Constitutional Law Commons^™

When Is Religious Speech Outrageous?: Snyder V. Phelps And The Limits Of Religious Advocacy, Jeffrey Shulman

Georgetown Law Faculty Publications and Other Works

The Constitution affords great protection to religiously motivated speech. Religious liberty would mean little if it did not mean the right to profess and practice as well as to believe. But are there limits beyond which religious speech loses its constitutional shield? Would it violate the First Amendment to subject a religious entity to tort liability if its religious profession causes emotional distress? When is religious speech outrageous?

These are vexing questions, to say the least; but the United States Supreme Court will take them up next term—and it will do so in a factual context that has generated as …

What The Abortion Disclosure Cases Say About The Constitutionality Of Persuasive Government Speech On Product Labels, Leslie Gielow Jacobs

McGeorge School of Law Scholarly Articles

No abstract provided.

A Duty To Serve?: Assessing The Application Of Religious Exemptions For Marriage Officiants In Same-Sex Marriage Laws With Lessons Learned From The Reproductive Rights World, Christina Coiro

Student Works

No abstract provided.

Modern Application Of The Right Of Publicity To Virtual Avatars, Elina Slavin

Student Works

No abstract provided.

Regulating Cyberharassment: Some Thoughts On Sexual Harassment 2.0, Helen Norton

Publications

No abstract provided.

Government Speech 2.0, Helen Norton, Danielle Keats Citron

Publications

New expressive technologies continue to transform the ways in which members of the public speak to one another. Not surprisingly, emerging technologies have changed the ways in which government speaks as well. Despite substantial shifts in how the government and other parties actually communicate, however, the Supreme Court to date has developed its government speech doctrine--which recognizes "government speech" as a defense to First Amendment challenges by plaintiffs who claim that the government has impermissibly excluded their expression based on viewpoint--only in the context of disputes involving fairly traditional forms of expression. In none of these decisions, moreover, has the …

Shining A Light On Democracy's Dark Lagoon, Helen Norton

Publications

Written for a symposium examining the Fourth Circuit’s jurisprudential tradition, this short essay explores the Fourth Circuit’s approach to the emerging government speech doctrine, under which the government’s own speech is exempt from free speech clause scrutiny. In developing this doctrine, the Supreme Court has been too quick to defer to public entities’ assertion that contested speech is their own; indeed, it has yet to deny the government’s claim to expression in the face of a competing private claim – at significant cost to the public’s ability to hold government politically accountable for its expressive choices. The Fourth Circuit, in …

Summum, The Vocality Of Public Places, And The Public Forum, Timothy Zick

Faculty Publications

No abstract provided.

Territoriality And The First Amendment: Free Speech At - And Beyond - Our Borders, Timothy Zick

Faculty Publications

No abstract provided.

A Popular Approach To Popular Constitutionalism: The First Amendment, Civic Education, And Constitutional Change, Thomas G. Donnelly

Law Faculty Publications

Popular constitutionalists fear that our constitutional culture is becoming less popular. At the same time, these scholars often ignore key popular sources of constitutional meaning. Their accounts focus,  instead, on the elite conflicts that give rise to constitutional change, particularly the ongoing debates between elected officials, movement leaders, and the Supreme Court. Although these studies are essential to understanding the pathways for promoting non-Article V constitutional change, they are "popular" only in the sense that they focus on non-judicial actors and politically salient controversies. The constitutional life of the average citizen is generally ignored. If legal scholars are serious about …

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

Scholarly Works

No abstract provided.

The Unsettling ‘Well-Settled’ Law Of Freedom Of Association, John D. Inazu

Scholarship@WashULaw

This article argues that the Supreme Court’s categories of expressive and intimate association first announced in its 1984 decision, Roberts v. United States Jaycees, are neither well-settled nor defensible. These indefensible categories matter deeply to groups that have sought to maintain an unpopular composition and message in the face of antidiscrimination laws. These groups have been denied associational protections. They have been forced to change their composition - and therefore their message. They no longer exist in the form they once held and desired to maintain.

