First Amendment Commons^™

How To Apply The Religious Freedom Restoration Act To Federal Law Without Violating The Constitution, Gregory P. Magarian

Scholarship@WashULaw

Learned commentators have called the Religious Freedom Restoration Act of 1993 ("RFRA" or "the Act") "perhaps the most unconstitutional statute in the history of the nation" and "the most egregious violation of the separation of powers doctrine in American constitutional history." In the 1997 case of City of Boerne v. Flores, the Supreme Court struck down the Act in its applications to state and local governments, declaring that "RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance." The Act's applications to federal law, however, survived Boerne, which means that plaintiffs with religious freedom claims against …

Silencing John Doe: Defamation And Discourse In Cyberspace, Lyrissa Lidsky

Faculty Publications

John Doe has become a popular defamation defendant as corporations and their officers bring defamation suits for statements made about them in Internet discussion fora. These new suits are not even arguably about recovering money damages but instead are brought for symbolic reasons — some worthy, some not so worthy. If the only consequence of these suits were that Internet users were held accountable for their speech, the suits would be an unalloyed good. However, these suits threaten to suppress legitimate criticism along with intentional and reckless falsehoods, and existing First Amendment law doctrines are not responsive to the threat …

Two Degrees Of Speech Protection: Free Speech Through The Prism Of Agricultural Disparagement Laws, Howard M. Wasserman

Faculty Publications

In the wake of a 1989 national television broadcast reporting the alleged cancer risk of a chemical applied to apples on trees, many states passed agricultural product disparagement (APD) statutes. These statutes grant civil causes of action to the growers and sellers of perishable food products, against anyone who speaks negatively or disparagingly, without basis in scientific evidence, about the product's safety. In this Article, Howard M Wasserman explores the interplay between the APD statutes and the First Amendment. First, Mr. Wasserman discusses the three categories of restrictions on the freedom of speech, focusing primarily on private civil tort actions …

Francis Bacon Takes On The Ghouls: The "First Principles" Of Religious Freedom, Richard W. Garnett

Journal Articles

John Witte, Jr.
Religion and the American Constitutional Experiment:
Essential Rights and Liberties
Westview Press 2000

From the Review

This is a great time for students of the First Amendment's Religion Clauses and of what Professor John Witte calls the American "experiment" with religious freedom. We've been blessed these past few years with an in-print seminar - an upper-division offering, team-taught by faculty heavyweights - on this experiment, its products and prospects, and the values that have shaped it. Our teachers and texts have included, to name just a few, Professor Steven Smith's Foreordained Failure: The Constitutional Quest for a …

Zoning Ordinances And "Free Speech", Alan C. Weinstein

Law Faculty Articles and Essays

Over the past two decades there has been a marked expansion in legal challenges to local land use regulations claiming violations of the free speech clause of the First Amendment to the United States Constitution. First Amendment claims can arise whenever government enacts or enforces zoning or other regulations that deal with uses such as billboards or adult entertainment businesses. This article discusses why this litigation is taking place, provides an overview of First Amendment law, and offers local officials some guidelines to help avoid potential legal challenges.

Brief Amici Curiae Of Christian Legal Society And The National Association Of Evangelicals In Support Of Respondent, Kimberlee Wood Colby, Gregory S. Baylor, Carl H. Esbeck, Richard W. Garnett, Michael Stokes Paulsen

Court Briefs

No. 99-138
Jenifer and Gary Troxel v. Tommie Granville

From the Summary of the Argument

Our argument that the decision below should be affirmed rests on a few basic points, none of which necessarily prejudices the case for a grandparent-visitation statute that is narrowly tailored to serve a compelling state interest. First, the statutes at issue are not grandparent-visitation statutes. Even if they were, the Petitioners and their amici have not pointed to any other visitation statutes that share the objectionable and unconstitutional features of Washington's particular statutes.

Commercial Slogans: The First Amendment Should Shield Their Use In Campaign Speech, Raena L. Smith

William & Mary Bill of Rights Journal

Commercial slogans and trademarks are increasingly finding their way into every aspect of the American vernacular, including speech by political officials and candidates. A previous published Note in the Journal of Law and Politics has argued that such speech should be restricted as it infringes upon the copyright or trademark holder's rights established both under federal and state law. This Note takes the opposing view, arguing that, even if campaign speech falls under the purview of federal or state statutes, the First Amendment prevents the application of laws to restrict campaign speech.

