First Amendment Commons^™

Narrative Pluralism And The Doctrine Incoherence In Hosanna-Tabor, Frederick Mark Gedicks

Faculty Scholarship

In Hosanna-Tabor Church and School v. EEOC, the Supreme Court recognized for the first time that the Religion Clauses require a “ministerial exception” to federal antidiscrimination laws, holding that religious congregations have a broad and categorical immunity against government interference in ministerial employment decisions.

Hosanna-Tabor is filled with ironies. The case is as much about unjustified discrimination and administrative inconsistency as religious liberty. The Court’s endorsement of the exception as a feature of church autonomy overlooks that churches subvert autonomy as often as they protect it. The exception described by the Court is so broad, absolute, and inflexible that it …

Virtual Assembly, John D. Inazu

Scholarship@WashULaw

This Article provides one of the first scholarly considerations of the constitutional boundaries for online groups. It explores both why and how we should protect these groups by asking two related questions. The first question is theoretical: do online groups implicate the kinds of values that warrant elevated constitutional protection. The second question is doctrinal: what is the best framework for providing constitutional protection to these groups. The Article argues that we should protect online groups because they advance important First Amendment values and because the line between our offline and our online groups is collapsing. Turning to the doctrinal …

In-Corp-O-Real: A Psychological Critique Of Corporate Personhood And Citizens United, Teneille R. Brown

Utah Law Faculty Scholarship

It seems absurd today that a robot’s political speech could ever warrant First Amendment protection. And yet, fifty years ago the same claim regarding corporations would have seemed equally absurd. But here we are, with anthropomorphized corporations enjoying political free speech rights equal to ordinary human beings. While corporations are constitutional people and robots presently are not, it is not obvious that this will, or should, remain this way forever. In the not-too-distant future, robots will more closely resemble human beings in appearance and function. When — not if — this happens, how will courts distinguish corporations from robots for …

In The System: Facilitating The Reunification Of The Child And The Parents Through Religion, Cherie Nicole Brown

Articles & Chapters

No abstract provided.

The Contraception Mandate, Caroline Mala Corbin

Articles

Under the new health care regime, health insurance plans must cover contraception. While religious employers are exempt from this requirement, religiously affiliated employers are not. Several have sued, claiming that the "contraception mandate" violates the Free Exercise Clause, the Free Speech Clause, and the Religious Freedom Restoration Act. This Essay explains why the contraception mandate violates none of them.

The Tools Of Political Dissent: A First Amendment Guide To Fun Registries, Thomas E. Kadri

Articles

No abstract provided.

Is Prayer Constitutional At Municipal Council Meetings?, Thomas A. Schweitzer

Scholarly Works

The author discusses Galloway v. Town of Greece, a case which challenges official prayers at town council meetings. To provide the necessary background information for understanding the issues in Galloway, the author begins with a brief discussion of two other cases, Lemon v. Kurtzman and Marsh v. Chambers. The author then examines the district and circuit court decisions in Galloway and the Establishment Clause issues posed by the case. Next, the author notes issues raised by other lower court decisions involving legislative prayer after Marsh.

Towards the end of the article, to clarify and decide the constitutional issues, the author …

Performance Anxiety: Copyright Embodied And Disembodied, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

The primary economic and cultural significance of copyright today comes from works and rights that weren’t contemplated by the Framers of the Constitution’s Copyright Clause. Performance—both as protected work and as right—is where much of copyright’s expansion has had its greatest impact, as new technologies have made it possible to fix performances in records and films and as cultural change has propelled recorded music and audiovisual works to the forefront of the copyright industries. Yet copyright has never fully conceptualized performance, and this has led to persistent confusion about what copyright protects.

One key problem of performance from copyright’s perspective …

Buy My Vote: Online Reviews For Sale, Kendall L. Short

Vanderbilt Journal of Entertainment & Technology Law

The Internet has granted consumers access to a wealth of information to use in researching products and services. A substantial portion of this information consists of online consumer reviews, which hold great influence over consumers' purchasing decisions due to their perceived honesty and independence from the company. The problem with relying on these reviews, however, is that real consumers may not be the authors; instead, companies often hire writers to fabricate reviews, known as "opinion spam," which can either be positive for the hiring company or negative toward an innocent competitor. Because these fake reviews are difficult to detect, both …

Wipo And The American Constitution: Thoughts On A New Treaty Relating To Actors And Musicians, Hannibal Travis Professor Of Law

Vanderbilt Journal of Entertainment & Technology Law

The World Intellectual Property Organization (WIPO) is seeking to reform U.S. copyright law. The WIPO Treaty on Audiovisual Performances (AV Treaty) would restrict the communication of actors' and musicians' performances without authorization. The treaty would probably make it illegal to display or show clips of performances, or make a movie or YouTube video by transforming or adapting other actors' or musicians' performances, particularly when the original credits and copyright information are dropped. This Article analyzes key provisions of the AV Treaty to ascertain whether they change US law, or merely globalize existing US doctrines. This Article describes the threat posed …

