First Amendment Commons^™

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 …

Space, Place, And Speech: The Expressive Topography, Timothy Zick

Faculty Publications

No abstract provided.

Speech And Spatial Tactics, Timothy Zick

Faculty Publications

No abstract provided.

Cheers, Profanity, And Free Speech, Howard M. Wasserman

Faculty Publications

No abstract provided.

The Constitutional Failing Of The Anticybersquatting Act, Ned Snow

Faculty Publications

Eminent domain and thought control are occurring in cyberspace. Through the Anticybersquatting Consumer Protection Act (ACPA), the government transfers domain names from domain-name owners to private parties based on the owners' bad-faith intent. The owners receive no just compensation. The private parties who are recipients of the domain names are trademark holders whose trademarks correspond with the domain names. Often the trademark holders have no property rights in those domain names: trademark law only allows mark holders to exclude others from making commercial use of their marks; it does not allow mark holders to reserve the marks for their own …

Controlling Corporate Speech: Is Regulation Fair Disclosure Unconstitutional, Antony Page, Katy H. Yang

Faculty Publications

We analyze whether Regulation Fair Disclosure, SEC Chairman Arthur Levitt's crowning achievement, violates the First Amendment. Regulation FD requires that a company that discloses material non-public information to certain private audiences must also make that information public, subject to certain safe-harbors. The Regulation solely targets speech, acting either to compel it to a public audience or as a burden on private disclosure. Part I examines the reach of Regulation FD, the enforcement actions to date, and currently available empirical data. Part II provides an introduction to the interaction of the First Amendment and SEC regulations affecting speech. Part III broadens …

Symbolic Counter-Speech, Howard M. Wasserman

Faculty Publications

No abstract provided.

Dissent And Disestablishment: The Church/State Settlement Of The New American Republic, Carl H. Esbeck

Faculty Publications

This paper has two aims. They are more in the nature of history than law. The first aim is to show that since the fourth century Western civilization has presupposed that there are not one but two sovereigns. Each has a jurisdiction of legitimate operation, and while there are areas of shared cognizance, there are other subject matter areas in which each is noncompetent to perform the tasks of the other. The second aim of this paper is to uncover historical figures that advanced a proposition concerning religious freedom that became the American church-state settlement.

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 …

Regulating Genetically Modified Foods: Is Mandatory Labeling The Right Answer?, Jonathan H. Adler

Faculty Publications

What I want to talk about are some legal issues relating to labeling and, in particular, constitutional issues relating to mandatory labeling for genetically modified foods or food products that may contain genetically modified components. This is a separate issue from whether or not the FDA, or some other agency, has sufficient statutory authority at present to mandate labeling, and that is something worth discussing. Even if they do have such authority, or even if Congress tomorrow were to give the FDA such authority or were to require the FDA to impose labels on genetically modified foods, or if a …

Discussing The First Amendment , Christina E. Wells

Faculty Publications

Despite its many good qualities, Eternally Vigilant nevertheless suffers from a flaw common to First Amendment scholarship--a tendency to give short shrift to study of the social, psychological, historical, and political factors that influence the Court's decision making and, thus, free speech doctrine. Discussion including these influences would facilitate an even greater understanding of free speech doctrine and the principles that underlie it.

Reconciling What The First Amendment Forbids With What The Copyright Clause Permits: A Summary Explanation And Review, William W. Van Alstyne

Faculty Publications

No abstract provided.

To What Extent Does The Power Of Government To Determine The Boundaries And Conditions Of Lawful Commerce Permit Government To Declare Who May Advertise And Who May Not?, William W. Van Alstyne

Faculty Publications

No abstract provided.

The Metes And Bounds Of State Sovereign Immunity, Scott Dodson

Faculty Publications

What are the constitutional parameters of state sovereign immunity? The Court has made clear that certain provisions of Article I contain no authority for overriding state sovereign immunity, while at least one other provision, the Fourteenth Amendment, permits Congress to abrogate the states’ sovereign immunity. How is this constitutional line drawn? It is temporally bound? In other words, are only certain Amendments enacted after the Eleventh Amendment free from absolute subservience to state sovereign immunity? Or, does it divide the original Constitution and its Amendments, meaning that state sovereign immunity permeates the original Constitution but does not infiltrate certain Amendments, …

Compelled Expression And The Public Forum Doctrine, Howard M. Wasserman

Faculty Publications

This Article analyzes the theory underlying the Fist Amendment protection against being compelled by government to utter, present, or fund unwanted expression. The author creates a three-part model for determining when the fire speech rights of an objecting payer have been triggered. Under that model, First Amendment rights are implicated when there has been an actual government compulsion requiring an individual to give money to, or for the express benefit of, a specific private speaker for some use that, in itself, should be understood as expressive. This model strikes a necessary balance between the important theoretical underpinnings of the protection …

Brandenburg And The United States War On Incitement Abroad: Defending A Double Standard, Lyrissa Lidsky

Faculty Publications

While it is perfectly legitimate for the United States to attempt to persuade foreign citizens and media not to engage in advocacy of violent acts, the administration's rhetoric suggests that the United States expects foreign governments to take action against speech that would be protected by the First Amendment in the United States. What explains this apparent hypocrisy? Is this simply another example of the United States touting democracy at home while supporting despotism abroad? Or is the Brandenburg incitement standard so socially and culturally contingent that it is not appropriate for export, at least to the Arab Middle East? …

Criminal Speech And The First Amendment, Benjamin Means

Faculty Publications

No abstract provided.

