First Amendment Commons^™

Court Reform And Breathing Space Under The Establishment Clause, Mark C. Rahdert

Chicago-Kent Law Review

Flast v. Cohen held that federal taxpayers have standing to challenge government spending for religion. While Frothingham v. Mellon generally prohibits taxpayer standing in federal courts, the Court reasoned that the Establishment Clause specifically prohibits taxation in any amount to fund unconstitutional religious spending. For several decades Flast has been settled law that supplied jurisdiction in many leading establishment cases. But Hein v. Freedom from Religion Foundation, Inc. and Arizona Christian School Tuition Organization v. Winn signal that Flast may soon be overruled. This jurisdictional ferment raises two questions: Why this sudden shift? And what does it signify for the …

The Future Of The Establishment Clause In Context: Neutrality, Religion, Or Avoidance?, Nicholas P. Cafardi

Chicago-Kent Law Review

No abstract provided.

A Look At The Establishment Clause Through The Prism Of Religious Perspectives: Religious Majorities, Religious Minorities, And Nonbelievers, Samuel J. Levine

Chicago-Kent Law Review

As a number of commentators have observed, the Supreme Court's record in adjudicating the free exercise claims of religious minorities—in particular, unfamiliar and unpopular religious minorities—is vulnerable to the critique that the Court's rhetoric and, at times, the Court's holdings demonstrate an inability or unwillingness to look beyond majoritarian religious perspectives. Building on this scholarship, this article analyzes the Court's adjudication of Establishment Clause cases in the context of different religious perspectives, including those of religious minorities, religious minorities, and nonbelievers.

In exploring these questions, this article traces the Court's Establishment Clause jurisprudence through several decades, examining a number of …

Of Speech And Sanctions: Toward A Penalty-Sensitive Approach To The First Amendment, Michael Coenen

Journal Articles

Courts confronting First Amendment claims do not often scrutinize the severity of a speaker’s punishment. Embracing a “penalty-neutral” understanding of the free-speech right, these courts tend to treat an individual’s expression as either protected, in which case the government may not punish it at all, or unprotected, in which case the government may punish it to a very great degree. There is, however, a small but important body of “penalty-sensitive” case law that runs counter to the penalty-neutral norm. Within this case law, the severity of a speaker’s punishment affects the merits of her First Amendment claim, thus giving rise …

Distorting Democracy: Campaign Lies In The 21st Century, Gerald G. Ashdown

William & Mary Bill of Rights Journal

No abstract provided.

Wikileaks And The First Amendment, Geoffrey R. Stone

Federal Communications Law Journal

FCBA Distinguished Speaker Series

In November 2010, Julian Assange's WikiLeaks collaborated with major media organizations to release thousands of classified U.S. State Department documents. American soldier Bradley Manning stands accused of leaking those documents to the website. In response, Congress introduced the SHIELD Act to amend the Espionage Act of 1917, making it a crime for any person to disseminate any classified information concerning American intelligence or the identity of a classified informant. Such sweeping language, while possibly constitutional as applied to government employees like Manning, is plainly unconstitutional as applied to those like Assange and WikiLeaks who subsequently publish …

The Fcc’S Sponsorship Identification Rules: Ineffective Regulation Of Embedded Advertising In Today’S Media Marketplace, Jennifer Fujawa

Federal Communications Law Journal

In the contemporary media landscape, the advertising industry is increasingly relying on embedded advertising to reach consumers. The scope of embedded advertising in today's marketplace raises significant concerns and complicated First Amendment questions regarding the type of regulation needed to suit the interests of all parties concerned. In 2008, the FCC released a joint Notice of Intent/Notice of Proposed Rulemaking entitled Sponsorship Identification Rules & Embedded Advertising, which requested comments on the FCC's proposed changes to its sponsorship identification rules in light of this growing prevalence of embedded advertising. Yet, four years later, the FCC's sponsorship identification rules are exactly …

Bart Cell Phone Service Shutdown: Time For A Virtual Forum?, Rachel Lackert

Federal Communications Law Journal

The balancing act between protecting First Amendment rights and the necessity of law enforcement to maintain the public order is not simple under normal circumstances. On August 11, 2011, San Francisco's Bay Area Rapid Transit ("BART") created a paradigm embodying the very essence of this problem by shutting down cell phone and Internet service to prevent citizens from organizing and planning a protest. Both the constitutional and telecommunications law implications of BART's cell phone and Internet shutdown beg for analysis and reform, especially in an age of rapidly advancing technology. This Note analyzes the legal implications of BART's shutdown, and …

"Worse Than The Disease": The Anti-Corruption Principle, Free Expression, And The Democratic Process, Martin H. Redish, Elana Nightingale Dawson

William & Mary Bill of Rights Journal

No abstract provided.

