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Articles 121 - 150 of 206
Full-Text Articles in First Amendment
Government Advertising Space: Lessons For The 'Choose Life' Specialty License Plate Controversy, Dara Purvis
Government Advertising Space: Lessons For The 'Choose Life' Specialty License Plate Controversy, Dara Purvis
Faculty Scholarship
As license plates emblazoned with the message “Choose Life” have proliferated in twenty-four states, so too have lawsuits challenging such specialty license plates. The holdings of such cases have run the gamut, resulting in a three-way circuit split among the Fourth, Fifth, and Sixth Circuits. Analysis of the controversy up to this point has not considered an illuminating analogy: advertising space owned and operated by the government. Examining the parallels between advertising space and specialty license plates informs doctrinal analysis of the dispute, demonstrating that state legislatures may not use the current practice of individually establishing specialty license plates through …
The Story Of Me: The Underprotection Of Autobiographical Speech, Sonja R. West
The Story Of Me: The Underprotection Of Autobiographical Speech, Sonja R. West
Scholarly Works
This Article begins the debate over the constitutional underprotection of autobiographical speech. While receiving significant historical, scientific, religious, and philosophical respect for centuries, the timehonored practice of talking about yourself has been ignored by legal scholars. A consequence of this oversight is that current free speech principles protect the autobiographies of the powerful but leave the stories of “ordinary” people vulnerable to challenge. Shifting attitudes about privacy combined with advanced technologies, meanwhile, have led to more people than ever before having both the desire and the means to tell their stories to a widespread audience. This Article argues that truthful …
The Religious Origins Of Disestablishment Principles, Marci A. Hamilton, Rachel Steamer
The Religious Origins Of Disestablishment Principles, Marci A. Hamilton, Rachel Steamer
Articles
No abstract provided.
Exploring The Myths About The Ninth Circuit, Stephen Wermiel
Exploring The Myths About The Ninth Circuit, Stephen Wermiel
Scholarly Articles in Law Reviews & Journals
No abstract provided.
Intelligent Design And The First Amendment: A Response, Jay D. Wexler
Intelligent Design And The First Amendment: A Response, Jay D. Wexler
Faculty Scholarship
In September 2005, a federal district judge in Pennsylvania began presiding over the nation's first trial regarding the constitutionality of introducing the concept of "intelligent design" (ID), a purportedly scientific alternative to the theory of evolution, into the public schools. My previous work has argued that teaching ID in the public schools would raise serious constitutional problems. In a series of writings, including a full length book and several articles, Baylor University professor Francis Beckwith has argued that public schools may constitutionally teach ID. In doing so, Beckwith has critiqued a number of arguments I have previously advanced in my …
The Original Meaning Of The Establishment Clause, Robert G. Natelson
The Original Meaning Of The Establishment Clause, Robert G. Natelson
William & Mary Bill of Rights Journal
No abstract provided.
Courtside, Paul M. Smith, Katherine A. Fallow, Daniel Mach, Aaron-Andrew P. Bruhl
Courtside, Paul M. Smith, Katherine A. Fallow, Daniel Mach, Aaron-Andrew P. Bruhl
Popular Media
No abstract provided.
Reconciling Data Privacy And The First Amendment, Neil M. Richards
Reconciling Data Privacy And The First Amendment, Neil M. Richards
Scholarship@WashULaw
This article challenges the First Amendment critique of data privacy regulation–the claim that data privacy rules restrict the dissemination of truthful information and thus violate the First Amendment. The critique, which is ascendant in privacy discourse, warps legislative and judicial processes by constitutionalizing information policy. Rejection of the First Amendment critique is justified on three grounds. First, the critique mistakenly equates privacy regulation with speech regulation. Building on scholarship examining the boundaries of First Amendment protection, this article suggests that speech restrictions in a wide variety of commercial contexts have never been thought to trigger heightened First Amendment scrutiny, refuting …
The First Amendment, The Public-Private Distinction, And Nongovernmental Suppression Of Wartime Political Debate, Gregory P. Magarian
The First Amendment, The Public-Private Distinction, And Nongovernmental Suppression Of Wartime Political Debate, Gregory P. Magarian
Scholarship@WashULaw
This article proposes a major expansion in the scope of First Amendment law and offers a fresh way of understanding the public-private distinction. It contends that the Supreme Court should invoke the First Amendment to enjoin nongovernmental behavior that substantially impedes public political debate during times of war and national emergency. As the article explains, the present campaign against international terrorism has seen employers, property owners, and media corporations restrict political discussion more frequently and aggressively than the government has. If political debate is the most important object of First Amendment protection - which the article contends it is - …
