First Amendment Commons^™

Brief Of Amici Curiae Intellectual Property Law Professors, John A. Conway, Mark Mckenna

Court Briefs

No. 18S-CQ-00134
Akeem Daniels v. Fanduel, Inc., Case No. 17-3051, The Honorable Judge Easterbrook, Circuit Judge

From the Summary of Argument

Untethered to a sufficient public policy interest, right of publicity claims have exploded nationwide. Plaintiffs have asserted claims against inspirational plaques featuring civil rights icons, Rosa and Raymond Parks Inst. for Self Dev. v. Target Corp., 812 F.3d 824 (11th Cir. 2016),artwork commemorating significant events, Moore v. Weinstein Co., LLC, 545 Fed. App’x. 405 , 407 (6th Cir. 2013); ETW Corp. v. Jireh Publ’g, Inc., 332 F.3d 915 (6th Cir. 2003), Wikipedia edits that truthfully connected an astronaut with …

Islam And Religious Freedom: The Experience Of Religious Majorities And Minorities, Brett G. Scharffs

Notre Dame Law Review Reflection

It seems likely that change in Islam will be affected both by outside and internal sources, as was the case for the Catholic Church and its journey to Dignitatis Humanae. However, one thing the Catholic experience suggests is that meaningful and profound change does not simply come from outside pressures; it comes from authentic and sincere evaluation and interpretation by insiders of a religious tradition of that tradition itself. Thus, if Islam is going to come to embrace religious freedom as an important value, this will be the result, significantly if not primarily, of Muslims interpreting their own sacred …

Extremist Speech, Compelled Conformity, And Censorship Creep, Danielle Keats Citron

Notre Dame Law Review

Silicon Valley has long been viewed as a full-throated champion of First Amendment values. The dominant online platforms, however, have recently adopted speech policies and processes that depart from the U.S. model. In an agreement with the European Commission, the dominant tech companies have pledged to respond to reports of hate speech within twenty-four hours, a hasty process that may trade valuable expression for speedy results. Plans have been announced for an industry database that will allow the same companies to share hashed images of banned extremist content for review and removal elsewhere. These changes are less the result of …

Michigan's Religious Exemption For Faith-Based Adoption Agencies: State-Sanctioned Discrimination Or Guardian Of Religious Liberty?, Allison L. Mcqueen

Notre Dame Law Review

Historically, most of the legal obstacles faced by gay couples hoping to expand their families through adoption stemmed from prohibitions on marriage. That was until Obergefell. Barriers to same-sex adoption have been steadily falling over the past decade, and, in the wake of the Supreme Court’s decision, married couples are now able to adopt in every state. However, there remains one pressing barrier to adoption for same-sex couples: “conscience clause” adoption laws enacted to allow faith-based adoption agencies to turn away prospective parents whose sexuality conflicts with their “sincerely held religious beliefs.” Though Ms. DeBoer and Ms. Rowse successfully broke …

Is There A Place For Islam In The West? Adjudicating The Muslim Headscarf In Europe And The United States, Andrea Pin

Notre Dame Law Review Reflection

Part I of this short Article explains the relevance of the Micropole and Achbita decisions; Part II explores the common line of reasoning behind them; and, finally, the conclusion analyzes their impact within the European scenario of religious freedom—especially for Muslims—and contrasts them with the United States’ approach to the topic.

Precedent And Speech, Randy J. Kozel

Journal Articles

The U.S. Supreme Court has shown a notable willingness to reconsider its First Amendment precedents. In recent years the Court has departed from its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has changed its position on corporate electioneering and aggregate campaign contributions. In short, it has revised the ground rules of expressive freedom in ways both large and small.

The Court generally describes its past decisions as enjoying a presumption of validity through the doctrine of stare decisis. This Article contends that within the …

Religious Freedom And Recycled Tires: The Meaning And Implications Of Trinity Lutheran, Richard W. Garnett, Jackson C. Blais

Journal Articles

The Supreme Court's decision in Trinity Lutheran clearly affirmed a First Amendment rule against anti-religious discrimination. At the same time, it raised or left open a number of important and interesting questions about education reform, the relevance of anti-Catholic bias to states' so-called Blaine Amendments, and the sharpening tension between religious freedom and the application of antidiscrimination laws.

