First Amendment Commons^™

Is There An Obligation To Listen?, Leslie Gielow Jacobs

University of Michigan Journal of Law Reform

This Article thoroughly considers the question whether the constitutional guarantee of "freedom of speech" includes an obligation to listen. It first reviews the scopes of the right to speak, the right to listen, and the right to be left alone from things other than unwanted speech, and the relevance to each of physical location. It concludes that, consistent with constitutional doctrine and the Court's articulations, the government's ability to protect individuals from unwanted speech should not vary according to the listener's location. After noting that the actual protection of unwilling listeners may differ because of the different physical realities of …

The Qualities Of Completeness: More? Or Less?, Mark R. Killenbeck

Michigan Law Review

On January 14, 1983, Chief Judge W. Brevard Hand announced what he knew would be widely regarded as a rather startling proposition. Believing that "[t]he first amendment in large part was a guarantee to the states which insured that the states would be able to continue whatever church-state relationship existed in 1791," Judge Hand held that the people of Alabama were perfectly free to "establish[] a religion," in this instance by allowing public school teachers to begin the school day with prayer. The ruling reversed an earlier decision in the same case, which characterized the statutory provision at issue as …

Punishing Hateful Motives: Old Wine In A New Bottle Revives Calls For Prohibition, Carol S. Steiker

Michigan Law Review

Hate crimes are nothing new: crimes in which the victim is selected because of the victim's membership in some distinctive group (be it racial, ethnic, religious, or other) have been with us as long as such groups have coexisted within legal systems. What is relatively new is their recognition and designation as a discrete phenomenon. But as appellations like "sexual harassment" and "community policing" have begun to teach us, words are only the beginning of the life cycle of a new socio-legal concept. What follows are debates about whether the new category is really a coherent one, what activities should …

The Convergence Of The First Amendment And Vatican Ii On Religious Freedom, Robert F. Drinan S.J.

Michigan Law Review

Did the United States radiate the views of James Madison on the free exercise of religion to the world? That, in essence, is the main thrust of this provocative study by John T. Noonan, Jr., Professor Emeritus at the University of California Law School, Berkeley, and a Senior Judge of the U.S. Court of Appeals for the Ninth Circuit. Noonan is, of course, the author of magisterial books on abortion, birth control, legal ethics, and related issues. He writes as a committed Catholic who takes pride in the religion that he learned as a child in his native Brookline, Massachusetts. …

The Triumph Of Hate Speech Regulation: Why Gender Wins But Race Loses In America, Jon Gould

Michigan Journal of Gender & Law

On March 30, 1995, newspaper headlines declared that hate speech regulations were dead. After six years of litigating over university hate speech codes, Stanford University's rule, one of the most modest and cautiously drafted, had been declared unconstitutional by a California Superior Court. Hate speech regulation is far from over. To the contrary, hate speech rules not only continue to exist, but the courts regularly enforce their provisions. The difference is that these cases are largely restricted to a single category-sexual harassment. Under Title VII of the Civil Rights Act of 1964, and with the regulatory support of the Equal …

Commercial Speech, Professional Speech, And The Constitutional Status Of Social Institutions, Daniel Halberstam

Articles

Current First Amendment analysis lacks a coherent view of speech in the professions. Classic cases address the street-comer orator, lone pamphleteer, newspaper editor, broadcaster, cable operator, public employee, grant recipient, vendor, corporation, and, most recently, Internet content provider. And an abundance of theory accompanies these speakers along the way. Although some of these actors may be professionals, both theory and practice generally meet their roles as members of a profession with silence. Despite the century-old recognition of the regulation of professions, we still have, for example, no paradigm for the First Amendment rights of attorneys, physicians, or financial advisers when …

Rights Against Rules: The Moral Structure Of American Constitutional Law, Matthew D. Adler

Michigan Law Review

The Bill of Rights, by means of open-ended terms such as "freedom of speech," "equal protection," or "due process," refers to moral criteria, which take on constitutional status by virtue of being thus referenced. We can disagree about whether the proper methodology for judicial application of these criteria is originalist or nonoriginalist. The originalist looks, not to the true content of the moral criteria named by the Constitution, but to the framers' beliefs about that content; the nonoriginalist tries to determine what the criteria truly require, and ignores or gives less weight to the framers' views. Bracketing this disagreement, however, …

"Chilling" The Internet? Lessons From Fcc Regulation Of Radio Broadcasting , Thomas W. Hazlett, David W. Sosa

