First Amendment Commons^™

Seeing It Coming Since 1945: State Bans And Regulations Of Crafty Sciences Speech And Activity, Christine Corcos

Journal Articles

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Book Review, Justin R. Huckaby

Journal Articles

In The Tragedy of Religious Freedom, Marc 0. DeGirolami explains the delicate nuances of the legal theory of religious liberty and the risks that arise from its application in the sensitive area of the First Amendment's religion clauses. There are several different theoretical approaches to cases involving the religion clauses. DeGirolami endorses the approach he describes as the method of tragedy and history. This method approaches the pluralistic nature of religion with the understanding that there are many different values at play in cases involving religion and that sacrifices will be made in all cases. Courts should also consider the …

Nonprofits, Speech, And Unconstitutional Conditions, Lloyd Hitoshi Mayer

Journal Articles

This Article proposes a new constitutional framework for approaching the issue of speech-related conditions on government funding received by nonprofits and demonstrates the application of this framework by applying it to the disputes that have reached the Supreme Court in this area. It argues that speech rights are generally inalienable as against the government under the First Amendment, and therefore any abridgement of such rights by the government – whether direct or indirect – is subject to strict scrutiny. As a result, the government is not permitted to buy an organization’s speech (or silence) absent a compelling governmental interest in …

Institutional Autonomy And Constitutional Structure, Randy J. Kozel

Journal Articles

This Review makes two claims. The first is that Paul Horwitz’s excellent book, "First Amendment Institutions," depicts the institutionalist movement in robust and provocative form. The second is that it would be a mistake to assume from its immersion in First Amendment jurisprudence (not to mention its title) that the book's implications are limited to the First Amendment. Professor Horwitz presents First Amendment institutionalism as a wide-ranging theory of constitutional structure whose focus is as much on constraining the authority of political government as it is on facilitating expression. These are the terms on which the book's argument — and, …

Using Feathery Birds To Disguise Hateful Speech: Avatar, Hillary: The Movie, Citizens United, And How Birds Of The Same Feather Flock Together, Angela Mae Kupenda

Journal Articles

Some types of hateful speech may be called commercialism or entertainment. Yet, this speech disguises hate. This speech seems to be harmless entertainment, as harmless as doves or feathery birds. However, in reality this speech drowns out the truth in the marketplace, as individuals appear to become more gullible in watching film and other commercial speech. This essay explores this quandary by asking, and attempting to answer, four questions. First, is there any possible negative influence from commercial media, especially film, in the marketplace of ideas about nonwhites (i.e., has the truth about race and about nonwhites already won out …

An Intersystemic View Of Intellectual Property And Free Speech, Mark Bartholomew, John Tehranian

Journal Articles

Intellectual property regimes operate in the shadow of the First Amendment. By deeming a particular activity as infringing, the law of copyright, trademark, and the right of publicity all limit communication. As a result, judges and lawmakers must delicately balance intellectual property rights with expressive freedoms. Interestingly, each intellectual property regime strikes the balance between ownership rights and free speech in a dramatically different way. Despite a large volume of scholarship on intellectual property rights and free speech considerations, this Article represents the first systematic effort to detail, analyze, and explain the divergent evolution of expression-based defenses in copyright, trademark, …

Neutrality And The Good Of Religious Freedom: An Appreciative Response To Professor Koppelman, Richard W. Garnett

Journal Articles

This paper is a short response to an address, “And I Don’t Care What It Is: Religious Neutrality in American Law,” delivered by Prof. Andrew Koppelman at a conference, “The Competing Claims of Law and Religion: Who Should Influence Whom?”, which was held at Pepperdine University in February of 2012. In this response, it is suggested – among other things – that “American religious neutrality” is, as Koppelman argues, “coherent and attractive” because and to the extent that it is not neutral with respect to the goal and good of religious freedom.
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/="/">Religious freedom, in the American tradition, …

'The Freedom Of The Church': (Towards) An Exposition, Translation, And Defense, Richard W. Garnett

Journal Articles

This Article was presented at a conference, and is part of a symposium, on the topic of "Freedom of the Church in the Modern Era." In addition to summarizing and re-stating claims made by the author in earlier work – claims having to do with, among other things, church-state separation, the no-establishment rule, legal and social pluralism, and the structural role played by religious and other institutions – the Article attempts to strengthen the argument that the idea of “the freedom of the church” (or something like it) is not a relic or anachronism but instead remains a crucial component …

Ferlinghetti On Trial: The Howl Court Case And Juvenile Delinquency, Joel E. Black

