First Amendment Commons^™

Nonprofits, Speech, And Unconstitutional Conditions, Lloyd Hitoshi Mayer

Journal Articles

This Article proposes a new constitutional framework for approaching the issue of speech-related conditions on government funding received by nonprofits and demonstrates the application of this framework by applying it to the disputes that have reached the Supreme Court in this area. It argues that speech rights are generally inalienable as against the government under the First Amendment, and therefore any abridgement of such rights by the government – whether direct or indirect – is subject to strict scrutiny. As a result, the government is not permitted to buy an organization’s speech (or silence) absent a compelling governmental interest in …

Institutional Autonomy And Constitutional Structure, Randy J. Kozel

Journal Articles

This Review makes two claims. The first is that Paul Horwitz’s excellent book, "First Amendment Institutions," depicts the institutionalist movement in robust and provocative form. The second is that it would be a mistake to assume from its immersion in First Amendment jurisprudence (not to mention its title) that the book's implications are limited to the First Amendment. Professor Horwitz presents First Amendment institutionalism as a wide-ranging theory of constitutional structure whose focus is as much on constraining the authority of political government as it is on facilitating expression. These are the terms on which the book's argument — and, …

Brief Of Eugene Volokh, Richard W. Garnett, Michael Stokes Paulsen, Timothy Zick, William E. Lee, Alan K. Chen, & Ronald J. Krotoszynski, Jr. As Amici Curiae In Support Of Petitioners, Kevin C. Walsh, Matthew A. Fitzgerald, Andriana S. Daly, Richard W. Garnett

Court Briefs

No. 12-1168
Eleanor McCullen v. Martha Coakley

On Writ of Certiorari to the United States Court of Appeals for the First Circuit

From the Summary of Argument

Even many steadfast supporters of abortion rights believed that the Court erroneously applied the First Amendment in Hill v. Colorado, 530 U.S. 703 (2000). As put bluntly by leading liberal scholar Professor Laurence Tribe, Hill was among the candidates for “most blatantly erroneous” decisions of the 1999 Term. Tribe added that the case was “slam-dunk simple” yet the Court got it “slam-dunk wrong.”

Specifically, pro-choice and pro-life scholars alike agreed that the …

Brief Of Richard W. Garnett, Michael Stokes Paulsen, & Eugene Volokh As Amici Curiae In Support Of Petitioners, Kevin C. Walsh, Ryan A. Shores, Richard W. Garnett

Court Briefs

No. 12-1168
Eleanor McCullen v. Martha Coakley

On Petition for a Writ of Certiorari to the United States Court of Appeals for the First Circuit

From the Summary of Argument

This Court granted certiorari in Hill v. Colorado “[b]ecause of the importance of the case.” 530 U.S. 703, 714 (2000). The Court should grant certiorari in this case because of the importance of placing limits on Hill.

The Court does not need to overrule Hill to contain the damage wrought by the First Circuit’s expansion of it. But the Court should contain Hill and thereby prevent further erosion of …

Neutrality And The Good Of Religious Freedom: An Appreciative Response To Professor Koppelman, Richard W. Garnett

Journal Articles

This paper is a short response to an address, “And I Don’t Care What It Is: Religious Neutrality in American Law,” delivered by Prof. Andrew Koppelman at a conference, “The Competing Claims of Law and Religion: Who Should Influence Whom?”, which was held at Pepperdine University in February of 2012. In this response, it is suggested – among other things – that “American religious neutrality” is, as Koppelman argues, “coherent and attractive” because and to the extent that it is not neutral with respect to the goal and good of religious freedom.
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'The Freedom Of The Church': (Towards) An Exposition, Translation, And Defense, Richard W. Garnett

Journal Articles

This Article was presented at a conference, and is part of a symposium, on the topic of "Freedom of the Church in the Modern Era." In addition to summarizing and re-stating claims made by the author in earlier work – claims having to do with, among other things, church-state separation, the no-establishment rule, legal and social pluralism, and the structural role played by religious and other institutions – the Article attempts to strengthen the argument that the idea of “the freedom of the church” (or something like it) is not a relic or anachronism but instead remains a crucial component …

Hosanna-Tabor, Religious Freedom, And The Constitutional Structure, Richard W. Garnett, John M. Robinson

Journal Articles

From the Introduction

Our Constitution, which is both an act and artifact of "We the People of the United States," "vest[s]" certain "powers" - some, but not all - in the national government. Those powers are enumerated, and also separated, checked, and constrained. As Chief Justice John Roberts put it last June, this government "possesses only limited powers; the States and the people retain the remainder." It is designed and structured in such a way as to make it workable, capable, and effective, but also to - by virtue of its design and structure, and not only through explicit prohibitions …

