First Amendment Commons^™

Roger Williams On Liberty Of Conscience, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

Originalism, Ceremonial Deism And The Pledge Of Allegiance, Z. Ryan Pahnke

Nevada Law Journal

No abstract provided.

The Demise Of The First Amendment As A Guarantor Of Religious Freedom, Ivan E. Bodensteiner

Law Faculty Publications

No abstract provided.

Review Of David E. Bernstein's "You Can't Say That!--The Growing Threat To Civil Liberties From Antidiscrimination Laws", Ivan E. Bodensteiner

Law Faculty Publications

No abstract provided.

The Needle And The Damage Done: The Pervasive Presence Of Obsolete Mass Media Audience Models In First Amendment Doctrine, Mehmet Konar-Steenberg

Vanderbilt Journal of Entertainment & Technology Law

Do audiences need the government's protection from mass media? Or are they capable of choosing media and protecting themselves? For decades, judicial opinion on this issue developed in the form of judicial notice, speculation, and assumption. Yet during that time, a rich social science discipline was emerging that could have helped to address these issues based on empirical research about mass media effects and audiences. Given the renewed importance of this issue, it is time to bridge the gap between the law of mass media content regulation and the social science research into mass media consumption.

To that end, this …

Too Much Religious Freedom - Infants Infected With Herpes After Jewish Mohel Applies Oral Suction To Circumcised Penises, Jamie Cole Kerlee

Journal of Law and Health

Does the Constitution absolutely protect the free exercise of oral-genital suction when it threatens the health and safety of human beings, particularly infants? And does the Constitution bar parents from having any remedy for the lifelong physical, emotional, and financial damage that may potentially result from the negligent HSV transmission through metzizah be'peh? This article focuses on the controversial issue of state interference with the Orthodox Jewish practice, a topic recently at the forefront in New York City. Until the government recognizes its duty to provide affirmative regulation of metzitzah be'peh to protect the compelling health interest of infants, thousands …

“The Indispensable Basis Of Democracy”: American Catholicism, The Church-State Debate, And The Soul Of American Liberalism, 1920–1929, Zachary R. Calo

Scholarly Works

Several recent works of scholarship explore how Establishment Clause jurisprudence has been shaped by broader political debates over the role of religion in public life. This literature focuses on the politics of anti-Catholicism, particularly during the early years of Establishment Clause jurisprudence in the1940s and 1950s. While not questioning the centrality of this period to the historical narrative, this Note argues that the political contest over church and state took shape in an earlier debate over the compatibility of Catholicism and the Constitution during the 1920s. The Church’s response to the anti-Catholicism of this period was of particular importance. Catholic …

Caging Animal Advocates' Political Freedoms: The Unconstitutionality Of The Animal And Ecological Terrorism Act, Andrew N. Ireland Moore

Animal Law Review

The animal advocacy movement is facing another obstacle, resulting from the creation of the Animal and Ecological Terrorism Act (AETA). The Act seeks to create harsh penalties including a Terrorist Registry for acts performed by the Animal Liberation Front (ALF) and ALF-type actors. In addition, the proposed legislation will affect animal advocates not involved with the ALF. However, the model legislation, as written, must pass Constitutional scrutiny. This paper argues that the proposed Animal and Ecological Terrorism Act is unconstitutional due to its infringement on the First Amendment, its overbreadth, and its vagueness.

Law And Liberty In Virtual Worlds, Jack M. Balkin

NYLS Law Review

No abstract provided.

Public Availability Or Practical Obscurity: The Debate Over Public Access To Court Records On The Internet, Arminda Bradford Bepko

NYLS Law Review

No abstract provided.

Society’S Software, Beth Simone Noveck, David R. Johnson

Articles & Chapters

No abstract provided.