Ideological Conflict And The First Amendment, Steven J. Heyman
Ideological Conflict And The First Amendment, Steven J. Heyman
All Faculty Scholarship
According to the prevailing view, constitutional interpretation ideally should consist in the development and application of a single, unified set of principles. This Essay challenges this position in the context of free speech jurisprudence. As the constitutional debates of 1787-91 show, the First Amendment and the Bill of Rights did not reflect a single view, but instead were intended to reconcile conflicting views on the proper relationship between liberty and government. In order to obtain the broad support necessary for adoption, the Bill of Rights was deliberately drafted on the level of general principles that could command a consensus. When …
Choice Programs And Market-Based Separationism, Paul E. Salamanca
Choice Programs And Market-Based Separationism, Paul E. Salamanca
Law Faculty Scholarly Articles
The Supreme Court's recent decision in Zelman v. Simmons-Harris appears to clear the way for a wide variety of educational and charitable choice plans. In this decision, the Court upheld against Establishment Cause Challenge a formally neutral school choice program that encompassed a wide variety of options in the public and private sector, including private sectarian schools. The Court reasoned that, when the government makes aid available to a broad class of recipients without regard to their religious or non-religious affiliation, and when the recipients have a genuine choice as to whether to obtain that aid from a religious or …
Religion, The Rule Of Law, And The Good Of The Whole: A View From The Clergy, Marci A. Hamilton
Religion, The Rule Of Law, And The Good Of The Whole: A View From The Clergy, Marci A. Hamilton
Articles
No abstract provided.
Spheres Of Autonomy: Reforming The Content Neutrality Doctrine In First Amendment Jurisprudence, Steven J. Heyman
Spheres Of Autonomy: Reforming The Content Neutrality Doctrine In First Amendment Jurisprudence, Steven J. Heyman
All Faculty Scholarship
In recent decades, the doctrine of content neutrality has become the cornerstone of First Amendment jurisprudence. In the leading case of Police Department v. Mosley (1972), the Supreme Court declared that speech may "never" be regulated because of its content, for that would be "the essence of . . . censorship." If this view were taken literally, however, it would disable government from regulating speech even when necessary to prevent serious injury to individuals or society. In response to this concern, the Court has carved out several exceptions to the neutrality doctrine. Yet the Justices have never succeeded in explaining …
Free Speech Rationales After September 11th: The First Amendment In Post-World Trade Center America, Marin Roger Scordato
Free Speech Rationales After September 11th: The First Amendment In Post-World Trade Center America, Marin Roger Scordato
Scholarly Articles
The tragic events of September 11th generated numerous proposals for greater security measures and increased police powers that might, if implemented, constrict the customary scope of free speech in the United States. Legitimate concerns for internal security have placed increased pressures on traditional constitutional protections for expressive activity. It is against this backdrop that this article presents a careful examination of the basic rationales for adopting constitutional level protections for free speech. The article analyzes the nature of, and many of the conflicts among, the traditional rationales for a constitutional right of free expression. It also suggests that much of …
Section 1983, The First Amendment, And Public Employee Speech: Shaping The Right To Fit The Remedy (And Vice Versa), Michael Wells
Section 1983, The First Amendment, And Public Employee Speech: Shaping The Right To Fit The Remedy (And Vice Versa), Michael Wells
Scholarly Works
This Article is not about theories of free speech and how they bear on the public employment context, nor does it contribute to the academic debate over what the aims of public employee speech law ought to be. I take the Court at its word when it says that its aim is to give substantial weight to both the value of speech and the government's interest as an employer. Unlike Massaro and Ingber, I take it as a given that the government may insist on hierarchy and obedience to authority in the workplace. Unlike Rosenthal, I begin from the Court's …
Constitutional Law: State Campaign Contribution Limits: Nixon V. Shrink Missouri Government Pac: An Abridgment Of Freedom In The Name Of Democracy, Richard J. Baker
Constitutional Law: State Campaign Contribution Limits: Nixon V. Shrink Missouri Government Pac: An Abridgment Of Freedom In The Name Of Democracy, Richard J. Baker
Oklahoma Law Review
No abstract provided.
On Casebooks And Canons Or Why Bob Jones University Will Never Be Part Of The Constitutional Law Canon, Neal Devins
On Casebooks And Canons Or Why Bob Jones University Will Never Be Part Of The Constitutional Law Canon, Neal Devins
Faculty Publications
No abstract provided.
Resolving Tensions Between Copyright And The Internet, Walter Effross
Resolving Tensions Between Copyright And The Internet, Walter Effross
Scholarly Articles in Law Reviews & Journals
No abstract provided.