Journal Articles

In spring 1957 the Juvenile Division of the San Francisco Police Department seized copies of Howl and charged the poem's publisher, Lawrence Felinghetti, with obscenity. Tried in summer 1957 and defended by the American Civil Liberties Union, Ferlinghetti was exonerated by a District Court judge. Scholars typically place the Howl trial at the beginning of a cultural and social revolution that flourished in the 1960s or place it amid the personal lives and rebellions of the actors composing the Beat Generation. However, these treatments do not fully consider the ways the prosecution reflected trends in law, shaped debates over juvenile …

Of Speech And Sanctions: Toward A Penalty-Sensitive Approach To The First Amendment, Michael Coenen

Journal Articles

Courts confronting First Amendment claims do not often scrutinize the severity of a speaker’s punishment. Embracing a “penalty-neutral” understanding of the free-speech right, these courts tend to treat an individual’s expression as either protected, in which case the government may not punish it at all, or unprotected, in which case the government may punish it to a very great degree. There is, however, a small but important body of “penalty-sensitive” case law that runs counter to the penalty-neutral norm. Within this case law, the severity of a speaker’s punishment affects the merits of her First Amendment claim, thus giving rise …

How The Movies Became Speech, Samantha Barbas

Journal Articles

In its 1915 decision in Mutual Film v. Industrial Commission of Ohio, the Supreme Court held that motion pictures were, as a medium, unprotected by freedom of speech and press because they were mere “entertainment” and “spectacles” with a “capacity for evil.” Mutual legitimated an extensive regime of film censorship that existed until the 1950s. It was not until 1952, in Burstyn v. Wilson, that the Court declared motion pictures to be, like the traditional press, an important medium for the communication of ideas protected by the First Amendment. By the middle of the next decade, film censorship in the …

The Value Of Valor: Money, Medals And Military Labor, Mateo Taussig-Rubbo

Journal Articles

The United States Supreme Court recently overturned the Stolen Valor Act on the grounds that the law’s blanket prohibition on falsely claiming to have received a military medal or decoration violated the First Amendment right to free speech. This Article uses the controversy provoked by the law to explore the implications of offering compensation for military service in the form of medals. How is compensation in medals related to monetary compensation? Querying the distinctions between money and medals — and the ways in which the boundaries around medals are drawn and policed — offers a means of considering the forms …

The Sidis Case And The Origins Of Modern Privacy Law, Samantha Barbas

Journal Articles

The American press, it’s been said, is freer to invade personal privacy than perhaps any other in the world. The tort law of privacy, as a shield against unwanted media exposure of private life, is very weak. The usual reason given for the weakness of U.S. privacy law as a bar on the publication of private information is the strong tradition of First Amendment freedom. But “freedom of the press” alone cannot explain why liberty to publish has been interpreted as a right to print truly intimate matters or to thrust people into the spotlight against their will. Especially in …

Hosanna-Tabor, Religious Freedom, And The Constitutional Structure, Richard W. Garnett, John M. Robinson

Journal Articles

From the Introduction

Our Constitution, which is both an act and artifact of "We the People of the United States," "vest[s]" certain "powers" - some, but not all - in the national government. Those powers are enumerated, and also separated, checked, and constrained. As Chief Justice John Roberts put it last June, this government "possesses only limited powers; the States and the people retain the remainder." It is designed and structured in such a way as to make it workable, capable, and effective, but also to - by virtue of its design and structure, and not only through explicit prohibitions …

Wikileaks And The Institutional Framework For National Security Disclosures, Patricia L. Bellia

Journal Articles

WikiLeaks’ successive disclosures of classified U.S. documents throughout 2010 and 2011 invite comparison to publishers’ decisions forty years ago to release portions of the Pentagon Papers, the classified analytic history of U.S. policy in Vietnam. The analogy is a powerful weapon for WikiLeaks’ defenders. The Supreme Court’s decision in the Pentagon Papers case signaled that the task of weighing whether to publicly disclose leaked national security information would fall to publishers, not the executive or the courts, at least in the absence of an exceedingly grave threat of harm.
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/="/">The lessons of the Pentagon Papers case for WikiLeaks, …

(Re)Complexioning A Simple Tale: Race, Speech, And Colored Leadership, Angela Mae Kupenda