The Unusual Suspects: Journalists As Thieves, William E. Lee

William & Mary Bill of Rights Journal

The publication of confidential information by the press stands in stark contrast to the press' dedication to protecting the confidentiality of sources. While the Supreme Court has taken the position that the press may publish confidential information acquired through "routine" newsgathering methods, the contours of the phrase "routine " newsgathering methods are poorly defined In this Article, Professor Lee describes the link between the manner in which information is obtained and the First Amendment's protection of the publication of the information. He concludes that the proper analysis would separate the interests affected by publication from the interests affected by illegal …

Cable Internet Unbundling: Local Leadership In The Deployment High Speed Access, Marcus Maher

Federal Communications Law Journal

With the pending merger of TCI and AT&T and their promise of "one-stop" television, Internet, and telephone service, the cable Internet issues move to the forefront. The desire of traditional Internet Service Providers to gain access to new high-speed technologies for Internet access led to requests for unbundling or open access to cable systems. Despite the heated debate on the need for unbundling that has occurred at the federal level, local authorities have taken the lead in requiring open access to cable for competing ISPs. General anticompetitive concerns with cable Internet dominated by the cable company could be alleviated in …

The Constitutionality Of The Driver’S Privacy Protection Act: A Fork In The Information Access Road, Angela R. Karras

Federal Communications Law Journal

The Driver's Privacy Protection Act, instituted in 1997, regulates the disclosure of personal information in motor vehicle records. New controversy surrounds it today as the U.S. Supreme Court evaluates the arguments presented in November 1999 regarding its constitutionality. A split among circuit courts, coupled with the tremendous growth in technology and subsequent new in-roads for information access, draw increased attention toward the Act. The concern for information access in light of the Act, however, reaches beyond the courts' elucidated concerns about dual sovereignty and the public's right to privacy. This Note argues that there is a forgotten argument: the Act's …

Intermediate Questions Of Religious Exemptions - A Research Agenda With Test Suites, Eugene Volokh

Cardozo Law Review

No abstract provided.

Child Protection As A Judicial Burden On Religion And The Impact Of Religious Liberty Legislation, Robert J. Bruno

Cardozo Law Review

No abstract provided.

How The Grinch Stole Chanukah, Isaac M. Jaroslawicz

Cardozo Law Review

No abstract provided.

Petitioners' Reply Brief, William H. Meub, Orland Campbell Jr., Richard W. Garnett, Michael Stokes Paulsen

Court Briefs

No. 99-628
Cynthia Andrews v. Vermont Department of Education

On Petition For A Writ Of Certiorari To The Vermont Supreme Court

From the Petitioners' Reply Brief

The question presented in this case is whether the First Amendment allows government to discriminate on the basis of religion in funding school-choice education programs that include private schools. In the Petition, we showed (1) that this issue is nationally important; (2) that this issue is recurrent; and (3) that this issue has generated extraordinary and pervasive conflicts among lower and federal state courts, and between decisions of lower courts and this Court.

Zoning Speech On The Internet: A Legal And Technical Model, Lawrence Lessig, Paul Resnick

Michigan Law Review

Speech, it is said, divides into three sorts - (1) speech that everyone has a right to (political speech, speech about public affairs); (2) speech that no one has a right to (obscene speech, child porn); and (3) speech that some have a right to but others do not (in the United States, Ginsberg speech, or speech that is "harmful to minors," to which adults have a right but kids do not). Speech-protective regimes, on this view, are those where category (1) speech predominates; speech-repressive regimes are those where categories (2) and (3) prevail. This divide has meaning for speech …

The Graduation Prayer Cases: Coercion By Any Other Name, Colin Delaney

Vanderbilt Law Review

The Supreme Court's decision in Lee v. Weisman held clergy- delivered invocations at public-school graduation ceremonies unconstitutional. In the wake of this landmark case, school boards across the country instituted a variety of policies to avoid the establishmentarian attributes fatal to the prayers in Lee. Several Courts of Appeals soon heard cases involving authorities seeking to divorce themselves from speakers and speaker selection, in the apparent belief that school involvement placed the imprimatur of the state on graduation prayer. Yet two facts mark all of the situations challenged to date. First, an agent of the state, the school board, exercised …

Petition For A Writ Of Certiorari, William H. Meub, Orland Campbell Jr., Richard W. Garnett, Michael Stokes Paulsen

