First Amendment Commons^™

Telemarketing, Commercial Speech, And Central Hudson: Potential First Amendment Problems For Indiana Code Section 24-4.7 And Other "Do-Not-Call" Legislation, Steven R. Probst

Law Faculty Publications

No abstract provided.

Conceptualizing Constitutional Litigation As Anti-Government Expression: A Speech-Centered Theory Of Court Access, Robert L. Tsai

Faculty Scholarship

This Article proposes a speech-based right of court access. First, it finds the traditional due process approach to be analytically incoherent and of limited practical value. Second, it contends that history, constitutional structure, and theory all support conceiving of the right of access as the modern analogue to the right to petition government for redress. Third, the Article explores the ways in which the civil rights plaintiff's lawsuit tracks the behavior of the traditional dissident. Fourth, by way of a case study, the essay argues that recent restrictions - notably, a congressional limitation on the amount of fees counsel for …

Terrorism And The Bill Of Rights, Rodney A. Smolla

Law Faculty Publications

This year is the Tenth Anniversary of the William & Mary Bill of Rights Journal, and the Journal is very fortunate and honored to have Professor Rodney Smolla publish an article in this year's volume. Professor Smolla played an integral role in the founding and organizing of not only the Journal, but also the Institute of Bill of Rights Law at William & Mary Law School. The J oumal extends its most appreciative thanks to Professor Smolla for all his help.

In this Article, Professor Smolla examines the right to free speech in the context of Black v. …

A Balanced Diet Of First Amendment Cases, Joel Gora

Faculty Scholarship

No abstract provided.

Seventh Circuit Upholds Injunction Against Pro-Life Groups For Violation Of Rico, Rebecca L. Mattison

Public Interest Law Reporter

No abstract provided.

Law And Information Platforms, Philip J. Weiser

Publications

No abstract provided.

Vouchers And Steering, Vincent A. Blasi

Faculty Scholarship

Does the Establishment Clause require that educational voucher programs not be designed in a manner that encourages parents to choose religious schools over secular alternatives? If there is such an "anti-steering" principle implicit in the First Amendment, how should courts elaborate and enforce it?

In this response, I will compare how Professors Lupu and Tuttle and the Court majority in Zelman v. Simmons-Harris, the decision last June upholding the Cleveland voucher plan, answer these important questions. I will evaluate their analyses at three levels: (1) basic Establishment Clause values and priorities; (2) doctrinal standard for identifying impermissible favoritism toward …

Public School Education About Beginnings: Creationism, No! Truth About Science, Yes!, Daniel G. Gibbens

Oklahoma Law Review

No abstract provided.

The "Ultimate Question": A Limited Argument For Trafficking In Stolen Speech, Matthew J. Coleman

Oklahoma Law Review

No abstract provided.

Protecting America First: Deporting Aliens Associated With Designated Terrorist Organizations That Have Committed Terrorism In America In The Face Of Actual Threats To National Security, Dana B. Weiss

Cleveland State Law Review

In light of the devastation and destruction caused by the September 11th attacks and the remaining imminent threat of more attacks in this country, this Note proposes legislation that would provide for removal of aliens who are merely associated with a known terrorist organization that has committed acts of terrorism in the United States. Part II outlines the Immigration and Naturalization Services (INS) legislation in effect at the time of the attacks and the rationale behind prohibiting deportation for mere association with a known terrorist organization. Part III discusses newly enacted legislation strengthening deportation laws, which do not go as …

The Deep Pocket Dilemma: Setting The Parameters Of Talk Show Liability, Jason S. Schlessel

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Too Close To Call: The Sufficiency Of Alternative Relocation Sites In Diamond V. City Of Taft, Pauline P. Clark

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

No Room For Cheers: Schizophrenic Application In The Realm Of Right Of Publicity Protection, Jennifer Y. Choi

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Threats, Free Speech, And The Jurisprudence Of The Federal Criminal Law, G. Robert Blakey, Brian J. Murray

Journal Articles

In these materials, we set out a road map for the task of reforming the jurisprudence of threats and an articulation of its rationale under the First Amendment. In addition, we examine the basic jurisprudence of the federal criminal law, in particular, its traditional roots in notions of individual responsibility based on personal conduct and state of mind. In Part I, we analyze the district court and the Ninth Circuit opinions in the American Coalition litigation. In Part II, we trace the traditional theory and practice of free speech under the First Amendment, rooted in the history and various rationales …

Jefferson And Madison As Icons In Judicial History: A Study Of Religion Clause Jurisprudence, David J. Reiss

Cornell Law Faculty Publications

No abstract provided.

Faith And Funding: Toward An Expressivist Model Of The Establishment Clause, David Cole

Georgetown Law Faculty Publications and Other Works

This article seeks to provide an alternative to the polarization that so often characterizes debates about church and state. In Part I, the author suggests that there are good policy reasons for supporting faith-based initiatives, and that these reasons ought to be attractive to liberals and progressives, many of whom have opposed faith-based initiatives. Faith-based social services are, after all, social services, and are often the very types of welfare services that liberals and progressives tend to support. Core religious values--in particular, concern about the less fortunate, a belief in human dignity, and a commitment to the possibility of redemption--reinforce …

Constitutional Law Leading Cases: Judicial Elections, Nathan B. Oman

Faculty Publications

No abstract provided.

The Story Of A Forgotten Battle, Nathan B. Oman

Faculty Publications

No abstract provided.

The Distinctive Place Of Religious Entities In Our Constitutional Order, Ira C. Lupu, Robert Tuttle

Villanova Law Review (1956 - )

No abstract provided.

The Supreme Court's Latest Resolution Of The Conflict Between Freedom Of Association And Public Accomodations Laws: Boy Scouts Of America V. Dale And Its Implications In And Out Of The Courtroom, Daniel E. Mcguire

Villanova Law Review (1956 - )

No abstract provided.

