Law Commons^™

Can The Irs Silence Religious Organizations, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

In the years following the 2004 presidential election, the Los Angeles Times reported that the Internal Revenue Service threatened revoking the tax-exempt status of the All Saints Episcopal Church in Pasadena because during a 2004 sermon, a church rector stated that he opposed the Vietnam and Gulf wars and that Jesus would have disapproved of the Bush Administration's preemptive war doctrine. The rector did not tell his parishioners who to support in the 2004 election, however. This threat of revoking an organization's tax-exempt status is just one example of the IRS's recent and unprecedented aggressiveness in seeking out violations of …

Rethinking Student Press In The 'Marketplace Of Ideas' After Hosty: The Argument For Encouraging Professional Journalistic Practices, Jacob H. Rooksby

Law Faculty Publications

On February 21, 2006, the Supreme Court denied certiorari to Margaret L. Hosty, Jeni S. Porche, and Steven P. Barba, former student editors and staff writers of Illinois’ Governors State University (“GSU”) student newspaper, the Innovator. By denying their petition, the Court effectively ended the trio’s five-year legal battle in which they sought 42 U.S.C. § 1983 relief from Patricia Carter, Dean of Students at GSU. The students had argued that Dean Carter’s actions, which effectively required that they submit prospective issues of the Innovator to her office for administrative approval before going to press, violated their First Amendment …

Art As Speech, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

Church, State, And The Practice Of Love, Richard W. Garnett

Journal Articles

In his first encyclical letter, Deus caritas est, Pope Benedict XVI describes the Church as a community of love. In this letter, he explores the organized practice love by and through the Church, and the relationship between this practice, on the one hand, and the Church's commitment to the just ordering of the State and society, on the other. God is love, he writes. This paper considers the implications of this fact for the inescapably complicated nexus of church-state relations in our constitutional order.

The specific goal for this paper is to draw from Deus caritas est some insight into …

Slapping Around The First Amendment: An Analysis Of Oklahoma’S Anti-Slapp Statute And Its Implications On The Right To Petition, Laura Long

Oklahoma Law Review

No abstract provided.

Substantive Media Regulation In Three Dimensions, Gregory P. Magarian

Scholarship@WashULaw

Changes in the political and regulatory climates are prompting calls to revive substantive government regulation of the broadcast media, specifically the now-defunct fairness doctrine. In this article, Professor Magarian attempts to sharpen the present debate over substantive regulation by closely examining earlier defenses and criticisms of the fairness doctrine. The article assesses how supporters and opponents of the fairness doctrine have characterized three issues essential for assessing the doctrine's wisdom and constitutionality: who is regulating; who is being regulated; and the goal of the regulatory scheme. As to the first issue, who is regulating, fairness doctrine supporters emphasize the democratic …

The Jurisprudence Of Colliding First Amendment Interests: From The Dead End Of Neutrality To The Open Road Of Participation-Enhancing Review, Gregory P. Magarian

Scholarship@WashULaw

First Amendment interests in both speech and religion often collide with one another. A political activist claims a free speech interest in the right to purchase advertising time on a television network, while the network claims a free speech interest in its decision not to sell the time. A religious enclave claims a free exercise interest in having a dedicated public school district, while its neighbors claim a nonestablishment interest in the government's not extending the group special treatment. In this article Professor Magarian examines the phenomenon of colliding First Amendment interests, explains and critiques the Supreme Court's failure to …

Getting Permission, Philip A. Hamburger

Faculty Scholarship

Institutional Review Boards ("IRBs") are the instruments of a system of licensing – a system under which scholars, students, and other researchers must get permission to do research on human subjects. Although the system was established as a means of regulating research, it regulates research by licensing speech and the press. It is, in fact, so sweeping a system of licensing speech and the press that it is reminiscent of the seventeenth century, when Galileo Galilei had to submit to licensing and John Milton protested against it. Accordingly, it is necessary to examine the constitutionality of IRB licensing and, more …

Campaign Speech And Contextual Analysis, Miriam Galston

GW Law Faculty Publications & Other Works

Recent developments - such as a wave of FEC enforcement actions, the FEC's publication of its case by case approach to determining political committee status, and the Supreme Court's decision in FEC v. Wisconsin Right to Life - have made it necessary to reconsider the kinds of campaign finance reforms desirable and constitutionally permissible. This Article examines the proposition that, if section 527 groups and groups exempt under section 501 of the Internal Revenue Code are part of a network of commonly managed organizations, then the FEC should decide whether they need to register as political committees under the Federal …

The Future Of Reputation: Gossip, Rumor, And Privacy On The Internet, Daniel J. Solove

GW Law Faculty Publications & Other Works

YouTube. Facebook. MySpace. Wikipedia. Google. These are among the many new ways people are communicating and obtaining information. In THE FUTURE OF REPUTATION: GOSSIP, RUMOR, AND PRIVACY ON THE INTERNET (Yale University Press, October 2007), Professor Daniel J. Solove warns that this new world demands new thinking about the nature of privacy.