Court Briefs

No. 99-628
Cynthia and Douglas Andrews v. Chittenden Town School District

On Petition For A Writ Of Certiorari To The Vermont Supreme Court

From the Reasons for Granting the Writ

This is a case about discrimination - discrimination against "religious ideas, religious people, [and] religious schools." Board of Educ. of Kiryas Joel v. Grumet, 512 U.S. 687, 717 (1994) (O'Connor, J., concurring in part and concurring in the judgment). Vermont provides an immensely valuable benefit - tuition - to eligible residents and their high-school-age children. Petitioners have been denied this educational benefit solely because they have chosen a religious …

Qualified Intimacy, Celebrity, And The Case For A Newsgathering Privilege, Rodney A. Smolla

Scholarly Articles

Not available.

The Constitutionality Of Mandatory Public School Service Programs, Rodney A. Smolla

Scholarly Articles

Part of a special issue on amateurs in public service and their involvement in volunteering, service-learning, and community service. An analysis of the constitutionality of mandatory public school community service programs is presented. The legality of such programs is examined with reference to conditions, coercion, and the right-privilege distinction; community service as involuntary servitude; the substantive due process doctrine; conscientious objection based on religion or ideology; and organizational inclusion and exclusion. It is acknowledged that community service programs are not value-neutral, in that they obviously reflect the community's philosophical and cultural judgments regarding the mission and function of public schools. …

Protecting Privacy On The Front Page: Why Restrictions On Commercial Use Of Law Enforcement Records Violate The First Amendment, Jason L. Cagle

Vanderbilt Law Review

An individual is involved in an automobile accident and is arrested for driving under the influence. A few days after being re- leased, he receives several letters in the mail. One is from a chiropractor offering services to treat his injuries. Another is from an alcohol abuse treatment center. Yet another is from an attorney who defends traffic offenses. Each of the solicitors obtained the individual's name and address from publicly available records concerning the incident. The letters are truthful and not misleading, but utilize publicly available information for purely commercial purposes at the expense of the individual's privacy.

Several …

Wanted Posters, Bulletproof Vests, And The First Amendment: Distinguishing True Threats From Coercive Political Advocacy, Leigh Noffsinger

Washington Law Review

In February 1999, an Oregon jury returned a $107 million verdict for doctors who successfully argued that antiabortion activists' propaganda, in the form of posters and a web site, constituted true threats in violation of federal law. The judge rejected the activists' argument that the First Amendment protected their speech and instructed that if a reasonable person would have foreseen that the communication would be interpreted as threatening, the jury must find in favor of the plaintiffs. This Comment argues that the dichotomy of analysis under two leading U.S. Supreme Court cases has led to conflicting standards that provide insufficient …

Constitutional Law—First Amendment Rights Of Direct Democracy Participants Versus The State's Interest In Regulating The Election Process. Buckley V. American Constitutional Law Foundation, Inc., 119 S. Ct. 636 (1999)., Jennifer Modersohn

University of Arkansas at Little Rock Law Review

No abstract provided.

Section 1: Mitchell V. Helms, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 5: First Amendment, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

The Believer's First Amendment (Review Of Separating Church And State, By Timothy L. Hall), Marcus Mumford

BYU Law Review

No abstract provided.

Deconstructing Deconstruction (Review Of The Rhetoric Of Church And State, By Frederick Mark Gedicks), D. Heath Bailey

BYU Law Review

No abstract provided.

Using The Religion Clauses To Secure Religious Liberty (Review Of Securing Religious Liberty, By Jesse Choper), Jared Goff

BYU Law Review

No abstract provided.

The Developmental Progress Of Free Exercise (Review Of The Lustre Of Our Country, By John T. Noonan, Jr.), Charlene Davis Luke

BYU Law Review

No abstract provided.

The First Amendment: Saving Us From Ourselves (Review Of No Liberty For License, By David Lowenthal), Cory A. Talbot

BYU Law Review

No abstract provided.

Religion And Democracy, Steven H. Shiffrin

Cornell Law Faculty Publications

Should citizens armed with religious reasons for public policy outcomes present those reasons in the public forum or otherwise rely on them in making decisions? Those questions have produced a flurry of scholarship, both within and outside of the law. Moreover, as Kent Greenawalt's work richly demonstrates, these related questions raise many more questions still. Do the answers to those questions differ, for example, if the citizen is a judge, a legislator, a columnist, a religious leader, or a "mere" voter? Are some religious reasons acceptable for presentation in a public forum, but not others?

If one holds a constricted …