Smith, "Neutrality Of Reasons," And The Search For Animating Principles, Gerard V. Bradley

Journal Articles

The Distinctiveness of Religion in American Law: Rethinking Religion Clause Jurisprudence by Kathleen Brady

Justice Antonin Scalia’s death stirred a gratifying amount of praise for his life’s work. Among the rose petals tossed his way were, however, some thorns, including renewed criticism of his opinion in Employment Division v. Smith. The Smith Court spent most of its time arguing against a particular interpretation of the Free Exercise Clause, one that authorized judges to grant exemptions to believers burdened by general laws. But without quite identifying it as such, and without argument based in historical source material, the Court came …

The First Amendment Walks Into A Bar: Trademark Registration And Free Speech, Rebecca Tushnet

Notre Dame Law Review

This Article analyzes the First Amendment arguments against section

2(a)’s disparagement bar with reference to the consequences of any

invalidation on the rest of the trademark statute. My fundamental conclusions

are that In re Tam is wrongly reasoned even given the Supreme Court’s

increased scrutiny of commercial speech regulations, and that to hold otherwise

and preserve the rest of trademark law would require unprincipled distinctions

within trademark law. More generally, the Supreme Court’s First

Amendment jurisprudence has become so expansive as to threaten basic

aspects of the regulatory state; the result of subjecting economic regulations

such as trademark registration to …

Partly Accultured Religious Activity: A Case For Accommodating Religious Nonprofits, Thomas C. Berg

Notre Dame Law Review

This Article argues that we should make real efforts to protect religious freedom for partly acculturated religious activities and organizations. We should not reject their claims broadly or per se and thereby exclude them from the efforts at accommodation that other groups receive. The law should not force all religious organizations and activities into one of the two polar categories, acculturated or unacculturated. Part II of this Article presents several reasons why there is a strong interest in protecting the freedom to engage in partly acculturated religious activity.

The Tortuous Course Of Religious Freedom, Steven D. Smith

Notre Dame Law Review

This Essay, written for a conference at Notre Dame on Dignitatis Humanae, considers new challenges to and issues for religious freedom that have arisen recently in a world significantly changed from that of the 1960s, when the Declaration was first issued.

If Religious Liberty Does Not Mean Exemptions, What Might It Mean? The Founders’ Constitutionalism Of The Inalienable Rights Of Religious Liberty, Vincent Phillip Munoz

Notre Dame Law Review

The Article is divided into three Parts. Part I documents the Founders’ shared understanding that religious liberty is a natural right possessed by all individuals. Part II explains what the Founders meant when they labeled aspects of religious liberty an “unalienable” natural right. The inalienable character of the core of religious liberty reveals what the Founders found special about religion. It also accounts for religion’s special constitutional status, which for the Founders primarily meant specific jurisdictional limits on state sovereignty rather than exemptions. Part III further clarifies the Founders’ constitutionalism of religious freedom by explaining how the Founders understood natural …

Religious Exemptions, Third-Party Harms, And The Establishment Clause, Christopher C. Lund

Notre Dame Law Review

Religious exemptions are important, and sometimes required by the Free Exercise Clause. But religious exemptions can also be troubling, and sometimes forbidden by the Establishment Clause. It is the latter issue with which this Essay concerns itself. But now a different question, which raises a different conception of the Establishment Clause: When are religious exemptions improper or unconstitutional because they burden third parties? This issue of third-party harms has received a lot of attention, especially in light of Hobby Lobby. Hobby Lobby initially sought an exemption from the contraceptive mandate that would have come at the expense of their employees, …

Two Aspects Of Liberty, John H. Garvey

Notre Dame Law Review

Liberty in the constitutional sense is always a right against state interference (a “freedom from”). The First Amendment begins by saying that “Congress shall make no law”; it forbids Congress to license or fine or jail people for speaking, or publishing, or assembling. Liberty is also, always, a right to do something (a “freedom to”): to speak, to assemble, to practice religion, to get married, etc. So “freedom from” and “freedom to” are always parts of the same idea, just as “flying from” and “flying to” are aspects of the same airplane trip. Freedom is always the right to do …

Catholic Constitutionalism From The Americanist Controversy To Dignitatis Humanae, Anna Su

Notre Dame Law Review

This Article, written for a symposium on the fiftieth anniversary of Dignitatis Humanae, or the Roman Catholic Church’s Declaration on Religious Freedom, traces a brief history of Catholic constitutionalism from the Americanist controversy of the late nineteenth century up until the issuance of Dignitatis Humanae as part of the Second Vatican Council in 1965. It argues that the pluralist experiment enshrined in the First Amendment of the U.S. Constitution was a crucial factor in shaping Church attitudes towards religious freedom, not only in the years immediately preceding the revolutionary Second Vatican Council but ever since the late nineteenth century, …

