First Amendment Commons^™

Second Thoughts On Rust V. Sullivan And The First Amendment, William W. Van Alstyne

Faculty Publications

No abstract provided.

The "Assaultive Jurisprudence": The Free Speech Critique Of Robert Nagle’S Constitutional Cultures, David Day

Faculty Publications

No abstract provided.

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 …

Limiting Disclosure Of Rape Victims' Identities, Paul Marcus, Tara L. Mcmahon

Faculty Publications

No abstract provided.

Freedom Of Speech And The Flag Anti-Desecration Amendment: Antinomies Of Constitutional Choice, William W. Van Alstyne

Faculty Publications

No abstract provided.

Academic Freedom, Hate Speech, And The Idea Of A University, Rodney A. Smolla

Faculty Publications

No abstract provided.

Foreword: Freedom And Tenure In The Academy: The Fiftieth Anniversary Of The 1940 Statement Of Principles, William W. Van Alstyne

Faculty Publications

This forward comments on the shared anniversary of the Bill of Rights and several declarations of academic freedom. Several of the preceding articles are intended to discuss academic freedom and the need for its protection in the U.S.

Academic Freedom And The First Amendment In The Supreme Court Of The United States: An Unhurried Historical Review, William W. Van Alstyne

Faculty Publications

No abstract provided.

The Lemon Test: Should It Be Retained, Reformulated Or Rejected?, Carl H. Esbeck

Faculty Publications

This essay addresses the Supreme Court's three-part establishment clause test originally set down in Lemon v. Kurtzman. Part I concerns the manner in which the Lemon test has substantially evolved. Part II explores what the evolved test has to offer by way of solving the seemingly conflicting duties not to inhibit free speech and political rights, while at the same time refraining from passing laws "respecting an establishment of religion." Finally, Part III addresses some of the proposals to supplant Lemon altogether.

Rethinking First Amendment Assumptions About Racist And Sexist Speech, Rodney A. Smolla

Faculty Publications

No abstract provided.

First Freedom: Religion And The Bill Of Rights, Carl H. Esbeck

Faculty Publications

This volume is a collection of seven papers delivered at a symposium assembled in April 1989 upon the occasion, almost two hundred years hence, of the passage of the Bill of Rights by the First Congress. The unifying theme is stated to be the historical context of both Religion Clauses in the First Amendment, but the authors are driven primarily by Establishment Clause concerns. The Thrust of the essays deal with the originalism advanced during the years of Reagan Administration, and nonpreferentialism comes in for particular criticism, both pejoratively characterized as that "growing clamor".

The Establishment Clause As A Structural Restraint On Governmental Power, Carl H. Esbeck

Faculty Publications

This Article inquires into whether the singular purpose of the Establishment Clause is to secure individual rights, as is conventionally believed, or whether its role is more properly understood as a structural restraint on governmental power. If the Clause is indeed structural in nature, then its task is to negate from the purview of civil governance all matters “respecting an establishment of religion.” Conceptualizing the role of the Establishment Clause as either rights-securing or structural has profound consequences for the nation's constitutional settlement concerning the interrelationship of government and religion.

Emotional Distress, The First Amendment, And This Kind Of Speech: A Heretical Perspective On Hustler Magazine V. Falwell, Paul A. Lebel

Faculty Publications

No abstract provided.

Opaque Covers And Judicial Obfuscation In The Eighth Circuit, David Day

Faculty Publications

No abstract provided.

Emotional Distress And The First Amendment: An Analysis Of Hustler V. Falwell, Rodney A. Smolla

Faculty Publications

No abstract provided.

The Incidental Regulation Of Free Speech, David Day

Faculty Publications

No abstract provided.

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 …

Federal Funds To Religious Groups: Where Are The First Amendment Boundaries?, Neal Devins

Faculty Publications

No abstract provided.

Propaganda, Xenophobia, And The First Amendment, Rodney A. Smolla, Stephen A. Smith

Faculty Publications

No abstract provided.

The Press Clause Constructed In Context: The Journalists' Right Of Access To Places, Tom A. Collins

Faculty Publications

No abstract provided.

What Is “An Establishment Of Religion?", William W. Van Alstyne

Faculty Publications

No abstract provided.

The Hybridization Of The Content-Neutral Standards For The Free Speech Clause, David Day

Faculty Publications

No abstract provided.

Standing In The Need Of Prayer? The Supreme Court On James Madison And Religious Liberty, Jonathan Van Patten

Faculty Publications

No abstract provided.

Has The First Amendment Arrived For Broadcasting?, Tom A. Collins

Faculty Publications

No abstract provided.

Congressional Power And Free Speech: Levy’S Legacy Revisited, William W. Van Alstyne

Faculty Publications

No abstract provided.

The Trouble With Jaycees, Neal Devins

Faculty Publications

No abstract provided.

Toward A General Theory Of Church-State Relations And The First Amendment, Carl H. Esbeck

Faculty Publications

Although government intervention in religious affairs is a new and understandably worrisome experience for many American churches, history instructs us that the confrontation is not novel. We can find some comfort in the fact that this double wrestle of state with church and state with individual believers is a perennial match. After all, it has been nearly sixty years since a brutish measure in Oregon making parochial school education unlawful had to be sidelined by the United States Supreme Court in Pierce v. Society of Sisters.' Over forty-five years ago the Supreme Court decided Lovell v. City of Griffin, snuffing …

The Infliction Of Harm Through The Publication Of Fiction: Fashioning A Theory Of Liability, Paul A. Lebel

Faculty Publications

No abstract provided.

Establishment Clause Limits On Governmental Interference With Religious Organizations, Carl H. Esbeck

Faculty Publications

In this article it will be argued that the establishment clause, properly viewed, functions as a structural provision regimenting the nature and degree of involvement between government and religious associations." The degree of involvement should be a limited one, although it is clear that the interrelationship need not nor cannot be eliminated altogether. Although the degree of desired separation has proven to be a continuing controversy, the goal of separation is not so divisive. The aim of separation of church and government is for each to give the other sufficient breathing space. The ordering principle is reciprocity in which "both …

A New Look At An Old Association: Will Today's Women Be Tomorrow's Jaycees?, Neal Devins

Faculty Publications

No abstract provided.