First Amendment Commons^™

Legal And Moral Dimensions Of Churchill's Failure To Warn, Anthony D'Amato

Cardozo Law Review

No abstract provided.

Brief On Appeal Of Defendant-Appellant The Board Of Education Of The Kiryas Joel Union Free School District, George Shebitz, Julia R. Cohen, Nahal Motamed, Nathan Lewin, Richard W. Garnett, Anthony J. Bellia Jr.

Court Briefs

No. 81319
Louis Grumet v. George Pataki

From the Introduction

Chapter 390 is tainted only by its history. On its face, it is a neutral law that raises no serious constitutional doubt. Its objective, as described by the Appellate Division -- "to create a constitutionally valid educational program which meets the special education needs of the disabled students residing in the Village of Kiryas Joel, Orange County" -- is unquestionably legitimate. All the statutory criteria it specifies were ratified by this Court in its Kiryas Joel II opinion as "related to legitimate educational concerns." 90 N.Y. 2d at 72. What …

The Holocaust: Does Time Heal All Wrongs?, William Schwartz

Cardozo Law Review

No abstract provided.

Prying, Spying, And Lying: Intrusive Newsgathering And What The Law Should Do About It, Lyrissa Barnett Lidsky

UF Law Faculty Publications

The media’s use of intrusive newsgathering techniques poses an increasing threat to individual privacy. Courts currently resolve the overwhelming majority of conflicts in favor of the media. This is not because the First Amendment bars the imposition of tort liability on the media for its newsgathering practices. It does not. Rather, tort law has failed to seize the opportunity to create meaningful privacy protection. Most torts that affect newsgathering protect privacy only incidentally, and the tort of intrusion, which addresses newsgathering more directly, has been interpreted so narrowly that it provides little or no protection from the most common types …

Choppy Waters Are Forecast For Academic Free Speech, Rachel E. Fugate

Florida State University Law Review

No abstract provided.

Of Communists And Anti-Abortion Protestors: The Consequences Of Falling Into The Theoretical Abyss, Christina E. Wells

Faculty Publications

Part I of this article briefly reviews the legal and social context of Dennis and Yates. Parts II and III similarly review Madsen and Schenck in order to show potential parallels to the earlier communist decisions. Part IV further examines both Madsen and Schenck, demonstrating that, from a doctrinal standpoint, they are far removed from the earlier communist cases. Finally, Part V explains how the Court in Madsen and Schenck actually contributed to misconceptions or manipulation of its opinions. Specifically, Part V examines the Madsen and Schenck Courts' approaches to three of the more difficult doctrinal issues facing them--prior restraint, …

Rethinking The Clear And Present Danger Test, David R. Dow, R. Scott Shieldes

Indiana Law Journal

No abstract provided.

Rights Against Rules: The Moral Structure Of American Constitutional Law, Matthew D. Adler

Michigan Law Review

The Bill of Rights, by means of open-ended terms such as "freedom of speech," "equal protection," or "due process," refers to moral criteria, which take on constitutional status by virtue of being thus referenced. We can disagree about whether the proper methodology for judicial application of these criteria is originalist or nonoriginalist. The originalist looks, not to the true content of the moral criteria named by the Constitution, but to the framers' beliefs about that content; the nonoriginalist tries to determine what the criteria truly require, and ignores or gives less weight to the framers' views. Bracketing this disagreement, however, …

Brief Of National Jewish Commission On Law And Public Affairs ("Colpa"), Agudath Harabonim Of The United States And Canada, Agudath Israel Of America, Union Of Orthodox Jewish Congregations Of America ("U.O.J.C.A."), National Council Of Young Israel, Rabbinical Alliance Of America, Rabbinical Council Of America, And Torah Umesorah -- National Society Of Hebrew Day Schools, As Amici Curiae In Support Of Plaintiffs-Appellants, David G. Webbert, Nathan Lewin, Richard W. Garnett, Dennis Rapps

