First Amendment Commons^™

The First Amendment's Original Sin, Lee C. Bollinger

Faculty Scholarship

Times of war place considerable stress on civil liberties, especially ones protected by the First Amendment. When the nation must gather itself to fight an enemy who is intent on killing us, it is perhaps only natural that our tolerance for the usual disorder of dissent will decline. When everyone has to sacrifice for the common good, when fellow citizens are dying in that cause, the costs of speech are visible and serious. Dissent may dissuade or discourage soldiers from fighting; sowing doubt may weaken resolve just when it's needed most; falsehoods and misinformation may lead to catastrophic shifts of …

Cross Burning, Hate Speech, And Free Speech In America, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

Symbolic Counter-Speech, Howard M. Wasserman

Faculty Publications

No abstract provided.

Fire, Metaphor, And Constitutional Myth-Making, Robert Tsai

Scholarly Articles in Law Reviews & Journals

From the standpoint of traditional legal thought, metaphor is at best a dash of poetry adorning lawyerly analysis, and at worst an unjustifiable distraction from what is actually at stake in a legal contest. By contrast, in the eyes of those who view law as a close relative of ordinary language, metaphor is a basic building block of human understanding. This article accepts that metaphor helps us to comprehend a court's decision. At the same time, it argues that metaphor plays a special role in the realm of constitutional discourse. Metaphor in constitutional law not only reinforces doctrinal categories, but …

Fire, Metaphor, And Constitutional Myth-Making, Robert L. Tsai

Faculty Scholarship

From the standpoint of traditional legal thought, metaphor is at best a dash of poetry adorning lawyerly analysis, and at worst an unjustifiable distraction from what is actually at stake in a legal contest. By contrast, in the eyes of those who view law as a close relative of ordinary language, metaphor is a basic building block of human understanding. This article accepts that metaphor helps us to comprehend a court's decision. At the same time, it argues that metaphor plays a special role in the realm of constitutional discourse. Metaphor in constitutional law not only reinforces doctrinal categories, but …

Assimilation, Toleration, And The State's Interest In The Development Of Religious Doctrine, Richard W. Garnett

Journal Articles

Thirty-five years ago, in the context of a church-property dispute, Justice William Brennan observed that government interpretation of religious doctrine and judicial intervention in religious disputes are undesirable, because when civil courts undertake to resolve [doctrinal] controversies..., the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern. This statement, at first, seems wise and fittingly cautious, even unremarkable and obvious. On examination, though, it turns out to be intriguing, elusive, and misleading. Indeed, Justice Brennan's warning presents hazards of its own, and its premises - if …

Constitutional Law—True Threat Doctrine And Public School Speech—An Expensive View Of A School's Authority To Discipline Allegedly Threatening Student Speech Arising Off Campus. Doe V. Pulaski County Special School District, 306 F.3d 616 (8th Cir. 2002)., William Bird

University of Arkansas at Little Rock Law Review

No abstract provided.

The Law Of Obscenity - Or Absurdity, H. Franklin Robbins Jr., Steven G. Mason

St. Thomas Law Review

At any rate, if the First Amendment only protects expression that the majority believes will promote the right values, it does not protect very much. Sexually explicit materials arouse intense, deep-seated feelings, and from a moral point of view, the desire to stop their dissemination is understandable. But the censoring of morally bad ideas is glaringly incompatible with the most basic principles of First Amendment law. Nonetheless, for nearly two hundred years the censorship of morally offensive materials has been a part of our legal history, notwithstanding the absolute terms of the First Amendment.

Six Opinions By Mr. Justice Stevens: A New Methodology For Constitutional Cases?, Robert F. Nagel

Publications

No abstract provided.

