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Articles 61 - 90 of 149
Full-Text Articles in First Amendment
Equality And The Free Exercise Of Religion , Bret Boyce
Equality And The Free Exercise Of Religion , Bret Boyce
Cleveland State Law Review
Part I of this Article begins with a brief overview of Supreme Court case law on free exercise exemptions, which provides a background for modern historical and normative debates. Part II examines the original understanding of the Religion Clauses, which proponents of “substantive neutrality” claim supports their position. This Part rejects that claim, concluding that the limited evidence of the original understanding of the First Amendment and the Fourteenth Amendment (under which current doctrine makes the First Amendment's guarantees applicable to the states) does not provide a firm basis for resolving modern debates over exemptions, but is at least as …
How To Avoid A "Holy War" -- Dealing With Potential Rluipa Claims, Alan C. Weinstein
How To Avoid A "Holy War" -- Dealing With Potential Rluipa Claims, Alan C. Weinstein
Law Faculty Articles and Essays
This article discusses how local government can seek to avoid a claim being brought against it under the Religious Land Use & Institutionalized Persons Act (RLUIPA). Thus, the focus is not on what steps a local government should take when a RLUIPA claim is brought - or threatened to be brought - against it, but focuses instead on what steps local governments should take to seek to avoid a RLUIPA claim in the first place. After reviewing both the changing context of religious observance in the United States, and RLUIPA decisions to date, the article concludes that we are clearly …
Privatizing Public Forums To Eliminate Dissent, Kevin F. O'Neill
Privatizing Public Forums To Eliminate Dissent, Kevin F. O'Neill
Law Faculty Articles and Essays
As the 2008 presidential campaign gets underway, the candidates may be tempted to suppress dissent at public forum rallies by using a tactic that Ronald Reagan pioneered and George W. Bush perfected. Under this tactic, the candidate's advance team “privatizes” a public square or public park by securing a municipal permit for the rally date that authorizes the expulsion of any citizen who manifests support for a rival candidate. At a 2004 Bush re-election rally, citizens who held signs opposing the President or opposing the war in Iraq were systematically expelled from a public park by Secret Service agents, who …
Excuse Me, Sir; You're Sitting In A No Cell Phone Pornography Section, You'll Have To Put That Away: May The Fcc Regulate The Content Of Wireless Broadband Transmissions, H. William Beseth Iii
Excuse Me, Sir; You're Sitting In A No Cell Phone Pornography Section, You'll Have To Put That Away: May The Fcc Regulate The Content Of Wireless Broadband Transmissions, H. William Beseth Iii
Cleveland State Law Review
This Note will argue that the scope of the FCC's authority to regulate traditional broadcast content does not extend to the content transmitted to wireless devices via broadband transmission. Part II of this Note provides a study of the key cases that characterize the scope of the FCC's statutory authority to regulate traditional broadcast content. Additionally, Part II presents a discussion of the First Amendment and the limits it imposes on the FCC's regulation of broadcast content. Part III evaluates whether content transmitted by new technologies fits into the regulatory scope of the FCC's authority according to the tests set …
Testimony Before The House Committee On Veterans' Affairs, Subcommittee On Disability Assistance And Memorial Affairs, In Support Of H.R. 5037, The "Respect For America's Fallen Heroes Act,", David Forte
Law Faculty Presentations and Testimony
H.R. 5037, entitled the ”Respect for America's Fallen Heroes Act,” seeks to limit ”certain demonstrations” in cemeteries under the control of the National Cemetery Administration or on the property of Arlington National Cemetery. The bill defines what constitutes a demonstration disruptive of the memorial services or funerals being held in or within 500 feet of such cemeteries, but allows an exception for demonstrations on cemetery grounds if ” approved by the cemetery superintendent.” There are thus two constitutional issues to be confronted: (1) Does the ban on ”certain” demonstrations meet the requirements of First Amendment law as laid down in …
Prayer Or Prison: The Unconstitutionality Of Mandatory Faith-Based Substance Abuse Treatment, Christopher M. Meissner
Prayer Or Prison: The Unconstitutionality Of Mandatory Faith-Based Substance Abuse Treatment, Christopher M. Meissner
Cleveland State Law Review
Whether faith-based substance abuse treatments are effective is certainly a valid question in its rightful place, but it is not the inquiry pursued here. Rather, this Note argues that a drug court's act of assigning unwilling offenders to twelve-step or otherwise religiously-based residential treatment centers violates the Establishment Clause guarantee. Specifically, such centers regulate the offenders' beliefs and compel them to affirm whatever tenets are professed at the individual treatment center. Moreover, a court's subsequent act of threatening or actually imposing criminal sanctions upon offenders for refusing to complete such treatment programs constitutes punishment for refusing to be religiously indoctrinated …
Petition For Writ Of Certiorari, Bellecourt, Et Al., V. City Of Cleveland, 544 U.S. 1033, 125 S. Ct. 2271 (2005), Kevin Francis O'Neill, Terry H. Gilbert
Petition For Writ Of Certiorari, Bellecourt, Et Al., V. City Of Cleveland, 544 U.S. 1033, 125 S. Ct. 2271 (2005), Kevin Francis O'Neill, Terry H. Gilbert
Law Faculty Briefs and Court Documents
Deciding an important question of Federal Free Speech law, the Ohio Supreme Court has recognized a fire safety justification so easy to invoke that it may be used to punish virtually every instance of flag burning and effigy burning - thereby undercutting this Court's decision in Texas v. Johnson, and creating a question of first impression that requires this Court's review and correction.
