First Amendment Commons^™

A Response To Professor Laycock, Marci A. Hamilton

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In Search Of Regulatory Equilibrium, Lili Levi

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Above The Law? The Constitutionality Of The Ministerial Exemption From Antidiscrimination Law, Caroline Mala Corbin

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The Kerr Principle, State Action, And Legal Rights, Donald J. Herzog

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A Baltimore library refused to admit Louise Kerr to a training program because she was black. Not that it had anything against blacks, but its patrons did. When Kerr launched a civil suit against the library alleging a violation of equal protection of the laws, the courts credited the library's claim that it had no racist purpose, but Kerr still prevailed-even though the case occurred before Title VII and Brown v. Board of Education. Here a neutral and generally applicable rule ("serve the patrons"), when coupled with particular facts about private parties (the white patrons dislike blacks), yielded an …

The Religious Origins Of Disestablishment Principles, Marci A. Hamilton, Rachel Steamer

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Out Of Thin Air: Using First Amendment Public Forum Analysis To Redeem American Broadcasting Regulation, Anthony E. Varona

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American television and radio broadcasters are uniquely privileged among Federal Communications Commission (FCC) licensees. Exalted as public trustees by the 1934 Communications Act, broadcasters pay virtually nothing for the use of their channels of public radiofrequency spectrum, unlike many other FCC licensees who have paid billions of dollars for similar digital spectrum. Congress envisioned a social contract of sorts between broadcast licensees and the communities they served. In exchange for their free licenses, broadcast stations were charged with providing a platform for a "free marketplace of ideas" that would cultivate a democratically engaged and enlightened citizenry through the broadcasting of …

Nineteenth-Century Free Exercise Jurisprudence And The Challenge Of Polygamy: The Relevance Of Nineteenth-Century Cases And Commentaries For Contemporary Debates About Free Exercise Exemptions, Clark B. Lombardi

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Does the Free Exercise Clause of the U.S. Constitution require judges to exempt religious objectors from the application of nondiscriminatory and otherwise applicable laws? Over the last twenty years, judges and academics have debated fiercely whether the Clause should be interpreted to provide religiously observant citizens with a right to “free exercise exemptions.” The debate has led indirectly to a new interest in nineteenth-century views on free exercise jurisprudence. In this Article, I will examine the scholarship on nineteenth-century free exercise jurisprudence to date and ask what it adds to our understanding of the Clause and the question of exemptions.

Relative Access To Corrective Speech: A New Test For Requiring Actual Malice, Aaron Perzanowski

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This Article reexamines the First Amendment protections provided by the public figure doctrine. It suggests that the doctrine is rooted in a set of out-dated assumptions regarding the media landscape and, as a result, has failed to adapt in a manner that accounts for our changing communications environment.

The public figure doctrine, which imposes the more rigorous actual malice standard of fault on defamation plaintiffs who enjoy greater access to mass media, was constructed in an era defined by one-to-many communications media. Newspapers, broadcasters, and traditional publishers exhausted the Court's understanding of the means of communicating with mass audiences. As …

A Reply To Professor Johnson, Marci A. Hamilton

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Church Autonomy Is Not A Better Path To "Truth", Marci A. Hamilton

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Scylla Or Charybdis: Navigating The Jurisprudence Of Visual Clutter, Ryan Calo

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State and local governments seeking to address the proliferation of billboards and other outdoor advertising must negotiate two obstacles of First Amendment law. The first is the Supreme Court’s 1981 decision in Metromedia, Inc. v. City of San Diego. Following Metromedia, regulators can neither select among noncommercial messages nor privilege commercial messages over noncommercial ones. For years, regulators navigated around Metromedia by drawing a distinction between commercial and noncommercial speech. Then came the Supreme Court’s decision in City of Cincinnati v. Discovery Network, holding that regulators had to account for why they were privileging noncommercial over commercial …

The Freedom To Speak And The Freedom To Listen: The Admissibility Of The Criminal Defendant's Taste In Entertainment, Helen A. Anderson

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In Part I of this Article, I will establish that the First Amendment protects both consumers and producers of expression, although the scope of consumer protection has not been greatly elaborated. Part II discusses attempts to hold the entertainment industry liable for crimes by third persons, as well as legislative efforts to restrict or ban certain kinds of entertainment or art deemed to cause violence. For the most part, these efforts against producers have failed.