Ideology "All The Way Down"? An Empirical Study Of Establishment Clause Decisions In The Federal Courts, Gregory C. Sisk, Michael Heise

Cornell Law Faculty Publications

No abstract provided.

Free Speech And Parity: A Theory Of Public Employee Rights, Randy J. Kozel

William & Mary Law Review

More than four decades have passed since the U.S. Supreme Court revolutionized the First Amendment rights of the public workforce. In the ensuing years the Court has embarked upon an ambitious quest to protect expressive liberties while facilitating orderly and efficient government. Yet it has never articulated an adequate theoretical framework to guide its jurisprudence.

This Article suggests a conceptual reorientation of the modern doctrine. The proposal flows naturally from the Court’s rejection of its former view that one who accepts a government job has no constitutional right to complain about its conditions. As a result of that rejection, the …

Saving Their Own Souls: How Rluipa Failed To Deliver On Its Promises, Sarah Gerwig-Moore

Legislation and Policy Brief

In the summer of 2001, as a graduate student in law and theology, I began work on a master’s thesis that examined the predicament of men of faith on San Quentin’s Condemned Row. I was working in the California Appellate Project—mostly assisting with direct appeals and state habeas petitions on behalf of men under a death sentence—when a colleague guided me into theological conversations with some of our clients. On Condemned Row, they waited—up to five years to be assigned a court-appointed appellate attorney, on judges’ rulings, and to find whether the legal system would ultimately exact the penalty it …

Bartnicki V. Vopper: Another Media Victory Or Ominous Warning Of A Potential Change In Supreme Court First Amendment Jurisprudence?, Jennifer Nichole Hunt

Pepperdine Law Review

No abstract provided.

Dueling Values: The Clash Of Cyber Suicide Speech And The First Amendment, Thea E. Potanos

Chicago-Kent Law Review

On March 15, 2011, William Melchert-Dinkel, a Minnesota nurse, was convicted of two counts of assisted suicide, based solely on things he said in emails and online chat rooms. This note examines whether cyber speech encouraging suicide, such as Melchert-Dinkel's, should be protected by the First Amendment. States have compelling interests in preserving life, preventing suicide, and protecting vulnerable persons from abuse, and the majority of them have assisted suicide statutes that could be applied to cyber-suicide speech. However, because cyber- suicide speech does not fit neatly into recognized categories of "low-value" or unprotected speech, punishment may be foreclosed by …

Implications Of Libel Doctrine For Nondefamatory Falsehoods Under The First Amendment, Nat Stern

Scholarly Publications

No abstract provided.

Of Burning Houses And Roasting Pigs: Why Butler V. Michigan Remains A Key Free Speech Victory More Than A Half-Century Later, Clay Calvert

Federal Communications Law Journal

More than fifty years after the U.S. Supreme Court rendered its unanimous decision in Butler v. Michigan, the case remains a pivotal-if unheralded and perhaps underappreciated-victory for freedom of speech. This Article analyzes the Butler principle and demonstrates how courts repeatedly apply it across different media platforms and in a myriad of factually distinct contexts, ranging from prohibitions on the sale of sex toys to bans on beer bottles with offensive labels. The Article initially provides an in-depth look at Butler, drawing on literary scholarship, historical newspaper articles from the time of the case, and other sources. It then illustrates …

Wiretapping The Internet: The Expansion Of The Communications Assistance To Law Enforcement Act To Extend Government Surveillance, Christa M. Hibbard

Federal Communications Law Journal

Criminal use of the Internet to circumvent traditional government phone wiretaps has inspired the Obama Administration to create a proposal to expand the Communications Assistance to Law Enforcement Act ("CALEA"). CALEA was passed in 1994 to regulate telephone and broadband companies to ensure compliance with standards to enable government wiretapping. The proposed amendment of CALEA would allow the government to require all communications service providers to meet technical standards necessary to comply with a wiretap order. The expansion of CALEA would likely widen its scope to social networking sites, instant messaging, gaming consoles that allow conversation among multiple players, and …

Looking Back At Cohen V. California: A 40 Year Retrospective From Inside The Court, Thomas G. Krattenmaker

William & Mary Bill of Rights Journal

No abstract provided.

Hugo Black's Vision Of The Lawyer, The First Amendment, And The Duty Of The Judiciary: The Bar Applicant Cases In A National Security State, Joshua E. Kastenberg

William & Mary Bill of Rights Journal

No abstract provided.