Changing Minds: Proselytism, Freedom, And The First Amendment, Richard W. Garnett

Journal Articles

Proselytism is, as Paul Griffiths has observed, a topic enjoying renewed attention in recent years. What's more, the practice, aims, and effects of proselytism are increasingly framed not merely in terms of piety and zeal; they are seen as matters of geopolitical, cultural, and national-security significance as well. Indeed, it is fair to say that one of today's more pressing challenges is the conceptual and practical tangle of religious liberty, free expression, cultural integrity, and political stability. This essay is an effort to unravel that tangle by drawing on the religious-freedom-related work and teaching of the late Pope John Paul …

Considering Individual Religious Freedoms Under Tribal Constitutional Law, Kristen A. Carpenter

Publications

As American Indian nations revitalize their legal systems, there is renewed interest in "tribal law," that is, the law of each of the Indian nations. Today, there is a particular focus on the subject of "individual rights" under tribal law. In tribal contexts, people are highly interested in the legal institutions and rules that govern their lives, especially as many tribal communities are experiencing a period of great political, social, and economic change. At the national level, the Supreme Court repeatedly expresses concern about whether individuals, especially non-Indians, will be treated fairly in tribal court. For scholars, individual rights under …

In Cases Involving Sites Of Religious Significance, Plaintiffs Will Fall In The Gap Of Judicial Deference That Exists Between The Religion Clauses Of The First Amendment, Jeff Pinter

American Indian Law Review

No abstract provided.

Anatomy Of An Oral Argument, Rodney A. Smolla

Law Faculty Publications

No abstract provided.

Content And Context: The Contributions Of William Van Alstyne To First Amendment Interpretation, Rodney A. Smolla

Law Faculty Publications

William Van Alstyne’s contributions to First Amendment interpretation, like his contributions to all of American constitutional law, are characterized by a piercing intellectual honesty and an impish play of intelligence. One feels relentlessly pulled by the elegant currents of Professor Van Alsytne’s arguments, yet, at the same time, restlessly resistant, a resistance borne of the vague but certain wariness that one is but an apprentice forever consigned to a level of awareness several moves behind the master, who almost certainly will produce surprises at the end. ...

Controlling Corporate Speech: Is Regulation Fair Disclosure Unconstitutional, Antony Page, Katy H. Yang

Faculty Publications

We analyze whether Regulation Fair Disclosure, SEC Chairman Arthur Levitt's crowning achievement, violates the First Amendment. Regulation FD requires that a company that discloses material non-public information to certain private audiences must also make that information public, subject to certain safe-harbors. The Regulation solely targets speech, acting either to compel it to a public audience or as a burden on private disclosure. Part I examines the reach of Regulation FD, the enforcement actions to date, and currently available empirical data. Part II provides an introduction to the interaction of the First Amendment and SEC regulations affecting speech. Part III broadens …

The New Censorship: Institutional Review Boards, Philip A. Hamburger

Faculty Scholarship

Do federal regulations on Institutional Review Boards violate the First Amendment? Do these regulations establish a new sort of censorship? And what does this reveal about the role of the Supreme Court?

Substantive Due Process As A Source Of Constitutional Protection For Nonpolitical Speech, Gregory P. Magarian

Scholarship@WashULaw

We live in a time when our right to speak out against our government faces threats unimagined since the Vietnam era. As the present war in Iraq and the campaign against international terrorism have dragged on, the federal and state governments as well as nongovernmental institutions have grown increasingly bold in their efforts to suppress political dissent. Law enforcement officers infiltrate and bully peaceful dissident groups; police crack down brutally on mass demonstrations; cities confine protesters at major political events to ironically designated “free speech zones.” These events buttress a contention, familiar from the work of several prominent First Amendment …

Jaycees Reconsidered: Judge Richard S. Arnold And The Freedom Of Association, Richard W. Garnett

Journal Articles

In Roberts v. United States Jaycees, the Supreme Court reversed Judge Richard S. Arnold's decision for the Court of Appeals and held­ - without dissent - that the First Amendment did not shield the Jaycees' men-only membership policy from the non-discrimination requirements of the Minnesota Human Rights Act. The claim in this essay is that Judge Arnold's position and decision in the Jaycees case deserved, and still deserve, more thoughtful and sympathetic treatment. Even some of Judge Arnold's many friends and fans tend to treat as something of an embarrassing lapse or anomalous error his conclusion in that case that, …

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 …

Holmes And The Marketplace Of Ideas, Vincent A. Blasi

Faculty Scholarship

At least five basic values might be served by a robust free speech principle: (1) individual autonomy; (2) truth seeking; (3) self-government; (4) the checking of abuses of power; (5) the promotion of good character. Free speech might serve one or more of these values by functioning in at least three different ways: (1) as a privileged activity; (2) as a social mechanism; (3) as a cultural force. My contention is that the conventional understanding of the most familiar metaphor in the First Amendment lexicon, the "marketplace of ideas," has had the undesirable effect of focusing attention too much on …