Too Much Religious Freedom - Infants Infected With Herpes After Jewish Mohel Applies Oral Suction To Circumcised Penises, Jamie Cole Kerlee
Too Much Religious Freedom - Infants Infected With Herpes After Jewish Mohel Applies Oral Suction To Circumcised Penises, Jamie Cole Kerlee
Journal of Law and Health
Does the Constitution absolutely protect the free exercise of oral-genital suction when it threatens the health and safety of human beings, particularly infants? And does the Constitution bar parents from having any remedy for the lifelong physical, emotional, and financial damage that may potentially result from the negligent HSV transmission through metzizah be'peh? This article focuses on the controversial issue of state interference with the Orthodox Jewish practice, a topic recently at the forefront in New York City. Until the government recognizes its duty to provide affirmative regulation of metzitzah be'peh to protect the compelling health interest of infants, thousands …
Review Of Refuge Of A Scoundrel: The Patriot Act In Libraries, Glenda A. Thornton
Review Of Refuge Of A Scoundrel: The Patriot Act In Libraries, Glenda A. Thornton
Michael Schwartz Library Publications
Review of Refuge of a Scoundrel: The Patriot Act In Libraries
Supreme Court Watch, Reginald Oh
Supreme Court Watch, Reginald Oh
Law Faculty Articles and Essays
Professor Oh briefly describes Locke v. Davey in which the U.S. Supreme Court, in its 2003-04 term, attempted to clarify its First Amendment jurisprudence on the religion clauses. In a 7-2 decision, the Court held that the State of Washington did not violate the First Amendment Free Exercise Clause by denying government financial aid to college students seeking to pursue a course of study in religious devotional studies.
Rluipa: Where Are We Now? Where Are We Heading?, Alan C. Weinstein
Rluipa: Where Are We Now? Where Are We Heading?, Alan C. Weinstein
Law Faculty Articles and Essays
Over the past three years, hardly a week has gone by without at least one news-story announcing that a church, synagogue, or religious school-I'll use the term “church” from here on as a shorthand for all houses of worship or other religious institutions—is claiming that its right to religious freedom is being infringed by local government land use regulations in violation of the Religious Land Use and Institutionalized Persons Act. RLUIPA, a federal statute signed into law in September 2000, was enacted to restore to full vigor legal protection for religious freedoms that the Act's proponents argue had been seriously …
The Run For The Roses Meets The First Amendment: An Examination Of Desormeaux V. Kentucky Racing Commission And The Constitutionality Of Prohibitions On Jockey Advertising, William P. Barnette
The Run For The Roses Meets The First Amendment: An Examination Of Desormeaux V. Kentucky Racing Commission And The Constitutionality Of Prohibitions On Jockey Advertising, William P. Barnette
Cleveland State Law Review
Desormeaux v. Kentucky Racing Commission raises a number of significant First Amendment issues. After providing the background of the case and discussing issues related to jockey advertising, this article will analyze the Desormeaux plaintiffs' claims under a variety of First Amendment doctrines, including: political speech, commercial speech, public employer, and public forum. The article concludes that the jockeys present a strong First Amendment challenge to the regulation as applied in Desormeaux, but that on the larger issue of jockey advertising the Commission has valid arguments in support of the prohibition.
