First Amendment Commons^™

Exploring The First Amendment Rights Of Teens In Relationship To Sexting And Censorship, Julia Halloran Mclaughlin

University of Michigan Journal of Law Reform

This Article explores child pornography law in relation to teen sexting conduct. Recently, some teens who engaged in teen sexting have been convicted under child pornography laws and have been required to register as sexual predators. The criminalization of teens for developmentally typical behavior, mimicking the conduct of adults, can result in grave harm to most teens. Furthermore, the application of child pornography laws to teen sexting conduct demonstrates the constitutional overbreadth of the current definition of child pornography. Photographs have an emblematic role in society-capturing and celebrating youth. Moreover, the creation of teen sexting images accompanies a teen's developmental …

Worshiping Separation: Worship In Limited Public Forums And The Establishment Clause , William A. Glaser

Pepperdine Law Review

No abstract provided.

Constitutional Divide: The Transformative Significance Of The School Prayer Decisions, Steven D. Smith

Pepperdine Law Review

This article challenges the standard view in which Everson v. Board of Education was the foundational and most important establishment clause decision and the school prayer decisions of the early 1960s (Engel v. Vitale and Abington School District v. Schempp) were virtually automatic corollaries. In fact, the article argues, it was the school prayer decisions that were foundational, subverting Everson’s “no aid separationism,” and animating not only later establishment clause jurisprudence but much else in constitutional and public discourse besides. Indeed, it is plausible to see the influence of the school prayer decisions and their articulation of secular neutrality as …

You Can’T Post That . . . Or Can You? Legal Issues Related To College And University Students’ Online Speech, Neal H. Hutchens

Educational Policy Studies and Evaluation Faculty Publications

Online activities increasingly represent a common part of the student experience. Along with seeking to engage students in positive ways in relation to their online activities, colleges and universities must also deal with instances of when students’ online expression potentially violates campus conduct standards. This article provides a review of legal standards relevant to students’ online speech, including an examination of cases arising in an online context.

The Structural Constitutional Principle Of Republican Legitimacy, Mark D. Rosen

All Faculty Scholarship

Representative democracy does not spontaneously occur by citizens gathering to choose laws. Instead, republicanism takes place within an extensive legal framework that determines who gets to vote, how campaigns are conducted, what conditions must be met for representatives to make valid law, and many other things. Many of the “rules-of-the-road” that operationalize republicanism have been subject to constitutional challenges in recent decades. For example, lawsuits have been brought against “partisan gerrymandering” (which has led to most congressional districts not being party-competitive, but instead being safely Republican or Democratic) and against onerous voter identification requirements (which reduce the voting rates of …

Contents, First Amendment Law Review

First Amendment Law Review

No abstract provided.

Treating Religion Differently, Melissa Rogers

First Amendment Law Review

No abstract provided.

Joyner V. Forsyth County Board Of Commissioners: The Constitutionality Of Sectarian Legislative Prayer, Katherine Lewis Parker

First Amendment Law Review

No abstract provided.

A First Amendment Analysis Of Anti-Sharia Initiatives, Asma T. Uddin, Dave Pantzer

First Amendment Law Review

No abstract provided.

Categories, Tiers Of Review, And The Roiling Sea Of Free Speech Doctrine And Principle: A Methodological Critique Of United States V. Alvarez, Rodney A. Smolla

Scholarly Articles

None available.

Still A Threshold Question: Refining The Ministerial Exception Post-Hosanna-Tabor, Mark E. Chopko, Marissa Parker

First Amendment Law Review

No abstract provided.

Saving Their Own Souls: How Rluipa Failed To Deliver On Its Promises, Sarah Gerwig-Moore

Articles

In the summer of 2001, as a graduate student in law and theology, I began work on a master’s thesis that examined the predicament of men of faith on San Quentin’s Condemned Row. I was working in the California Appellate Project—mostly assisting with direct appeals and state habeas petitions on behalf of men under a death sentence—when a colleague guided me into theological conversations with some of our clients. On Condemned Row, they waited—up to five years to be assigned a court-appointed appellate attorney, on judges’ rulings, and to find whether the legal system would ultimately exact the penalty it …

Foreword: Constitutional Constraints State Health Care & Privacy Regulation After Sorrell V. Ims Health, John M. Greabe

Law Faculty Scholarship

This brief Foreword explains that First Amendment law is fertile ground for analysis under choice of law principles. It then opines that the majority and dissenting opinions in Sorrell v. IMS Health are rooted in different choices of law that would benefit from a more explicit acknowledgment and explanation.

