First Amendment Commons^™

First Amendment - Passive Accommodation: An Attempt At Demarcation

The Catholic Lawyer

No abstract provided.

The Dilemma Of Religious Instruction And The Public Schools, Richard J. Regan, S.J.

The Catholic Lawyer

No abstract provided.

Parochial School Aid - A Changing Trend, Lawrence X. Cusack

The Catholic Lawyer

No abstract provided.

Recent Decision: Mandatory Identification Statute Held Unconstitutional

The Catholic Lawyer

No abstract provided.

A Free Speech Response To The Gay Rights/Religious Liberty Conflict, Andrew Koppelman

Northwestern University Law Review

The most sensible reconciliation of the tension between religious liberty and public accommodations law, in the recent cases involving merchants with religious objections to same-sex marriage, would permit business owners to present their views to the world, but forbid them either to threaten to discriminate or to treat any individual customer worse than others. Even if such businesses have no statutory right to refuse to facilitate ceremonies they regard as immoral, they are unlikely to be asked to participate in those ceremonies. This solution may, however, be forbidden by the law of hostile environment harassment. That raises a severe free …

The Most Loved, Most Hated Magazine In America: The Rise And Demise Of Confidential Magazine, Samantha Barbas

William & Mary Bill of Rights Journal

No abstract provided.

Siri-Ously? Free Speech Rights And Artificial Intelligence, Toni M. Massaro, Helen Norton

Northwestern University Law Review

Computers with communicative artificial intelligence (AI) are pushing First Amendment theory and doctrine in profound and novel ways. They are becoming increasingly self-directed and corporal in ways that may one day make it difficult to call the communication ours versus theirs. This, in turn, invites questions about whether the First Amendment ever will (or ever should) cover AI speech or speakers even absent a locatable and accountable human creator. In this Article, we explain why current free speech theory and doctrine pose surprisingly few barriers to this counterintuitive result; their elasticity suggests that speaker humanness no longer may be …

The Government Brand, Mary-Rose Papandrea

Northwestern University Law Review

In Walker v. Texas Division, Sons of Confederate Veterans, Inc., the U.S. Supreme Court held that Texas could deny the Sons of Confederate Veterans a specialty license plate because the public found the group’s Confederate flag logo offensive. The Court did not reach this conclusion because it deemed the Confederate flag to fall within a category of unprotected speech, such as true threats, incitement, or fighting words; because it revisited its determination in R.A.V. v. City of St. Paul that restrictions on hate speech are unconstitutional; because travelers who see the license plates are a “captive audience”; or because …

Free Speech And Civil Liberties In The Second Circuit, Floyd Abrams

Fordham Law Review

Much of the development of First Amendment law in the United States has occurred as a result of American courts rejecting well-established principles of English law. The U.S. Supreme Court has frequently rejected English law, permitting far more public criticism of the judiciary than would be countenanced in England, rejecting English libel law as being insufficiently protective of freedom of expression and holding that even hateful speech directed at minorities receives the highest level of constitutional protection. The Second Circuit has played a major role in the movement away from the strictures of the law as it existed in the …

The First Amendment And The Police In The Digital Age, Kermit V. Lipez

The Journal of Appellate Practice and Process

No abstract provided.

But First, (Don’T) Let Me Take A Selfie: New Hampshire’S Ban On Ballot Selfies And First Amendment Scrutiny, Emily Wagman

William & Mary Bill of Rights Journal

No abstract provided.

The Democratic First Amendment, Ashutosh Bhagwat

Northwestern University Law Review

Over the past several decades, the Supreme Court and most First Amendment scholars have taken the position that the primary reason why the First Amendment protects freedom of speech is to advance democratic self-governance. In this Article, I will argue that this position, while surely correct insofar as it goes, is also radically incomplete. The fundamental problem is that the Court and, until recently, scholars have focused exclusively on the Religion Clauses and the Free Speech Clause. The rest of the First Amendment—the Press, Assembly, and Petition Clauses—might as well not exist. The topic of this Article is the five …

Rfra And The Affordable Care Act: Does The Contraception Mandate Discriminate Against Religious Employers?, Alisa Lalana

Loyola of Los Angeles Law Review

No abstract provided.