Michigan Telecommunications & Technology Law Review

Congress included the Communications Decency Act (CDA) in the Telecommunications Act signed into law on February 8, 1996. The bill seeks to outlaw the use of computers and phone lines to transmit "indecent" material with provisions of jail terms and heavy fines for violators. Proponents of the bill argue it is necessary to protect minors from undesirable speech on the Internet. The CDA was immediately challenged in court by the American Civil Liberties Union, and the special 3-judge federal panel established to hear the case recently declared the Act unconstitutional. Yet, its ultimate adjudication remains in doubt. Ominously, the federal …

Reply: Did The Fourteenth Amendment Repeal The First?, Jed Rubenfeld

Michigan Law Review

To get right to the point: Mr. Hacker does not disagree that the Establishment Clause would, in the absence of the Fourteenth Amendment, have prohibited Congress from passing a nationwide religion law like RFRA. He believes, however, that the Fourteenth Amendment has in part repealed the First. Of course, he doesn't want to say repealed. The language of repeal is not pleasant to the ears of those who would like to forget about First Amendment antidisestablishmentarianism. The Fourteenth Amendment did not "repeal any aspect of the text of the [Establishment] Clause," Hacker says, but only "change[d] profoundly the meaning of …

The Electronic Media And The Flight From First Amendment Doctrine: Justice Breyer's New Balancing Approach, Jerome A. Barron

University of Michigan Journal of Law Reform

Contemporary First Amendment issues in cases involving the electronic media transcend traditional conflicts between the government and the speaker. The speaker is not easy to identify. Listeners, programmer and medium operators or distributors all have competing claims to First Amendment protection. To determine whose interests shall prevail, courts increasingly seek a methodology that accounts for these warring interests. Justice Breyer, along with Justice Souter and, in some respects, Justice Stevens, have been instrumental in reviving balancing as a First Amendment approach in these situations.

In two recent First Amendment cable television cases Turner Broadcasting System, Inc. v. FCC (Turner II) …

A Response To Professor Rubenfeld, Jonathan D. Hacker

Michigan Law Review

Professor Jed Rubenfeld has offered in these pages an ingenious explanation for why the Supreme Court was right to strike down the Religious Freedom Restoration Act (RFRA) in City of Boerne v. Flores. Rubenfeld finds in the First Amendment's Establishment Clause a historical and inherent principle he calls "antidisestablishmentarianism": a prohibition on acts of Congress that "disestablish" religion in the several states. Rubenfeld reads the Establishment Clause as proscribing not only congressional acts that "establish" religion but also all congressional acts that "dictate a position on religion for states," including laws designed to ensure that states abide by the requirements …

Review Of Free Speech In Its Forgotten Years, Terrance Sandalow

Reviews

The gulf that separates contemporary understanding of the First Amendment from that which prevailed in earlier years emerges with striking clarity in this absorbing book by David Rabban,a former AAUP staff counsel who is now professor of law at the University of Texas and the AAUP's general counsel.

Talking About Religion In The Language Of The Law: Impossible But Necessary, James Boyd White

Articles

In speaking to this conference about religion and law I am in a decidedly peculiar position, for it may be that every one of you has thought longer and harder about the relation between these two forms of life than I have. When Scott Idleman first asked me to talk to you, I explained that I was no expert, to put it mildly, and that the most that I could offer would be the reflections of a neophyte. He said that this was fine-perhaps he was just desperate for a speaker; perhaps he thought that it might be helpful to …

Antidisestablishmentarianism: Why Rfra Really Was Unconstitutional, Jed Rubenfeld

Michigan Law Review

Two months ago, the Supreme Court struck down the Religious Freedom Restoration Act of 1993 (RFRA), handing down its most important church-state decision, and one of its most important federalism decisions, in fifty years. Through RFRA, Congress had prohibited any state actor from "substantially burden[ing] a person's exercise of religion" unless imposing that burden was the "least restrictive means" of furthering "a compelling governmental interest." RFRA was a response to Employment Division, Department of Human Resources of Oregon v. Smith, in which the Supreme Court abandoned the very same compelling interest test that RFRA mandated. Smith, overturning decades-old precedent, held …

Regulatory Web: Free Speech And The Global Information Infrastructure, A, Victor Mayer-Schönberger, Teree E. Foster

Michigan Telecommunications & Technology Law Review

National restrictions of freedom of speech on the nascent global information infrastructure are commonplace not only in the United States, but also around the globe. Individual nations, each intent upon preserving what they perceive to be within the perimeters of their national interests, seek to regulate certain forms of speech because of content that is considered reprehensible or offensive to national well-being or civic virtue. The fact that this offending speech is technologically dispersed instantaneously to millions of potential recipients strengthens the impetus to regulate.... Activists at both ends of the spectrum disregard an integral aspect of the global composition …

