Constitutional Law Commons^™

If Religious Liberty Does Not Mean Exemptions, What Might It Mean? The Founders’ Constitutionalism Of The Inalienable Rights Of Religious Liberty, Vincent Phillip Munoz

Notre Dame Law Review

The Article is divided into three Parts. Part I documents the Founders’ shared understanding that religious liberty is a natural right possessed by all individuals. Part II explains what the Founders meant when they labeled aspects of religious liberty an “unalienable” natural right. The inalienable character of the core of religious liberty reveals what the Founders found special about religion. It also accounts for religion’s special constitutional status, which for the Founders primarily meant specific jurisdictional limits on state sovereignty rather than exemptions. Part III further clarifies the Founders’ constitutionalism of religious freedom by explaining how the Founders understood natural …

Religious Exemptions, Third-Party Harms, And The Establishment Clause, Christopher C. Lund

Notre Dame Law Review

Religious exemptions are important, and sometimes required by the Free Exercise Clause. But religious exemptions can also be troubling, and sometimes forbidden by the Establishment Clause. It is the latter issue with which this Essay concerns itself. But now a different question, which raises a different conception of the Establishment Clause: When are religious exemptions improper or unconstitutional because they burden third parties? This issue of third-party harms has received a lot of attention, especially in light of Hobby Lobby. Hobby Lobby initially sought an exemption from the contraceptive mandate that would have come at the expense of their employees, …

Two Aspects Of Liberty, John H. Garvey

Notre Dame Law Review

Liberty in the constitutional sense is always a right against state interference (a “freedom from”). The First Amendment begins by saying that “Congress shall make no law”; it forbids Congress to license or fine or jail people for speaking, or publishing, or assembling. Liberty is also, always, a right to do something (a “freedom to”): to speak, to assemble, to practice religion, to get married, etc. So “freedom from” and “freedom to” are always parts of the same idea, just as “flying from” and “flying to” are aspects of the same airplane trip. Freedom is always the right to do …

Catholic Constitutionalism From The Americanist Controversy To Dignitatis Humanae, Anna Su

Notre Dame Law Review

This Article, written for a symposium on the fiftieth anniversary of Dignitatis Humanae, or the Roman Catholic Church’s Declaration on Religious Freedom, traces a brief history of Catholic constitutionalism from the Americanist controversy of the late nineteenth century up until the issuance of Dignitatis Humanae as part of the Second Vatican Council in 1965. It argues that the pluralist experiment enshrined in the First Amendment of the U.S. Constitution was a crucial factor in shaping Church attitudes towards religious freedom, not only in the years immediately preceding the revolutionary Second Vatican Council but ever since the late nineteenth century, …

Virtue, Freedom, And The First Amendment, Marc O. Degirolami

Notre Dame Law Review

The modern First Amendment embodies the idea of freedom as a fundamental good of contemporary American society. The First Amendment protects and promotes everybody’s freedom of thought, belief, speech, and religious exercise as basic goods—as given ends of American political and moral life. It does not protect these freedoms for the sake of promoting any particular vision of the virtuous society. It is neutral on that score, setting limits only in those rare cases when the exercise of a First Amendment freedom exacts an intolerable social cost. The Article concludes with two speculations. First, it seems we are no longer …

The Freedom Of Speech In Public Forums On College Campuses: A Single-Site Case Study On Pushing The Boundaries Of The Freedom Of Speech, Alexander Davidson

Journalism

The purpose of this single-site study is to test how far speech can be pushed before it is no longer protected at the California Polytechnic State University. The purpose isn’t merely to push limitations for the sake of testing boundaries, but it is to see what types of speech truly add to the marketplace of ideas and what types simply do not. The main points of the study are to understand what speech is protected and what speech is not protected on California Polytechnic State University’s campus and to understand how the provocation that comes along with “negative speech” can …

Adoption And Foster Care Placement Policies: Legislatively Promoting The Best Interest Of Children Amidst Competing Interests Of Religious Freedom And Equal Protection For Same-Sex Couples, Samantha R. Lyew

Journal of Legislation

No abstract provided.

If You Fly A Drone, So Can Police, Stephen Henderson

Other Faculty Publications

Written for Slate's Future Tense.According to the U.S. Constitution, the more you fly your drone, the more police can fly theirs. “Come on,” you might reply, “that hoary document”—and, yes, sorry to make you the sort who drops words like hoary—“that hoary document surely says nothing about drones.” But in fact it does. At least it does as interpreted by the courts. In particular, it is how they interpret the Fourth Amendment. So, to understand this aspect of drones, we first must understand this provision of the Bill of Rights...