Striking A Balance: Finding A Place For Religious Conscience Clauses In Contraceptive Equity Legislation, Staci D. Lowell
Striking A Balance: Finding A Place For Religious Conscience Clauses In Contraceptive Equity Legislation, Staci D. Lowell
Cleveland State Law Review
This note will attempt to address the interrelationship of the Pregnancy Discrimination Act and the First and Fourteenth Amendments in the context of contraceptive equity legislation. To that end, the note will examine states' definitions of a "religious employer" and make recommendations regarding statutory language that is broad enough to cover those organizations with conscientious objections to contraception but narrow enough to allow women to have ready access to contraceptive services. Following this introduction, Part II of the note will provide background information about both contraceptive equity and religious freedom. Part III will discuss current and proposed contraceptive equity legislation …
The Classified Information Protection Act: Killing The Messenger Or Killing The Message, Mitchell J. Michalec
The Classified Information Protection Act: Killing The Messenger Or Killing The Message, Mitchell J. Michalec
Cleveland State Law Review
The purpose of this Note is to discuss the adequacy of existing statutory and administrative protections for classified information, examine how the agencies responsible for protecting this information implemented controls, and how the courts interpreted these existing protections. This Note argues that the failure of the government to prevent "leaks" is not necessarily a failure of the existing scheme, but rather a failure of the government to apply current controls. Furthermore, it demonstrates that the Classified Information Protection Act is an unnecessary, overbroad, and in some cases, ineffective alternative to the existing protections, with a great potential for abuse. If …
Zelman V. Simmons-Harris And The Private Choice Doctrine, Laura T. Rahe
Zelman V. Simmons-Harris And The Private Choice Doctrine, Laura T. Rahe
Cleveland State Law Review
In Zelman, the Court examined the constitutionality of an Ohio pilot program that took effect in the Cleveland City School District. One of the program's provisions permitted parents to use a tuition voucher for their children to attend public or private schools, including religious schools. The statute authorizing the program ensured that participating private schools remained affordable for the most disadvantaged children, and required that the schools refrain from "advocat[ing] or foster[ing] unlawful behavior or teach[ing] hatred of any person or group on the basis of race, ethnicity, national origin or religion." The Cleveland program exemplifies one attempt, informed by …
Protecting America First: Deporting Aliens Associated With Designated Terrorist Organizations That Have Committed Terrorism In America In The Face Of Actual Threats To National Security, Dana B. Weiss
Cleveland State Law Review
In light of the devastation and destruction caused by the September 11th attacks and the remaining imminent threat of more attacks in this country, this Note proposes legislation that would provide for removal of aliens who are merely associated with a known terrorist organization that has committed acts of terrorism in the United States. Part II outlines the Immigration and Naturalization Services (INS) legislation in effect at the time of the attacks and the rationale behind prohibiting deportation for mere association with a known terrorist organization. Part III discusses newly enacted legislation strengthening deportation laws, which do not go as …
Are Contemporary Community Standards No Longer Contemporary, Roman A. Kostenko
Are Contemporary Community Standards No Longer Contemporary, Roman A. Kostenko
Cleveland State Law Review
This note concurs with the decision reached by the Third Circuit. The federal obscenity law, which incorporated the contemporary community standards test is unconstitutional as applied to expression on the internet because it has chilling effect on the exercise of freedom of speech as guaranteed by the First Amendment to the Constitution of the United States. Because freedom of speech would be restrained by any incorporation of community standards in federal regulation of the internet, the legislature should refrain from adopting a standard that would apply in all internet situations. Rather, with respect to obscenity, the internet should be left …
Muzzling Death Row Inmates: Applying The First Amendment To Regulations That Restrict A Condemned Prisoner's Last Words, Kevin F. O'Neill
Muzzling Death Row Inmates: Applying The First Amendment To Regulations That Restrict A Condemned Prisoner's Last Words, Kevin F. O'Neill
Law Faculty Articles and Essays
This Article asserts that the privilege to deliver a last dying speech— uttered in the presence of, and made audible to, the assembled witnesses in the moments just before one's execution—is a First Amendment right, and that prison policies departing from its traditional exercise are unconstitutional. After canvassing the state prison policies that govern last words, this Article will recount the long historical tradition surrounding their utterance—a history that reveals the extraordinary degree to which Anglo-American governments have honored the privilege.Next, this Article will draw a parallel between the right to utter one's last words and the well-established right of …
Case Commentary - Martin V. Corporation Of The Presiding Bishop: Should Zoning Accommodate Religious Uses Or Vice Versa?, Alan C. Weinstein
