First Amendment Commons^™

How To Avoid A "Holy War" -- Dealing With Potential Rluipa Claims, Alan C. Weinstein

Law Faculty Articles and Essays

This article discusses how local government can seek to avoid a claim being brought against it under the Religious Land Use & Institutionalized Persons Act (RLUIPA). Thus, the focus is not on what steps a local government should take when a RLUIPA claim is brought - or threatened to be brought - against it, but focuses instead on what steps local governments should take to seek to avoid a RLUIPA claim in the first place. After reviewing both the changing context of religious observance in the United States, and RLUIPA decisions to date, the article concludes that we are clearly …

Whither The Pickering Rights Of Federal Employees?, Paul M. Secunda

University of Colorado Law Review

As a result of the Supreme Court's 1983 decision in Bush v. Lucas, federal employees are not permitted to bring Bivens constitutional tort claims directly to federal court to vindicate their First Amendment rights to free speech under Pickering v. Board of Education. Instead, the Bush Court found that Congress had established an effective, alternative statutory scheme for vindication of such claims under the Civil Service Reform Act of 1978. This places federal employees in a less favorable predicament than their state and local employee counterparts who are able to directly proceed to court on their First Amendment retaliation claims …

Creating Masculine Identities: Bullying And Harassment "Because Of Sex", Ann C. Mcginley

University of Colorado Law Review

This Article deals with group harassment of women and men in the workplace under Title VII of the 1964 Civil Rights Act. In Oncale v. Sundowner Offshore Services, the Supreme Court held that Title VII forbids harassment by members of the same sex, but it also emphasized that Title VII is implicated only if the harassment occurs "because of sex." Oncale's "because of sex" requirement has spawned considerable confusion in same-sex and different sex harassment cases. This Article focuses on four fact patterns that confuse courts, scholars, and employment lawyers. In the first scenario, men harass women in traditionally male …

Defending The Public Domain—The First Amendment, The Copyright Power, And The Potential Of Golan V. Gonzales, J. Blake Pinard

Oklahoma Law Review

No abstract provided.

Symbolic Speech: A Message From Mind To Mind, James M. Mcgoldrick Jr.

Oklahoma Law Review

No abstract provided.

Roth At Fifty: Reconsidering The Common Law Antecedents Of American Obscenity Doctrine, 41 J. Marshall L. Rev. 393 (2008), James R. Alexander

UIC Law Review

No abstract provided.

Employee Speech & Management Rights: A Counterintuitive Reading Of Garcetti V. Ceballos, Elizabeth Dale

UF Law Faculty Publications

In the two years since the decision came down, courts and commentators generally have agreed that the Supreme Court's decision in Garcetti v. Ceballos sharply limited the First Amendment rights of public employees. In this Article, I argue that this widely shared interpretation overstates the case. The Court in Garcetti did not dramatically change the way it analyzed public employees' First Amendment rights. Instead, it restated the principles on which those claims rest, emphasizing management rights and the unconstitutional conditions doctrine. By making those two theories the centerpiece of the decision, the Court in Garcetti defined public employee speech rights …

Shifting Out Of Neutral: Intelligent Design And The Road To Nonpreferentialism, Kelly S. Terry

Law Faculty Scholarship

No abstract provided.

The Four Eras Of Fcc Public Interest Regulation, Lili Levi

Articles

No abstract provided.

Captive Audience Meetings And Forced Listening: Lessons For Canada From The American Experience, Sara Slinn

Articles & Book Chapters

Widespread adoption of mandatory representation votes and express protection of employer speech invite employer anti-union campaigns during union organizing, including employer-held captive audience meetings. Therefore, the problem of whether and how to restrict employers’ captive audience communications during union organizing is of renewed relevance in Canada. Captive meetings are a long-standing feature of American labour relations. This article considers how treatment of captive meetings evolved in the U.S., including the notion of employee choice, the “marketplace of ideas” view of expression dominating the American debate, and the central role of the contest between constitutional and statutory rights. It also considers …

Reconsidering Gobitis: An Exercise In Presidential Leadership, Robert Tsai

Scholarly Articles in Law Reviews & Journals

In June of 1940, the Supreme Court ruled 8-1 in Minersville School District v. Gobitis that the First Amendment posed no barrier to the punishment of two school age Jehovah's Witnesses who refused to pay homage to the American flag. Three years later, the Justices reversed themselves in West Virginia State Board of Education v. Barnette. This sudden change has prompted a host of explanations. Some observers have stressed changes in judicial personnel in the intervening years; others have pointed to the wax and wane of general anxieties over the war; still others have emphasized the sympathy-inspiring acts of …

Grounding Cyberspeech: Public Schools' Authority To Discipline Students For Internet Activity, Sarah O. Cronan

Kentucky Law Journal

No abstract provided.

