First Amendment Commons^™

The Continuing Threshold Test For Free Exercise Claims, Andy G. Olree

William & Mary Bill of Rights Journal

When a claimant challenges some governmental law or action under the Free Exercise Clause of the First Amendment, courts have long required the claimant to make out a prima facie case that the government has burdened the exercise of the claimant's sincerely held religious beliefs. This requirement has been referred to as the threshold test for free exercise claims, since claimants must make this showing as a threshold matter before courts will proceed to evaluate the burden and the governmental interest at stake under some standard of scrutiny. This Article argues that although the Supreme Court of the United States …

Civil Procedure And The Establishment Clause: Exploring The Ministerial Exception, Subject-Matter Jurisdiction, And The Freedom Of The Church, Gregory A. Kalscheur

William & Mary Bill of Rights Journal

What sort of defense is provided by the ministerial exception to employment discrimination claims? The ministerial exception bars civil courts from reviewing the decisions of religious organizations regarding the employment of their ministerial employees. While the exception itself is widely recognized by courts, there is confusion with respect to the proper characterization of the defense provided by the exception: should it be seen as a subject matter jurisdiction defense, or as a challenge to the legal sufficiency of the plaintiff's claim? This Article argues that articulating the right answer to this question of civil procedure is crucial to a proper …

The Cross At College: Accomodation And Acknowledgment Of Religion At Public Universities, Ira C. Lupu, Robert W. Tuttle

William & Mary Bill of Rights Journal

No abstract provided.

Free Expression And Education: Between Two Democracies, Stephen M. Feldman

William & Mary Bill of Rights Journal

No abstract provided.

Higher Education, Harassment, And First Amendment Opportunism, Kenneth L. Marcus

William & Mary Bill of Rights Journal

No abstract provided.

Intelligent Design In Public University Science Departments: Academic Freedom Or Establishment Of Religion, Frank S. Ravitch

William & Mary Bill of Rights Journal

No abstract provided.

Falsity, Insincerity, And The Freedom Of Expression, Mark Spottswood

William & Mary Bill of Rights Journal

Three decades ago, the Supreme Court announced that false statements of fact are devoid of constitutional value, without providing either a reasoned explanation for that principle or any supporting citations. This assertion has become one of the most frequently repeated dogmas of First Amendment law and theory, endlessly repeated and never challenged. Disturbingly, this idea has provided the theoretic foundation for a regime in which some speakers can be penalized for even honestly believed factual errors. Even worse, this dogma is flat wrong.

False statements often have value in themselves, and we should protect them even in some situations where …

Garcetti V. Ceballos: Stifling The First Amendment In The Public Workplace, Julie A. Wenell

William & Mary Bill of Rights Journal

No abstract provided.

Second Class Citizen Soldiers: A Proposal For Greater First Amendment Protections For America's Military Personnel, Emily Reuter

William & Mary Bill of Rights Journal

No abstract provided.

Public Employee Speech Rights Fall Prey To An Emerging Doctrinal Formalism, Charles W. "Rocky" Rhodes

William & Mary Bill of Rights Journal

No abstract provided.

Recognizing The Grey: Toward A New View Of The Law Governing Digital Music Sampling Informed By The First Amendment, William Y. Durbin

William & Mary Bill of Rights Journal

No abstract provided.

Stop Restricting Speech And Educate The Public: A Review Of The Aba's Proposed Campaign Activity Canon Of The Model Code Of Judicial Conduct, Tiffany L. Carwile

William & Mary Bill of Rights Journal

No abstract provided.

Sex Offenders In The Community: Their Public Persona And The Media's Corresponding Privilege To Report, Douglas Griswold

William & Mary Bill of Rights Journal

No abstract provided.

Introduction: Religion, Division, And The Constitution, Richard W. Garnett

William & Mary Bill of Rights Journal

No abstract provided.

Pluralism And Public Legal Reason, Lawrence B. Solum

William & Mary Bill of Rights Journal

No abstract provided.

Empiricism, Religion, And Judicial Decision-Making, Stephen M. Feldman

William & Mary Bill of Rights Journal

No abstract provided.

Religions, Fragmentations, And Doctrinal Limits, Frederick Mark Gedicks

William & Mary Bill of Rights Journal

No abstract provided.

A House Divided? What Social Science Has To Say About The Culture War, David E. Campbell

William & Mary Bill of Rights Journal

No abstract provided.

Religious Tests In The Mirror: The Constitutional Law And Constitutional Etiquette Of Religion In Judicial Nominations, Paul Horwitz

William & Mary Bill of Rights Journal

No abstract provided.

Social Reproduction And Religious Reproduction: A Democratic-Communitarian Analysis Of The Yoder Problem, Josh Chafetz

William & Mary Bill of Rights Journal

No abstract provided.

Cutter And The Preferred Position Of The Free Exercise Clause, Steven Goldberg

William & Mary Bill of Rights Journal

No abstract provided.

Speech And The Self-Governance Value, Brian C. Murchison

William & Mary Bill of Rights Journal

No abstract provided.

A Clearing In The Forest: Infusing The Labor Union Dues Dispute With First Amendment Values, Harry G. Hutchinson

William & Mary Bill of Rights Journal

This article deploys public choice theory and postmodem identity claims to develop a far-reaching understanding of the union dues dispute, which suggests that the burden of proof on the existence of and/or the possibility of an enduring union community should be placed on proponents of this view. While the postmodern project can be seen as an unsettled approach that is riven by coherency issues, not the least, its insistence on offering the good without the true, it supplies modest benefits by revealing the conceivably infinite varieties of human preferences in contemporary America. The absence of preference convergence, understood from the …

The Year Of Leaking Dangerously: Shadowy Sources, Jailed Journalists And The Uncertain Future Of The Federal Journalist's Privilege., Anthony L. Fargo

William & Mary Bill of Rights Journal

No abstract provided.

The Market For Legal Education And Freedom Of Association: Why The "Solomon Amendment" Is Constitutional And Law Schools Are Not Expressive Associations, Andrew P. Morriss

William & Mary Bill of Rights Journal

This term the Supreme Court will confront the constitutionality of the Solomon Amendment, which mandates equal access for military recruiters at universities that accept federal funding. The Third Circuit previously held the statute unconstitutional. This Article argues that the Court should reverse and uphold the statute because the lower court failed to consider the cartelized nature of legal education and so assumed that law schools are "expressive associations" entitled to assert First Amendment claims; the court also failed to give proper deference to Congress's exercise of its Article I power to raise and support armies and over-valued law faculties' interest …

Up Against The Wall Of Separation: The Question Of American Religious Democracy, Bruce Ledewitz

William & Mary Bill of Rights Journal

No abstract provided.

The Fear Factor: How Fcc Fines Are Chilling Free Speech, Noelle Coates

William & Mary Bill of Rights Journal

No abstract provided.

The Supreme Court And The Ten Commandments: Compounding The Establishment Clause Confusion, Jay A. Sekulow, Francis J. Manion

William & Mary Bill of Rights Journal

No abstract provided.

Upholding The Unbroken Tradition: Constitutional Acknowledgment Of The Ten Commandments In The Public Square, Greg Abbott

William & Mary Bill of Rights Journal

No abstract provided.

The Original Meaning Of The Establishment Clause, Robert G. Natelson

William & Mary Bill of Rights Journal

No abstract provided.