Case Commentary - Martin V. Corporation Of The Presiding Bishop: Should Zoning Accommodate Religious Uses Or Vice Versa?, Alan C. Weinstein
Law Faculty Articles and Essays
In Martin v. Corporation of the Presiding Bishop, 747 N.E. 2d 131 (Mass. 2001), the highest court in Massachusetts rules that the Dover Amendment, a state statutes that denies local government the authority to "prohibit, regulate, or restrict the use of land or structures for religious purposes..." authorized the town of Belmont to grant a church special permission to build a steeple for a newly built Church of Jesus Christ of Latter Day Saints temple that was taller than the local zoning provisions would normally allow. Since Martin involved a Massachusetts statute, normally the decision would evoke limited interest, and …
Misperception And Misapplication Of The First Amendment In The American Pluralistic System: Mergers Between Catholic And Non-Catholic Healthcare Systems, Jason M. Kellhofer
Misperception And Misapplication Of The First Amendment In The American Pluralistic System: Mergers Between Catholic And Non-Catholic Healthcare Systems, Jason M. Kellhofer
Journal of Law and Health
This note questions the wisdom of those who content that Catholic health providers, to constitutionally qualify for government assistance or be permitted to merge with public entities, must be stripped of that which makes them most effective - their religious identity. The threat to sectarian healthcare has steadily been on the rise as can be seen in actions such as the American Public Health Association's recent approval of a policy statement recommending more government oversight to preclude the dropping of reproductive services when Catholic and Non-Catholic hospitals merge. Section II explores why these mergers occur and why certain services are …
Conflicts In Regulating Religious Institutions, Alan C. Weinstein
Conflicts In Regulating Religious Institutions, Alan C. Weinstein
Law Faculty Articles and Essays
Over the past 25 years, religious institutions have greatly increased their claims of violation of religious freedom when they are denied zoning approval or subjected to historic preservation regulations. While no one can definitively explain the causes of this increase in First Amendment challenges, it can partially be traced to recent changes in both our society and the way our political/legal system conceptualizes religious freedom.
An Accelerated History Of Expressive Freedom, Kevin F. O'Neill
An Accelerated History Of Expressive Freedom, Kevin F. O'Neill
Law Faculty Articles and Essays
My purpose in writing this article is to examine the growth of Anglo-American speech rights over the past millennium. Since the best measure of expressive freedom is the freedom to criticize one's government, I will focus on the regulation of seditious speech in an accelerated tour of history, from the printing press to the present day.
The First Amendment's Petition Clause As An Alternative Basis For Challenging Voter Initiatives That Burden The Enactment Of Anti-Discrimination Protection For Gays, Lesbians, And Bisexuals, Kevin F. O'Neill
Law Faculty Articles and Essays
In the battle for gay, lesbian, and bisexual rights, most of the fighting has centered on two sources of constitutional protection: substantive due process and equal protection. Unfortunately, courts have been reluctant to find in either of those constitutional guarantees a broad source of protection for gays, lesbians, and bisexuals. The purpose of my remarks today is to suggest that the First Amendment—specifically, the Petition Clause of the First Amendment—provides an alternative basis for vindicating gay, lesbian, and bisexual rights in certain cases. At least in the context of voter initiatives that seek to abolish anti-discrimination protection for sexual orientation, …
A First Amendment Compass: Navigating The Speech Clause With A Five-Step Analytical Framework, Kevin F. O'Neill
A First Amendment Compass: Navigating The Speech Clause With A Five-Step Analytical Framework, Kevin F. O'Neill
Law Faculty Articles and Essays
This Article is designed to serve as a First Amendment “compass,” explaining the Speech Clause while offering a systematic method for analyzing any claim asserted under it. The need for this Article stems from the fact that First Amendment law is more than ever a labyrinth. For students, lawyers, and judges alike, it is difficult even to identify--much less to distinguish and apply-- the various strands of applicable precedent. This is because the Supreme Court has developed a dense mass of overlapping doctrines: drawing distinctions between content-based1 and content-neutral restrictions; drawing further distinctions between fully-protected and “low-level” categories of expression; …
Religious Clubs In The Public Schools: What Happened After Mergens?, Dena S. Davis
Religious Clubs In The Public Schools: What Happened After Mergens?, Dena S. Davis
Law Faculty Articles and Essays
The Equal Access Act, upheld by the Supreme Court in Board of Education v. Mergens, requires public secondary schools to allow access to religiously based student groups on the same basis as other student clubs. Mergens presents many challenges to civil libertarians, who may find their traditional sympathies aligned on both sides of the issue. This article seeks to throw light on some of those issues by reporting on a research project that ascertained the actual effect of the Act on public high schools in Ohio.
