seminal 1919 First Amendment cases—Schenck v. United States, Frohwerk v. United States, and Abrams v. United States—as primarily free speech cases. They are better understood as free assembly cases. This is important for two reasons. First, individuals’ speech has the intended First Amendment effect only when speakers combine into groups. Second, the 1919 cases were the beginning of substantive First Amendment law, and so have resulted in a First Amendment jurisprudence that favors individual rights over group rights. This is a constitutional and normative mistake. Combined with the first reason, the …

Gay Talk: Protecting Free Speech For Public School Teachers, Stephen J. Elkind, Peter D. Kauffman

Stephen J Elkind

In Garcetti v. Ceballos, the Supreme Court held that public employees are not entitled to free speech when speaking “pursuant to their official duties.” In most situations, this strips teachers of First Amendment protection when they discuss controversial subjects, such as homosexuality, with their students. To ensure their classrooms are tolerant and accepting environments for homosexual and questioning youth, teachers need free speech protection against adverse employment action their schools might take. The Garcetti Court, acknowledging that “expression related to academic scholarship and classroom instruction implicates” unique constitutional concerns, explicitly left open whether its decision applied in the education …

Flemming Rose's Rejection Of The American Free Speech Canon And The Poverty Of Comparative Constitutional Theory, Robert Kahn

Robert Kahn

In the fifteen page English language excerpt of his recent memoir The Tyranny of Silence, Danish publisher Flemming Rose gave an extended defense of his decision to run the cartoon images of the Prophet Mohammed. Current First Amendment doctrine almost certainly would treat this act as protected speech. But Rose barely mentions the First Amendment. Instead, he develops a highly personal theory of speech based on his experience in the Soviet Union and discussions with Salman Rushdie. Like many American legal academics Rose opposes bans on hate speech, but he does so for different reasons.

From a comparative law …

Mirror, Mirror On The Wall, Who Are You To Say Who Is Fairest Of Them All?, Ashley R. Brown

Ashley R Brown

No abstract provided.

Lights, Camera, Arrest: The Stage Is Set For A Federal Resolution Of A Citizen's Right To Record The Police In Public, Taylor R. Robertson

Taylor R Robertson

Grab your cellphone, press the record button, and amaze your friends!

No advertisement like this exists in real life, of course, because the action is already universally automatic—it needs no encouragement or instruction. But aim the camera at the police and you could be arrested and face up to fifteen years in prison under some eavesdropping or wiretapping laws simply for recording the police in public speaking at volumes audible to any unassisted ear. While wiretapping laws were originally intended to protect citizens from the snooping detective, some states have effectively turned these laws into government protection from the watchful …