Stolen Valor & The First Amendment: Does Trademark Infringement Law Leave Congress An Opening?, Susan Richey, John M. Greabe

Law Faculty Scholarship

This paper elaborates an argument the authors presented in an amicus brief filed in United States v. Alvarez, the "Stolen Valor" case. The paper contends that Congress could constitutionally protect the Congressional Medal of Honor as a collective membership mark by means of trademark infringement legislation.

The Irony Of Hosanna-Tabor Evangelical Lutheran Church And School V Eeoc, Caroline Mala Corbin

Articles

In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a schoolteacher sued her employer for retaliating against her in violation of the American with Disabilities Act (ADA). The success of her ADA claim turned on whether the Supreme Court thought that she was a minister. If she was not a minister, she would have probably won. After all, the school stated in writing that a main reason for her termination was her threatened lawsuit. But because the Supreme Court decided that she was a minister, and that ministers may not sue their religious employers for discrimination under the ministerial …

Will Free Speech Get A License To Drive In Florida?: A Proposal For Distinguishing Free Speech From Government Speech In Florida Specialty Plate Cases, Christopher Robert Dillingham Ii

Florida A & M University Law Review

Specialty license plates for automobiles, which publish individual and special interest Free Speech, present a quagmire for the courts when analyzed through the lens of the First Amendment's Free Speech Clause. While citizens and groups can obtain personalized license plates that publish both symbolic and written speech, state governments often exercise strict editorial control over their license plates. This regulatory scenario raises the dual questions of who is speaking - the government or the private party - and how much constitutional power the government has to engage in viewpoint restriction in regulating that speech in this traditional government forum. The …

Prece-Don't: Corporations And The Rise Of The Modern Judicial Dictatorship, Justin Levitt

Florida A & M University Law Review

In 2010, the Supreme Court decision, Citizens United v. Federal Election Commission, declared unconstitutional any law forbidding corporations and unions from using general treasury funds for "electioneering communication," or political advocacy transmitted by broadcast, cable, or satellite communication in the period leading up to a federal election.

This note will examine the implications of the Citizens United decision and will argue that the future of First Amendment protection of corporate speech does not turn on any notion of corporate personhood. It will explore exactly how the Court has applied the equal protection clause of the Fourteenth Amendment to corporations. It …

Foia And The First Amendment: Representative Democracy And The People's Elusive "Right To Know", Barry Sullivan

Maryland Law Review

No abstract provided.

Falsely Shouting Fire In A Global Theater: Emerging Complexities Of Transborder Expression, Timothy Zick

Vanderbilt Law Review

This Article examines the First Amendment complexities associated with the dissemination of potentially harmful information in the global theater. These complexities include global dissemination of offensive expression, incitement to unlawful activities abroad, enemy-aiding expression that crosses territorial borders, and global free press concerns. The author argues that traditional First Amendment doctrines and principles ought generally to apply in the global theater. Reliance on marketplace and self-governance principles, application of speech-protective incitement standards, and continued support for an expansive and robust conception of press freedoms will preserve transborder First Amendment liberties in the digital era and allow the global theater to …

Recognizing The Right To Petition For Victims Of Domestic Violence, Tamara L. Kuennen

Sturm College of Law: Faculty Scholarship

Like any citizen, a victim of domestic violence (DV) may call the police for help when she needs it. And yet, when a victim calls the police, she not only seeks law enforcement assistance but also invokes her constitutional right to seek one of the most fundamental services the government can provide—protection from harm. That right, recently described by the Supreme Court as “essential to freedom,” is the right “to petition the Government for a redress of grievances” guaranteed by the First Amendment. This Article argues that a combination of law and policy initiatives produces negative collateral consequences for DV …

