First Amendment Commons^™

The Jurisprudence Of Colliding First Amendment Interests: From The Dead End Of Neutrality To The Open Road Of Participation-Enhancing Review, Gregory P. Magarian

Scholarship@WashULaw

First Amendment interests in both speech and religion often collide with one another. A political activist claims a free speech interest in the right to purchase advertising time on a television network, while the network claims a free speech interest in its decision not to sell the time. A religious enclave claims a free exercise interest in having a dedicated public school district, while its neighbors claim a nonestablishment interest in the government's not extending the group special treatment. In this article Professor Magarian examines the phenomenon of colliding First Amendment interests, explains and critiques the Supreme Court's failure to …

The Blaine Amendment Of 1876: Harbinger Of Secularism?, Gerard V. Bradley

Journal Articles

The Blaine Amendment of 1876 was a Congressional effort to add a sixteenth amendment to the Constitution. The leading feature and central aspiration of the proposal was to prohibit the states from giving financial aid to schools run by sects. Passed overwhelmingly by the House of Representatives, the Blaine Amendment narrowly failed to secure the necessary two-thirds vote in the Senate.

This paper examines the Blaine Amendment as a political phenomenon; that is, as a Republican attempt to exploit anti-Catholic prejudice in a presidential election year. It also looks at the Blaine Amendment constitutionally; that is, for the light it …

Our Structural Constitution: Religious Freedom And Church Autonomy (A Response To Mark Chopko, "Constitutional Reflections On The Parish: An Entity In The Fabric Of The Church."), Richard W. Garnett

Journal Articles

From the Article

The freedom and autonomy of the Church, for which Mark Chopko has been such an able advocate, are not easily separated from both the history and the health of political freedom under constitutionally limited government. In our political tradition, the challenge has always been to find the limiting principle that would check the encroachments of civil power and preserve these immunities.

The Test That Ate Everything: Intermediate Scrutiny In First Amendment Jurisprudence, Ashutosh Bhagwat

Faculty Scholarship

No abstract provided.

First Amendment Protection For The Publication Of Private Information, Jared Lenow

Vanderbilt Law Review

Over one hundred years ago, Samuel Warren and Louis Brandeis wrote, "Of the desirability-indeed of the necessity-of some protection [of the right of privacy], there can, it is believed, be no doubt. The press is overstepping in every direction the obvious bounds of propriety and decency." This observation rings even more true today than it did when it was made in 1890. In the past hundred years, members of the media have drastically revised the unwritten rules regarding what topics are fair game. While media outlets uniformly declined to publish photographs of Franklin Delano Roosevelt in a wheelchair while he …

Can The Irs Silence Religious Organizations, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

In the years following the 2004 presidential election, the Los Angeles Times reported that the Internal Revenue Service threatened revoking the tax-exempt status of the All Saints Episcopal Church in Pasadena because during a 2004 sermon, a church rector stated that he opposed the Vietnam and Gulf wars and that Jesus would have disapproved of the Bush Administration's preemptive war doctrine. The rector did not tell his parishioners who to support in the 2004 election, however. This threat of revoking an organization's tax-exempt status is just one example of the IRS's recent and unprecedented aggressiveness in seeking out violations of …

Local Decisions, National Impact: Why The Public School Textbook Selection Process Should Be Viewpoint Neutral, Rebecca Tanglen

University of Colorado Law Review

In its decision in Hazelwood School District v. Kuhlmeier, the Supreme Court determined that in the public school context, government restriction on speech must be related to "legitimate pedagogical concerns." However, the question remains open whether that standard requires such restrictions to be viewpoint neutral; the circuit courts are split on this question. This Comment explores the issue in the context of the public school textbook selection process, concluding that the process should be viewpoint neutral. As an initial matter, it argues that the selection of textbooks for use in the public schools should be analyzed under the public forum …

Brief Of Amicus Curiae, The National Legislative Association On Prescription Drug Prices, The New Hampshire Medical Society, And Prescription Policy Choices In Support Of Defendant's Objection To Plaintiff's Motion For Preliminary Injunction, Sean Flynn

Amicus Briefs & Court Filings

Plaintiffs in this case seek a preliminary injunction to prevent the enforcement of the New Hampshire Prescription Confidentiality Act, which protects consumers and the privacy interests of doctors in the state of New Hampshire from the increasingly common practice of using doctor-identifying information in prescription records to facilitate targeting of pharmaceutical marketing and gifts toward doctors who prescribe the most expensive drugs for their patients. This practice raises drug costs for all New Hampshire residents and compromises the professional autonomy of doctors. This brief addresses the failure of the plaintiffs to show that they are likely to succeed on the …

Sex Offenders In The Community: Their Public Persona And The Media's Corresponding Privilege To Report, Douglas Griswold

William & Mary Bill of Rights Journal

No abstract provided.

You Said What? The Perils Of Content-Based Regulation Of Public Broadcast Underwriting Acknowledgments, Andrew D. Cotlar

Federal Communications Law Journal

Public broadcast stations in the United States are forbidden to air promotional announcements in exchange for payment from commercial entities. However, these stations must acknowledge any financial contribution from donors that support particular programs without promoting the goods and services offered by those donors. While the FCC has attempted to maintain the conceptual distinction between promotional and nonpromotional information, it has struggled to apply this distinction within the context of an evolution in advertising practice.