Part III then shows how a criminal defendant's viewing, listening, or reading habits may be used as evidence against that defendant, and that the constitutional …

Free Speech And Valuable Speech: Silence, Dante, And The 'Marketplace Of Ideas', James Boyd White

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This Essay is a slightly expanded version of the inaugural Mellinkoff Lecture in Law and Humanities, presented at the UCLA School of Law last April in honor of the memory of Professor David Mellinkoff, the distinguished author of ground-breaking work on the nature of legal language. It addresses four related questions. What is the nature of the kind of speech and expression that realizes most completely the human capacity for finding and expressing meaning? How does our own world of public speech measure up to that standard? How, indeed, does our own talk in the law measure up, especially our …

Going To Pot, Carl E. Schneider

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In several earlier columns, I suggested that judges are usually poorly placed to make good biomedical policy, not least because the law so rarely offers them direct and cogent guidance. Recently, the U.S. Court of Appeals for the Ninth Circuit proffered a new example of this old problem. In 1996, California's voters approved Proposition 215. Its "Compassionate Use Act of 1996" provided -that a patient "who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician" committed no crime.

Queers Anonymous: Lesbians, Gay Men, Free Speech, And Cyberspace, Edward D. Stein

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The expansion of cyberspace in the past decade has created unprecedented opportunities for communication, both across the globe and across the street. The Internet and other forms of cyberspace have provided new avenues for anonymous and pseudonymous communication. Individuals can now interact without the traditional constraints of time, place, and manner of communication.

Religion, The Rule Of Law, And The Good Of The Whole: A View From The Clergy, Marci A. Hamilton

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Faith In Justice: Fiduciaries, Malpractice & Sexual Abuse By Clergy, Zanita E. Fenton

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A Response To Professor Benkler, Marci A. Hamilton

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Professor Hamilton explores the constitutional complexity uncovered by Professor Benkler in his piece, Constitutional Bounds of Database Protection: The Role of Judicial Review in the Creation and Definition of Private Rights in Information. Specifically, Professor Hamilton highlights that our democratic structure is characterized by representation rather than self-rule. In doing so, she refocuses the role of information in the political process and highlights that different types of information require different levels of access. Professor Hamilton's analysis further illustrates how an imprecise use of terminology may lead to incorrect conclusions regarding information jurisprudence. Through her more refined lens, Professor Hamilton reconsiders …

Reporting The Official Truth: The Revival Of The Fcc's News Distortion Policy, Lili Levi

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A Reply, Marci A. Hamilton

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It is not often that one gets such immediate (and lengthy) written responses to one's work. It is both humbling and a blessing. My five interlocutors have offered me the opportunity to gaze at my own work as it is reflected in five different pools. I like some of what I see, do not recognize some of it, and will refine other aspects in this brief reply. My only regret is that I simply cannot in the space of a reply respond to many of the interesting and worthy points raised.

Power, The Establishment Clause, And Vouchers, Marci A. Hamilton

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

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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 …

City Of Boerne V. Flores: A Landmark For Structural Analysis, Marci A. Hamilton

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

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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 …

The Association Of American Law Schools, Section On Mass Communications Law 1997 Annual Conference Panel: Sex, Violence, Children & The Media: Legal, Historical &Empirical; Perspectives, Lili Levi

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The Constitution's Pragmatic Balance Of Power Between Church And State, Marci A. Hamilton

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"Do Justice!": Variations Of A Thrice-Told Tale, Michael Herz

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Although recent debates would suggest that narrative scholarship is brand new,4 lawyers, judges, and law professors, like all humankind, have always offered stories for illustration or support or to make a point in an indirect, and often more effective, way. Learned Hand's story about telling Justice Holmes to "do justice" is one widely-used example, offered by many writers in addition to Judge Bork and Professor Chayes. Its popularity is easy to understand. The story has a substantive message, pithily expressed, on a basic jurisprudential issue; it involves two members of the pantheon; and it crams a lot of human interest …

The Once And Future Property-Based Vision Of The First Amendment, John O. Mcginnis

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The growth of the information superhighway depends not only on technological developments, but also on our society's commitment to the free flow of information. Paradoxically, however, as the digital revolution in telecommunications is bringing the information superhighway into sharp focus, the justifications for contemporary First Amendment jurisprudence are becoming blurred.

The First Amendment's Challenge Function And The Confusion In The Supreme Court's Contemporary Free Exercise Jurisprudence, Marci A. Hamilton

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The Partial Republican, John O. Mcginnis

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