A Reply, Marci A. Hamilton
A Reply, Marci A. Hamilton
Articles
It is not often that one gets such immediate (and lengthy) written responses to one's work. It is both humbling and a blessing. My five interlocutors have offered me the opportunity to gaze at my own work as it is reflected in five different pools. I like some of what I see, do not recognize some of it, and will refine other aspects in this brief reply. My only regret is that I simply cannot in the space of a reply respond to many of the interesting and worthy points raised.
State Supported Speech, Steven J. Heyman
State Supported Speech, Steven J. Heyman
All Faculty Scholarship
No abstract provided.
Righting The Balance: An Inquiry Into The Foundations And Limits Of Freedom Of Expression, Steven J. Heyman
Righting The Balance: An Inquiry Into The Foundations And Limits Of Freedom Of Expression, Steven J. Heyman
All Faculty Scholarship
Contemporary disputes over the First Amendment often result in deadlock. One side stresses the paramount value of free speech, while the other side points to the harms that particular kinds of speech can cause. It is difficult to see how this impasse can be broken without a more general account of the scope of free expression: a view that integrates both the justifications and the limits of freedom of speech into a coherent whole. This Article makes a start toward developing such a theory. Its central thesis is that freedom of speech is a right that is limited by the …
City Of Boerne V. Flores: A Landmark For Structural Analysis, Marci A. Hamilton
City Of Boerne V. Flores: A Landmark For Structural Analysis, Marci A. Hamilton
Articles
No abstract provided.
The Once And Future Property-Based Vision Of The First Amendment, John O. Mcginnis
The Once And Future Property-Based Vision Of The First Amendment, John O. Mcginnis
Articles
The growth of the information superhighway depends not only on technological developments, but also on our society's commitment to the free flow of information. Paradoxically, however, as the digital revolution in telecommunications is bringing the information superhighway into sharp focus, the justifications for contemporary First Amendment jurisprudence are becoming blurred.
The First Amendment's Challenge Function And The Confusion In The Supreme Court's Contemporary Free Exercise Jurisprudence, Marci A. Hamilton
The First Amendment's Challenge Function And The Confusion In The Supreme Court's Contemporary Free Exercise Jurisprudence, Marci A. Hamilton
Articles
No abstract provided.
Constitutional Law: Nude Dancing And Political Speech As Protected Expression- The Scope Of The Due Process Guarantee, Rosalie Levinson
Constitutional Law: Nude Dancing And Political Speech As Protected Expression- The Scope Of The Due Process Guarantee, Rosalie Levinson
Law Faculty Publications
In a 1988 address, Chief Justice Shepard invited Indiana practitioners to reexamine the Indiana Constitution as a potentially significant source for the protection of individual liberty. Although there has been some movement in this direction in defending the rights of criminals, there has been little civil rights litigation brought under the Indiana Constitution. Therefore, this Article will explore state and federal court cases that raise significant federal constitutional issues implicating Indiana law and Indiana litigants. The most noteworthy cases during the survey period dealt with freedom of expression and the due process clause.
Passive Communication In Public Fora: The Case For First Amendment Protection Of Newsracks, Sandra L. Cobden
Passive Communication In Public Fora: The Case For First Amendment Protection Of Newsracks, Sandra L. Cobden
Cardozo Law Review
No abstract provided.
Speaking And Writing Against Hate, Martha Minow
Speaking And Writing Against Hate, Martha Minow
Cardozo Law Review
No abstract provided.
Art, Obscenity And The First Amendment, Judith Bresler
Art, Obscenity And The First Amendment, Judith Bresler
Articles & Chapters
Symposium on Law and the Visual Arts: Art, the First Amendment and the NEA Controversy
Tribe's "Jurisprudence Of The Religion Clauses", Gerard V. Bradley
Tribe's "Jurisprudence Of The Religion Clauses", Gerard V. Bradley
Journal Articles
Laurence Tribe has usefully been described as a constitutional apologist for liberal political causes. His conspicuous opposition to the nomination of Judge Robert Bork to the Supreme Court and his imaginative defenses of Roe v. Wade have fueled that image. Tribe's "jurisprudence of the religion clauses" both confounds and complicates the picture. He sees no constitutional difficulty with public education vouchers, and defends the Catholic Church against "pro-choicers" who would strip its tax-exempt status because of the Bishops' "pro-life" activities. Tribe thinks that a public school moment-of-silence can be consistent with the Constitution and carves out a considerable zone of …
The Obscenity Exception: Abusing The First Amendment, Simon Roberts
The Obscenity Exception: Abusing The First Amendment, Simon Roberts
Cardozo Law Review
No abstract provided.