Wikileaks And The Institutional Framework For National Security Disclosures, Patricia L. Bellia

Journal Articles

WikiLeaks’ successive disclosures of classified U.S. documents throughout 2010 and 2011 invite comparison to publishers’ decisions forty years ago to release portions of the Pentagon Papers, the classified analytic history of U.S. policy in Vietnam. The analogy is a powerful weapon for WikiLeaks’ defenders. The Supreme Court’s decision in the Pentagon Papers case signaled that the task of weighing whether to publicly disclose leaked national security information would fall to publishers, not the executive or the courts, at least in the absence of an exceedingly grave threat of harm.
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/="/">The lessons of the Pentagon Papers case for WikiLeaks, …

Brief Amici Curiae Of Professor Eugene Volokh, National Council Of The Churches Of Christ In The Usa, Baptist Joint Committee For Religious Liberty, Queens Federation Of Churches, National Association Of Evangelicals, And Christian Legal Society In Support Of Petitioner, Richard W. Garnett, K. Hollyn Hollman, Melissa Rogers, Kimberlee Wood Colby, Thomas C. Berg, Carl H. Esbeck

Court Briefs

No. 10-553
Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission

On Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit

From the Summary of Argument

This case is about the separation of church and state, an arrangement that is sometimes misunderstood and whose scope is debated, but which is nevertheless a critical dimension of the religious freedom reflected in, and protected by, the First Amendment to our Constitution. For nearly a thousand years, the tradition of Western constitutionalism and the project of protecting political freedom by marking boundaries to the power of …

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

Journal Articles

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 …

Pornography As Pollution, John Copeland Nagle

Journal Articles

Pornography is often compared to pollution. But little effort has been made to consider what it means to describe pornography as a pollution problem, even as many legal scholars have concluded that the law has failed to control internet pornography. Opponents of pornography maintain passionate convictions about how sexually-explicit materials harm both those who are exposed to them and the broader cultural environment. Viewers of pornography may generally hold less fervent beliefs, but champions of free speech and of a free internet object to anti-pornography regulations with strong convictions of their own. The challenge is how to address the widespread …

Brief Amicus Curiae Of The American Center For School Choice In Support Of Petitioners, Richard W. Garnett, John E. Coons

Court Briefs

Nos. 09-987, 09-991
Arizona Christian School Tuition Organization v. Kathleen M. Winn, Gale Garriott v. Kathleen M. Winn

On Writs of Certiorari to the United States Court of Appeals for the Ninth Circuit

From the Introduction and Summary of the Argument

We agree entirely with Petitioners that the panel below misapplied this Court’s relevant doctrines and decisions – including Zelman – and that the ruling under review is neither required by, nor consistent with, the First Amendment to our Constitution. Arizona’s tax-credit program does not impermissibly “establish” or “endorse” religion. Instead, it is an entirely permissible (and promising) policy experiment …

Brief Amici Curiae Of Christian Medical And Dental Associations, Beta Upsilon Chi, And Officers Of Various Christian Legal Society Student Chapters In Support Of Petitioner, Kelly J. Shackelford, Hiram S. Sasser Iii, Jeffrey C. Mateer, Roger L. Byron, Erin Leu, Thomas C. Berg, Richard W. Garnett

Court Briefs

No. 08-1371
Christian Legal Society Chapter of University of California, Hastings College of the Law v. Leo P. Martinez

On Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit

From the Introduction and Summary of Argument

This case poses the question whether a student group organized around religious beliefs will be able to ensure these beliefs are shared by its leaders and voting members, and still be able to participate in a program at a public educational institution designed to encourage speech from a wide range of student groups.

The University of California-Hastings Law School …

Brief Of Constitutional Law Professors As Amici Curiae In Support Of Petitioners, Ryan A. Shores, Richard W. Garnett

Court Briefs

No. 09-592
Eleanor McCullen v. Martha Coakley

On Petition for a Writ of Certiorari to the United States Court of Appeals for the First Circuit

From the Summary of Argument

The Court should grant certiorari to reverse the First Circuit's decision upholding against First Amendment challenge a prohibition on public-forum speech that applies only at freestanding clinics where abortions are performed, exempts clinic agents and employees, and criminalizes peaceful, non-obstructive speech, including conversation with willing listeners, stationary handbilling, and speech from a conversational distance. By granting certiorari, the Court can begin to reconstruct a consensus on free speech principles that …

