First Amendment Commons^™

Survey Of A Decade Of Decisions On The Law Of Obscenity, John Cornelius Hayes

The Catholic Lawyer

No abstract provided.

Editorial Comment, Edward T. Fagan

The Catholic Lawyer

No abstract provided.

Aid To Education; The Ribicoff Memorandum; Church And State; Law And Morals; Fair Housing Laws; Labor Law; Contingent Fees

The Catholic Lawyer

No abstract provided.

The State's Guarantee Of Liberty - A Moral Evaluation, Rev. William F. Cahill

The Catholic Lawyer

No abstract provided.

Federal Censorship: Obscenity In The Mail, Joseph B. Breen

The Catholic Lawyer

No abstract provided.

Recent Decision: Religious Oaths

The Catholic Lawyer

No abstract provided.

Note: A Daily Prayer For Public Schools

The Catholic Lawyer

No abstract provided.

Mental Disorders And Criminal Responsibility; Obscenity Statutes And First Amendment Freedoms;

The Catholic Lawyer

No abstract provided.

Religious Disestablishment And The Fourteenth Amendment, Joseph M. Snee, S.J.

The Catholic Lawyer

No abstract provided.

New York Motion Picture Censorship Law

The Catholic Lawyer

No abstract provided.

Expanding The Schoolhouse Gate: Public Schools (K-12) And The Regulation Of Cyberbullying, Philip Lee

Faculty Publications

(Excerpt)

In a tragic case that received international attention, 15-year-old Phoebe Prince killed herself after being bullied—both physically and online—by some of her classmates. Phoebe had moved to Massachusetts from a small town in Ireland, enrolling as a freshman at South Hadley High School. After a brief relationship with a popular boy in the senior class, the taunting by her classmates began. Some students called her an “Irish slut” and a “whore,” knocked things out of her hands, and sent her threatening texts. Some of the students used Facebook and Twitter to speak badly about her. Phoebe suffered this treatment …

Free Exercise By Moonlight, Marc O. Degirolami

Faculty Publications

How is the current condition of religious free exercise, and religious accommodation in specific, best understood? What is the relationship of the two most important free exercise cases of the past half-century, Employment Division v. Smith and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC? This essay explores four possible answers to these questions.

1. Smith and Hosanna-Tabor are the twin suns of religious accommodation under the Constitution. They are distinctively powerful approaches.

2. Hosanna-Tabor’s approach to constitutional free exercise is now more powerful than Smith’s. Smith has been eclipsed.

3. Hosanna-Tabor has shown itself to be feeble. It has …

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

Faculty Publications

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.

Something like this collection of views constitutes the conventional account of the First …

Can You Understand This Message? An Examination Of Hurley V. Irish-American Gay, Lesbian & Bisexual Group Of Boston's Impact On Spence V. Washington, Sandy Tomasik

St. John's Law Review

(Excerpt)

This Note analyzes the effect that Hurley had on the Spence factors and suggests that the particularized requirement has been lowered. This is the best approach to encouraging speech while balancing other important interests. Part I discusses the development of the freedom of speech, from protecting the spoken and written word to protecting expressive conduct. Part II outlines the different approaches taken by the circuit courts in deciding whether conduct is protected as speech and, in particular, what effect Hurley had on Spence. Part III critically analyzes each of these approaches and concludes that the Eleventh Circuit’s approach …

A Contract Theory Of Academic Freedom, Philip Lee

Faculty Publications

(Excerpt)

Academic freedom is central to the core role of professors in a free society. Yet, current First Amendment protections exist to protect academic institutions, not the academics themselves. For example, in Urofsky v. Gilmore, six professors employed by various public colleges and universities in Virginia challenged a law restricting state employees from accessing sexually explicit material on computers owned or leased by the state. The professors claimed, in part, that such a restriction was in violation of their First Amendment academic freedom rights to conduct scholarly research. The Fourth Circuit upheld the law and noted that “to the …

