Constitutional Law Commons^™

Religious Use Of Copyrighted Works After Smith, Rfra, And Eldred, Steven D. Jamar

Cardozo Law Review

No abstract provided.

The Political (And Other) Safeguards Of Religious Freedom, Richard W. Garnett

Cardozo Law Review

No abstract provided.

Awakening The Press Clause, Sonja R. West

Scholarly Works

The Free Press Clause enjoys less practical significance than almost any other constitutional provision. While recognizing the structural and expressive importance of a free press, the Supreme Court has never recognized explicitly any right or protection as emanating solely from the Press Clause. Recently in the Court’s Citizens United decision, Justices Stevens and Scalia reignited the 30-year-old debate over whether the Press Clause has any function separate from the Speech Clause.

The primary roadblock to recognizing independent meaning in the Press Clause is the definitional problem - who or what is the “press”? Others have attempted to define the press, …

Badmouthing Authority: Hostile Speech About School Officials And The Limits Of School Restrictions, Emily Gold Waldman

William & Mary Bill of Rights Journal

No abstract provided.

The Dark Side Of The Force: The Legacy Of Justice Holmes For First Amendment Jurisprudence, Steven J. Heyman

William & Mary Bill of Rights Journal

Modern First Amendment jurisprudence is deeply paradoxical. On one hand,
freedom of speech is said to promote fundamental values such as individual selffulfillment, democratic deliberation, and the search for truth. At the same time, however, many leading decisions protect speech that appears to undermine these values by attacking the dignity and personality of others or their status as full and equal members of the community. In this Article, I explore where this Jekyll-and-Hyde quality of First Amendment jurisprudence comes from. I argue that the American free speech tradition consists of two very different strands: a liberal humanist view that emphasizes …

Is Constitutionalism Liberal?, Bruce P. Frohnen

Campbell Law Review

Let me begin with the obvious: I am not claiming that any scholar, or educated person, believes that the only constitutions that have ever existed have been liberal. Everyone knows or should know that, for example, the Greek constitutions of Solon, Lycurgus, and others discussed in Aristotle's Politics predate liberalism by many centuries.' Moreover, constitutions come in a wide variety of forms, and many of these, whether written or unwritten, have explicitly been illiberal. What I maintain is that there is a prejudice among lawyers in particular that constitutions must be liberal in order to be worthy of the name. …

Is Modern Legal Liberalism Still Compatible With Free Exercise Of Religion?, Donald R. Mcconnell

Campbell Law Review

Classic liberal legal thought has clearly been shaped by the influence of Christianity. But in recent years, the movement, like ancient Gnosticism, has some Christian elements, but has become a decidedly anti-Christian force in the courts. This comparison tracks well with the analysis of other parallel modern intellectual movements by the political scientist Eric Voegelin. It is also supported by current events such as the recent Federal District Court opinion by Chief Judge Vaughn Walker in Perry v. Schwartzenegger. Liberalism has transformed from an attempt at neutrality, to an established religion that not only promotes its own perverse version of …

Were The Framers - And The Writers Who Influenced Them - Unable To Foresee The Extent Of Secularization That Could Result From The Separation Of Church And State?, Teresa M. Blake

Campbell Law Review

While the United States is filled with religious sects, denominations, worshippers, and even fanatics, the truth is that American society has become largely secular.' When analyzing society's trend toward secularization from a legal perspective, it is only natural to begin with the Establishment Clause of the First Amendment 2-the clause responsible for the separation of church and state. But is today's secular society really the brainchild of the Framers of the Constitution? Or is it an unintended result that was far beyond their realm of foreseeability? This Comment addresses these questions by surveying the writings of several influential Constitutional Framers. …

Equal Access Struggle: Counter-Military Recruitment On High School Campuses, 44 J. Marshall L. Rev. 459 (2011), Phillip Ruben Nava

UIC Law Review

No abstract provided.