School Choice And The Challenges That Remain: A Comment On Richard D. Komer's "School Choice And State Constitutions' Religion Clauses", Richard W. Garnett

Journal Articles

Richard Komer’s paper helpfully and carefully shows that, after the Supreme Court’s 2002 ruling in Zelman v. Simmons-Harris, a formidable obstacle to choice-based educational reform has been removed, and also that other, no-less-formidable obstacles remain, in the form of anti-aid provisions contained in various states’ own constitutions. This brief, appreciative Comment notes, first, that uncertainties remain about the implementation and interpretation of Zelman, and even—considering the possibility of new appointments to the Court—the decision’s fate. Next, and moving beyond the Court’s First Amendment doctrine, this Comment suggests that the effort to implement choice-based educational reform is, and will remain, as …

Copyright And The First Amendment: Comrades, Combatants, Or Uneasy Allies?, Joseph P. Bauer

Journal Articles

The copyright regime and the First Amendment seek to promote the same goals. Both seek the creation and dissemination of more, better, and more diverse literary, pictorial, musical and other works. But, they use significantly different means to achieve those goals. The copyright laws afford to the creator of a work the exclusive right to reproduce, distribute, transform, and perform that work for an extended period of time. The First Amendment, on the other hand, proclaims that Congress "shall make no law...abridging the freedom of speech or of the press," thus at least nominally indicating that limitations on the reproduction …

Religious Freedom, Church Autonomy, And Constitutionalism, Richard W. Garnett

Journal Articles

Our topic at this symposium is "religion, the state, and constitutionalism"-not "the Constitution," or "the First Amendment," but "constitutionalism." Countless conferences, cases, books, and articles have wrestled with one version or another of the question, "how does our Constitution, with its First Amendment and its religion clauses, promote, protect, or perhaps restrain religion?" We are considering, it seems to me, a question that is different, and that is different in interesting and important ways: What are connections between religion and religious freedom, on the one hand, and constitutionalism, on the other?

Standing, Spending, And Separation: How The No-Establishment Rule Does (And Does Not) Protect Conscience, Richard W. Garnett

Journal Articles

The First Amendment’s “Establishment Clause” is widely thought to protect “conscience.” Does it? If so, how? It is proposed in this paper that the no-establishment rule does indeed promote and protect religious liberty, and does safeguard conscience, but not (or, at least, not only) in the way most people think it does, namely, by sparing those who object from the asserted injury to their conscience caused by public funding of religious activity.

The Supreme Court’s decision in Hein v. Freedom from Religion Foundation - a case in which the Justices limited taxpayer standing to bring Establishment Clause claims - reminds …

Politics At The Pulpit: Tax Benefits, Substantial Burdens, And Institutional Free Exercise, Lloyd Hitoshi Mayer

Journal Articles

More than fifty years ago, Congress enacted a prohibition against political campaign intervention for all charities, including churches and other houses of worship, as a condition for receiving tax deductible contributions. Yet the IRS has never taken a house of worship to court for alleged violation of the prohibition through political comments from the pulpit, presumably at least in part because of concerns about the constitutionality of doing so. This decision is surprising, because a careful review of Free Exercise Clause case law - both before and after the landmark Employment Division v. Smith decision - reveals that the prohibition …

Judicial Review, Local Values, And Pluralism, Richard W. Garnett

Journal Articles

At the Federalist Society's 2008 National Student Symposium, a panel of scholars was asked to consider the question, does pervasive judicial review threaten to destroy local identity by homogenizing community norms? The answer to this question is yes, pervasive judicial review certainly does threaten local identity, because such review can homogenize[e] community norms, either by dragging them into conformity with national, constitutional standards or (more controversially) by subordinating them to the reviewers' own commitments. It is important to recall, however, that while it is true that an important feature of our federalism is local variation in laws and values, it …

Free Speech And The Case For Constitutional Exceptionalism, Roger P. Alford

Journal Articles

Excerpts from the Article

Embodied in the Universal Declaration of Human Rights is the evocative proposition that [e]veryone has the right to freedom of opinion and expression. But beneath that level of abstraction there is anything but universal agreement.