The Roberts categories of intimate and expressive association are at least partly to blame. …

The Strange Origins Of The Constitutional Right Of Association, John D. Inazu

Scholarship@WashULaw

Although much has been written about the freedom of association and its ongoing importance to American constitutionalism, much recent scholarship mistakenly relies on a truncated history that begins with Roberts v. United States Jaycees, 468 U.S. 609 (1984), the case that divided constitutional association into intimate and expressive components. Roberts’s doctrinal framework has been rightly criticized. However, neither the right of association nor all of its doctrinal problems start there. The Supreme Court’s foray into the constitutional right of association began a generation earlier with NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958).

This article offers a new …

Separating Church And State: Transfers Of Government Land As Cures For Establishment Clause Violations, Paul Forster

Chicago-Kent Law Review

The note examines one of the issues currently before the Supreme Court in Salazar v. Buono, the case concerning a Latin cross war memorial in the Mojave desert. The issue is whether the government may, by transferring land to private parties, cure Establishment Clause violations caused by permanent displays that contain religious imagery. The article surveys the Court's Establishment Clause jurisprudence as it applies to permanent displays, discussing the sometimes-used and sometimes-ignored Lemon-endorsement standard and the potential shift to a coercion standard. It concludes by arguing that even under the Lemon-endorsement standard, courts should often allow the …

Free Speech & Tainted Justice: Restoring The Public's Confidence In The Judiciary In The Wake Of Republican Party Of Minnesota V. White, Gregory W. Jones

Chicago-Kent Law Review

The United States Supreme Court's 2002 decision in Republican Party of Minnesota v. White was the first shot fired in an ongoing battle over judicial campaign ethics. The White decision invalidated a Minnesota Canon of Judicial Conduct prohibiting judicial candidates from announcing their views on disputed legal or political topics. Subsequent to White, numerous states have faced challenges to their judicial canons of conduct by groups advocating for an increased breadth of permissible speech in judicial campaigns. While White and its progeny have safeguarded the first amendment rights of judicial candidates, significant concerns have been raised regarding how best to …

The Bapcpa, The Gag Rule, And The First Amendment: A Proposal For Alignment Through Interpretive And Analytical Change, Cullen Ann Drescher

William & Mary Bill of Rights Journal

No abstract provided.

Must God Be Dead Or Irrelevant: Drawing A Circle That Lets Me In, Richard M. Esenberg

William & Mary Bill of Rights Journal

Some scholars claim that current Establishment Clause doctrine can increasingly be explained in terms of substantive neutrality-that is, the idea that government ought to treat religion and irreligion (or comparable secular activities) in the same way. Whether a product of the Court's commitment to the idea or an artifact of the positions of the "swing" Justices, this proposition has considerable explanatory power. The Supreme Court has, in recent years, permitted the government to make financial support equally available for religious uses, as long as it is done on a neutral basis and through the private choice of the recipients. It …

What Can Be Done Against Cyber Hate? Freedom Of Speech Versus Hate Speech In The Council Of Europe, Isabelle Rorive

Cardozo Journal of International and Comparative Law

The article examines the tension between freedom of speech and the regulation of hate speech on the internet, focusing on the challenges posed by conflicting international laws and jurisdictional issues. It highlights the Council of Europe's efforts to address cyber hate through legal frameworks like the Cybercrime Convention and the Additional Protocol, while discussing the limitations of these measures. The co-regulatory model, combining government oversight with private sector accountability, is presented as a potential solution, though concerns about censorship and free speech remain.

Protecting Freedom Of Expression: The Challenge Of Hate Speech In The European Court Of Human Rights Case Law, Mario Oetheimer

Cardozo Journal of International and Comparative Law

The article examines the European Court of Human Rights' (ECHR) approach to balancing freedom of expression under Article 10 of the European Convention on Human Rights (ECHR) with the need to combat hate speech. The Court systematically excludes certain forms of hate speech from protection, particularly racist and Holocaust denial speech, under Article 17, while affording strong protection to expression that contributes to public debate. The analysis highlights the Court's case-by-case approach, reliance on context, and the distinction between hate speech and incitement to violence.