Journal Articles

Rather than acting as a whitening agent, the law should reflect the natural (re)complexioning of society and adapt to the melting pot that is America. The term "(re)complexioning" is used because the idea that the complexion of America was white at the beginning is false. Prior to the "discovery" of America, native citizens were indeed more deeply complexioned than Whites. Any (re)complexioning of the law since, to reflect the colors of America, then, is just to resort to the recognition of factual premises unjustly rejected when America was usurped from those of color and denied to others of color after …

Religious Freedom, Church-State Separation, And The Ministerial Exception, Thomas C. Berg, Kimberlee Wood Colby, Carl H. Esbeck, Richard W. Garnett

Journal Articles

The Hosanna-Tabor case concerns the separation of church and state, an arrangement that is often misunderstood but is nevertheless a critical dimension of the freedom of religion protected by the First Amendment to our Constitution. For nearly a thousand years, the tradition of Western constitutionalism - the project of protecting political freedom by marking boundaries to the power of government - has been assisted by the principled commitment to religious liberty and to church-state separation, correctly understood. A community that respects - as ours does - both the importance of, and the distinction between, the spheres of political and religious …

Pornography As Pollution, John Copeland Nagle

Journal Articles

Pornography is often compared to pollution. But little effort has been made to consider what it means to describe pornography as a pollution problem, even as many legal scholars have concluded that the law has failed to control internet pornography. Opponents of pornography maintain passionate convictions about how sexually-explicit materials harm both those who are exposed to them and the broader cultural environment. Viewers of pornography may generally hold less fervent beliefs, but champions of free speech and of a free internet object to anti-pornography regulations with strong convictions of their own. The challenge is how to address the widespread …

The High Cost Of Free Speech: Anti-Solicitation Ordinances, Day Laborers And The Impact Of 'Backdoor' Local Immigration Regulations, Kristina M. Campbell

Journal Articles

This paper examines how local efforts to regulate the activities of immigrants, while not regulation of immigration per se, can have a substantial and detrimental effect on the civil rights of immigrants and Latinos. The paper discuss how day laborers - individuals, mostly Latino men, who seek short-term employment in public fora - are routinely targeted by state and local governments, federal immigration authorities, anti-immigrant activists, and the general public as a symbol of the employment of unauthorized aliens. Even though many day laborers are lawfully present, or have authorization to work in the United States, due to the high-profile …

Minimalism And Deliberative Democracy: A Closer Look At The Virtues Of "Shallowness", Matthew J. Steilen

Journal Articles

Cass Sunstein has long argued that judicial minimalism promotes democracy. According to Sunstein’s view, a court can encourage the political branches of government to address an issue by using doctrines such as vagueness, nondelegation, and desuetude. Although much has been written about minimalism, very little has been said about the democracy-promotion thesis in particular. Yet it is one of the central claims of contemporary minimalism. This article attempts to remedy the deficiency. It argues that minimalism does not promote democracy because minimalist decisions lack the depth necessary to trigger democratic deliberation. The argument occurs in three steps. First, the article …

School Choice And The Challenges That Remain: A Comment On Richard D. Komer's "School Choice And State Constitutions' Religion Clauses", Richard W. Garnett

Journal Articles

Richard Komer’s paper helpfully and carefully shows that, after the Supreme Court’s 2002 ruling in Zelman v. Simmons-Harris, a formidable obstacle to choice-based educational reform has been removed, and also that other, no-less-formidable obstacles remain, in the form of anti-aid provisions contained in various states’ own constitutions. This brief, appreciative Comment notes, first, that uncertainties remain about the implementation and interpretation of Zelman, and even—considering the possibility of new appointments to the Court—the decision’s fate. Next, and moving beyond the Court’s First Amendment doctrine, this Comment suggests that the effort to implement choice-based educational reform is, and will remain, as …

Copyright And The First Amendment: Comrades, Combatants, Or Uneasy Allies?, Joseph P. Bauer

Journal Articles

The copyright regime and the First Amendment seek to promote the same goals. Both seek the creation and dissemination of more, better, and more diverse literary, pictorial, musical and other works. But, they use significantly different means to achieve those goals. The copyright laws afford to the creator of a work the exclusive right to reproduce, distribute, transform, and perform that work for an extended period of time. The First Amendment, on the other hand, proclaims that Congress "shall make no law...abridging the freedom of speech or of the press," thus at least nominally indicating that limitations on the reproduction …

Parental Rights And The State Regulation Of Religious Schools, Matthew J. Steilen