As a result, many noncommercial educational licensees find it difficult to apply the FCC's rules. A careful analysis of how the FCC underwriting determinations yields …

Broadcast Technology As Diversity Opportunity: Exchanging Market Power For Multiplexed Signal Set- Asides, Michael M. Epstein

Federal Communications Law Journal

This Article proposes an access system based on a theory of quid pro quo: a bargained.for-exchange in which broadcasters would trade media access for market power. Under this quid pro quo approach, the FCC would administer a scaled metric whereby the greater a media company's audience reach, the more access that company must provide to citizens with diverse and local content. Since digital technology permits broadcasters to "multiplex" their television signal bandwidth into multiple signal programming streams, an opportunity exists for the government to require public access to one or more of these programming streams in return for relaxing caps …

Corporate Speech, Securities Regulation, And An Institutional Approach To The First Amendment, Michael R. Siebecker

William & Mary Law Review

Does the First Amendment shield politically tinged corporate speech from the compelled disclosure and reporting requirements embedded in the U.S. securities laws? The question arises in the securities regulation context because of an impending jurisprudential train wreck between the Supreme Court's commercial speech doctrine and its approach to corporate political speech. As corporations begin mixing commercial messages with political commentary, First Amendment jurisprudence simply provides insufficient guidance on the role government should play in regulating that speech. Although First Amendment jurisprudence generally counsels against governmental restrictions on corporate political speech without regard to the truth or falsity of the message, …

Defining Freedom Of The College Press After "Hosty V. Carter", Jessica B. Lyons

Vanderbilt Law Review

The application of the First Amendment to public universities has long been a source of confusion and frustration for both universities and courts. In particular, application of the First Amendment to student publications such as newspapers, magazines, and yearbooks has led to a great deal of litigation and controversy. The protection afforded by the First Amendment to these publications at the university level is extremely unclear and the circuit courts' inconsistent treatment of the college press has further confused the issue.

How should the First Amendment apply to public universities? An instinctive response is that a college student should enjoy …

Do Not Pass Go, Do Not Collect $200: The Reporter's Privilege Today, Douglas E. Lee

University of Arkansas at Little Rock Law Review

No abstract provided.

Déjà Vu All Over Again: How A Generation Of Gains In The Federal Reporter's Privilege Law Is Being Reversed, Lucy A. Dalglish, Casey Murray

University of Arkansas at Little Rock Law Review

No abstract provided.

The Reporter's Privilege In Arkansas: An Overview With Commentary, Philip S. Anderson

University of Arkansas at Little Rock Law Review

No abstract provided.

A Trial Judge's Rumination On The Reporter's Privilege, Susan Webber Wright

University of Arkansas at Little Rock Law Review

No abstract provided.

The Concerto The Without Sheet Music: Revisiting The Debate Over First Amendment Protection For Information Gathering, Anthony L. Fargo

University of Arkansas at Little Rock Law Review

No abstract provided.

Keynote Address: Secret Evidence In The Age Of National Security, Adam Liptak

Cardozo Public Law, Policy & Ethics Journal

The article explores the tension between national security and the First Amendment, arguing that while the First Amendment remains a robust protection against government censorship, recent trends threaten press freedom, particularly in protecting confidential sources and accessing information. The author, drawing on personal experience as a media lawyer and reporter, emphasizes the importance of procedural safeguards and judicial oversight to prevent government overreach and ensure transparency.

Introduction: Religion, Division, And The Constitution, Richard W. Garnett

William & Mary Bill of Rights Journal

No abstract provided.

Pluralism And Public Legal Reason, Lawrence B. Solum

William & Mary Bill of Rights Journal

No abstract provided.

Empiricism, Religion, And Judicial Decision-Making, Stephen M. Feldman

William & Mary Bill of Rights Journal

No abstract provided.

Religions, Fragmentations, And Doctrinal Limits, Frederick Mark Gedicks

William & Mary Bill of Rights Journal

No abstract provided.

A House Divided? What Social Science Has To Say About The Culture War, David E. Campbell

William & Mary Bill of Rights Journal

No abstract provided.

Religious Tests In The Mirror: The Constitutional Law And Constitutional Etiquette Of Religion In Judicial Nominations, Paul Horwitz

William & Mary Bill of Rights Journal

No abstract provided.

Social Reproduction And Religious Reproduction: A Democratic-Communitarian Analysis Of The Yoder Problem, Josh Chafetz

William & Mary Bill of Rights Journal

No abstract provided.

Through A Glass Darkly: Van Orden, Mccreary, And The Dangers Of Transparency In Establishment Clause Jurisprudence, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.

From Bricks To Pajamas: The Law And Economics Of Amateur Journalism, Larry E. Ribstein

William & Mary Law Review

Weblogs have proliferated rapidly in recent years, attracting significant attention and generating important legal issues. Yet so far no coherent economic framework for addressing these issues exists. This Article begins to develop such a framework. It views blogs as the vanguard of what might be called "amateur journalism. " Because the Web and related technology have enabled low entry barriers, blogs can be an important source of specialized knowledge. However, bloggers do not work within a monitoring structure as in large news organizations, and individual blogs may be less accurate than conventional news sources. On the other hand, blogs as …

Panel Report: Investigative Journalism And National Security, Zachary D. Streit

Cardozo Public Law, Policy & Ethics Journal

The panel discussion explores the tension between government secrecy and media transparency, focusing on the challenges investigative journalists face in reporting on national security issues. The participants argue that while some secrecy is necessary for national security, excessive classification hampers transparency and accountability. They discuss legal battles, over-classification, and the need for a balance between protecting sensitive information and the public's right to know.

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 …