Begging The Court's Pardon: Justice Denied For The Poorest Of The Poor, Daniel M. Cohen

St. Thomas Law Review

Astonishing as it may seem, if Benjamin Franklin were alive today, and he sought to collect alms for the poor on Fort Lauderdale Beach, he would, by force of law, find himself summarily expelled from the area. If Mr. Franklin then returned, seeking thus to heed the call of his conscience to help the downtrodden and oppressed, the great statesman and Founding Father of the United States would find himself placed under arrest. For the City of Fort Lauderdale, with the imprimatur of the Eleventh Circuit Court of Appeal, has deemed it Right and Good that soliciting a passerby for …

Prior Restraint In Wartime, Paul E. Salamanca

Law Faculty Popular Media

In this article for Bench & Bar Magazine (the Kentucky Bar Association's magazine), Professor Paul E. Salamanca discusses the First Amendment during times of war or conflict.

The Distinctive Place Of Religious Entities In Our Constitutional Order, Ira C. Lupu, Robert Tuttle

Villanova Law Review (1956 - )

No abstract provided.

Conceptualizing Constitutional Litigation As Anti-Government Expression: A Speech-Centered Theory Of Court Access, Robert L. Tsai

Faculty Scholarship

This Article proposes a speech-based right of court access. First, it finds the traditional due process approach to be analytically incoherent and of limited practical value. Second, it contends that history, constitutional structure, and theory all support conceiving of the right of access as the modern analogue to the right to petition government for redress. Third, the Article explores the ways in which the civil rights plaintiff's lawsuit tracks the behavior of the traditional dissident. Fourth, by way of a case study, the essay argues that recent restrictions - notably, a congressional limitation on the amount of fees counsel for …

Church-State Constitutional Issues: Making Sense Of The Establishment Clause And That Godless Court?: Supreme Court Decision On Church-State Relationships (Book Reviews), Michael Ariens

Faculty Articles

No abstract provided.

Too Young To Understand--Extending Equal Access To All Children In Public Schools Regardless Of Age, David Woodcock

St. Thomas Law Review

Finding the right mix of church and state is not an easy task for our society. This is especially true in our public schools. Everyday, millions of elementary school students meet after school in public school facilities to participate in Girl Scouts, Boy Scouts, Cub Scouts, Brownies, and 4-H Clubs. These organizations share the goals of preparing young boys and girls to grow into men and women of good morals and character. Religious organizations that share these goals, however, are denied access to school facilities simply because they have a religious point of view. School districts have told children that …

Constitutional Law: United States V. Viefhaus And The Demise Of The Libertarian Philosophy In Free Speech Jurisprudence, Stephanie D. Wade

Oklahoma Law Review

No abstract provided.

Constitutional Law: Establishment Clause V. Free Expression: Adler V. Duval County School Board, Ron Shinn

Oklahoma Law Review

No abstract provided.

First Amendment Cases In The 1998-99 Term: The Calm Before The Storm, Joel M. Gora

Touro Law Review

No abstract provided.

Controversial Speakers On Campus: Liberties, Limitations, And Common-Sense Guidelines, Kenneth Lasson

St. Thomas Law Review

This article reviews the historical context of controversial speakers on campus, examines various liberties and limitations accorded them under the Constitution, and suggests clear and effective standards for dealing with contentious speech in an academic setting.

Liberty Of Expression In Ireland And The Need For A Constitutional Law Of Defamation, Sarah Frazier

Vanderbilt Journal of Transnational Law

Judicial and constitutional conservatism have allowed Irish defamation law to remain remarkably close to its English common law origins. But the common law of defamation was not designed for a modem democracy with a free press, and Ireland's libel laws have a profound effect upon freedom of expression. If Ireland is to be a modern democracy, as its constitution asserts that it is, and the European Convention on Human Rights demands, it must protect a core area of free expression in order to allow the press (without the fear of repercussion) to keep the public informed about matters of concern. …

A Coherent Methodology For First Amendment Speech And Religion Clause Cases, Thomas R. Mccoy

Vanderbilt Law Review

It seems clear that any deliberate effort by government to impose religious orthodoxy will be held unconstitutional per se. A religiously motivated restriction on disfavored religious practices will be held to violate the Free Exercise Clause. Similarly, a religiously motivated attempt to promote or subsidize favored religious practices will be held to violate the Establishment Clause. These complimentary restrictions are now so ingrained in our political culture that the legislatures rarely transgress them.