From Hit Man To Encylcopedia Of Jihad: How To Distinguish Freedom Of Speech From Terrorist Training, Rodney A. Smolla

Law Faculty Publications

Late last summer, Professor F. Jay Dougherty invited me to participate in "Tune In, Turn On, Cop Out? The Media and Social Responsibility," the Fourth Annual Entertainment Law Symposium sponsored by Loyola Law School of Los Angeles. I learned that one of the issues to be examined was media liability for violent audience behavior, exploring from both social science and legal perspectives the alleged link between violent speech and violent conduct. Little did I or Professor Dougherty or anyone connected to the conference then know that within weeks a catastrophic terrorist attack on the United States-an attack largely spurred by …

Regulating Political Parties Under A Public Rights First Amendment, Gregory P. Magarian

Scholarship@WashULaw

The recently-enacted McCain-Feingold campaign finance law pushes to the fore the questions of whether and to what extent the First Amendment allows government to regulate the electoral activities of political parties. One of the new law's primary components is its attempt to eliminate so-called "soft money"- unlimited donations to national political parties that the Democrats and Republicans have used to circumvent legal limits on campaign contributions? One congressional opponent of the new law called it "the death knell" for political parties' role in elections." Not surprisingly, both major parties have attacked McCain-Feingold. Most Republicans in Congress opposed the legislation, and …

The Right Questions About School Choice: Education, Religious Freedom, And The Common Good, Richard W. Garnett

Journal Articles

As this Essay goes to press, the Supreme Court is considering whether Ohio's school-choice program violates the First Amendment to the United States Constitution. In my view, the Ohio program is sound public policy, and it is consistent with the Justices' present understanding of the Establishment Clause. I also believe that the Court will and should permit this experiment, and our conversations about its merits, to continue. The purpose of this Essay, though, is not to predict or evaluate ex ante the Court's decision. Instead, my primary aim is to suggest and then sketch a few broad themes that--once the …

An Unconstitutional Stereotype: Catholic Schools As Pervasively Sectarian, Gerard V. Bradley

Journal Articles

The Supreme Court first held public assistance to religious schools unconstitutional in 1971 in Lemon v. Kurtzman. From then until now the concept of “pervasively sectarian” has played a central role in “parochaid” jurisprudence; every holding against “direct” aid has rested upon it as a necessary premise. “Pervasively sectarian” refers to the assertedly religious (“sectarian”) character of the entire curriculum at parochial schools. Religion, it is said, so permeates the whole educational program that “direct aid” to any aspect of that program inescapably aids religion itself. And that, it is said, violates the Establishment Clause. Because aid statutes typically aim …

Violence, Video Games, And A Voice Of Reason: Judge Posner To The Defense Of Kids' Culture And The First Amendment, Clay Calvert

San Diego Law Review

"We are in the world of kids' popular culture. But it is not lightly to be suppressed."' So wrote Judge Richard A. Posner on behalf of a unanimous three judge panel for the Seventh Circuit Court of Appeals in March 2001 in striking down, on First Amendment grounds, an Indianapolis ordinance that blocked minors' access to video games depicting violence. Judge Posner's erudite opinion could not have come at a more important time-a time when the entertainment industries in the United States seemingly are under government siege and when the media blame game is peaking. The judge's cogent reasoning and …

Religious Land Use And Institutionalized Persons Act Of 2000: The Land Use Provisions Are Both Unconstitutional And Unnecessary, Ada-Marie Walsh

William & Mary Bill of Rights Journal

The Religious Land Use and Institutionalized Persons Act of 2000 was Congress 'response to the Supreme Court's striking down of the Religious Freedom Restoration Act in City of Boerne v. Flores. In promulgating the Religious Land Use and Institutionalized Persons Act, Congress, inter alia, sought to protect the free exercise of religion from excessive governmental meddling while remedying discrimination suffered by religious individuals and groups in the area of land use. In dealing solely with land use provisions of the RLUIPA, the author argues that the Religious Land Use and lnstitutionalized Person Act is unconstitutional because it violates the Establishment …

Brief Of The Becket Fund For Religious Liberty As Amicus Curiae In Support Of Petitioners, Richard W. Garnett, Kevin J. Hasson, Eric W. Treene, Roman P. Storzer, Anthony R. Picarello Jr.

Court Briefs

Nos. 00-1751, 00-1777, 00-1779
Susan Tave Zelman v. Doris Simmons-Harris

On Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit

From the Summary of the Argument

Petitioners and other amici undoubtedly will address fully how the program at issue in this case should be upheld on the grounds that it involves the same principle that led to this Court upholding the aid in Mueller v. Allen, 463 U.S. 388 (1983), Witters v. Washington Dept. of Services for the Blind, 474 U.S. 481 (1986), and Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. …

A Political History Of The Establishment Clause, John C. Jeffries Jr., James E. Ryan

Michigan Law Review

Now pending before the Supreme Court is the most important church-state issue of our time: whether publicly funded vouchers may be used at private, religious schools without violating the Establishment Clause. The last time the Court considered school aid, it overruled precedent and upheld a government program providing computers and other instructional materials to parochial schools. In a plurality opinion defending that result, Justice Thomas dismissed as irrelevant the fact that some aid recipients were "pervasively sectarian." That label, said Thomas, had a "shameful pedigree." He traced it to the Blaine Amendment, proposed in 1875, which would have altered the …

Abridging The Freedom Of Non-English Speech: English-Only Legislation And The Free Speech Rights Of Government Employees, Margaret Robertson

BYU Law Review

No abstract provided.

The First Amendment And Speech-Based Torts: Recalibrating The Balance, Quin S. Landon

University of Miami Law Review

No abstract provided.