First Amendment Commons^™

From Widmar To Mergens: The Winding Road Of First Amendment Analysis, Rosemary C. Salomone

Faculty Publications

(Excerpt)

In 1981, the Supreme Court decided Widmar v. Vincent, holding that a state university that created a "limited open forum" by opening its facilities to student organizations must grant equal access to religiously affiliated groups. The university's failure to do so constituted content-based discrimination that violated the First Amendment to the United States Constitution. The Court rejected the university's argument that its policy to disallow religious meetings on campus was implemented to avoid contravening establishment clause principles. The Court's opinion was inconclusive as to whether the Widmar rationale would apply to secondary schools.

During the same period, Congress …

Justice Harlan And The Bill Of Rights: A Model For How A Classic Conservative Court Would Enforce The Bill Of Rights, Nadine Strossen

Articles & Chapters

No abstract provided.

Halluctinations Of Neutrality In The Oregon Peyote Case, Harry F. Tepker Jr.

American Indian Law Review

No abstract provided.

Structural Free Exercise, Mary Ann Glendon, Raul F. Yanes

Michigan Law Review

In Part I of this article, we analyze the development of case law interpreting the religious freedom language of the First Amendment from the 1940s to the eve of the rights revolution as a casualty of the piecemeal approach to incorporation, compounded by a series of judicial lapses and oversights. Part II deals with the fate of the Religion Clause in the era of the rights revolution, when the free exercise and establishment provisions were deployed in the service of a constitutional agenda to which they were, in themselves, largely peripheral. The current period of doctrinal change is the subject …

Making Sense Of Billboard Law: Justifying Prohibitions And Exemptions, R. Douglass Bond

Michigan Law Review

Part I of this Note surveys the trends in the aesthetic regulation of billboards, culminating in the Supreme Court of California's decision in Metromedia, Inc. v. City of San Diego, and the Supreme Court's review of that decision. Part II analyzes the five Metromedia opinions in order to present properly the contemporary debate over billboard law. It inquires whether a sign prohibition should hinge on the commercial or noncommercial status of the targeted signs. Part III indicates how ambiguities in the Metromedia plurality opinion have produced the conflict in lower courts between the commercial/noncommercial distinction and the onsite/ off …

Academic Freedom And The First Amendment In The Supreme Court Of The United States: An Unhurried Historical Review, William W. Van Alstyne

Faculty Publications

No abstract provided.

A Prior Restraint By Any Other Name: The Judicial Response To Media Challenges Of Gag Orders Directed At Trial Participants, René L. Todd

Michigan Law Review

Gag orders directed at trial participants do not directly intrude into the media's editorial process, but instead result in a reduction of the total communication available regarding trial proceedings. In this way, participant-directed gag orders are effective, albeit indirect, restraints upon the media. This Note examines the dynamics of these participant-directed restrictions and their consequent effect upon the media. Part I examines participant-directed gag orders in relation to traditional prior restraint doctrine. After discussing the history of prior restraint doctrine and the present standard of prior restraint analysis, Part I relates efforts by courts to apply. prior restraint doctrine to …

Religious Free Speech Rights Of Students In Public Schools: The Educator's Dilemma, Rosalie Levinson

Law Faculty Publications

No abstract provided.

The Supreme Court And The First Amendment: The 1989-90 Term, Elliot M. Mincberg

NYLS Journal of Human Rights

No abstract provided.

Organizational Standing In Environmental Litigation, Jeanne A. Compitello

Touro Law Review

No abstract provided.

The Lessons Of Miller And Hudnut: On Proposing A Pornography Ordinance That Passes Constitutional Muster, Martin Karo, Marcia Mcbrian

University of Michigan Journal of Law Reform

This Note first reviews the evolution of obscenity law, concentrating on the modern obscenity test formulated in Miller v. California, including its requirement that any obscenity prosecution must be based on a state statute, not merely on the common law. It then examines the elements of the Miller test, arguing that legislatures may determine statewide "community standards" of patently offensive depictions of sexual conduct and discusses the permissibility of legislative expansion of pornography regulation beyond the present boundaries. Part II examines the federal courts' analysis of the civil rights-based antipornography ordinance passed in Indianapolis. Part III suggests standards for …

Harry Kalven, The Proust Of The First Amendment, Lee Bollinger

Michigan Law Review

A Review of A Worth Tradition: Freedom of Speech in America by Harry Kalven, Jr.

First Amendment, Burt Neuborne

Touro Law Review

No abstract provided.

Section 1983, Martin A. Schwartz, Honorable George C. Pratt, Leon Friedman

Touro Law Review

No abstract provided.

Forgetting The Constitution, Robert F. Nagel

Publications

No abstract provided.

Exorcizing Everson, Gerard V. Bradley

Journal Articles

Daniel Dreisbach: Real Threat and Mere Shadow: Religious Liberty and the First Amendment. Crossway Books. 351 pp. $15.00 (paper).

