First Amendment Commons^™

Brief Amici Curiae Of Professor Eugene Volokh, National Council Of The Churches Of Christ In The Usa, Baptist Joint Committee For Religious Liberty, Queens Federation Of Churches, National Association Of Evangelicals, And Christian Legal Society In Support Of Petitioner, Richard W. Garnett, K. Hollyn Hollman, Melissa Rogers, Kimberlee Wood Colby, Thomas C. Berg, Carl H. Esbeck

Court Briefs

No. 10-553
Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission

On Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit

From the Summary of Argument

This case is about the separation of church and state, an arrangement that is sometimes misunderstood and whose scope is debated, but which is nevertheless a critical dimension of the religious freedom reflected in, and protected by, the First Amendment to our Constitution. For nearly a thousand years, the tradition of Western constitutionalism and the project of protecting political freedom by marking boundaries to the power of …

Taking A Bite Out Of Speech Regulation: The Supreme Court Upholds First Amendment Protection For Depictions Of Animal Cruelty In United States V. Stevens, J. Matthew Barnwell

Mercer Law Review

The First Amendment is tested most strenuously when called upon to protect expression that many people would find indefensible. This occurred in United States v. Stevens when the Supreme Court of the United States refused to categorically remove depictions of animal cruelty from the bulwark of free speech. Further, the Court invalidated section 48 of Title 18 of the United States Code, which prohibited the creation, sale, or possession of depictions of animal cruelty,' as unconstitutionally overbroad. By not allowing speech to be categorically excluded from First Amendment protection because of its inherent lack of value, the Court revealed an …

How Elevation Of Corporate Free Speech Rights Affects Legality Of Network Neutrality, Barbara A. Cherry

Federal Communications Law Journal

In Citizens United v. Federal Election Commission (2010), the U.S. Supreme Court overruled a century of precedent to hold that corporations must be treated identically to natural persons with regard to political speech. This Article describes how the Court's decision is a radical departure from history that mirrors the FCC's flawed analysis in its classification of broadband Internet access services as an information service with no separable telecommunications component subject to common carriage regulation. Overall, the combinatorial effect of Citizens United and the FCC's classification of broadband access service as an information service is to elevate the constitutional free speech …

The Roberts Court And Freedom Of Speech, Erwin Chemerinsky

Federal Communications Law Journal

This is an edited version of a speech delivered on December 16, 2010 in Washington, D.C., as part of the Federal Communications Bar Association's Distinguished Speaker Series.

This speech was given by Dean Erwin Chemerinsky in December 2010 as part of the FCBA's Distinguished Speaker Series. In the speech, Dean Chemerinsky offers his perspectives on and analysis of the Supreme Court's position on freedom of speech in recent years. He highlights important recent freedom of speech decisions made by the Roberts Court, and gives some projections as to where the court is heading in the years to come, given its …

International Media Law Reform And First Amendment Agnosticism: Review Of Lee Bollinger’S Uninhibited, Robust, And Wide-Open: A Free Press For A New Century, Enrique Armijo

Federal Communications Law Journal

Lee Bollinger's Uninhibited, Robust, and Wide-Open argues that in an increasingly globalized world, the United States must seek to export First Amendment free press principles to other countries. His project, however, is belied by the fact that media law is a product of context and history as much as legalism. His proposals for reconceptualizing our own animating vision for a free press here in the States are also in many important respects inconsistent with the First Amendment itself.

Wikileaks Would Not Qualify To Claim Federal Reporter’S Privilege In Any Form, Jonathan Peters

Federal Communications Law Journal

This Article addresses whether WikiLeaks could claim a federal reporter's privilege if the U.S. government or a U.S. entity tried to compel one of the site's staff members to disclose the source(s) of any documents it has released. After exploring the origins of the First Amendment-based privilege, the Author argues that WikiLeaks would not be able to claim it. First, the website does not engage in investigative reporting. Second, it has not taken steps consistently to minimize harm. He also discusses congressional attempts to pass a federal shield law, paying special attention to H.R. 985 and S. 448, the two …

It’S A Mad, Mad Internet: Globalization And The Challenges Presented By Internet Censorship, Jessica E. Bauml

Federal Communications Law Journal

The advent of the Internet has brought tremendous technological advancements and growth to the world. However, it has also become a source of conflict, particularly when different countries attempt to regulate this very ubiquitous and amorphous medium. The most notable controversy has arisen in China home to the world's most advanced system of Internet censorship, which levies harsh penalties on those who violate the country's strict censorship laws. China's "Great Firewall" has raised many eyebrows and is garnishing substantial criticism in response to the human rights abuses that result from the jailing and reported torture of Chinese dissidents. Yet the …

Smith In Theory And Practice, Nelson Tebbe

Cornell Law Faculty Publications

Employment Division v. Smith controversially held that general laws that were neutral toward religion would no longer be presumptively invalid, regardless of how much they incidentally burdened religious practices. That decision sparked a debate that continues today, twenty years later. This symposium Essay explores the argument that subsequent courts have in fact been less constrained by the principal rule of Smith than advocates on both sides of the controversy usually assume. Lower courts administering real world disputes often find they have all the room they need to grant relief from general laws, given exceptions written into the decision itself and …

Odious Discrimination And The Religious Exemption Question, Laura S. Underkuffler

Cornell Law Faculty Publications

Recently, claims have been asserted that religious exemptions should be afforded to individuals who object to providing public and commercial services to gay and lesbian individuals, as otherwise mandated by law (e.g., municipal clerks who must grant same-sex marriage licenses, or commercial vendors who are asked to serve at same-sex weddings). This article argues that just as religious exemptions of this sort are not granted for discrimination on the basis of race, religion, national origin, or gender, they should not be granted for discrimination on the basis of sexual orientation or transgender status. Discrimination on the basis of an individual's …

Derridean Diagnosis Of Marketplace Ills: Curing Schizophrenia And Amnesia In The First Amendment Search For Truth, Chris Whittaker

BYU Law Review

No abstract provided.