Teeming with chatrooms, online discussion groups, and blogs, the Internet offers previously unimagined opportunities for personal expression and communication. But there's a dark side to the story. A trail of information fragments about us is forever preserved on the Internet, instantly available in a Google search. A permanent …

The First Amendment As Criminal Procedure, Daniel J. Solove

GW Law Faculty Publications & Other Works

This Article explores the relationship between the First Amendment and criminal procedure. These two domains of constitutional law have long existed as separate worlds, rarely interacting with each other despite the fact that many instances of government information gathering can implicate First Amendment freedoms of speech, association, and religion. The Fourth and Fifth Amendments used to provide considerable protection for First Amendment interests, as in the famous 1886 case Boyd v. United States, in which the Supreme Court held that the government was prohibited from seizing a person's private papers. Over time, however, Fourth and Fifth Amendment protection has shifted, …

The Establishment Clause And Religious Expression In Governmental Settings: Four Variables In Search Of A Standard, Daniel O. Conkle

Articles by Maurer Faculty

In his controversial but controlling opinion in Van Orden v. Perry, Justice Breyer rejected an Establishment Clause challenge to a Ten Commandments monument on the grounds of the Texas State Capital. Breyer argued that existing Establishment Clause formulations, including the Lemon and endorsement tests, were inadequate to resolve the case, so he relied instead on legal judgment, an approach informed by doctrinal and policy considerations but not controlled by any formal test. In this Essay, I suggest that Justice Breyer may have been right in Van Orden-if not in his result, then at least in approaching the question as he …

Section 1983 Civil Rights Litigation In The October 2005 Term, Martin Schwartz

Touro Law Review

No abstract provided.

Cyber-Libeling The Glitterati: Protecting The First Amendment For Internet Speech, Abbey L. Mansfield

Vanderbilt Journal of Entertainment & Technology Law

Celebrity gossip is disseminated on the Internet not only by profitable publications and Internet tabloids with professional writers and sophisticated legal teams, but also by countless numbers of "blogs" posted by ordinary individuals, often with nothing more than a dial-up connection. Americans posting speech on the Internet must be aware of the implications of the Gutnick decision and recognize that they could be dragged into court and held liable for defamation abroad. This note explores theoretical changes to the law that should be adopted to protect the First Amendment as it applies to Internet speech. Additionally, this note discusses various …

A Common Tool For Individual Solutions: Why Countries Should Establish An International Organization To Regulate Internet Content, Paul Przybylski

Vanderbilt Journal of Entertainment & Technology Law

This note advances the case for an international organization to control Internet content. Part I describes the current state of affairs with respect to Internet regulation. First, this part describes briefly how the Internet works, to the extent that such a description is necessary to advance the argument presented in this note. Second, concentrating on Europe, the United States, and China, Part I describes the diverging preferences of countries regarding Internet regulation, the approaches they have taken, and the problems they have encountered due to the international nature of the Internet. Third, this part addresses the major attempt at international …

Mashed Up Videos And Broken Down Copyright: Changing Copyright To Promote The First Amendment Values Of Transformative Video, Andrew S. Long

Oklahoma Law Review

No abstract provided.

Bruce Ledewitz, American Religious Democracy: Coming To Terms With The End Of Secular Politics, Thomas A. Schweitzer

Scholarly Works

No abstract provided.

Subverting Justice: An Indictment Of The Animal Enterprise Terrorism Act, Kim Mccoy

Animal Law Review

The Animal Enterprise Terrorism Act (AETA) creates yet another obstacle for the animal advocacy movement. This article explores the reasons behind the AETA’s enactment and its implications for those who advocate on behalf of animals. The author notes the AETA targets individuals based solely on their political ideology and can deter these individuals from exercising their right to free speech due to the threat of being permanently branded as a terrorist. It is this infringement on First Amendment rights, coupled with the AETA’s overbreadth and vagueness, that lead the author to conclude the AETA is unconstitutional. The author also notes …

Pluralism, Dialogue, And Freedom: Professor Robert Rodes And The Church-State Nexus, Richard W. Garnett

Journal Articles

The idea of church-state separation and the image of a wall are at the heart of nearly every citizen's and commentator's thinking about law and religion, and about faith and public life. Unfortunately, the inapt image often causes great confusion about the important idea. What should be regarded as an important feature of religious freedom under constitutionally limited government too often serves simply as a slogan, and is too often employed as a rallying cry, not for the distinctiveness and independence of religious institutions, but for the marginalization and privatization of religious faith.

