First Amendment Commons^™

Is There A "Religious Question" Doctrine?: Judicial Authority To Examine Religious Practices And Beliefs, Jared Goldstein

Law Faculty Scholarship

No abstract provided.

The Other Sullivan Case, Garrett Epps, Garrett Epps

All Faculty Scholarship

The standard triumphalist narrative of NEW YORK TIMES V. SULLIVAN celebrates the Supreme Court's defense of free speech and press in the case's vindication of powerful journalistic institution. Ignored in this story is the story of the local defendants, civil rights leaders in Alabama who had their solvency threatened by the state courts' vindictive action against them. These defendants challenged the segregated proceedings used in court to affix liability to them—but the Supreme Court ignored their arguments and ignored the racial-equality and individual-rights aspects of the case. From their point of view, SULLIVAN might be so unalloyed a triumph.

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. ...

A Troubling Equation In Contracts For Government Funded Scientific Research: "Sensitive But Unclassified" = Secret But Unconstitutional, Leslie Gielow Jacobs

McGeorge School of Law Scholarly Articles

No abstract provided.

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 …

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 …

"And What Do You Say I Am?": The Meaning Of The Kentucky Display, Gerard V. Bradley

Journal Articles

In McCreary County v. ACLU, a bare majority of the Supreme Court affirmed that secularism is still the overriding principle of church-state law. Their “touchstone” was the “principle” which “mandates governmental neutrality between...religion and nonreligion.” But that’s actually not quite it. “Neutrality” between something and its absence— such as “religion” and “nonreligion”—would be (if it is imaginable at all) at least some of the thing. “Neutrality” between, say, a desert climate and a tropical climate would be someplace like Northern Indiana: rains here quite a bit but nothing like it does in the Amazon.

If “neutrality” means anything here …

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 …

“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 …

Video Games As A Protected Form Of Expression, Paul E. Salamanca

Georgia Law Review

Video games, like motion pictures, failed to qualify for First Amendment protection until well after they emerged as a medium. Today, a number of courts have held that such games constitute a form of expression and do not fall into any recognized category of unprotected speech. Nevertheless, a number of commentators have called for limited constitutional protection for video games, predicating their arguments on a variety of grounds, including the alleged deleterious effects of such games on children. This Article responds to these commentators and defends recent decisions extending protection to video games.

Ending Pay-To-Play In The Municipal Securities Business: Msrb Rule G-3 7 Ten Years Later, Kevin Opp

University of Colorado Law Review

No abstract provided.

Contents, First Amendment Law Review

First Amendment Law Review

No abstract provided.

North Carolina In The Post White Decision World: Where We Are, How We Got There, And Where To Go Next, J. Christopher Heagarty

First Amendment Law Review

No abstract provided.

An Essay On The Right Of Judges And Judicial Candidates To Freedom Of Speech, Robert F. Orr

First Amendment Law Review

No abstract provided.

A Matter Of Perspective, Penny J. White

First Amendment Law Review

No abstract provided.

Judicial Elections, Gene R. Nichol

First Amendment Law Review

No abstract provided.

When Free Speech And Free Elections Collide: A North Carolina Case Study, Robert H. Halll

First Amendment Law Review

No abstract provided.

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 …

Religious Organizations And Free Exercise: The Surprising Lessons Of Smith, Kathleen A. Brady

BYU Law Review

No abstract provided.

"Omalous" Autonomy, Perry Dane

BYU Law Review

No abstract provided.

Thoughts On Smith And Religious-Group Autonomy, Laura S. Underkuffler

BYU Law Review

No abstract provided.

Continuing The Lord's Work And Healing His People: A Reply To Professors Lupu And Tuttle, Mark E. Chopko

BYU Law Review

No abstract provided.

Separation, Neutrality, And Clergy Liability For Sexual Misconduct, William P. Marshall

BYU Law Review

No abstract provided.

An Itty· Bitty Immunity And Its Consequences For The Church Of Jesus Christ Of Latter·Day Saints: A Response To Professors Lupu And Tuttle, Cheryl B. Preston

BYU Law Review

No abstract provided.

Sexual Misconduct And Ecclesiastical Immunity, Ira C. Lupu, Robert W. Tuttle

BYU Law Review

No abstract provided.