First Amendment Commons^™

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.

Symbolic Counter-Speech, Howard M. Wasserman

Faculty Publications

No abstract provided.

Quo Vadis: The Continuing Metamorphosis Of The Establishment Clause Toward Realistic Substantive Neutrality, Paul E. Salamanca

Law Faculty Scholarly Articles

For years, the rhetoric of substantive neutrality has dominated interpretation of the Establishment Clause. Under this approach, courts and commentators purport to ask whether a public policy under scrutiny is likely to affect religious choices in an unacceptable way. In fact, so broadly has this approach been taken that both separationists and accommodationists resort to it freely, although with radically differing perceptions as to when policy becomes unacceptable. Arguably, however, adherents to this approach have paid insufficient attention to religious behavior per se. Had they paid sufficient attention to this phenomenon, they would have been forced to acknowledge that little …

The Liberal Polity And Illiberalism In Religious Traditions, Paul E. Salamanca

Law Faculty Scholarly Articles

It is in the nature of religious traditions to be somewhat illiberal. Indeed, a religion that does not require its adherents to affirm at least some belief is probably a logical impossibility. Christians, for example, must believe something about the nature of Christ. Even Unitarians, who advocate tolerance of all religions, must affirm a belief in tolerance.

Recently, and largely because of the events of September 11, 2001, enhanced attention has been paid to certain potentially illiberal aspects of Islam in the United States. The journalist Daniel Pipes, for example, has written about certain Moslem Americans who, according to his …

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.

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 …

Shoot First, Talk Later: Blowing Holes In Freedom Of Speech, Jacqueline Tresl

Animal Law Review

Ms. Tresl examines the constitutionality of hunter harassment laws. When a five-step doctrinal analysis is applied to hunter harassment statutes, it is clear that the statutes are content-based and subject to the strictest of scrutiny. Because the statutes fail the strict scrutiny test, they therefore violate the American citizenry’s First Amendment right to free expression.

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 …

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.

Fencing Cyberspace: Drawing Borders In A Virtual World, Maureen A. O'Rourke

Faculty Scholarship

In the last few years, the Internet has increasingly become a source of information even for the historically computer illiterate. The growing popularity of the Internet has been driven in large part by the World Wide Web (web). The web is a system that facilitates use of the Internet by helping users sort through the great mass of information available on it. The web uses software that allows one document to link to and access another, and so on, despite the fact that the documents may reside on different machines in physically remote locations. The dispersion of data that is …

Sovereign Indignity? Values, Borders And The Internet: A Case Study, Eric Easton

All Faculty Scholarship

This article focuses on the publication ban issued by a Canadian court in a notorious murder trial, and the popular reaction to the publication ban, as a case study of the new global communications environment. Part I reconstructs the factual circumstances that provoked the ban, as well as the responses of the media, the legal establishment, and the public. Part II examines the ban itself, the constitutional challenge mounted by the media, and the landmark Dagenais decision. Part III reflects on the meaning of the entire episode for law, journalism, and national sovereignty.

The Dagenais decision demonstrates the continued independence …

Where Do We Draw The Line Between Harassment And Free Speech?: An Analysis Of Hunter Harassment Law, Katherine Hessler

Animal Law Review

Ms. Hessler examines the constitutionality of the federal hunter harassment statute and concludes that protests of hunting events should be protected under the First Amendment.

Turner Broadcasting System, Inc. V. Fcc: The Supreme Court Establishes A Standard Of Review For First Amendment Issues Involving Cable Litigation, Kathryn Seagle Robbie

St. Thomas Law Review

No abstract provided.

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 …

The State And Federal Religion Clauses: Differences Of Degree And Kind, Neil Mccabe

St. Thomas Law Review

This article will critically analyze some recent decisions that have recognized greater rights under state constitutions in the area of religious freedom, but it will place more emphasis on the possibility of lesser or different protection under the state constitutions.