From Berne To Beijing: A Critical Perspective, David Lange

Vanderbilt Journal of Entertainment & Technology Law

Remarking on the Beijing Treaty on Audiovisual Performances at the Vanderbilt Journal of Entertainment & Technology Law's Symposium, From Berne to Beijing, Professor Lange expressed general misgivings about exercising the Treaty Power in ways that alter the nature of US copyright law and impinge on other constitutional rights. This edited version of those Remarks explains Professor Lange's preference for legislation grounded squarely in the traditional jurisprudence of the Copyright Clause, the First Amendment, and the public domain, and his preference for contracting around established expectations rather than reworking default rules through treaties. It continues by exploring the particular costs associated …

Unequal Treatment Of Religious Exercises Under Rfra: Explaining The Outliers In The Hhs Mandate Cases, Mark L. Rienzi

Scholarly Articles

Ongoing conflict over the contraceptive mandate promulgated by the Department of Health and Human Services ("HHS") has resulted in more than two dozen lawsuits by profit-making businesses and their owners seeking protection under the Religious Freedom Restoration Act ("RFRA"). To date, the businesses and their owners are winning handily, having obtained preliminary relief in seventeen of the cases, and being denied relief in only six. Last month, in fact, a panel of the D.C. Circuit Court of Appeals took the extraordinary step of reconsidering and reversing its own prior ruling and granting a preliminary injunction to a business seeking RFRA's …

Analogies And Institutions In The First And Second Amendments: A Response To Professor Magarian, Darrell A.H. Miller

Faculty Scholarship

In this essay, Professor Darrell Miller responds to Professor Gregory Magarian's criticism of the manner in which judges, advocates, and scholars have used the First Amendment to frame Second Amendment interpretive questions.

Implementing First Amendment Institutionalism, Joseph Blocher

Faculty Scholarship

No abstract provided.

Algorithms And Speech, Stuart M. Benjamin

Faculty Scholarship

One of the central questions in free speech jurisprudence is what activities the First Amendment encompasses. This Article considers that question in the context of an area of increasing importance – algorithm-based decisions. I begin by looking to broadly accepted legal sources, which for the First Amendment means primarily Supreme Court jurisprudence. That jurisprudence provides for very broad First Amendment coverage, and the Court has reinforced that breadth in recent cases. Under the Court’s jurisprudence the First Amendment (and the heightened scrutiny it entails) would apply to many algorithm-based decisions, specifically those entailing substantive communications. We could of course adopt …

Nonsense And The Freedom Of Speech: What Meaning Means For The First Amendment, Joseph Blocher

Faculty Scholarship

A great deal of everyday expression is, strictly speaking, nonsense. But courts and scholars have done little to consider whether or why such meaningless speech, like nonrepresentational art, falls within “the freedom of speech.” If, as many suggest, meaning is what separates speech from sound and expression from conduct, then the constitutional case for nonsense is complicated. And because nonsense is so common, the case is also important — artists like Lewis Carroll and Jackson Pollock are not the only putative “speakers” who should be concerned about the outcome.

This Article is the first to explore thoroughly the relationship between …

Emerging Technologies And Dwindling Speech, Jorge Roig

Scholarly Works

Inspired in part by the recent holding in Bland v. Roberts that the use of the “Like” feature in Facebook is not covered by the Free Speech Clause, this article makes a brief foray into the approach that courts have taken in the recent past towards questions of First Amendment coverage in the context of emerging technologies. Specifically, this article will take a closer look at how courts have dealt with the issue of functionality in the context of First Amendment coverage of computer source code. The analysis of this and other recent experiences, when put in a larger context, …

Law And Religion For Nonhuman Persons, Mark Goldfeder

Scholarly Works

On December 2, 2013, the Nonhuman Rights Project (NHRP), a national nonprofit organization working to get actual legal rights for members of nonhuman species filed a lawsuit in Fulton County, New York petitioning the judges for a writ of habeas corpus. A habeas corpus allows for a person being held captive to be brought before a court to determine if their imprisonment is lawful. Habeas corpus suits are filed all the time; what made this one historic was that it was not filed for a human being. The writ in question asked the court to formally recognize that a 26 …

Law, Religion, And Culture Intertwined: A Case Study In The Development Of American Jewish Law, Mark Goldfeder

Scholarly Works

Law and religion share an underlying structure built on commandments and corresponding commitments. They also share a space in the formal regulation of a person's daily life. Oftentimes, they attempt to legislate in the same specific areas, and oftentimes they come to different final conclusions, or to similar conclusions, but for very different reasons. This article explores the concept of child support in Jewish and American law, respectively, noting how the standards that Jewish law courts impose are actually governed by the hybrid and sometimes competing claims of religious law, secular law, and contemporary cultural norms. In some times and …

War Of The Words: Why False Statements Should Be Guaranteed First Amendment Protection, Virginia R. Priddy

Georgia Law Review

In Haley v. State, the Georgia Supreme Court upheld
the conviction of Andrew Scott Haley for making a false
statement. Haley created a username and posted videos to
the Internet in which he claimed to have committed a
series of murders, goading his audience to try to solve the
"mysteries." Haley was convicted under a Georgia statute
that proscribes the making of a false statement within the
jurisdiction of an agency or department of state of Georgia.
After discussing the historical legal and philosophical
underpinnings of the First Amendment right to free
speech, this Note argues that the Georgia statute …