The Establishment Clause As A Structural Restraint: Validations And Ramifications, Carl H. Esbeck

Faculty Publications

The opening phrase of the First Amendment to the U.S. Constitution provides, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The free exercise clause functions as an individual right with its purpose being to forestall personal religious harm. Its underlying principle is that in religious matters a person ought to be free of coercion caused by the government and thereby not made to suffer for cause of conscience. The function of the establishment clause is altogether different, for its purpose is to restrain government from using its powers to act on matters …

Constitutional Law Leading Cases: Judicial Elections, Nathan B. Oman

Faculty Publications

No abstract provided.

The Story Of A Forgotten Battle, Nathan B. Oman

Faculty Publications

No abstract provided.

Religion And The First Amendment: Some Causes Of The Recent Confusion, Carl H. Esbeck

Faculty Publications

The United States Supreme Court is surely guilty of making the matter of religion and the First Amendment harder than it ought to be. But it is others who have kept the debate over church/state relations either poisoned with culture-war rhetoric or so shrouded in mystery that seemingly only experts can untangle the juris-prudential snarls. By surrounding this venerable Amendment with a pseudocomplexity concerning the matter of religion these disinformation specialists create confusion, and confusion begets opportunities for further distortion and manipulation. Disagreements over the free exercise of religion and the no-establishment thereof are far simpler to resolve than these …

Introduction: The Difficult First Amendment, Christina E. Wells

Faculty Publications

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for redress of grievances.

Beyond Campaign Finance: The First Amendment Implications Of Nixon V. Shrink Missouri Pac, Christina E. Wells

Faculty Publications

This essay, however, is less concerned with the campaign finance aspects of Shrink than with the decision's broader implications. In the course of its decision, the Shrink Court not only obfuscated the standard of scrutiny applicable to contribution regulations, it effectively ignored the government's lack of factual support for the law, instead accepting the state's assertions at face-value. Consequently, Shrink is far more than a simple application of Buckley. Rather, it reflects fundamental problems with the Court's standards of review in First Amendment cases generally. The more global nature of Shrink's problems suggest that, despite scholarly focus on the Buckley …

Cybergossip Or Securities Fraud? Some First Amendment Guidance In Drawing The Line., Lyrissa Lidsky, Michael Pike

Faculty Publications

Fifteen-year-old Jonathan Lebed, the youngest person ever pursued by the SEC in an enforcement action, made over $800,000 in six months by promoting stocks on Internet message boards. Using several fictitious screen names, Jonathan posted hundreds of messages on Yahoo! Finance, hyping selected over-the-counter stocks and then promptly selling his pre-purchased shares as soon as the stock prices rose.

Publicly, the SEC painted a picture-perfect case of securities fraud. Yet, the SEC forced disgorgement of only $285,000 of Jonathan's profits, leaving many observers to wonder why the resolution of this supposedly clear-cut case left its teenaged perpetrator with over $500,000. …

Bringing Structure To The Law Of Injunctions Against Expression, Christina E. Wells

Faculty Publications

Part I of this Article reviews the Court's cases regarding injunctions against speech, focusing first on the increasing elevation of rhetoric (as opposed to analysis) in the Court's prior restraint decisions. Part I also reviews the Court's other decisions involving injunctions and demonstrates that they too contain little, if any, analysis concerning the appropriateness of injunctive relief against expression. Part II examines Madsen's interaction with the Court's previous decisions and discusses how Madsen furthers the incoherence of the Court's previous cases. Part III explains that content discrimination principles, although superficially attractive, are inappropriate with injunctive relief because the content-based/content-neutral distinction's …

Peaches, Speech, And Clarence Thomas: Yes, California, There Is A Justice Who Understands The Ramifications Of Controlling Commercial Speech, Jennifer R. Franklin

Faculty Publications

No abstract provided.

Differentiating The Free Exercise And Establishment Clauses, Carl H. Esbeck

Faculty Publications

The purpose of the Establishment Clause is not to safeguard individual religious rights. That is the role of the Free Exercise Clause, indeed its singular role. The purpose of the Establishment Clause, rather, is as a structural restraint on governmental power. Because of its structural character, the task of the Establishment Clause is to limit government from legislating or otherwise acting on any matter "respecting an establishment of religion." The powers that fall within the scope of the foregoing clause (denied to government, hence within the sole province of religion) and the powers outside this clause (hence, authority vested in …

On Casebooks And Canons Or Why Bob Jones University Will Never Be Part Of The Constitutional Law Canon, Neal Devins

Faculty Publications

No abstract provided.

The Public Forum Doctrine’S "Government Intent Standard:" What Happened To Justice Kennedy?, David Day

Faculty Publications

No abstract provided.

Antitrust Immunity, The First Amendment & Settlements: Defining The Boundaries Of The Right To Petition, Raymond Shih Ray Ku

Faculty Publications

Specifically, this Article examines whether settlement agreements and consent decrees resulting from what would otherwise be immunized litigation are protected from antitrust scrutiny and liability under Noerr. In order to conduct this analysis, this Article develops a methodology for determining immunity by focusing the immunity examination upon the means used to petition government and the source of the alleged injuries. Ultimately, private conduct is immune from antitrust scrutiny when it represents a valid attempt to persuade an independent governmental decision-maker in an effort to solicit government action, and the alleged injuries result from that persuasive effort. The validity of any …