First Amendment Commons^™

A Tale Of Two Clauses: Search And Seizure, Establishment Of Religion, And Constitutional Reason, Perry Dane

William & Mary Bill of Rights Journal

This Article dissects two developments in widely separate areas of American constitutional law—the “reasonable expectation of privacy” test for the Fourth Amendment’s Search and Seizure Clause and the “endorsement” test for the First Amendment’s Establishment Clause. These two stories might seem worlds apart, and they have not previously been systematically examined together. Nevertheless, the Article argues that they have in common at least three important symptoms of our legal culture’s deep malaise. These three phenomena occur in other contexts, too, but they appear with special clarity and a stark cumulative force in the two stories on which this Article focuses. …

Not Today, Satan: Re-Examining Viewpoint Discrimination In The Limited Public Forum, Daniel Cutler

William & Mary Bill of Rights Journal

No abstract provided.

The Visibility Value Of The First Amendment, Brian C. Murchison

William & Mary Bill of Rights Journal

No abstract provided.

Political Ideology As A Limited Protected Class Under Federal Title Vii Antidiscrimination Law, Anne Carey

Journal of Law and Policy

As the political climate in the United States becomes increasingly divided, more and more employees are fired for their off-duty political speech. Political speech is highly protected from government interference under the First Amendment, but it is not well protected from discrimination in employment matters. This is despite the fact that employers can be just as powerful and influential as the government. Although employee political speech is not currently protected at the federal level, there are a myriad of state statutes that protect employee speech from employer retaliation. Some of these state statutes protect speech on a broader level, others …

Is There Any Silver Lining To Trinity Lutheran Church, Inc. V. Comer?, Caroline Mala Corbin

Michigan Law Review Online

Trinity Lutheran Church, Inc. v. Comer is a significant setback for a strong separation of church and state. Missouri denied a playground grant to Trinity Lutheran because of a state constitutional provision that bans financial aid to churches. The church sued. The Supreme Court held not only that the Establishment Clause allowed the government to give taxpayer money to Trinity Lutheran, but that the Free Exercise Clause required it. The decision's many flaws are not the focus of this short Essay. Instead, this Essay dissects the Supreme Court's reasoning in order to apply it to current controversies in related areas …

Islam And Religious Freedom: The Experience Of Religious Majorities And Minorities, Brett G. Scharffs

Notre Dame Law Review Reflection

It seems likely that change in Islam will be affected both by outside and internal sources, as was the case for the Catholic Church and its journey to Dignitatis Humanae. However, one thing the Catholic experience suggests is that meaningful and profound change does not simply come from outside pressures; it comes from authentic and sincere evaluation and interpretation by insiders of a religious tradition of that tradition itself. Thus, if Islam is going to come to embrace religious freedom as an important value, this will be the result, significantly if not primarily, of Muslims interpreting their own sacred …

Hollywood Loving, Kevin Noble Maillard

Fordham Law Review

In this Essay, I highlight how nongovernmental entities establish political, moral, and sexual standards through visual media, which powerfully underscores and expresses human behavior. Through the Motion Picture Production Code (the “Hays Code”) and the Code of Practices for Television Broadcasters (the “TV Code”), Americans viewed entertainment as a pre-mediated, engineered world that existed outside of claims of censorship and propaganda. This Essay critically examines the role of film and television as persuasive and integral legal actors and it considers how these sectors operate to maintain, and sometimes challenge, racial order.

University Regulation Of Student Speech: In Search Of A Unified Mode Of Analysis, Patrick Miller

Michigan Law Review

Universities are meant to be open marketplaces of ideas. This requires a commitment to both freedom of expression and inclusivity, two values that may conflict. When public universities seek to promote inclusivity by prohibiting or punishing speech that is protected by the First Amendment, courts must intervene to vindicate students’ rights. Currently, courts are split over the appropriate mode of analysis for reviewing public university regulation of student speech. This Note seeks to aid judicial review by clarifying the three existing approaches—public forum analysis, traditional categorical analysis, and a modified version of the Supreme Court’s education-specific speech doctrine—and proposes a …

Free Exercise And Comer: Robust Entrenchment Or Simply More Of A Muddle?, Mark Strasser

University of Richmond Law Review

Several states are barred by their own constitutions from spending public monies in support of sectarian institutions. The United States Supreme Court has manifested great ambivalence about the constitutionality of such limitations. Sometimes, the Court has impliedly endorsed them as a reasonable measure to assure that Establishment Clause guarantees are respected. At other times, the Court has suggested that such limitations are constitutionally disfavored, although the Court has not yet held that such amendments are per se unconstitutional. The Court’s most recent decision addressing state constitutional spending limitations, Trinity Lutheran Church of Columbia, Inc. v. Comer, adds another layer of …

Race, Speech, And Sports, Matthew J. Parlow

University of Richmond Law Review

Race, sports, and free speech rights intersected in a very controversial and public way during the 2016 and 2017 National Football League (“NFL”) seasons. On August 26, 2016, Colin Kaepernick spurred a national debate when he refused to stand during the playing of the national anthem before the NFL preseason game between the Green Bay Packers and the San Francisco 49ers, Kaepernick’s team at the time.