Tinker At A Breaking Point: Why The Specter Of Cyberbullying Cannot Excuse Impermissible Public School Regulation Of Off-Campus Student Speech, Allison Belnap

BYU Law Review

No abstract provided.

The First Amendment In Trans-Border Perspective: Toward A More Cosmopolitan Orientation, Timothy Zick

Faculty Publications

This Article examines the First Amendment’s critical trans-border dimension—its application to speech, association, press, and religious activities that cross or occur beyond territorial borders. Judicial and scholarly analysis of this aspect of the First Amendment has been limited, at least as compared to consideration of more domestic or purely local concerns. This Article identifies two basic orientations with respect to the First Amendment—the provincial and the cosmopolitan. The provincial orientation, which is the traditional account, generally views the First Amendment rather narrowly—i.e., as a collection of local liberties or a set of limitations on domestic governance. First Amendment provincialism does …

The Religion Clauses As Mutually Reinforcing Mandates: Why The Arguments For Rigorously Enforcing The Free Exercise Clause And Establishment Clause Are Stronger When Both Clauses Are Taken Seriously, Alan Brownstein

Cardozo Law Review

No abstract provided.

Smith And Women's Equality, Leslie C. Griffin

Cardozo Law Review

No abstract provided.

Employment Division V. Smith: "The Sky That Didn't Fall", David B. Frohnmayer

Cardozo Law Review

No abstract provided.

Exemptions And The Establishment Clause, Angela C. Carmella

Cardozo Law Review

No abstract provided.

Religious Use Of Copyrighted Works After Smith, Rfra, And Eldred, Steven D. Jamar

Cardozo Law Review

No abstract provided.

The Political (And Other) Safeguards Of Religious Freedom, Richard W. Garnett

Cardozo Law Review

No abstract provided.

Game Over: Violent Video Games And Juvenile Crimes, Randy Beck, Cheryl Olson, Gerry Weber, Dan Islett

Working in the Public Interest Conferences

Discussion of possible relationship between video games and childhood violence. Includes considerations of First-Amendment rights of manufacturers and implications of Schwarzenegger v. Entertainment Merchants Association.

Criminal Procedure And The Racial Profiling Issue For Professor Gates And Sergeant Crowley, L. Darnell Weeden

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Government Property And Government Speech, Joseph Blocher

William & Mary Law Review

The relationship between property and speech is close, but complicated. Speakers use places and things to deliver their messages, and rely on property rights both to protect expressive acts and to serve as an independent means of expression. And yet courts and scholars have struggled to make sense of the property-speech connection. Is property merely a means of expression, or can it be expressive in and of itself? And what kind of “property” do speakers need to have—physical things, bundles of rights, or something else entirely?

In the context of government property and government speech, the ill-defined relationship between property …

Citizens United, Stevens, And Humanitarian Law Project: First Amendment Rules And Standards In Three Acts, William Araiza

Faculty Scholarship

No abstract provided.

Awakening The Press Clause, Sonja R. West

Scholarly Works

The Free Press Clause enjoys less practical significance than almost any other constitutional provision. While recognizing the structural and expressive importance of a free press, the Supreme Court has never recognized explicitly any right or protection as emanating solely from the Press Clause. Recently in the Court’s Citizens United decision, Justices Stevens and Scalia reignited the 30-year-old debate over whether the Press Clause has any function separate from the Speech Clause.

The primary roadblock to recognizing independent meaning in the Press Clause is the definitional problem - who or what is the “press”? Others have attempted to define the press, …

Facebook Fatalities: Students, Social Networking, And The First Amendment, Thomas Wheeler

Pace Law Review

No abstract provided.

Teacher Facebook Speech: Protected Or Not?, Rachel A. Miller

Brigham Young University Education and Law Journal

No abstract provided.

When Even The Truth Isn't Good Enough: Judicial Inconsistency In False Light Cases Threatens Free Speech, Sandra F. Chance, Christina M. Locke

First Amendment Law Review

No abstract provided.

Police Privacy In The Iphone Era: The Need For Safeguards In State Wiretapping Statutes To Preserve The Civilian's Right To Record Public Police Activity, Jesse Harlan Alderman

First Amendment Law Review

No abstract provided.

Contents, First Amendment Law Review

First Amendment Law Review

No abstract provided.

Hear No Evil, See No Evil - Speak No Evil - A Re-Examination Of Public Employee Free Speech Rights, Erika Eisenoff

First Amendment Law Review

No abstract provided.

The Time, Place, And Manner Of Survival: An Analysis Of Day Laborers And First Amendment Limits On State Action To Exclude, Will Johnson

First Amendment Law Review

No abstract provided.