“They Outlawed Solidarity!”, Richard Blum

Seattle University Law Review

In attacking § 8(b)(4)(ii)(B)’s ban on secondary labor picketing in support of a consumer boycott as a violation of the First Amendment, critics have repeatedly condemned the Supreme Court’s reliance on a supposed distinction between “pure speech” and “speech plus conduct,” such as a picket. The Court’s invocation of an “unlawful objectives” doctrine to defend banning speech contrary to public policy has also been repeatedly criticized. After all, picketing has been recognized as protected expressive activity and it is entirely lawful for consumers to choose to boycott the target of a picket. However, commentators have not sought to argue that …

National Security Or Consumer Privacy? A Question Even Siri Couldn’T Answer, Rebecca Knight

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

A Tricky Negotiation: Free Speech Versus Insensitivity, Melvin Dilanchian

Washington University Undergraduate Law Review

The central question presented in this paper is whether specialty license plates constitute government speech, and are thus subject to disapproval by the Board of the Texas Department of Motor Vehicles. The core concerns reviewed in this research, largely focus on defining whose speech specialty license plates are. The purpose is to investigate and analyze the precedent established as a result of a recent case, Walker v. Texas Division, Sons of Confederate Veterans. The paper thoroughly reviews the arguments made in the majority opinion, as well as those of the dissenting opinion, with an interdisciplinary approach. The argument presented …

Etw Corp. V. Jireb Publishing, Inc.: Turning An Athlete's Publicity Over To The Public, Michael J. Breslin

Georgia Journal of Law & Technology

No abstract provided.

Eldred V. Reno: An Example Of The Law Of Unintended Consequences, L. Ray Patterson

Georgia Journal of Law & Technology

No abstract provided.

Dialogue On State Action, Martin A. Schwartz, Erwin Chemerinsky

Touro Law Review

No abstract provided.

On Legal Protection For Electronic Texts: A Reply To Professor Patterson And Judge Birch, Douglas Y'Barbo

Georgia Journal of Law & Technology

No abstract provided.

Burning The Village To Roast The Pig: Congressional Attempt To Regulate "Indecency" On The Internet Rejected In Aclu V. Reno, James M. Mcgee

Georgia Journal of Law & Technology

No abstract provided.

Of Reasonable Readers And Unreasonable Speakers: Libel Law In A Networked World, Lyrissa Lidsky, Ronnell Anderson Jones

Faculty Publications

Social-media libel cases require courts to map existing defamation doctrines onto social-media fact patterns in ways that create adequate breathing space for expression without lincensing character assassination. This Article explores these challenges by investigating developments involving two important constitutional doctrines - the so-called opinion privlege, which protects statements that are unverifiable or cannot be regarded as stating actual facts about a person, and the actual malice rule, which requires defamation plaintiff's who are public officials or public figures to prove that the defendant made a defamatory statement with knowledge of or reckless disregard for, its falsity. Given the critical role …

Prove Yourselves: Oliver Wendell Holmes And The Obsessions Of Manliness, John M. Kang

West Virginia Law Review

No abstract provided.

Dissecting The Hybrid Rights Exception: Should It Be Expanded Or Rejected?, David H. Hudson Jr., Emily H. Harvey

University of Arkansas at Little Rock Law Review

No abstract provided.

Copyright And The Constitution In The Age Of Intellectual Property, David Lange

Georgia Journal of Law & Technology

No abstract provided.

At The Intersection Of Religious Organization Missions And Employment Laws: The Case Of Minister Employment Suits, Jarod S. Gonzalez

Catholic University Law Review

Reviewing the intersection of a religious organization’s right to select employees based on their goals and mission and modern employment law, this article argues that the analysis of the ministerial exception will depend on the type of suit brought. Specifically, the Article identifies five analytical categories: (1) employment discrimination/employment retaliation claims; (2) breach of employment contract claims; (3) whistleblower claims; (4) tort claims; and (5) miscellaneous claims.

The Article begins by describing the ministerial exception and ecclesiastical abstention doctrines that exist under the First Amendment through the lens of the Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church & School …

The Commercial Sexual Exploiutation Of Minors, The First Amendment, And Freedom: Why Backpage.Com Should Be Prevented From Selling America's Children For Sex, Anna Makatche

Fordham Urban Law Journal

No abstract provided.

The Storm Arrives: The First Amendment Cases In The Supreme Court's 1999-2000 Term, Joel M. Gora

Touro Law Review

No abstract provided.

Criminal Court Of The City Of New York, People V. Tiffany, Deborah A. Monastero

Touro Law Review

No abstract provided.

Supreme Court, Queens County, People V. Amadeo, Erik Lindemann

Touro Law Review

No abstract provided.

Court Of Appeals, People V. Fraser, Evan M. Zuckerman

Touro Law Review

No abstract provided.

Second Department, Bowden V. Iona Grammar School, Jonathan Janofsky

Touro Law Review

No abstract provided.

The Supreme Court Rules In Favor Of Religious Club’S Right To Meet On Public School Premises: Is This “Good News” For First Amendment Rights, Thomas A. Schweitzer

Touro Law Review

No abstract provided.

Neutral Principles And Some Campaign Finance Problems, John O. Mcginnis

William & Mary Law Review

This Article has both positive and normative objectives. As a positive matter, it shows that the Roberts Court’s campaign finance regulation jurisprudence can be best explained as a systematic effort to integrate that case law with the rest of the First Amendment, making the neutral principles refined in other social contexts govern this more politically salient one as well. It demonstrates that the typical Roberts Court majority in campaign finance cases follows precedent, doctrine, and traditional First Amendment theory, while the dissents tend to carve out exceptions at each of these levels.

As a normative matter, it argues that following …

The Effect Of Rluipa’S Land Use Provisions On Local Governments, Alan C. Weinstein

Fordham Urban Law Journal

No abstract provided.