An Architecture For Spam Regulation, David Dickinson

Federal Communications Law Journal

Junk email, commonly referred to as "spam," is the current scourge of the Internet. In late 2004, unwanted email messages were being delivered at a rate of 12.4 billion per day. The variety of tools used to combat spam have failed to make a significant impact. Legislative efforts, such as the CAN-SPAM Act of 2003, met with substantial enforcement complications. The communications industry responded with a variety of technical advances, such as filters and blacklists, but those innovations are still unable to reliably distinguish between wanted and unwanted messages. Real coordination between legislative and technical spam control tactics has yet …

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

Law Faculty Scholarship

No abstract provided.

The Policing Of Demonstrations In The Nation's Capital: Legislative And Judicial Corrections Of A Police Department's Misconception Of Mission And Failure Of Leadership, Ralph Temple

University of the District of Columbia Law Review

No abstract provided.

Not For Attribution: Government's Interest In Protecting The Integrity Of Its Own Expression, Helen L. Norton

Faculty Scholarship

Public entities increasingly maintain that the First Amendment permits them to ensure that private speakers’ views are not mistakenly attributed to the government. Consider, for example, Virginia’s efforts to ban the Sons of Confederate Veterans’ display of the Confederate flag logo on state-sponsored specialty license plates. Seeking to remain neutral in the ongoing debate over whether the Confederate flag is a symbol of “hate” or “heritage,” Virginia argued that the state would be wrongly perceived as endorsing the flag if the logo appeared on a state-issued plate adorned by the identifier “VIRGINIA.” The Fourth Circuit was unpersuaded, holding that the …

The Need For A Two (Or More) Tiered First Amendment To Provide For The Protection Of Children, Kevin W. Saunders

Chicago-Kent Law Review

This Article addresses the two sorts of problems raised by Professor Etzioni, while also responding to the earlier articles in this Symposium. With regard to the spillover effect, the author argues that there are ways to limit the effect on adults of restrictions designed to protect children, even on the Internet. Furthermore, some spillover effect is allowed and may leave open the possibility of protecting children from tobacco or alcohol advertisements. The Article also addresses areas in which material has been seen as protected even for children. While agreeing that depictions of violence pose an important problem, the Article also …

The Liberal Theory Of Freedom Of Expression For Children, Colin M. Macleod

Chicago-Kent Law Review

This Article develops a liberal theory of freedom of expression which is sensitive to the interests of children as distinct, vulnerable but developing members of society. I argue that children have, in addition to welfare interests, interests in the development and exercise of basic moral powers. In virtue of such interests, children acquire, well before they become adults, nontrivial rights of free expression. Respecting children's rights to free expression entails limits on the prerogatives of parents and others to determine the sorts of cultural materials children should be permitted access. Nonetheless children's rights are importantly different from those of adults. …

Free Speech And Children's Interests, David Archard

Chicago-Kent Law Review

This Article endorses the conclusion of Etzioni's article that the First Amendment right of free speech should not trump the interests of children. However the picture is more complicated once we recognize that parents have a "basic" right to bring up their children as they see fit that may conflict with the state's duty to protect children in its jurisdiction.

Moreover there is an important difference between protecting children now from harms and safeguarding the interests of the adults they will grow into. Society has an interest in protecting children based upon its fundamental interest in ensuring the conditions of …

Toward A Constitutional Regulation Of Minors' Access To Harmful Internet Speech, Dawn C. Nunziato

Chicago-Kent Law Review

In this Article, Prof. Nunziato scrutinizes Congress's recent efforts to regulate access to sexually-themed Internet speech. The first such effort, embodied in the Communications Decency Act, failed to take into account the Supreme Court's carefully-honed obscenity and obscenity-for-minors jurisprudence. The second, embodied in the Child Online Protection Act, attended carefully to Supreme Court precedent, but failed to account for the geographic variability in definitions of obscene speech. Finally, the recently-enacted Children's Internet Protection Act apparently remedies the constitutional deficiencies identified in these two prior legislative efforts, but runs the risk of being implemented in a manner that fails to protect …