Court Briefs

No. CUM 98-281
Robert Bagley v. Raymond School Department

On Appeal from the Cumberland County Superior Court

From the Argument

This is a straightforward case. Under Maine law, parents who live in cities and towns without government-run public schools may send their children to private schools at public expense. The plaintiffs are parents who live in such a town and who desire to send their children to Cheverus High School, a well respected Catholic school in Portland, Maine. The defendants refuse to pay for the plaintiffs' children's education for one reason and one reason only: Cheverus is a religious school. …

The Press: Its Sins And Grace, Anthony Lewis

Washington Law Review

Under the First Amendment, as it has come to be understood, the American press has more freedom than the press of any other country. I want to explore the question of what our press does with that great freedom. Does it show a matching responsibility? How well does it perform the role that the framers of the Constitution thought justified the protection they were giving us, the role of holding government accountable to the people? James Madison put it that in the United States "the people, not the government, possess the absolute sovereignty." That was "altogether different" from Britain, he …

"Chilling" The Internet? Lessons From Fcc Regulation Of Radio Broadcasting , Thomas W. Hazlett, David W. Sosa

Michigan Telecommunications & Technology Law Review

Congress included the Communications Decency Act (CDA) in the Telecommunications Act signed into law on February 8, 1996. The bill seeks to outlaw the use of computers and phone lines to transmit "indecent" material with provisions of jail terms and heavy fines for violators. Proponents of the bill argue it is necessary to protect minors from undesirable speech on the Internet. The CDA was immediately challenged in court by the American Civil Liberties Union, and the special 3-judge federal panel established to hear the case recently declared the Act unconstitutional. Yet, its ultimate adjudication remains in doubt. Ominously, the federal …

The Electronic Media And The Flight From First Amendment Doctrine: Justice Breyer's New Balancing Approach, Jerome A. Barron

University of Michigan Journal of Law Reform

Contemporary First Amendment issues in cases involving the electronic media transcend traditional conflicts between the government and the speaker. The speaker is not easy to identify. Listeners, programmer and medium operators or distributors all have competing claims to First Amendment protection. To determine whose interests shall prevail, courts increasingly seek a methodology that accounts for these warring interests. Justice Breyer, along with Justice Souter and, in some respects, Justice Stevens, have been instrumental in reviving balancing as a First Amendment approach in these situations.

In two recent First Amendment cable television cases Turner Broadcasting System, Inc. v. FCC (Turner II) …

A Response To Professor Rubenfeld, Jonathan D. Hacker

Michigan Law Review

Professor Jed Rubenfeld has offered in these pages an ingenious explanation for why the Supreme Court was right to strike down the Religious Freedom Restoration Act (RFRA) in City of Boerne v. Flores. Rubenfeld finds in the First Amendment's Establishment Clause a historical and inherent principle he calls "antidisestablishmentarianism": a prohibition on acts of Congress that "disestablish" religion in the several states. Rubenfeld reads the Establishment Clause as proscribing not only congressional acts that "establish" religion but also all congressional acts that "dictate a position on religion for states," including laws designed to ensure that states abide by the requirements …

Reply: Did The Fourteenth Amendment Repeal The First?, Jed Rubenfeld

Michigan Law Review

To get right to the point: Mr. Hacker does not disagree that the Establishment Clause would, in the absence of the Fourteenth Amendment, have prohibited Congress from passing a nationwide religion law like RFRA. He believes, however, that the Fourteenth Amendment has in part repealed the First. Of course, he doesn't want to say repealed. The language of repeal is not pleasant to the ears of those who would like to forget about First Amendment antidisestablishmentarianism. The Fourteenth Amendment did not "repeal any aspect of the text of the [Establishment] Clause," Hacker says, but only "change[d] profoundly the meaning of …

The Moral Failure Of The Clear And Present Danger Test, David R. Dow

William & Mary Bill of Rights Journal

The clear and present danger test has been used for almost a century to determine the speech the government may restrain. This test assumes that at some point speech transforms into an act and at that moment the speech becomes punishable. Under the clear and present danger test, the First Amendment does not protect speech that is an incitement to imminent lawless action. Professor Dow suggests that the clear and present danger test protects too little speech. He posits that speech should be protected unless the following three conditions are met: (1) the speaker's specific intent in uttering the words …