A New Taxonomy For Online Harms, Kate Klonick

Faculty Publications

(Excerpt)

Bullying is generally understood among academics and educators as having to meet three criteria: (1) it must be verbal or physical aggression; (2) it must be repeated over time; and (3) it must involve a power differential. When talking about cyber bullying, the aggression is mostly verbal, using “threats, blackmail. . . gossip and rumors” and online personas or messages can be more cruel, vindictive and mean. Though cyber bullying typically describes acts between children, the same acts by adults could also be considered cyber harassment. Unlike harassment, however, bullying does not have a history of criminal liability—though all …

Seeking Guidance? New Legal Challenges To 'Legislative Prayer', Marc O. Degirolami

Faculty Publications

(Excerpt)

It has long been the tradition of American citizens to pray for divine blessing and guidance in their civic business. This tradition, which predates the founding of the American Republic, finds expression at all levels of government, federal, state, and local. It was embraced by the First Continental Congress, the same Congress that both employed a paid chaplain and later drafted the First Amendment to the U.S. Constitution; it was maintained during the passage of the Fourteenth Amendment; and it persists in various guises to this day.

The First Amendment, Equal Protection, And Felon Disenfranchisement: A New Viewpoint, Janai S. Nelson

Faculty Publications

This Article engages the equality principles of the First Amendment and the Equal Protection Clause to reconsider the constitutionality of one of the last and most entrenched barriers to universal suffrage—felon disenfranchisement. A deeply racialized problem, felon disenfranchisement is additionally and independently a legislative judgment as to which citizen's ideas are worthy of inclusion in the electorate. Relying on a series of cases involving state interests in protecting the ballot and promoting its intelligent use, this Article demonstrates that felon disenfranchisement is open to attack under the Supreme Court's fundamental rights jurisprudence when it is motivated by a desire to …

Crosses And Culture: State-Sponsored Religious Displays In The Us And Europe, Mark L. Movsesian

Faculty Publications

This article compares the recent jurisprudence of the US Supreme Court and the European Court of Human Rights on the question of state-sponsored religious displays. Both tribunals insist that states have a duty of religious “neutrality,” but each defines that term differently. For the Supreme Court, neutrality means that government may not proselytize, even indirectly, or appear to favor a particular church; neutrality may even mean that government must not endorse religion generally. For the ECtHR, by contrast, neutrality means only that government must avoid active religious indoctrination; the ECtHR allows government to give “preponderant visibility” to the symbols of …

Brand Renegades, Jeremy N. Sheff

Faculty Publications

Recent appearances of trademarks in popular culture-in rap lyrics, on reality TV shows, even in youth riots have raised the question whether the owners of those trademarks might pursue legal remedies to protect their brands from unwanted social associations. This Article argues that they cannot, and that we should understand this limitation on trademark rights as grounded in a principle that consumption of certain brands is an expressive act that First Amendment principles place outside trademark owners' control.

The Curious Life Of In Loco Parentis At American Universities, Philip Lee

Faculty Publications

In this article I trace the legal history, through court opinions, of in loco parentis (Latin for “in the place of the parent”) as applied to the relationship between American universities and their students. I demonstrate that until the 1960s, the in loco parentis doctrine allowed universities to exercise great discretion in developing the “character” of their students without respect to their students’ constitutional rights. The demise of this doctrine forced courts, and universities themselves, to redefine the relationship of universities with their students in important ways.