The problem that has bedeviled the Supreme Court for many years is that government regulatory schemes and benefit programs designed to serve purely nonreligious objectives inevitably impact …

Trial By Tabloid, Mercy Hermida

St. Thomas Law Review

An intense conflict has persisted throughout legal history between the practical application of the First and Sixth Amendments. The controversy between these two guarantees has been a constant debate for decades. On the one hand, the First Amendment guarantees the media the Constitutional right to report the news via their right to freedom of expression. Alternatively, the Sixth Amendment guarantees the criminally accused the right to a fair trial decided by an impartial jury. Although these two guarantees are not seemingly contradictory, they ultimately collide when the media, in asserting its First Amendment right, so intrudes and disrupts a criminal …

Clergy Sexual Misconduct: Confronting The Difficult Constitutional And Institutional Liability Issues, James T. O'Reilly, Joann M. Strasser

St. Thomas Law Review

Sexual misconduct among clergy members is a rare but troubling societal phenomenon, made more evident in the 1990s by dramatic news reporting and high-profile litigation demands. Revelation is no longer just an uplifting part of the New Testament; revelation is a tabloid tactic for uplifting television ratings and newspaper sales by assailing massive sexual scandals in the churches. This article focuses on a clash of doctrines that is developing in tort cases, when institutional churches are sued for failure to adequately oversee and control their errant ministers and priests. The clash arises because the religious doctrines of faith, responsibility and …

Different Religions, Different Politics: Evaluating The Role Of Competing Religious Traditions In American Politics And Law, Daniel O. Conkle

Articles by Maurer Faculty

In addressing the role of religion in politics and law, American political theory has strongly embraced the principle of religious equality. In this article, I explain how this principle has evolved and how it has nourished the privatization of religion and the secularization of public discourse by generating the view that public evaluations of religion are inappropriate. Under this view, religion is a private good that lacks public significance. As matters merely of private taste, matters that cannot be evaluated publicly, religious positions on political issues are not to be "imposed" on other citizens.

I challenge this reading of the …

Hate Speech, Offensive Speech, And Public Discourse In America, Edward J. Eberle

Law Faculty Scholarship

In this article, Professor Eberle discusses several limitations on governmental power to regulate public discourse. After examining the United States Supreme Court decisions of R.A.V. v. City of St. Paula nd Wisconsin v. Mitchell, Professor Eberle concludes that government should refrain from regulating speech itself. Rather, any restrictions should focus strictly on the problematic conduct underlying the speech which justifies regulation. Professor Eberle also concludes that the Court has implicitly recognized two distinct subcategories of "content" discrimination and viewpoint discrimination. Both subcategories are presumptively unconstitutional and nominally subject to conventional strict scrutiny. The Court, however, finds viewpoint discrimination more dangerous …

Voice In Government: The People, Emily Calhoun

Publications

No abstract provided.

Federalism, The Commerce Clause, And Equal Protection, Leon Friedman

Touro Law Review

No abstract provided.

How To Do Things With The First Amendment, Pierre Schlag

Publications

No abstract provided.

Lemon Lives, Daniel O. Conkle

Articles by Maurer Faculty

This article responds to an article by Professor Michael Stokes Paulsen, entitled "Lemon Is Dead," in which Paulsen interprets the Supreme Court's decision in Lee v. Weisman to repudiate the Establishment Clause test of Lemon v. Kurtzman and to replace it with a test that limits the Clause to cases involving direct or indirect coercion. The article disputes Paulsen's interpretation of Weisman, and it also disputes his normative argument in support of the coercion approach. It contends that Lemon survives Weisman, and that Lemon's multi-faceted and context-specific approach, however vague, is preferable to a test that focuses exclusively on the …

Silence And The Word, Paul Campos

Publications

No abstract provided.