First Amendment Commons^™

Recent Decision: Religious Oaths

The Catholic Lawyer

No abstract provided.

Note: A Daily Prayer For Public Schools

The Catholic Lawyer

No abstract provided.

Mental Disorders And Criminal Responsibility; Obscenity Statutes And First Amendment Freedoms;

The Catholic Lawyer

No abstract provided.

How To Think About Religious Freedom In An Egalitarian Age, Nelson Tebbe

Faculty Scholarship

No abstract provided.

How To Think About Religious Freedom In An Egalitarian Age, Nelson Tebbe

Cornell Law Faculty Publications

No abstract provided.

Religious Freedom In Faith Based Educational Institutions In The Wake Of Obergefell V. Hodges: Believers Beware, Charles J. Russo

Brigham Young University Education and Law Journal

No abstract provided.

The Wrong Of Publicity, Albert Vetere

Pace Intellectual Property, Sports & Entertainment Law Forum

The right of publicity has been, since at least 1977, a recognized concept. It was used, much like the other areas of intellectual property law to protect what a person had worked hard to create, in this case the concept of themselves. Their creativity in making themselves known and in having an "act" was worth protecting. However, the right of publicity has drastically changed since its conception. What is has become in the past almost forty years is a strange amalgamation of concepts, protected by laws that were never meant to be used to protect it in the first place. …

Prosecuting Online Threats After Elonis, Michael Pierce

Northwestern University Law Review

In Elonis v. United States, decided last term, the Supreme Court vacated a conviction for online threats on the ground that the lower court erred in its instructions to the jury regarding mens rea. In doing so, however, the Court declined to articulate which mens rea standard would have sustained a conviction. It is thus currently uncertain which mens rea the government must prove when prosecuting online threats under 18 U.S.C. § 875(c). The Elonis Court discussed three potential mens rea standards; as universal standards for online threats, each leaves something to be desired. Fortunately, federal courts need not …

Exceptionalism Unbound: Appraising American Resistance To Foreign Law, Mark C. Rahdert

Catholic University Law Review

In a statewide referendum, voters approved a change to the Oklahoma state constitution, adopting restrictions on state judges’ ability to use of foreign law. Dubbed the “Save Our State” (“SOS”) Amendment, the measure forbade Oklahoma state judges from considering or using international or foreign law, except where required to do so by federal statutes or treaties. The SOS Amendment particularly prohibited the use of Sharia law. Similar measures (usually without specific references to Sharia law) have been proposed or adopted elsewhere.

These Amendments, as well as other developments in American politics, reflect a vigorous new strain of a deep-seated tendency …

Forging Ahead From Ferguson: Re-Evaluating The Right To Assemble In The Face Of Police Militarization, Ashley M. Eick

William & Mary Bill of Rights Journal

No abstract provided.

Fissures, Fractures & Doctrinal Drifts: Paying The Price In First Amendment Jurisprudence For A Half Decade Of Avoidance, Minimalism & Partisanship, Clay Calvert, Matthew D. Bunker

William & Mary Bill of Rights Journal

This Article comprehensively examines how the U.S. Supreme Court’s adherence to principles of constitutional avoidance and judicial minimalism, along with partisan rifts among the Justices, have detrimentally affected multiple First Amendment doctrines over the past five years. The doctrines analyzed here include true threats, broadcast indecency, offensive expression, government speech, and strict scrutiny, as well as the fundamental dichotomy between content-based and contentneutral regulations.

Taking A Bite Out Of Michael Vick's Publicity Rights: An Analysis Of How Teh Right Of Publicity Should Be Treated After A Celebrity Is Convicted Of A Crime, Stephen Reginald Fowler

Journal of Intellectual Property Law

No abstract provided.

Rights Of Publicity: A Practitioner's Enigma, Gil N. Peles Esq.

Journal of Intellectual Property Law

No abstract provided.

Recent Decision: Constitutional Law - Restriction Of American Citizens’ Right Of Access To Information And Ideas In The Court Of Government Control Of Immigration Is Not Unconstitutional When Supported By A Facially Legitimate Reason, W. P. Bishop, Joseph C. Vanzant

Georgia Journal of International & Comparative Law

No abstract provided.

Partly Accultured Religious Activity: A Case For Accommodating Religious Nonprofits, Thomas C. Berg

Notre Dame Law Review

This Article argues that we should make real efforts to protect religious freedom for partly acculturated religious activities and organizations. We should not reject their claims broadly or per se and thereby exclude them from the efforts at accommodation that other groups receive. The law should not force all religious organizations and activities into one of the two polar categories, acculturated or unacculturated. Part II of this Article presents several reasons why there is a strong interest in protecting the freedom to engage in partly acculturated religious activity.

The Tortuous Course Of Religious Freedom, Steven D. Smith

Notre Dame Law Review

This Essay, written for a conference at Notre Dame on Dignitatis Humanae, considers new challenges to and issues for religious freedom that have arisen recently in a world significantly changed from that of the 1960s, when the Declaration was first issued.

If Religious Liberty Does Not Mean Exemptions, What Might It Mean? The Founders’ Constitutionalism Of The Inalienable Rights Of Religious Liberty, Vincent Phillip Munoz

Notre Dame Law Review

The Article is divided into three Parts. Part I documents the Founders’ shared understanding that religious liberty is a natural right possessed by all individuals. Part II explains what the Founders meant when they labeled aspects of religious liberty an “unalienable” natural right. The inalienable character of the core of religious liberty reveals what the Founders found special about religion. It also accounts for religion’s special constitutional status, which for the Founders primarily meant specific jurisdictional limits on state sovereignty rather than exemptions. Part III further clarifies the Founders’ constitutionalism of religious freedom by explaining how the Founders understood natural …

Religious Exemptions, Third-Party Harms, And The Establishment Clause, Christopher C. Lund

Notre Dame Law Review

Religious exemptions are important, and sometimes required by the Free Exercise Clause. But religious exemptions can also be troubling, and sometimes forbidden by the Establishment Clause. It is the latter issue with which this Essay concerns itself. But now a different question, which raises a different conception of the Establishment Clause: When are religious exemptions improper or unconstitutional because they burden third parties? This issue of third-party harms has received a lot of attention, especially in light of Hobby Lobby. Hobby Lobby initially sought an exemption from the contraceptive mandate that would have come at the expense of their employees, …

Two Aspects Of Liberty, John H. Garvey

Notre Dame Law Review

Liberty in the constitutional sense is always a right against state interference (a “freedom from”). The First Amendment begins by saying that “Congress shall make no law”; it forbids Congress to license or fine or jail people for speaking, or publishing, or assembling. Liberty is also, always, a right to do something (a “freedom to”): to speak, to assemble, to practice religion, to get married, etc. So “freedom from” and “freedom to” are always parts of the same idea, just as “flying from” and “flying to” are aspects of the same airplane trip. Freedom is always the right to do …

Catholic Constitutionalism From The Americanist Controversy To Dignitatis Humanae, Anna Su

Notre Dame Law Review

This Article, written for a symposium on the fiftieth anniversary of Dignitatis Humanae, or the Roman Catholic Church’s Declaration on Religious Freedom, traces a brief history of Catholic constitutionalism from the Americanist controversy of the late nineteenth century up until the issuance of Dignitatis Humanae as part of the Second Vatican Council in 1965. It argues that the pluralist experiment enshrined in the First Amendment of the U.S. Constitution was a crucial factor in shaping Church attitudes towards religious freedom, not only in the years immediately preceding the revolutionary Second Vatican Council but ever since the late nineteenth century, …