Journal Articles

In Wisconsin v. Yoder, the United States Supreme Court invalidated convictions of several Amish parents for removing their children from school in violation of state mandatory attendance laws. In reaching its decision, the Court argued that protecting the Amish parents’ decisions fit into a longstanding American tradition of giving parents control over the upbringing of their children. Yet the Supreme Court mischaracterized the history of parental rights and state interests in education. Contemporary historical research shows that parents have long ceded a large measure of control to the state in the education of their children. Still, very little has been …

Religious Freedom, Church Autonomy, And Constitutionalism, Richard W. Garnett

Journal Articles

Our topic at this symposium is "religion, the state, and constitutionalism"-not "the Constitution," or "the First Amendment," but "constitutionalism." Countless conferences, cases, books, and articles have wrestled with one version or another of the question, "how does our Constitution, with its First Amendment and its religion clauses, promote, protect, or perhaps restrain religion?" We are considering, it seems to me, a question that is different, and that is different in interesting and important ways: What are connections between religion and religious freedom, on the one hand, and constitutionalism, on the other?

Standing, Spending, And Separation: How The No-Establishment Rule Does (And Does Not) Protect Conscience, Richard W. Garnett

Journal Articles

The First Amendment’s “Establishment Clause” is widely thought to protect “conscience.” Does it? If so, how? It is proposed in this paper that the no-establishment rule does indeed promote and protect religious liberty, and does safeguard conscience, but not (or, at least, not only) in the way most people think it does, namely, by sparing those who object from the asserted injury to their conscience caused by public funding of religious activity.

The Supreme Court’s decision in Hein v. Freedom from Religion Foundation - a case in which the Justices limited taxpayer standing to bring Establishment Clause claims - reminds …

Politics At The Pulpit: Tax Benefits, Substantial Burdens, And Institutional Free Exercise, Lloyd Hitoshi Mayer

Journal Articles

More than fifty years ago, Congress enacted a prohibition against political campaign intervention for all charities, including churches and other houses of worship, as a condition for receiving tax deductible contributions. Yet the IRS has never taken a house of worship to court for alleged violation of the prohibition through political comments from the pulpit, presumably at least in part because of concerns about the constitutionality of doing so. This decision is surprising, because a careful review of Free Exercise Clause case law - both before and after the landmark Employment Division v. Smith decision - reveals that the prohibition …

Judicial Review, Local Values, And Pluralism, Richard W. Garnett

Journal Articles

At the Federalist Society's 2008 National Student Symposium, a panel of scholars was asked to consider the question, does pervasive judicial review threaten to destroy local identity by homogenizing community norms? The answer to this question is yes, pervasive judicial review certainly does threaten local identity, because such review can homogenize[e] community norms, either by dragging them into conformity with national, constitutional standards or (more controversially) by subordinating them to the reviewers' own commitments. It is important to recall, however, that while it is true that an important feature of our federalism is local variation in laws and values, it …

Free Speech And The Case For Constitutional Exceptionalism, Roger P. Alford

Journal Articles

Excerpts from the Article

Embodied in the Universal Declaration of Human Rights is the evocative proposition that [e]veryone has the right to freedom of opinion and expression. But beneath that level of abstraction there is anything but universal agreement.

This book review argues that the dissonance between countries need not be challenged in pursuit of uniformity. Indeed, in those cases in which the differences reflect an appropriate balance of competing goods, it should be celebrated. Constitutional exceptionalism recognizes and celebrates each country's attempt to optimize the general welfare of that country by balancing competing goods in a manner consistent with …

Religion At A Public University, Gerard V. Bradley

Journal Articles

On March 6, 2007, the College of William & Mary announced a “compromise” solution to its polite civil war over the historic Wren Chapel. In a joint statement with President Gene Nichol, the Board of Visitors declared that permanent display of the Christian cross within the Chapel would resume. The cross would be moved, however, from its former place at center stage on the Chapel altar. Accompanying the elocated display would be a plaque “explaining the College's Anglican roots.” The compromise further provided that, when needed during certain worship services, the cross could be moved back to the altar. When …

Can There Really Be "Free Speech" In Public Schools?, Richard W. Garnett

Journal Articles

The Supreme Court's decision in Morse v. Frederick leaves unresolved many interesting and difficult problems about the authority of public-school officials to regulate public-school students' speech. Perhaps the most intriguing question posed by the litigation, decision, and opinions in More is one that the various Justices who wrote in the case never squarely addressed: What is the "basic education mission" of public schools, and what are the implications of this "mission" for officials' authority and students' free-speech rights. Given what we have come to think the Free Speech clause means, and considering the values it is thought to enshrine and …