Barnes-Wallace V. City Of San Diego: "Psychological Injury" And Its Effect On Standing, 44 J. Marshall L. Rev. 507 (2011), Andrew Meyer

UIC Law Review

No abstract provided.

Foreword: The Impact Of Citizens United, 44 J. Marshall L. Rev. Xxiii (2011), Steven D. Schwinn

UIC Law Review

No abstract provided.

Commentary: Campaign Finance In The Wake Of Citizens United, 44 J. Marshall L. Rev. 583 (2011), Thomas E. Mann

UIC Law Review

No abstract provided.

Small-Donor Public Financing In The Post-Citizens United Era, 44 J. Marshall L. Rev. 619 (2011), Monica Youn

UIC Law Review

No abstract provided.

A Capitalist Joker: The Strange Origins, Disturbing Past, And Uncertain Future Of Corporate Personhood In American Law, 44 J. Marshall L. Rev. 643 (2011), David H. Gans, Douglas T. Kendall

UIC Law Review

No abstract provided.

So What If Corporations Aren't People?, 44 J. Marshall L. Rev. 701 (2011), Ilya Shapiro, Caitlyn W. Mccarthy

UIC Law Review

No abstract provided.

Citizens United And Tiered Personhood, 44 J. Marshall L. Rev. 717 (2011), Atiba R. Ellis

UIC Law Review

No abstract provided.

Ending A Peculiar Evil: The Constitution, Campaign Finance Reform, And The Need For Change In Focus After Citizens United V. Fec, 44 J. Marshall L. Rev. 773 (2011), Carson Griffis

UIC Law Review

No abstract provided.

Free Speech On The Battlefield: Protecting The Use Of Social Media By America's Soldiers, 44 J. Marshall L. Rev. 1085 (2011), David Johnsen

UIC Law Review

No abstract provided.

Regulating Morality Through The Common Law And Exclusionary Zoning, George P. Smith Ii, Gregory P. Bailey

Scholarly Articles

The extent to which a free society seeks to regulate sexual expression is problematic. What was defined as immoral or contra bonos mores in the 20th century, has become less of an issue in today’s liberal society. Freedom of sexual intimacy and expression are, to be sure, 1st Amendment and 14th Amendment rights. But, with every assertion of a fundamental right or liberty must come a concomitant understanding that there is a co-ordinate responsibility to exercise that right reasonably. Determining the reasonableness of any conduct grounded in these two amendments must be fact sensitive and guided by community standards. Broad, …

Religious Freedom, Church-State Separation, & The Ministerial Exception, Carl H. Esbeck, Thomas C. Berg, Kimberlee Wood Colby, Richard W. Garnett

Faculty Publications

The Hosanna-Tabor case concerns the separation of church and state, an arrangement that is often misunderstood but is nevertheless a critical dimension of the freedom of religion protected by the First Amendment to our Constitution. For nearly a thousand years, the tradition of Western constitutionalism - the project of protecting political freedom by marking boundaries to the power of government - has been assisted by the principled commitment to religious liberty and to church-state separation, correctly understood. A community that respects - as ours does - both the importance of, and the distinction between, the spheres of political and religious …

Between Liberalism And Theocracy, John D. Inazu

Campbell Law Review

Our symposium conveners have focused us on "the relationship between liberalism and Christianity and their influence on American constitutionalism."' My objective is to complicate the relationship and reorient the influence. The focus of my inquiry is the liberty of conscience and its implications for navigating the relationship between church and state.' By approaching these issues through the lens of political theology (as distinct from either political or constitutional theory), I hope to show that some of the most significant embodiments of conscience in the American colonies can neither be squared with an individualistic liberalism (as some on the left are …

Handcuffing The Press: First Amendment Limitations On The Reach Of Criminal Statutes As Applied To The Media, Lee Levine, Nathan E. Siegel, Jeanette Melendez Bead

NYLS Law Review

No abstract provided.