How, then, should we understand church-state separation? …

The Freedom Of The Church, Richard W. Garnett

Journal Articles

This Article focuses on what the American theologian and Jesuit John Courtney Murray called a Great Idea, whose entrance into history marked the beginning of a new civilizational era. That idea was libertas ecclesiae, or the freedom of the Church. It served, according to Harold Berman, as the catalyst for the first major turning point in European history and as the foundation for nearly a millennium of political theory. And, this Article suggests, it remains a crucial component of any plausible and attractive account of religious freedom under and through constitutionally limited government. It is tempting to assume or expect …

Students And Workers And Prisoners - Oh, My! A Cautionary Note About Excessive Institutional Tailoring Of First Amendment Doctrine, Scott A. Moss

Publications

First Amendment free speech doctrine has been called "institutionally oblivious" for ignoring how different institutions present different legal questions. This Article analyzes a little-discussed phenomenon in the growing literature about institutional context in constitutional law. With certain institutions, the situation is not institutional obliviousness but the opposite: extreme institutional tailoring of speech doctrine. The burden of proof ordinarily is on the government to justify speech restrictions, but in three institutions--public schools, workplaces, and prisons--courts allow heavy speech restrictions and defer to government officials. Even if these institutions need to restrict speech unusually often, why do we need different doctrine--institutionally tailored …

Inchoate Liability And The Espionage Act: The Statutory Framework And The Freedom Of The Press, Stephen I. Vladeck

Scholarly Articles in Law Reviews & Journals

The debate over the proper balance between national security and freedom of the press has increasingly focused on the media's potential criminal liability for publishing sensitive information, as was threatened after the New York Times and the Washington Post disclosed the U.S. government's secret and warrantless wiretapping of domestic phone calls. With the issue of press liability for the publication of national security information, however, comes a bevy of difficult questions concerning the scope of the protections afforded to the press under the First Amendment.

This essay attempts to survey these questions in light of the absence of an overarching …

The First Amendment Versus Operational Security: Where Should The Milblogging Balance Lie?, Katherine C. Den Bleyker

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

You Said What? The Perils Of Content-Based Regulation Of Public Broadcast Underwriting Acknowledgments, Andrew D. Cotlar

Federal Communications Law Journal

Public broadcast stations in the United States are forbidden to air promotional announcements in exchange for payment from commercial entities. However, these stations must acknowledge any financial contribution from donors that support particular programs without promoting the goods and services offered by those donors. While the FCC has attempted to maintain the conceptual distinction between promotional and nonpromotional information, it has struggled to apply this distinction within the context of an evolution in advertising practice.

As a result, many noncommercial educational licensees find it difficult to apply the FCC's rules. A careful analysis of how the FCC underwriting determinations yields …

The Supreme Court Report 2005-06, Julie M. Cheslik, Jamie Landes, Leah Pollema, Michael Shelton

Faculty Works

This article reviews the decisions of the U.S. Supreme Court for the 2005-2006 term focusing on decisions of particular relevance to state and local government. The Court's 2005-06 Term began with much speculation as one, then a second new Justice joined the Court. After the close of the 2004-05 Term, the Court suffered the loss of Chief Justice William Rehnquist, who succumbed to the thyroid cancer that had plagued him during that Term. President Bush ultimately replaced him with Judge John G. Roberts, who began the new Term and authored his fi rst opinion, the traditional 9-0 opinion of a …

Bureaucracy And Distrust: Germaneness And The Paradoxes Of Academic Freedom Doctrine, Alan K. Chen

Sturm College of Law: Faculty Scholarship

This article proposes a new approach to examining individuals' claims to academic freedom under the First Amendment. It begins with the premise that a major source of confusion under current legal doctrine emerges from two paradoxes. The "positional paradox" exists because various constituents within the public university community may, at times, be state actors, free speech claimants, or sometimes simultaneously both. The resolution of many academic freedom disputes may depend on the relative positions of the free speech claimant and the alleged intruder on that freedom. The "First Amendment paradox" arises because, while a robust version of constitutional academic freedom …

If You Work For The Government, Then Shut Your Mouth: Garcetti V. Ceballos And The Future Of Public Employee Speech, Joseph E. Hardgrave

ExpressO

This article dismantles the majority's reasoning in Garcetti v. Ceballos. A theory is proposed to why the Court broke with prior precedence and the sweeping effect of the ambigous holding is examined.

Coercing Adults: The Fourth Circuit And The Acceptability Of Religious Expression In Government Settings, Elizabeth B. Halligan

South Carolina Law Review

No abstract provided.

Access To Audiences As A First Amendment Right: Its Relevance And Implications For Electronic Media Policy, Philip M. Napoli, Sheea T. Sybblis

ExpressO

When the issue of speakers’ rights of access arises in media regulation and policy contexts, the focus typically is on the concept of speakers’ rights of access “to the media,” or “to the press.” This right usually is premised on the audience’s need for access to diverse sources and content. In contrast, in many non-mediated contexts, the concept of speakers’ rights of access frequently is defined in terms of the speaker’s own First Amendment right of access to audiences. This paper explores the important distinctions between these differing interpretations of a speaker’s access rights and argues that the concept of …

"Lewd And Immoral": Nude Dancing, Sexual Expression, And The First Amendment, Kevin Case

Chicago-Kent Law Review

Nude dancing is a particularly awkward fit with the First Amendment. Should the Constitution protect this kind of "speech?" The question has vexed the Supreme Court. While most of the Court has agreed that nude dancing falls within the First Amendment, plurality opinions relegate nude dancing to the "outer ambit" of shielded speech, setting forth confusing and ultimately unsustainable legal tests.

This Note contends that nude dancing can convey powerful and particularized erotic messages of sexual desire, availability, and appreciation of the nude female form. It is not mere "conduct." Moreover, arguments for categorizing nude dancing as "low value" speech, …