No Law Respecting The Practice Of Religion, Leslie C. Griffin

Scholarly Works

No abstract provided.

Rumsfeld V. Forum For Academic And Institutional Rights, Inc.:By Allowing Military Recruiters On Campus, Are Law Schoolsadvocating "Don't Ask, Don't Tell"?, Braxton Williams

Richmond Public Interest Law Review

The freedom of speech protected by the First Amendment encompasses more than mere spoken words; it also protects conduct that has an expressive quality, such as flag burning.' In the important case of United States v. O'Brien, the United States Supreme Court appeared to narrow these sorts of protections in cases where there is a sufficient government interest in prosecuting actions, such as burning draft cards, and when such acts are noncommunicative. After the Supreme Court's recent holding in Rumsfeld v. Forum for Academic and Institutional Rights, Inc., the O'Brien holding's limitation on First Amendment protection for expressive conduct appears …

"Pick"Ering The Speech Rights Of Public School Teachers: Arguing For A Movement By Courts Toward The Hazelwood-Tinker Standard Under The First Amendment, Heather Bennett

Florida A & M University Law Review

No abstract provided.

Where Are Your Papers? Photo Identification As A Prerequisite To Voting, Michael J. Kasper

Florida A & M University Law Review

Remember the old war movies? Richard Attenborough or William Holden is slowly walking down misty Parisian streets, the collar of his trench turned up, the brim of the fedora pulled low. A black sedan screeches around the corner and screams to a stop in front of him before he has time to react. Soldiers bound from the car, pistols drawn, and bark "Vhere are your papers?" When did America become this movie? The U.S. Supreme Court will take up this question this term. This article explores five recent state laws, from Indiana, Arizona, Georgia, Michigan, and Missouri requiring citizens to …

Accommodating Respectful Religious Expression In The Workplace, Nantiya Ruan

Scholarly Works

This Article makes the case for judicial recognition of respectful religious expression in the workplace as more consistent with the Court's Establishment Clause jurisprudence and also more true to the legislative intent of the religious accommodation provisions of Title VII. Respectful religious pluralism in the workplace should become the norm through judicial requirements of best practices in the workplace. Such a view should be wholly supported by the majority of the Justices because it is consistent with their expressed views, in the Establishment Clause case law, that religion fosters moral good and that in a pluralistic society religious expression cannot …

The "Scope Of A Student": How To Analyze Student Speech In The Age Of The Internet, Erin Reeves

Georgia Law Review

In three seminal cases dating from 1969-1988, the U.S. Supreme Court determined that students have a more limited right to free speech while within the confines of a public school building. In recent years, however, more and more cases have arisenin which it is not so clear whether a student speaker is "on-campus,"due in large part to the rapid increase in speech communicated over the Internet. This Note explores the possibility of how far the "confines of a public school building" should be extended in this age of the Internet. After analyzing the current confusion regarding what amount of restriction …

Constitutional Law And Values—Version ’08 (Not Necessarily An Upgrade), Nadine Strossen

NYLS Law Review

No abstract provided.