This book review argues that the dissonance between countries need not be challenged in pursuit of uniformity. Indeed, in those cases in which the differences reflect an appropriate balance of competing goods, it should be celebrated. Constitutional exceptionalism recognizes and celebrates each country's attempt to optimize the general welfare of that country by balancing competing goods in a manner consistent with …

Religion At A Public University, Gerard V. Bradley

Journal Articles

On March 6, 2007, the College of William & Mary announced a “compromise” solution to its polite civil war over the historic Wren Chapel. In a joint statement with President Gene Nichol, the Board of Visitors declared that permanent display of the Christian cross within the Chapel would resume. The cross would be moved, however, from its former place at center stage on the Chapel altar. Accompanying the elocated display would be a plaque “explaining the College's Anglican roots.” The compromise further provided that, when needed during certain worship services, the cross could be moved back to the altar. When …

Can There Really Be "Free Speech" In Public Schools?, Richard W. Garnett

Journal Articles

The Supreme Court's decision in Morse v. Frederick leaves unresolved many interesting and difficult problems about the authority of public-school officials to regulate public-school students' speech. Perhaps the most intriguing question posed by the litigation, decision, and opinions in More is one that the various Justices who wrote in the case never squarely addressed: What is the "basic education mission" of public schools, and what are the implications of this "mission" for officials' authority and students' free-speech rights. Given what we have come to think the Free Speech clause means, and considering the values it is thought to enshrine and …

"Excluding Religion": A Response, Richard W. Garnett

Journal Articles

In a thorough and thoughtful article, Excluding Religion, Prof. Nelson Tebbe asks "whether the government may select religious entities for exclusion from its support programs?" and concludes that, sometimes, it may. "The government," he contends, "need not remain neutral toward religion in its support programs[.]"

In this short response to Tebbe's paper, I first suggest that the reasons Tebbe offers for such exclusion - including "promoting equal citizenship for members of minority faiths . . . , fostering community concord, [and] respecting taxpayers' freedom of conscience", are not particularly strong. Next, I turn to the various "limits" that Tebbe …

Children's Beliefs And Family Law, Margaret F. Brinig

Journal Articles

In a recent series of opinions authored by Justice Stevens, the Court has recognized that children may have independent religious rights, and that these may be in conflict with their parents'. The questions for this piece are whether considering children's rights independently is a good thing whether it is warranted by children's actual religious preferences and whether children's religious activities actually do anything measurable for the children.

I do not advocate that the Supreme Court become more involved with family law than it has been since the substantive due process days of Meyer and Pierce. I am also not one …

Do Churches Matter? Towards An Institutional Understanding Of The Religion Clauses, Richard W. Garnett

Journal Articles

In recent years, several prominent scholars have called attention to the importance and role of First Amendment institutions and there is a growing body of work informed by an appreciation for what Professor Balkin calls the infrastructure of free expression. The freedom of expression, he suggests, requires more than mere absence of government censorship or prohibition to thrive; [it] also require[s] institutions, practices and technological structures that foster and promote [it]. The intuition animating this scholarship, then, is that the freedom of expression is not only enjoyed by and through, but also depends on the existence and flourishing of, certain …

Free To Believe, Richard W. Garnett

Journal Articles

Richard Garnett reviews Religious Freedom and the Constitution by Christopher L. Eisgruber & Lawrence G. Sager, Harvard University Press, 352 pages, $28.95

Drop Coffers, Richard W. Garnett, Benjamin P. Carr

Journal Articles

”Coffers.” When we hear or read the word, what do we picture? Buried treasure on the Isle of Monte Cristo? The dragon Smaug’s stolen riches, piled deep under the Lonely Mountain? Maybe we dimly remember a line of Shakespeare or Chaucer. If one is male and of a certain age, the word might bring to the surface suppressed memories of the all-nighters and arcana associated with Dungeons & Dragons. And, if one is a justice of the Supreme Court of the United States, one’s thoughts might turn to the checking account of St. Jerome Catholic School in Cleveland.

Pluralism, Dialogue, And Freedom: Professor Robert Rodes And The Church-State Nexus, Richard W. Garnett

Journal Articles

The idea of church-state separation and the image of a wall are at the heart of nearly every citizen's and commentator's thinking about law and religion, and about faith and public life. Unfortunately, the inapt image often causes great confusion about the important idea. What should be regarded as an important feature of religious freedom under constitutionally limited government too often serves simply as a slogan, and is too often employed as a rallying cry, not for the distinctiveness and independence of religious institutions, but for the marginalization and privatization of religious faith.

How, then, should we understand church-state separation? …

Church, State, And The Practice Of Love, Richard W. Garnett

Journal Articles

In his first encyclical letter, Deus caritas est, Pope Benedict XVI describes the Church as a community of love. In this letter, he explores the organized practice love by and through the Church, and the relationship between this practice, on the one hand, and the Church's commitment to the just ordering of the State and society, on the other. God is love, he writes. This paper considers the implications of this fact for the inescapably complicated nexus of church-state relations in our constitutional order.

The specific goal for this paper is to draw from Deus caritas est some insight into …