Restraining False Light: Constitutional And Common Law Limits On A "Troublesome Tort", James B. Lake

Federal Communications Law Journal

The defamation tort is the common law's established remedy for false speech that causes reputational and emotional injury. That tort is subject to intricate constitutional, legislative, and common law rules that have evolved over decades. The false light invasion of privacy tort also provides a potential cause of action in response to injurious falsehood. False light, however, has been subject to much less judicial and legislative scrutiny than defamation. As a result, courts often are uncertain about the proper limits on false light and, in some cases, have countenanced false light claims that would have failed if filed as defamation …

Guns And Speech Technologies: How The Right To Bear Arms Affects Copyright Regulations Of Speech Technologies, Edward Lee

William & Mary Bill of Rights Journal

This Article examines the possible effect the Supreme Court's landmark Second Amendment ruling in District of Columbia v. Heller will have on future cases brought under the Free Press Clause.' Based on the text and history of the Constitution, the connection between the two Clauses is undeniable, as the Heller Court itself repeatedly suggested. Only two provisions in the entire Constitution protect individual rights to a technology: the Second Amendment's right to bear "arms" and the Free Press Clause's right to the freedom of the "press," meaning the printing press. Both rights were viewed, moreover, as pre-existing, natural rights to …

Tinker And Viewpoint Discrimination, John E. Taylor

Law Faculty Scholarship

No abstract provided.

Religion In The Workplace: A Report On The Layers Of Relevant Law In The United States, William W. Van Alstyne

Faculty Publications

No abstract provided.

The Public's Domain In Trademark Law: A First Amendment Theory Of The Consumer, Laura A. Heymann

Faculty Publications

No abstract provided.

Making Sense Of High School Speech After Morse V. Frederick, Mark W. Cordes

William & Mary Bill of Rights Journal

No abstract provided.

Beyond Content Neutrality: Understanding Content-Based Promotion Of Democratic Speech, Marvin Ammori

Federal Communications Law Journal

Scholars and judges generally assume that the cornerstone of free speech doctrine is the distinction between content-based and content-neutral laws. Despite its wide acceptance, the distinction lacks any precedential or normative basis, unless it also accounts for another equally important distinction. The scholars' conventional view of content-analysis overlooks the difference between the government banning a book or recommending it. Content-based laws that suppress specific content, like banning a television show, should be problematic, but content-based laws that promote specific content, such as promoting educational and political shows, should not be.

Precedent and the First Amendment's underlying normative concerns both require …

Unpleasant Speech On Campus, Even Hate Speech, Is A First Amendment Issue, Erwin Chemerinsky

William & Mary Bill of Rights Journal

No abstract provided.

Separationism To The Extreme: The Mt. Soledad Cross And The Ninth Circuit's Crusade To Burden The Free Exercise Clause, Cameron M. Rountree

William & Mary Bill of Rights Journal

No abstract provided.

Words "Which By Their Very Utterance Inflict Injury": Evolving Treatment Of Inherently Dangerous Speech In Free Speech Law And Theory, Rodney A. Smolla

Scholarly Articles

Not available.

Global Issues In Freedom Of Speech And Religion: Cases And Materials, Leslie Gielow Jacobs, Alan Brownstein

McGeorge School of Law Teaching Materials

Brownstein and Jacobs's Global Issues in Freedom of Speech and Religion: Cases and Materials is a companion volume to existing materials. Designed to assist professors in introducing issues of international and comparative law, this title is ideal for use in educational courses that address:

• The First Amendment
• Law and religion
• Individual rights
• Other topics dealing with free speech and religious liberty

In order to make companion materials understandable and accessible to students as well as to professors who have not taught the materials before, this title:

• Includes case excerpts, helpful background materials, and notes
• Is set out in a structure …