Cultural Democracy And The First Amendment, Jack M. Balkin

Northwestern University Law Review

Freedom of speech secures cultural democracy as well as political democracy. Just as it is important to make state power accountable to citizens, it is also important to give people a say over the development of forms of cultural power that transcend the state. In a free society, people should have the right to participate in the forms of meaning-making that shape who they are and that help constitute them as individuals.

The digital age shows the advantages of a cultural theory over purely democracy-based theories. First, the cultural account offers a more convincing explanation of why expression that seems …

Foreword, Cassandra Myers

Northwestern University Law Review

No abstract provided.

Multifactoral Free Speech, Alexander Tsesis

Northwestern University Law Review

This Article presents a multifactoral approach to free speech analysis. Difficult cases present a variety of challenges that require judges to weigh concerns for the protection of robust dialogue, especially about public issues, against concerns that sound in common law (such as reputation), statutory law (such as repose against harassment), and in constitutional law (such as copyright). Even when speech is implicated, the Court should aim to resolve other relevant individual and social issues arising from litigation. Focusing only on free speech categories is likely to discount substantial, and sometimes compelling, social concerns warranting reflection, analysis, and application. Examining the …

Testimony On Unmanned Aircraft Systems Rules And Regulations, Stephen Henderson

Other Faculty Publications

Chairman Barrington, Vice Chair Brooks, members of the Committee on Public Safety, Senators, and distinguished guests, I am grateful for the opportunity to speak to you today about unmanned aerial systems, or drones, and more particularly about their federal constitutional implications and what might be the constitutional restrictions on any legislation you might like to enact. I am the Judge Haskell A. Holloman Professor of Law at the University of Oklahoma, where my teaching and research focus on criminal law and procedure and privacy, including the constitutional rights pertaining thereto.My topic is not an easy one. The constitutional law is …

Human Rights Law And Racial Hate Speech Regulation In Australia: Reform And Replace?, Dr. Alan Berman

Georgia Journal of International & Comparative Law

No abstract provided.

Grand Theory Or Discrete Proposal? Religious Accommodations And Health Related Harms, James M. Oleske Jr.

Washington and Lee Law Review Online

More than a quarter-century has passed since the Supreme Court decided in Employment Division v. Smith that religious accommodations are primarily a matter of legislative grace, not constitutional right. In that time, barrels of ink have been spilled over the merits of the Smith decision. But comparatively little attention has been given to the issue of how legislatures and other political actors should exercise their discretion to grant or deny specific religious accommodations. In their article To Accommodate or Not to Accommodate: (When) Should the State Regulate Religion to Protect the Rights of Children and Third Parties?, Professor Hillel …

The "Permeation" Issue In Federal Aid To Education, George E. Reed

The Catholic Lawyer

No abstract provided.

The School Prayer Case - The Dilemma, William B. Ball

The Catholic Lawyer

No abstract provided.

Contents, First Amendment Law Review

First Amendment Law Review

No abstract provided.

Open-Carry: Open-Conversation Or Open-Threat, Daniel Horwitz

First Amendment Law Review

No abstract provided.

A First Amendment Analysis Of Voting Rights Of The Mentally Incapacitated: Why Are You Calling Me An Idiot, Why Can't I Vote, Tiffany Yates

First Amendment Law Review

No abstract provided.

Tinker Remorse: On Threats, Boobies, Bullying, And Parodies, Mark Strasser

First Amendment Law Review

No abstract provided.

Medical Futility And Religious Free Exercise, Teneille Ruth Brown

First Amendment Law Review

No abstract provided.

Professional Speech And The First Amendment, Rodney A. Smolla

West Virginia Law Review

No abstract provided.

The Freedom To Film Pornography, Marc J. Randazza

Nevada Law Journal

No abstract provided.

The “Ample Alternative Channels” Flaw In First Amendment Doctrine, Enrique Armijo

Washington and Lee Law Review

In reviewing a content-neutral regulation affecting speech, courts ask if the regulation leaves open “ample alternative channels of communication” for the restricted speaker’s expression. Substitutability is the underlying rationale. If the message could have been expressed in some other legal way, the ample alternative channels requirement is met. The court then deems the restriction’s harm to the speaker’s expressive right as de minimis and upholds the law. For decades, courts and free speech scholars have assumed the validity of this principle. It has set First Amendment jurisprudence on the wrong course. Permitting a speech restriction because the speaker could have …

'Serial' Should Release Bergdahl Interviews, Jeffrey Bellin

Popular Media

No abstract provided.