Justice Or Injustice For The Poor?: A Look At The Constitutionality Of Congressional Restrictions On Legal Services, J. Dwight Yoder

William & Mary Bill of Rights Journal

Upon enacting the Legal Services Corporation Act in 1974, Congress created the Legal Services Corporation (LSC), which provides federal funding to grantees that perform legal services for low-income individuals. In recent years, Congress has enacted restrictions upon grantees' receipt of such federal funding, limiting the legal services these legal aid attorneys can provide to their clients. This move has sparked great debate. Proponents of the restrictions argue that they are needed to correct abuse and misuse of the legal services program, while opponents argue that the restrictions only harm low-income individuals.

In this Note, the author addresses this controversial issue …

Moving Toward Neutrality: The National Telecommunications And Information Administration's New Stance On Sectarian Programming, Nancy L. Reynolds

Federal Communications Law Journal

The National Telecommunications and Information Administration (NTIA) has recently reinterpreted its funding policy regarding religious programming to create a policy more consistent with the religion clauses of the First Amendment and more responsive to the goal of government neutrality toward religion. Until 1996, the NTIA categorically denied all funding to government programming that provided any incidental or attenuated benefit to religion. However, in light of recent Establishment Clause cases, the NTIA modified its interpretation of sectarian programming, allowing a radio station to receive government funding even if its programming provides an attenuated or incidental benefit to religion. The NTIA's new …

Sobriety Test: The Court Walks The Central Hudson Line Once Again In 44 Liquormart, But Passes On A New First Amendment Review, Aaron A. Schmoll

Federal Communications Law Journal

In 1980 the Supreme Court decided Central Hudson and, in so doing, articulated the parameters of the modern commercial speech doctrine. In providing a four-part test to determine the validity of government efforts to restrict commercial speech, the Court engaged in "intermediate scrutiny" and created the expectation among free speech advocates that the Court was finally ready to provide higher measure of constitutional protection to commercial speech. In the nearly fifteen years after Central Hudson, these advocates have been disappointed as the Court has inconsistently weighed the factors that comprise the test. The opportunity to adopt a less- manipulative …

Speech, Service And Sex: The Limits Of First Amendment Protection Of Sexual Expression In The Military, Ross G. Shank

Vanderbilt Law Review

Since the close of the Gulf War, the United States's military organs have endured the exposure of a rash of sex-related scandals. These embarrassments have run the gamut from alarming charges of abuse of power in integrated training environments to the sensationalized, adultery-related discharge of the Air Force's first female bomber pilot. In response, Congress has reconsidered the vexing issues presented by recently adopted policies that have changed the roles of gender and sexual preference in the military. Lawmakers have entertained a wide variety of suggested remedies. At one extreme, Representative Barney Frank proposed lifting entirely the existing ban on …

Religion-Centered Free Exercise: A Tribute To Justice Brennan, Georgetown University Law Center

Philip A. Hart Memorial Lecture

On April 22, 1998, Professor of Law, Stephen L. Carter of Yale Law School, delivered the Georgetown Law Center’s eighteenth Annual Philip A. Hart Memorial Lecture: "Religion-Centered Free Exercise: A Tribute to Justice Brennan."

Stephen L. Carter is the William Nelson Cromwell Professor of Law at Yale, where he has taught since 1982. Among his courses are law and religion, the ethics of war, contracts, evidence, and professional responsibility. His most recent book is The Violence of Peace: America’s Wars in the Age of Obama (2011). Among his other books on law and politics are God’s Name in Vain: The …

Brief Of Chabad Of Pittsburgh As Amicus Curiae In Support Of Defendant-Appellants, Nathan Lewin, Richard W. Garnett, Charles H. Saul

Court Briefs

No. 98-5021
American Civil Liberties Union of New Jersey v. Bret Schundler

On Appeal from the United States District Court for the District of New Jersey

From the Introduction

Jersey City's Holiday Display, through which the City was "pleased to celebrate the diverse cultural and ethnic heritage of its people" (Op. at 4), was entirely consistent with First Amendment "first principles." The previous decisions in this case, which demonstrate a palpable suspicion and distrust toward religious symbols and which reflect the mistaken assumption that the Constitution mandates a "naked public square," purged entirely of religious content and influence, are not.