"Tinkering" With The First Amendment's Protection Of Student Speech On The Internet, 29 J. Marshall J. Computer & Info. L. 167 (2012), Steven M. Puiszis

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

Promoting Trust In Trusts & Estates, Michael R. Siebecker, Lee-Ford Tritt

Sturm College of Law: Faculty Scholarship

What nexus exists between the philosophy of trust and the law of trusts & estates (“T&E”)? This article suggests eschewing stilted economic theory in favor of a more robust understanding of the basic philosophical concept of trust to uncover the proper path that evolving T&E law should follow. In particular, the article advocates embracing the concept of “encapsulated trust” to ascertain the shape that fiduciary relationships should take in the realm of T&E doctrine. In simple terms, encapsulated trust represents a rational expectation that those in whom we place our trust will take our interests into account (or “encapsulate” our …

Discrimination By And Against Religion, Martin E. Marty

First Amendment Law Review

No abstract provided.

To Catch A Lawsuit: Constitutional Principles At Work In The Investigative-Journalism Genre, Michael F. Dearington

Vanderbilt Journal of Entertainment & Technology Law

This Note examines two causes of action, civil rights violations under 42 U.S.C. § 1983 and II ED claims, in the context of lawsuits against investigative journalists. Examining two recent cases in particular, Tiwari v. NBC Universal, Inc. and Conradt v. NBC Universal, Inc., which arise out of NBC's conduct in its primetime series To Catch a Predator, this Note concludes that legal standards governing conduct by investigative journalists are currently unclear. Investigative journalists are not adequately on notice as to when they might be liable under § 1983 for violating a subject's civil rights. And district courts have failed …

Free Speech For Judges And Due Process For Litigants: The Elimination Of First And Fourteenth Amendment Mutual Exclusivity In Siefert V. Alexander, 46 J. Marshall L. Rev. 333 (2012), Margaret Mares

UIC Law Review

No abstract provided.

Family Law's Challenge To Religious Liberty, Raymond C. O'Brien

Scholarly Articles

This Article argues that challenges made to family law structures have provoked a significant reaction from persons and religious organizations advocating a distinctive worldview based on religious and historical values. Additionally, as family law changes from being a product of a religioushistorical worldview to being a product of private-ordering, the religious liberty of worldview adherents has been challenged. The struggle is apparent in the debates during the 2012 presidential election and is evidenced in government mandates that include, among other requirements, that employersincluding religious organizations-provide insurance coverage for employees that include contraception. Although many aspects of family law have been …

Rluipa And Mosques: Enforcing A Fundamental Right In Challenging Times, Eric Treene

First Amendment Law Review

No abstract provided.

Kiss The Book...You're President...: "So Help Me God" And Kissing The Book In The Presidential Oath Of Office, Frederick B. Jonassen

Faculty Scholarship

No abstract provided.

Selling Land And Religion, Eang L. Ngov

Faculty Scholarship

Thousands of religious monuments have been donated to cities and towns. Under Pleasant Grove City v. Summum, local, state, and federal governments now have greater freedom to accept religious monuments, symbols, and objects donated to them for permanent display in public spaces without violating the Free Speech Clause. Now that governments may embrace religious monuments and symbols as their own speech, the obvious question arises whether governments violate the Establishment Clause by permanently displaying a religiously significant object. Fearing an Establishment Clause violation, some governmental bodies have privatized religious objects and the land beneath them by selling or transferring the …

The Coordination Conundrum, Catherine A. Hardee

Faculty Scholarship

Justice Souter's oft-repeated quote aptly summarizes the function of strict standards of review in constitutional jurisprudence to protect unpopular speech from restrictions based on content-laden value judgments. While strict standards have their advantages, commentators have found fault with their rigidity and have questioned whether any decision-making process can, or should, be free of pragmatic considerations. This doctrinal discussion has been reinvigorated by two recent United States Supreme Court opinions. At the root of both cases was the Court's reliance on the distinction between coordinated and independent speech. This Article examines the validity of this divide and challenges the foundation upon …