Teens, Sexts, & Cyberspace: The Constitutional Implications Of Current Sexting & Cyberbullying Laws, Jamie L. Williams

William & Mary Bill of Rights Journal

No abstract provided.

The Structural Constitutional Principle Of Republican Legitimacy, Mark D. Rosen

All Faculty Scholarship

Representative democracy does not spontaneously occur by citizens gathering to choose laws. Instead, republicanism takes place within an extensive legal framework that determines who gets to vote, how campaigns are conducted, what conditions must be met for representatives to make valid law, and many other things. Many of the “rules-of-the-road” that operationalize republicanism have been subject to constitutional challenges in recent decades. For example, lawsuits have been brought against “partisan gerrymandering” (which has led to most congressional districts not being party-competitive, but instead being safely Republican or Democratic) and against onerous voter identification requirements (which reduce the voting rates of …

Categories, Tiers Of Review, And The Roiling Sea Of Free Speech Doctrine And Principle: A Methodological Critique Of United States V. Alvarez, Rodney A. Smolla

Scholarly Articles

None available.

Saving Their Own Souls: How Rluipa Failed To Deliver On Its Promises, Sarah Gerwig-Moore

Articles

In the summer of 2001, as a graduate student in law and theology, I began work on a master’s thesis that examined the predicament of men of faith on San Quentin’s Condemned Row. I was working in the California Appellate Project—mostly assisting with direct appeals and state habeas petitions on behalf of men under a death sentence—when a colleague guided me into theological conversations with some of our clients. On Condemned Row, they waited—up to five years to be assigned a court-appointed appellate attorney, on judges’ rulings, and to find whether the legal system would ultimately exact the penalty it …

Foreword: Constitutional Constraints State Health Care & Privacy Regulation After Sorrell V. Ims Health, John M. Greabe

Law Faculty Scholarship

This brief Foreword explains that First Amendment law is fertile ground for analysis under choice of law principles. It then opines that the majority and dissenting opinions in Sorrell v. IMS Health are rooted in different choices of law that would benefit from a more explicit acknowledgment and explanation.

Will Free Speech Get A License To Drive In Florida?: A Proposal For Distinguishing Free Speech From Government Speech In Florida Specialty Plate Cases, Christopher Robert Dillingham Ii

Florida A & M University Law Review

Specialty license plates for automobiles, which publish individual and special interest Free Speech, present a quagmire for the courts when analyzed through the lens of the First Amendment's Free Speech Clause. While citizens and groups can obtain personalized license plates that publish both symbolic and written speech, state governments often exercise strict editorial control over their license plates. This regulatory scenario raises the dual questions of who is speaking - the government or the private party - and how much constitutional power the government has to engage in viewpoint restriction in regulating that speech in this traditional government forum. The …

Prece-Don't: Corporations And The Rise Of The Modern Judicial Dictatorship, Justin Levitt

Florida A & M University Law Review

In 2010, the Supreme Court decision, Citizens United v. Federal Election Commission, declared unconstitutional any law forbidding corporations and unions from using general treasury funds for "electioneering communication," or political advocacy transmitted by broadcast, cable, or satellite communication in the period leading up to a federal election.

This note will examine the implications of the Citizens United decision and will argue that the future of First Amendment protection of corporate speech does not turn on any notion of corporate personhood. It will explore exactly how the Court has applied the equal protection clause of the Fourteenth Amendment to corporations. It …

Foia And The First Amendment: Representative Democracy And The People's Elusive "Right To Know", Barry Sullivan

Maryland Law Review

No abstract provided.

Free Speech For Judges And Due Process For Litigants: The Elimination Of First And Fourteenth Amendment Mutual Exclusivity In Siefert V. Alexander, 46 J. Marshall L. Rev. 333 (2012), Margaret Mares

UIC Law Review

No abstract provided.

Kiss The Book...You're President...: "So Help Me God" And Kissing The Book In The Presidential Oath Of Office, Frederick B. Jonassen

Faculty Scholarship

No abstract provided.

The Coordination Conundrum, Catherine A. Hardee

Faculty Scholarship

Justice Souter's oft-repeated quote aptly summarizes the function of strict standards of review in constitutional jurisprudence to protect unpopular speech from restrictions based on content-laden value judgments. While strict standards have their advantages, commentators have found fault with their rigidity and have questioned whether any decision-making process can, or should, be free of pragmatic considerations. This doctrinal discussion has been reinvigorated by two recent United States Supreme Court opinions. At the root of both cases was the Court's reliance on the distinction between coordinated and independent speech. This Article examines the validity of this divide and challenges the foundation upon …