Constitutional Law—First Amendment And Establishment Clause—The Wall Of Separation Crumbles. Agostini V. Felton, 117 S. Ct. 1997 (1997)., Missy Mcjunkins

University of Arkansas at Little Rock Law Review

No abstract provided.

Free Speech And The Development Of Liberal Virtues: An Examination Of The Controversies Involving Flag-Burning And Hate Speech, Kenneth D. Ward

University of Miami Law Review

No abstract provided.

First Amendment Trump?: The Uncertain Constitutionalization Of Structural Regulation Separating Telephone And Video, Susan Dente Ross

Federal Communications Law Journal

The Cable Act of 1984 contained a "cross-ownership" ban, which prohibited telephone companies from entering the local cable video market. Although the ban was challenged by telephone carriers on numerous grounds, the First Amendment was not the basis of any challenge until the mid-1990s when telephone companies sought to characterize themselves not just as carriers but as content suppliers, or "speakers," who were deprived of their right to speak as a result of common carrier regulations that were intended merely to control the economic structure of the communications industry. Using the First Amendment as a new-found constitutional weapon to challenge …

In Search Of A Smoking Gun: Tortious Interference With Nondisclosure Agreements As An Obstacle To Newsgathering, Mark J. Chasteen

Federal Communications Law Journal

In November 1995, the prominent CBS newsmagazine 60 Minutes refrained from broadcasting an important interview with a former vice president of Brown & Williamson for fear of being liable for tortiously interfering with a confidentiality agreement between the employee and the tobacco company. This event illustrates a new concern facing media: specifically whether liability arises from broadcasting information that would be considered protected speech had the source not been a party to a nondisclosure agreement. It also illustrates an area of First Amendment jurisprudence that is as yet uncharted and for which there is no established standard that is easily …

Murder In The Abstract: The First Amendment And The Misappropriation Of Brandenburg, Amy K. Dilworth

William & Mary Bill of Rights Journal

When Paladin Enterprises published Hit Man, a manual about murder for hire, it knew and intended that the book would be used for such a purpose. When James Perry used the information contained in Hit Man to murder three innocent persons, he started a legal debate about the scope of First Amendment protections for books that instruct how to commit criminal acts. Many scholars and commentators indicated that Brandenburg v. Ohio contains the applicable constitutional standard; however, in litigation against Paladin, the survivors of the decedents challenged the conventional wisdom.

This Note examines the Brandenburg test for its applicability to …

Board Of County Commissioners V. Umbehr: The Inadequacies Of Extending Pickering Analysis To Government Contractors, Luther D. Tupponce

William & Mary Bill of Rights Journal

This Note challenges the restrictive First Amendment free speech protection that the Supreme Court gave to government contractors in Board of County Commissioners v. Umbehr when it applied the Pickering balancing test, developed nearly thirty years ago in Pickering v. Board of Education in the context of government employees. It does so by first questioning whether the First Amendment free speech protections given to government employees should be similar for government contractors. It then explores whether the Pickering balancing test should be applied to cases involving government contractors as it was in Umbehr.

The author concludes that the Court improperly …

Reno V. American Civil Liberties Union: First Amendment Free Speech Guarantee Extended To The Internet, Rafic H. Barrage

Mercer Law Review

In Reno v. American Civil Liberties Union, the United States Supreme Court considered the constitutionality of two provisions of the Communications Decency Act ("CDA") of 1996. At issue was the validity of the "indecent" transmission and "patently offensive" display provisions of the CDA that attempted to regulate Internet content with the objective of protecting minors from harmful material. The Court struck down both provisions as violative of the First Amendment right to free speech.

The Pentagon Papers - Victory For A Free Press, William R. Glendon

Cardozo Law Review

No abstract provided.

The Pentagon Papers Case And The Path Not Taken: A Personal Memoir On The First Amendment And The Separation Of Powers, Joel M. Gora

Cardozo Law Review

No abstract provided.