The Casey Standard For Evaluating Facial Attacks On Abortion Statutes, John Christopher Ford

Michigan Law Review

Since the Supreme Court declared in 1973 that the Constitution grants women a limited right to an abortion, the Justices have decided abortion cases with reference to such weighty matters as religious freedom, the disadvantaged position of women in society, and the proper role of the judiciary. Understandably, the Supreme Court's writings on abortion deal extensively with these large themes. The Court, and certainly others, view abortion cases as rivaling Brown v. Board of Education in their importance to the nation. While the Court has focused on the big issues, however, it has neglected an equally important, if less emotionally …

Restoring Rights To Rites: The Religious Motivation Test And The Religious Freedom Restoration Act, Steven C. Seeger

Michigan Law Review

This Note argues that the religious motivation test best secures the religious liberty guaranteed by the Constitution and the RFRA. Part I examines the text and legislative history of the Act and establishes that Congress intended to protect religiously motivated practices. Part II argues that the free exercise case law prior to Smith, to which the RFRA explicitly appeals, did not require litigants to prove centrality or compulsion. Part III demonstrates that the religious motivation test protects the full spectrum of religious practices and religious groups, unlike the centrality test and the compulsion test. Part IV illustrates that the motivation …

Doma: An Unconstitutional Establishment Of Fundamentalist Christianity, James M. Donovan

Michigan Journal of Gender & Law

According to the text of the Act, DOMA's purposes are "to define and protect the institution of marriage," where marriage is defined to exclude same-sex partners. To be constitutionally valid under the Establishment Clause, this notion that heterosexual marriages require "protection" from gay and lesbian persons must spring from a secular and not religious source. This Article posits that DOMA has crossed this forbidden line between the secular and the religious. DOMA, motivated and supported by fundamentalist Christian ideology, and lacking any genuine secular goals or justifications, betrays the Establishment Clause of the U.S. Constitution.

Policing Hatred: Police Bias Units And The Construction Of Hate Crime, Jeannine Bell

Michigan Journal of Race and Law

Much of the scholarly debate about hate crime laws focuses on a discussion of their constitutionality under the First Amendment. Part of a larger empirical study of police methods of investigating hate crimes, this Note attempts to shift thinking in this area beyond the existing debate over the constitutionality of hate crime legislation to a discussion of how low-level criminal justice personnel, such as the police, enforce hate crime laws. This Note argues that, since hate crimes are an area in which police have great discretion in enforcing the law, their understanding of the First Amendment and how it relates …

A More Sensible Approach To Regulating Independent Expenditures: Defending The Constitutionality Of The Fed's New Express Advocacy Standard, Michael D. Leffel

Michigan Law Review

Campaign finance reformers argue that the "unholy alliance of private money and public elections" has created "a crisis of confidence in our elected officials." The now-deceased campaign reform advocate Philip M. Stem summed up the role of money in campaigns this way: "[M]oney-power has replaced people-power as the driving force in American politics and the determinant of electoral victory." One form of "money-power" in elections that received a great deal of attention in the last election cycle was "independent expenditures." Independent expenditures are funds spent by interested individuals or groups - usually in the form of television or radio advertisements …

The First Amendment Comes Of Age: The Emergence Of Free Speech In Twentieth-Century America, G. Edward White

Michigan Law Review

As the number of issues perceived as having First Amendment implications continues to grow, and the coterie of potential beneficiaries of First Amendment protection continues to widen - including not only the traditional oppressed mavericks and despised dissenters but some rich and powerful members from the circles of political and economic orthodoxy - alarms have been sounded. Another period of stocktaking for free speech theory appears to be dawning, and some recent commentators have proposed a retrenchment from the long twentieth- century progression of increasingly speech-protective interpretations of the First Amendment. At the heart of the retrenchment literature lies the …

The First Amendment Status Of Commercial Speech: Why The Fcc Regulations Implementing The Telephone Consumer Protection Act Of 1991 Are Unconstitutional, Deborah L. Hamilton

Michigan Law Review

This Note considers the constitutionality of the FCC's regulations implementing the no-recorded-message provision of the 1991 TCPA and concludes that they violate the First Amendment because they impermissibly distinguish between commercial and noncommercial speech. Part I explains the structure of the FCC's recorded-message regulations and demonstrates that the regulations explicitly distinguish commercial recorded messages from other recorded messages. Part II examines First Amendment protection for commercial speech in light of three 1993 Supreme Court decisions that restructured commercial speech doctrine by holding that the government can single out commercial speech for regulation only in response to a distinct harm arising …