The Myth Of The Level Playing Field: Knowledge, Affect, And Repetition In Public Debate, Jeremy N. Sheff

Faculty Publications

The industrialization of the channels and scale of communication has led some well-meaning reformers to try to regulate the ability of powerful private actors to leverage economic inequality into political inequality, particularly in the area of campaign finance. Such reform efforts are ostensibly intended to further the deliberative democratic ideal of rational, informed public decision making by preventing well-funded private interests from improperly influencing democratic debate and, by extension, political outcomes. This Article examines empirical findings in political science, psychology, and marketing and argues that, in the context of contemporary American society, the normative principles of deliberative democracy and formal …

Prediction Markets And The First Amendment, Miriam A. Cherry, Robert L. Rogers

Faculty Publications

The continuing development of prediction markets is important because of their success in foretelling the future in politics, economics, and science. In this article, we identify the expressive elements inherent in prediction markets and explore how legislation such as the Unlawful Internet Gambling Enforcement Act of 2006 might harm such predictive speech. This article is the first to explore First Amendment protections for prediction markets in such depth, and in so doing, we distinguish prediction markets from other regulated areas such as gambling, commodities, and securities trading. The article’s examination of prediction markets also illustrates the limitations of current commercial …

Recoiling From Religion, Marc O. Degirolami

Faculty Publications

This is an essay reviewing Professor Marci A. Hamilton's book, GOD VS. THE GAVEL: RELIGION AND THE RULE OF LAW (Cambridge Univ. Press 2005).

Professor Marci Hamilton has written a forceful and obviously heartfelt book that should give pause to committed champions of religious free exercise. She argues convincingly that religious freedom is too often invoked to shield opprobrious and socially harmful activity, and she describes numerous examples of such abuses that make any civilized person's blood run cold. Her avowed aims are to debunk the “hazardous myth” that religion is “inherently and always good for society” and to increase …

Saving Title Vii: Using Intent To Distinguish Harassment From Expression, Robert Austin Ruescher

Faculty Publications

(Excerpt)

Like two reluctant boxers in a ring, the First Amendment and Title VII of the Civil Rights Act of 1964 have been sparring halfheartedly for years, circling and jabbing each other in courts and law reviews. The bout pits the constitutional right to be free from government censorship against the statutory "right to work in an environment free from discriminatory intimidation, ridicule, and insult." As stated by the Supreme Court in another context, it pits "the First Amendment rights of the speaker" against "the protection the statute provides for the unwilling listener."

Both the First Amendment and Title VII …

Common Schools, Uncommon Values: Listening To The Voices Of Dissent, Rosemary C. Salomone

Faculty Publications

(Excerpt)

Education in America as we know it today draws its origins from the philosophical perspectives and political objectives of the common school reformers over a century ago. For them, mass education was a primary vehicle for defining ourselves as a nation. Schools would develop civic virtue and a national character through a shared set of values reflected in the school curriculum. The common school experience, offered to all regardless of social class or ethnic background, would assimilate the hordes of immigrants coming to our shores and meet the emerging needs of industrialization. Individuals across the economic spectrum, afforded education …

Public Forum Doctrine And The Perils Of Categorical Thinking: Lessons From Lamb's Chapel, Rosemary C. Salomone

Faculty Publications

(Excerpt)

In recent years, the intersection of the Religion and Speech Clauses of the First Amendment has become increasingly controversial particularly in the context of public schooling. Religious group meetings, the distribution of religious literature, the discussion of religious themes, and the recitation of prayers at graduation ceremonies have all forced the courts to weigh and re-weigh the right to individual speech against the responsibility of the state to stay within the bounds of Establishment Clause doctrine. Several legal and political factors have fueled this debate. Although the Supreme Court has reaffirmed on several occasions the unconstitutionality of organized prayer …

Free Speech And School Governance In The Wake Of Hazelwood, Rosemary C. Salomone

Faculty Publications

(Excerpt)

The Supreme Court's 1988 decision in Hazelwood School District v. KuhImeier upholding public school officials' authority to censor material in a high school student newspaper sent immediate shock waves throughout the educational and legal communities. The Court's sweeping language in Hazelwood moved far beyond the narrow issue of school newspaper censorship. It even moved beyond the question of appropriate or acceptable speech in public secondary schools. It was clear that Hazelwood could have far-reaching consequences for student rights, school governance, and the scope of official authority to make curricular decisions that reflect the values of the local community.

Some …

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 …

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 …