Back To The Future? The Effects Of Citizens United V. Fec In The 2010 Election, 44 J. Marshall L. Rev. 595 (2011), Peter L. Francia

UIC Law Review

No abstract provided.

Incendiary Speech And Social Media, Lyrissa Lidsky

Faculty Publications

Incidents illustrating the incendiary capacity of social media have rekindled concerns about the "mismatch" between existing doctrinal categories and new types of dangerous speech. This Essay examines two such incidents, one in which an offensive tweet and YouTube video led a hostile audience to riot and murder, and the other in which a blogger urged his nameless, faceless audience to murder federal judges. One incident resulted in liability for the speaker even though no violence occurred; the other did not lead to liability for the speaker even though at least thirty people died as a result of his words. An …

The Cross National Memorial: At The Intersection Of Speech And Religion, 61 Case W. Res. L. Rev. 1171 (2011), Mary Jean Dolan

UIC Law Open Access Faculty Scholarship

No abstract provided.

Snyder V. Phelps: A Hard Case That Did Not Make Bad Law, Paul E. Salamanca

Law Faculty Scholarly Articles

In Snyder v. Phelps, the Court stood by the First Amendment in hard times. A religious group conducted a protest some 1,000 feet from a fallen marine's funeral, holding such pickets as “God Hates the USA,” “Thank God for Dead Soldiers,” and “You're Going to Hell.” Despite the empathy that virtually anyone would feel for the marine's grieving father, the Court held by a vote of eight to one that his action for intentional infliction of emotional distress and intrusion upon seclusion could not survive, owing largely to the public nature of the issues the protesters had raised. “Hard …

Secular Not Secularist America, Michael Scaperlanda

Campbell Law Review

Other contributors to this symposium see "liberalism"' as the problem and "God" as the solution.' To a large extent, Ithink they have it backwards. "God" is the problem to which "liberalism" provides a particularly creative solution. Power hates a rival,' and God - or allegiance to an all-embracing monotheistic God - poses a significant threat to power because the wild faith of the martyr cannot be tamed by civil authority.

(Re)Complexioning A Simple Tale: Race, Speech, And Colored Leadership, Angela Mae Kupenda

Journal Articles

Rather than acting as a whitening agent, the law should reflect the natural (re)complexioning of society and adapt to the melting pot that is America. The term "(re)complexioning" is used because the idea that the complexion of America was white at the beginning is false. Prior to the "discovery" of America, native citizens were indeed more deeply complexioned than Whites. Any (re)complexioning of the law since, to reflect the colors of America, then, is just to resort to the recognition of factual premises unjustly rejected when America was usurped from those of color and denied to others of color after …

Flawed Assumptions: A Corporate Law Analysis Of Free Speech And Corporate Personhood In Citizens United, Anne M. Tucker

Faculty Publications By Year

In the wake of the January, 2010 Supreme Court decision in Citizens United, special interest groups, citizens, and politicians alike have engaged in a rigorous debate about the role of corporate speech within our democratic process. The First Amendment issues raised in Citizens United - to that extent do corporations have a constitutionally protected right to participate in and influence our elections through expenditures - evoke larger questions about the roles, rights, and responsibilities of corporations within our society. This article concludes that the Supreme Court did not reference corporate law principles when analyzing the fundamental First Amendment debate in …

"Causing The Blood To Flow Where I Touched Him" - Liberalism, Constitutionalism, Christianity, And The "War" At Covey Farm, Anthony V. Baker

Campbell Law Review

I will begin my critique by going directly to the source here, the famous Philadelphia Constitutional Convention of 1787, and ask us to look somewhat carefully at the work of the "founders" there, in considering the ultimate integrity of the product they fashioned and the world they "created." That they gave us a classical liberal wonder, with tenets of that philosophy writ large in government for the very first time, is undeniable, though it will be submitted that they gave us "something else" as well. It is right for us then to explore that "something else," not abstractly, through ideas, …