School Principals And New York Times: Ohio's Narrow Reading Of Who Is A Public Official Or Public Figure, Andrew L. Turscak Jr.
School Principals And New York Times: Ohio's Narrow Reading Of Who Is A Public Official Or Public Figure, Andrew L. Turscak Jr.
Cleveland State Law Review
The United States Supreme Court has promulgated the rule that plaintiffs in defamation cases who are either public officials or public figures must prove that an alleged defamatory statement was made with "actual malice."' Those individuals who have achieved public official or public figure status have a higher burden of proof than ordinary plaintiffs; they must show that a defamatory falsehood was made "with knowledge that it was false or with reckless disregard of whether it was false or not." The Supreme Court has not listed which government employees qualify for public official status, but it has provided some guidance. …
The Tobacco Industry And The First Amendment - An Analysis Of The 1998 Master Settlement Agreement, Lori Ann Luka
The Tobacco Industry And The First Amendment - An Analysis Of The 1998 Master Settlement Agreement, Lori Ann Luka
Journal of Law and Health
This Note discusses and assesses the Government's likelihood of passing constitutional scrutiny with the Master Settlement Agreement's restrictions in light of the First Amendment case law. A majority of the restrictions will likely pass constitutional scrutiny because they meet the demanding requirements of Central Hudson and its progeny. The author believes that a few of the restrictions need to be more narrowly tailored in order to pass constitutional scrutiny. Suggestions on how to narrowly tailor the restrictions to comport with Central Hudson are proffered by the author. Section II provides an overview of the history of First Amendment commercial speech …
Zoning Ordinances And "Free Speech", Alan C. Weinstein
Zoning Ordinances And "Free Speech", Alan C. Weinstein
Law Faculty Articles and Essays
Over the past two decades there has been a marked expansion in legal challenges to local land use regulations claiming violations of the free speech clause of the First Amendment to the United States Constitution. First Amendment claims can arise whenever government enacts or enforces zoning or other regulations that deal with uses such as billboards or adult entertainment businesses. This article discusses why this litigation is taking place, provides an overview of First Amendment law, and offers local officials some guidelines to help avoid potential legal challenges.
Zoning Restrictions On Location Of Adult Businesses, Alan C. Weinstein
Zoning Restrictions On Location Of Adult Businesses, Alan C. Weinstein
All Maxine Goodman Levin School of Urban Affairs Publications
This year's report concentrates on recent legal developments concerning regulation of the location of "adult entertainment businesses." Such regulations raise serious constitutional issues because the First Amendment's guarantee of freedom of expression extends to non-obscene sexually oriented media. The U.S. Supreme Court, however, has established that local government may single out adult businesses for special regulatory treatment in the form of locational restrictions if the local government can show a substantial public interest in regulating such businesses unrelated to the suppression of speech and if the regulations allow for "reasonable alternative avenues of communication," which essentially translates into a reasonable …
Disentangling The Law Of Public Protest, Kevin F. O'Neill
Disentangling The Law Of Public Protest, Kevin F. O'Neill
Law Faculty Articles and Essays
The purpose of this Article is to alleviate the confusion that so frequently surrounds the law of public protest. Much of that confusion can be avoided, when analyzing a given case, by zeroing in on who is regulating the speech in question. There are four regulatory players, who act in four distinct settings: restrictions enacted by legislative bodies, the issuance of permits and fees by government administrators, speech-restrictive injunctions imposed by the judiciary, and the influence of police as a regulatory presence on the street. Discrete lines of precedent attend each of these players. Legislators and judges, for example, are …