Post Constitutionalism, Lawrence Lessig

Michigan Law Review

A Review of Robert C. Post, Constitutional Domains: Democracy, Community, Management

Is There A Principle Of Religious Liberty?, John H. Garvey

Michigan Law Review

A Review of Jesse H. Choper, Securing Religious Liberty: Priniples for Judicial Interpretation of the Religion Clauses and Steven D. Smith, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom

The Big Chill: Third-Party Documents And The Reporter's Privilege, Bradley S. Miller

University of Michigan Journal of Law Reform

In the wake of Philip Morris' multi-billion dollar libel suit against ABC, a Virginia court has sanctioned a new method of discovery that promises to have an unsettling impact on the reporter's privilege to protect confidential sources. In Philip Morris Cos. v. American Broadcasting Cos., the tobacco giant moved to compel disclosure of the identity of a former R.J. Reynolds manager who suggested on ABC's Day One news program that tobacco companies add nicotine to the cigarettes they manufacture. At the same time, Philip Morris issued subpoenas for the expense records of two ABC employees who wrote and produced …

Radically Subversive Speech And The Authority Of Law, Steven D. Smith

Michigan Law Review

This essay attempts to use a familiar, relatively concrete constitutional question to think about a familiar, relatively abstract jurisprudential question - and vice versa. The constitutional question asks why we should give legal protection to what I will call "radically subversive speech." The jurisprudential question concerns the ancient problem of the legitimacy or authority of law in general. "What is law," as Philip Soper puts the question, "that I should obey it?" I will try in this essay to show that the abstract question sheds light on the more concrete one - and vice versa.

Religion-Based Peremptory Challenges After Batson V. Kentucky And J.E.B. V. Alabama: An Equal Protection And First Amendment Analysis, Benjamin Hoorn Barton

Michigan Law Review

This Note argues that under Batson, J.E.B., the First Amendment, and the Equal Protection Clause, religion-based peremptory challenges are unconstitutional. This Note asserts that the analysis of governmental religious discrimination, such as a peremptory challenge, is the same under either the First Amendment or the Equal Protection Clause because both apply strict scrutiny to purposeful government discrimination.

Part I examines Batson and J.E.B. in greater detail and states a model for analyzing discriminatory peremptory challenges in which such challenges are treated as intentional governmental discrimination subject to heightened scrutiny. Part II argues that under the First Amendment, intentional governmental …

Turner Broadcasting, The First Amendment , And The New Electronic Delivery Systems, Henry Geller

Michigan Telecommunications & Technology Law Review

After ducking the issue of the First Amendment status of cable television for years, the United States Supreme Court rendered its most important decision concerning the regulation of the new electronic media in Turner Broadcasting, Inc. v. FCC. Turner involved the constitutionality of the "must-carry" provisions of the 1992 Cable Act (the "Act" or "Cable Act") which require cable systems to carry specified local broadcast television stations. While cable television began over four decades ago as a community antenna service, it changed drastically after the advent of satellite in the mid-1970's to also provide scores of satellite-delivered programs and to …

Equality And Freedom Of Speech (Eighteenth Annual Law Review Symposium: Demise Of The First Amendment? Focus On Rico And Hate Crime Litigation), Terrance Sandalow

Other Publications

The editors responsible for today's symposium have posed an alarming question: whether we are witnessing the demise of the First Amendment. I want to dispel at the outset any anxiety the question may have aroused. The First Amendment is alive and well; indeed, it is thriving. I believe, though I cannot prove, that public respect for the values it expresses has never been greater than it has been in recent years. Whether or not I am correct in that belief, however, it is certain that constitutional protections against governmental efforts to limit speech and other forms of expressive activity are …

Verbal Sexual Harassment As Equality-Depriving Conduct, Keith R. Fentonmiller

University of Michigan Journal of Law Reform

Part I of this Note argues that commentators like Browne and some courts have mischaracterized the harm of verbal sexual harassment as mere "offense." Rather, the true harm of a sexually hostile environment created by words and expressive conduct extends beyond offense, emotional distress, and economic displacement; at bottom, the harm is equality-deprivation.

Part II explains how a sexually hostile environment is equality-depriving by arguing that words which create a sexually hostile environment must be understood in historical and social context. Words can be used not only to communicate ideas but also to perform acts of coercion and sexual abuse. …