Rumsfeld V. Forum For Academic And Institutional Rights, Inc.:By Allowing Military Recruiters On Campus, Are Law Schoolsadvocating "Don't Ask, Don't Tell"?, Braxton Williams

Richmond Journal of Law and the Public Interest

The freedom of speech protected by the First Amendment encompasses more than mere spoken words; it also protects conduct that has an expressive quality, such as flag burning.' In the important case of United States v. O'Brien, the United States Supreme Court appeared to narrow these sorts of protections in cases where there is a sufficient government interest in prosecuting actions, such as burning draft cards, and when such acts are noncommunicative. After the Supreme Court's recent holding in Rumsfeld v. Forum for Academic and Institutional Rights, Inc., the O'Brien holding's limitation on First Amendment protection for expressive conduct appears …

Panel: Restrictions On Freedom Of Association Through Material Support Prohibitions And Visa Denials, David Cole

Georgetown Law Faculty Publications and Other Works

In the 1950s, we were afraid of communism. We were afraid, in particular, of the Soviet Union, the world's second greatest superpower, which was armed with masses of nuclear warheads aimed at all our largest cities. As a result, we fought the Cold War, engaged in espionage, proxy wars, and an arms race. We also took aggressive preventive measures at home. The principal preventive measure of that period was guilt by association. We made it a crime to be a member of the Communist Party, and we created a whole administrative scheme to implement and enforce this notion of guilt …

Offensive Political Speech From The 1970s To 2008: A Broadcaster’S Moral Choice, Lavonda N. Reed-Huff

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Opinionated Software, Meiring De Villiers

Vanderbilt Journal of Entertainment & Technology Law

Information security is an important and urgent priority in the computer systems of corporations, governments, and private users. Malevolent software, such as computer viruses and worms, constantly threatens the confidentiality, integrity, and availability of digital information. Virus detection software announces the presence of a virus in a program by issuing a virus alert. A virus alert presents two conflicting legal issues. A virus alert, as a statement on an issue of great public concern, merits protection under the First Amendment. The reputational interest of a plaintiff disparaged by a virus alert, on the other hand, merits protection under the law …

Prediction Markets And The First Amendment, Miriam A. Cherry, Robert L. Rogers

Faculty Publications

The continuing development of prediction markets is important because of their success in foretelling the future in politics, economics, and science. In this article, we identify the expressive elements inherent in prediction markets and explore how legislation such as the Unlawful Internet Gambling Enforcement Act of 2006 might harm such predictive speech. This article is the first to explore First Amendment protections for prediction markets in such depth, and in so doing, we distinguish prediction markets from other regulated areas such as gambling, commodities, and securities trading. The article’s examination of prediction markets also illustrates the limitations of current commercial …

Public Employee Speech, Categorical Balancing And § 1983: A Critique Of Garcetti V. Ceballos, Sheldon H. Nahmod

University of Richmond Law Review

I propose to discuss Garcetti's First Amendment reasoning as well as the implications of the § 1983' setting in which Garcetti and other public employee free speech cases typically arise. After briefly setting out the Court's opinion and the three dissenting opinions, I begin by addressing the pros and cons of Garcetti, and in the course of so doing, I discuss the prior Pickering-Connick landscape that Garcetti so significantly altered. I consider the deeper First Amendment implications of Garcetti, including itsuse of categorical balancing to create an absolute immunity fromFirst Amendment liability for employer discipline based on job-required public employee …

A Constitutional "Right" To Deny And Promote Genocide? Preempting The Usurpation Of Human Rights Discourse Towards Incitement From A Canadian Perspective, Karen Eltis

Cardozo Journal of Conflict Resolution

I would like to thank the organizers of the conference, particularly Sheri Rosenberg, for their gracious invitation to speak to what is undoubtedly one of the most pressing themes commanding our attention - genocide and its denial. This is a time when historical truth struggles to endure in the face of insidious attacks at times couched in human rights rhetoric.

Taking Denial Seriously: Genocide Denial And Freedom Of Speech In French Law, Sévane Garibian

Cardozo Journal of Conflict Resolution

The French National Assembly's adoption of a bill penalizing the denial of the Armenian genocide (October 12, 2006), later followed by the German plan to outlaw genocide denial throughout European Union, stoked the vigorous French debate on the connection between genocide denial and law and, more generally, between history and law. The main criticism expressed by the detractors of laws against negationism - in particular historians - is the following: penalization of denial constitutes a violation of freedom of expression and, as such, represents a threat to democracy.

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 …

All The News That's Fit To Split: Newspaper Mergers, Antitrust Laws And The First Amendment, Richard Brand

Cardozo Arts & Entertainment Law Journal

No abstract provided.