Virtue, Freedom, And The First Amendment, Marc O. Degirolami

Notre Dame Law Review

The modern First Amendment embodies the idea of freedom as a fundamental good of contemporary American society. The First Amendment protects and promotes everybody’s freedom of thought, belief, speech, and religious exercise as basic goods—as given ends of American political and moral life. It does not protect these freedoms for the sake of promoting any particular vision of the virtuous society. It is neutral on that score, setting limits only in those rare cases when the exercise of a First Amendment freedom exacts an intolerable social cost. The Article concludes with two speculations. First, it seems we are no longer …

Adoption And Foster Care Placement Policies: Legislatively Promoting The Best Interest Of Children Amidst Competing Interests Of Religious Freedom And Equal Protection For Same-Sex Couples, Samantha R. Lyew

Journal of Legislation

No abstract provided.

Brief Of The Catholic University Of America School Of Canon Law, The Lutheran Church-Missouri Synod, The Queens Federation Of Churches, And The Serbian Orthodox Church In North And South America, As Amici Curiae In Support Of Petitioners, Richard W. Garnett, David H. Hyams

Court Briefs

No. 15.1005
Chabad-Lubavitch of Michigan v. Dr. Dov Schuchman

On Petition for a Writ of Ceriorari to the Supreme Court of Michigan

This brief addresses the importance of the principle of church autonomy and the protections provided by the First and Fourteenth Amendments and this Court's precedents regarding religious denominations' internal mandatory dispute-resolution procedures.

Brief Of Religious Liberty Scholars As Amici Curiae In Support Of Petitioners, Steven T. Collis, Michael Robertson, Adam A. Hubbard, Douglas Laycock, Gerard V. Bradley, Richard W. Garnett, Kristine J. Kalanges

Court Briefs

No. 15-862
Stormans, Inc. v. John Wiesman

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

From the Summary of Argument

This Court’s free-exercise jurisprudence is defined by two cases with facts at opposite ends of a continuum. The Court decided them a quarter century ago, and it has provided no further guidance despite a growing circuit split. Lower courts that carefully examined this Court’s opinions found a clear rule that governments must treat religious conduct as well as they treat analogous secular conduct—or face strict scrutiny. But that rule has …

One Nation, Under God?, Gerard V. Bradley

Journal Articles

It's Dangerous to Believe: Religious Freedom and Its Enemies, by Mary Eberstadt.
Harper, 192 pages, $25.99

This upending is the subject of Mary Eberstadt's It's Dangerous to Believe. Her previous books Adam and Eve after the Pill (2012) and How the West Really Lost God (2013) - on the sexual revolution and secularism, respectively - showed Eberstadt to be one of America's most discerning cultural critics. It's Dangerous to Believe solidifies that ranking by showing that "the future of religious freedom...appears more clouded than at any time since the American founding." The book is chiefly a chronicle of …

Inside The Taft Court: Lessons From The Docket Books, Barry Cushman

Journal Articles

For many years, the docket books kept by certain of the Taft Court Justices have been held by the Office of the Curator of the Supreme Court. Though the existence of these docket books had been brought to the attention of the scholarly community, access to them was highly restricted. In April of 2014, however, the Court adopted new guidelines designed to increase access to the docket books for researchers. This article offers a report and analysis based on a review of all of the Taft Court docket books held by the Office of the Curator, which are the only …

Religion And Social Coherentism, Nelson Tebbe

Notre Dame Law Review

Today, prominent academics are questioning the very possibility of a theory of free exercise or non-establishment. They argue that judgments in the area can only be conclusory or irrational. In contrast to such skeptics, this Essay argues that decisionmaking on questions of religious freedom can be morally justified. Two arguments constitute the Essay. Part I begins by acknowledging that skepticism has power. The skeptics rightly identify some inevitable indeterminacy, but they mistakenly argue that it necessarily signals decisionmaking that is irrational or unjustified. Their critique is especially striking because the skeptics’ prudential way of working on concrete problems actually shares …

#Academicfreedom: Twitter And First Amendment Rights For Professors, Michael H. Leroy

Notre Dame Law Review Reflection

This Essay asks: is every tweet from a professor protected as a form of academic freedom by the First Amendment? Professor Salaita’s watershed case poses sharply conflicting positions on academic freedom for faculty members. In support of Professor Salaita, a faculty committee at the University of Illinois asserts: “Regardless of the tweets’ tone and content, they are political speech—part of the robust free play of ideas in the political realm that the [University] Statutes insulate from institutional sanction, even in the case of ideas we may detest.”