A Constitutional Right Of Religious Exemption: An Historical Perspective, Philip A. Hamburger

Faculty Scholarship

Did late eighteenth-century Americans understand the Free Exercise Clause of the United States Constitution to provide individuals a right of exemption from civil laws to which they had religious objections? Claims of exemption based on the Free Exercise Clause have prompted some of the Supreme Court's most prominent free exercise decisions, and therefore this historical inquiry about a right of exemption may have implications for our constitutional jurisprudence. Even if the Court does not adopt late eighteenth-century ideas about the free exercise of religion, we may, nonetheless, find that the history of such ideas can contribute to our contemporary analysis. …

Cracking Down On The Trade In Child Pornography And Pornography For Children: More Prosecutions, Stiffer Sentences And Now, After Osborne V. Ohio, No Place To Hide, Harvey L. Zuckman

St. Thomas Law Review

The life of the child pornographer, while never easy, became increasingly difficult in the 1980s when the federal and state governments cast their full attention on these exploiters of children and their pedophiliac customers. This article will review the law in this area, the legislative and judicial process by which the federal and state government have attempted to stamp out the trade in child pornography particularly in the past decade and the first decision of the Supreme Court in this new decade making it more difficult than ever to store, handle and move such material, even surrepticiously.

National Security And The Disparate Impact Of Free Speech Rules, Frederick Schauer

St. Thomas Law Review

In addressing questions of censorship, including commonly neglected ones of what censorship is and what is wrong with it, I want to focus on the issues raised by censorship in the context of war, national security, and national defense. Here more than in other areas the debates about censorship are particularly strident, and here also it turns out that who is saying what about censorship often says as much about the speaker as about the activity complained of. More specifically, various free speech and free press principles not only serve to allocate power between government and speaker, but also allocate …

National Endowment Of The Art's Controversial Obscenity Regulation And Its Constitutional Ramifications, Jodi Cantor

St. Thomas Law Review

The purpose of this paper is to discuss and analyze the constitutional ramifications of the controversy involving the National Endowment of the Arts. Specifically, the controversy is based on obscenity restrictions on government funding. The paper begins by explaining the purpose and goals behind the National Endowment of the Arts. Next, the controversy itself and the subsequent enactment of the Interior Appropriations bill and its restrictions are discussed. There are several constitutional issues presented. First, it is strongly urged that the Miller v. California 1 test is misplaced in this area. However, assuming that Miller is applicable, an intent-based analysis …

The Bill Of Rights, Freedom Of Speech, Censorship, And The Cop On The Beat, Roger Handberg

St. Thomas Law Review

This short essay reemphasizes a simple truth about the exercise of the various freedoms embodied within the Bill of Rights. That is: constitutional rights are not self enforcing and their effective articulation is dependent upon the restraint of officers of the state, principally the individual police officer on the beat. Courts are crude and often ineffectual protectors of those rights because their judgments and pronouncements occur long after the events have transpired. This distance is true even when an injunction has been rendered explicitly protecting the exercise of such rights. Even in those exceptionally rare cases when an injunction is …

Prior Restraint In Light Of United States V. Noriega--Has The Law Been Changed, William M. Hoeveler

St. Thomas Law Review

No abstract provided.

The Media And The Censors Blue Pencil, D Paul, Barbara Singer, P. Steinle, J Wragg

St. Thomas Law Review

The following are excerpts taken from a panel discussion held at St. Thomas University School of Law on March 7, 1991.

To Stimulate, Provoke, Or Incite Hate Speech And The First Amendment, Kenneth Lasson

St. Thomas Law Review

The rule should be a simple one: expression of all ideas is protected, except for those in narrowly defined categories such as state secrets, obscenity, fighting words, and defamation. The last exception should include a civil action for group libel. While the rule may be simple, however, it is not simplistic - nor any more difficult to apply than the analysis required in the fact-finding process of a trial by judge or jury. This paper will briefly examine the various approaches to free speech both in America and elsewhere, suggest how they may be read in harmony with the rule …

Humor, Defamation And Intentional Infliction Of Emotional Distress: The Potential Predicament For Private Figure Plaintiffs, Catherine L. Amspacher, Randel Steven Springer

William & Mary Law Review

No abstract provided.

The Infliction Of Harm Through The Publication Of Fiction: Fashioning A Theory Of Liability, Paul A. Lebel

Faculty Publications

No abstract provided.

Reputation, Compensation, And Proof, David A. Anderson

William & Mary Law Review

No abstract provided.

Obscenity, The Law And Religion, Thomas A. Long

IUSTITIA

The long history of the relation between Western religion and secular law is both interesting and complex.' In what follows I shall discuss one current social issue which is illustrative of this relation,namely, the relatively recent legal-moral controversy over obscenity.