No aspect of constitutional law sports a bigger profile these days than that concerning religion, or "Church and state." Academics debate it prodigiously, lawyers litigate it furiously, and judges issue opinions on the subject with clockwork regularity. But this commotion is hardly esoteric. Pat Robertson's candidacy stirred everyone's emotions precisely because each of us has a strong sense of just how religious politics should be. George Bush clumsily attested to this popular sensitivity. What sustained bomber pilot Bush …

The Apologetics Of Suppression: The Regulation Of Pornography As Act And Idea, Steven G. Gey

Michigan Law Review

The first three parts of this article discuss in detail the relationship between the Supreme Court's obscenity rulings and the academic theories that have been offered to bolster the conclusions reached by the Court in this area. Part IV of the article considers a contrary theory of free expression that requires constitutional protection for the dissemination and possession of pornography. In this section I argue that the present efforts to ban pornography are directly linked to a tolerance model of free expression. The tolerance model, which is usually contrasted with an analytical approach characterized by Holmesian skepticism, necessarily relies upon …

Privacy, Pornography, And The Supreme Court, 21 J. Marshall L. Rev. 755 (1988), Richard F. Hixson

UIC Law Review

No abstract provided.

Hard-Core Pornography: A Proposal For A Per Se Rule, Bruce A. Taylor

University of Michigan Journal of Law Reform

Part I of this Article discusses the history and pervasiveness of the pornography problem. Part II explains the current legal test for obscenity, as evolved from Miller v. California, with an emphasis on terms commonly used in the definition of obscenity. Part III examines the problems in applying Miller that suggest that the application of a per se hard-core pornography rule may be appropriate. Finally, Part IV presents a proposal for a per se hard-core pornography rule, similar to child pornography laws existing in many jurisdictions and upheld by the Supreme Court in New York v. Ferber. This Article concludes …

The Constitution, Religion, And American Public Life, Gerard V. Bradley

Journal Articles

From the Introduction

Even a nonspecialist familiar with all of the contiguous disciplines - religious studies, theology, all facets of American history, the history of Christianity, sociology of knowledge, even constitutional and legal history up to World War II - would never guess what American constitutional law of church and state really is. The temptation after reading the actual cases concerning church and state is to dismiss them as stupid. Church-state is the realm of "legendary inconsistencies," as one sympathetic scholar put it.

The sorriest scene in this legal wonderland is a recurring one, and plays in the public schoolroom. …

Student Speech—Free Press In High Schools, Michael A. Simons

Faculty Publications

(Excerpt)

Public educators in the United States are expected to pass on to their students—to inculcate in them—the shared values of their community. This communication of values is essential to the continued vitality of American culture and to the social, moral, and political education of students. Yet inculcation of community values cannot be allowed to trample students' individual liberties; public educators must strike a delicate balance between the state's educational interests and the students' rights to self-expression. Although the striking of this balance should initially be left to local educators, when value inculcation impermissibly interferes with students' constitutional rights, courts …

Federal Funds To Religious Groups: Where Are The First Amendment Boundaries?, Neal Devins

Faculty Publications

No abstract provided.

Webster V. Doe, Lewis F. Powell, Jr.

Supreme Court Case Files

No abstract provided.

The Right To Speak, The Right To Hear, And The Right Not To Hear: The Technological Resolution To The Cable/Pornography Debate, Michael I. Meyerson

All Faculty Scholarship

The advent of cable television presented a new opportunity to consider the competing interests on each side of the free speech/pornography debate. This Article attempts to construct an analysis that will be consistent with Supreme Court teaching on how government, under the first amendment, may constitutionally regulate legal obscenity, particularly in the name of protecting those who wish to avoid exposure to such material.

The Article shows how, unlike earlier battles over technology and pornography, cable television presented the novel opportunity to have a technological rather than a censorial solution to this difficult problem.

The Supreme Court's Limiting Of First Amendment Protection For Defendants In Defamation Cases, Gregory L. Hughes

North Carolina Central Law Review

No abstract provided.

Free Speech And Corporate Freedom: A Comment On First National Bank Of Boston V. Bellotti, Carl E. Schneider

Articles

The corporation was born in chains but is everywhere free. That freedom was recently affirmed by the United States Supreme Court in First National Bank of Boston v. Bellotti. In Bellotti, the Court overturned a Massachusetts criminal statute forbidding banks and business corporations to make expenditures intended to influence referenda concerning issues not "materially affecting" the corporation's "property, business, or assets." In doing so, the Court confirmed its discovery that commercial speech is not unprotected by the first amendment and announced a novel doctrine that corporate speech is not unprotected by the first amendment. Although several years have …

Teaching Constitutional Law: Role-Playing The Supreme Court, David S. Day

Journal of Legal Education

No abstract provided.

Religion And The Burger Court, Rex E. Lee

Michigan Law Review

A Review of Religion, State and the Burger Court by Leo Pfeffer

The Secular Meaning Behind The Lemon Test: Lynch V. Donnelly

Touro Law Review

No abstract provided.

Greenmoss Builders, Inc. V. Dun & (And) Bradstreet Inc. Invites Controversy, 19 J. Marshall L. Rev. 929 (1986), Elmer Gertz

UIC Law Review

No abstract provided.