To answer my research question, I explore how courts rule on First Amendment …

Religious Accommodations And – And Among – Civil Rights: Separation, Toleration, And Accommodation, Richard W. Garnett

Journal Articles

This paper expands on a presentation at a recent conference, held at Harvard Law School, on the topic of “Religious Accommodations in the Age of Civil Rights.” In it, I emphasize that the right to religious freedom is a basic civil right, the increased appreciation of which is said to characterize our “age.” Accordingly, I push back against scholars’ and commentators’ increasing tendency to regard and present religious accommodations and exemptions as obstacles to the civil-rights enterprise and ask instead if our religious-accommodation practices are all that they should be. Are accommodations and exemptions being extended prudently but generously, in …

Protecting Freedom Of Expression Over The Internet: An International Approach, Alan Sears

Notre Dame Journal of International & Comparative Law

Writing primarily in 2013, Alan Sears examines different aspects of the international legal framework as to how freedom of expression over the Internet may be protected. Even though the Internet has largely incorporated the concept of freedom of expression from its inception, the need for such protection has become increasingly evident. States around the world have progressively cracked down on Internet speech, a trend highlighted by recent events occurring during the Arab Spring. Alan thus focuses on the Middle East when exploring how Internet governance may be shaped, and human rights and trade agreements may be utilized, in order to …

Lane V. Franks, Katie Jo Baumgardner

Notre Dame Law Review Reflection

On June 19, 2014, the U.S. Supreme Court expanded the scope of public employee free speech with its decision in Lane v. Franks. The Court granted certiorari in order “to resolve discord among the Courts of Appeals as to whether public employees may be fired—or suffer other adverse employment consequences—for providing truthful subpoenaed testimony outside the course of their ordinary job responsibilities.” The unanimous Lane decision, which affirmed in part and reversed in part an opinion by the Eleventh Circuit, held that the First Amendment protects a public employee from retaliatory employer discipline where the employee testifies at trial, pursuant …

Mccutcheon V. Federal Election Commission, Stephen M. Degenaro

Notre Dame Law Review Reflection

McCutcheon v. Federal Election Commission involved a challenge to limits imposed on the amount a donor may contribute during a single election cycle. In McCutcheon, the Court was presented with the question of whether the aggregate limits placed on contributions to candidate and noncandidate committees either lacked a cognizable constitutional interest or were unconstitutionally too low. In a five to four decision, the Supreme Court held that the aggregate limits on campaign contributions burden substantial First Amendment rights without furthering a permissible government interest.

Online Terms Of Service: A Shield For First Amendment Scrutiny Of Government Action, Jacquelyn E. Fradette

Notre Dame Law Review

Part I of this Note will canvas popular opinions and perceptions about First Amendment rights on the Internet using examples of public outcry over recent instances of speech limitation. It will also discuss the state action doctrine generally and how the presence of this doctrine most likely renders certain popular public constitutional intuitions about the First Amendment erroneous.

Part II will provide an overview of how courts have taken an expansive and protective view of private ordering between online parties. It will discuss how courts have developed a robust freedom to contract jurisprudence in the Internet context. Because courts essentially …

Rehabilitating The Property Theory Of Copyright's First Amendment Exemption, Tun-Jen Chiang

Notre Dame Law Review

A continuing controversy in copyright law is the exemption of copyright from First Amendment scrutiny. The Supreme Court has justified the exemption based on history and the intentions of the Framers, but this explanation is unpersuasive on the historical facts.

There is an alternative explanation: copyright is property, and private property is generally exempt from scrutiny under standard First Amendment doctrine. Many scholars have noted this theory, but they have been harshly dismissive towards it. For example, Mark Lemley and Eugene Volokh view the property theory as so clearly wrong as to be a “non sequitur,” because it supposedly implies …

Protecting More Than The Front Page: Codifying A Reporter’S Privilege For Digital And Citizen Journalists, Kathryn A. Rosenbaum

Notre Dame Law Review

This Note will first explain, in Part I, why journalists need to be protected, and detail the history of reporters invoking a reporter’s privilege in court to protect themselves from revealing their sources or information. It will then discuss Branzburg v. Hayes in Section II.A. Section II.B briefly examines circuits’ receptivity to statutory or constitutional protections of reporters. The Supreme Court has stated that Congress could pass a law to protect reporters. However, while multiple federal shield laws have been proposed, none have been passed. The most recent proposal occurred in 2013, and as of December 2013, the Senate version …