Reconsidering Selective Conscientious Objection, Andrew J. Haile

University of Richmond Law Review

In 1971, in the midst of the Vietnam War, the United States Supreme Court decided that to qualify as a conscientious objector (“CO”) one must oppose all war, and not just a particular war. The Court’s decision in Gillette v. United States turned on its interpretation of section 6(j) of the Military Selective Service Act. Section 6(j) provided, in relevant part, that no person shall “be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.” According to …

Drawing The Line: The Jurisprudence Of Non-Consensual Pornography And The Implications Of Kanye West’S Famous Music Video, Karla Utset

University of Miami Law Review

In June 2016, American rapper Kanye West premiered the music video for Famous from his seventh studio album “The Life of Pablo.” West’s Famous music video, inspired by Vincent Desiderio’s painting Sleep, features nude replications of several celebrities lying together on a bed. The cinematography is voyeuristic, with one journalist describing the video as “predatory.” In making and publicizing the infamous music video, West failed to seek and acquire the consent of several of the individuals featured. The production received both considerable praise and backlash from artists, critics, and the celebrities depicted.

This Note discusses the jurisprudence of non-consensual pornography, …

Harmonizing The Tension Between The First Amendment And Publicity Rights And Finding The Right Balance: Discerning How Much Freedom Is Warranted And What Needs Protection, William Buchsbaum

The University of Cincinnati Intellectual Property and Computer Law Journal

This paper examines the tension between the First Amendment and Publicity Rights considering why and how friction is emerging, the legal underpinnings and theories behind the development of publicity rights and how to reconcile this with values raised in support of the First Amendment. This collision course of rights occurs where property interests have vested in human identity itself which brings us face to face with the outer limits of free speech and expression under the First Amendment and evens tests the notion of how we define speech. The paper takes a dive into some of the currently arising issues …

Gerrymandering And Association, Daniel P. Tokaji

William & Mary Law Review

No abstract provided.

Law School News: 'Marketplace Of Ideas' Imperiled (04-05-2018), David A. Logan

Life of the Law School (1993- )

No abstract provided.

Rwu First Amendment Blog: David Logan's Blog: Media Centralization Imperils Marketplace Of Ideas 04-05-2018, David A. Logan

Law School Blogs

No abstract provided.

Professional Standards And The First Amendment In Higher Education: When Institutional Academic Freedom Collides With Student Speech Rights, Clay Calvert

St. John's Law Review

(Excerpt)

Using the decisions in Keefe, Oyama and Tatro as analytical springboards, this Article examines rising tensions between institutional academic freedom and the First Amendment speech rights of college students. Specifically, the friction addressed here occurs when universities enforce external professional standards on students within their curricula. Initially, Part I provides a primer on institutional academic freedom. Part II then contrasts the vastly deferential Hazelwood approach to professional-standards disputes embraced by the Eighth Circuit in Keefe with the somewhat more rigorous ones adopted by the Ninth Circuit in Oyama and Minnesota’s Supreme Court in Tatro.

Part III then …

Corporate Social Responsibility And Social Media Corporations: Incorporating Human Rights Through Rankings, Self-Regulation And Shareholder Resolutions, Erika George

Utah Law Faculty Scholarship

This article examines the emergence and evolution of selected ranking and reporting frameworks in the expanding realm of business and human rights advocacy. It explores how indicators in the form of rankings and reports evaluating the conduct of transnational corporate actors can serve as regulatory tools with potential to bridge a global governance gap that often places human rights at risk. This article examines the relationship of transnational corporations in the Internet communications technology sector (ICT sector) to human rights and the risks presented to the right to freedom of expression and the right to privacy when ICT sector companies …

Inciting Terrorism On The Internet: The Limits Of Tolerating Intolerance, Amos N. Guiora

Utah Law Faculty Scholarship

The Internet is a limitless platform for information and data sharing. It is, in addition, however, a low-cost, high-speed dissemination mechanism that facilitates the spreading of hate speech, including violent and virtual threats. Indictment and prosecution for social media posts that transgress from opinion to incitable hate speech are appropriate in limited circumstances. Several real-world examples discussed here help to explore when limitations on Internet-based hate speech are appropriate.

In October 2015, twenty thousand Israelis joined a civil lawsuit filed against Facebook in the Supreme Court for the State of New York. Led by the civil rights organization Shurat HaDin, …

The First Amendment, The University And Conflict: An Introduction To The Symposium, Christina E. Wells

Faculty Publications

Universities across the country have experienced a dramatic increase in free speech conflicts - i.e., an experience of discord between individuals or groups of speakers. These conflicts occur in various forms. For example, members of university communities (e.g., students, staff, or faculty) have protested controversial speakers. Some have called for universities to disinvite controversial speakers. Others have heckled or shouted down speakers. Finally, some members of university communities - usually students - have protested university officials' or other students' expression by occupying buildings, camping or interrupting meetings in order to disseminate their message. It is common to view resolution of …