First Amendment Commons^™

Separation Of Church And Law: The Ministerial Exception In Demkovich V. St. Andrew The Apostle Parish, Jonathan Murray

University of Colorado Law Review

Religious freedom is increasingly invoked to defeat liability for behavior that has long been regulated under accepted, neutral law, an argument to which many courts and judges appear receptive. One such area of law seeing this activity is the ministerial exception-a judicial principle recognized under the First Amendment. The ministerial exception guarantees religious organizations' discretion in how they select their "ministers,"or religious employees dedicated to the organization's religious mission. However, current law lacks clarity regarding the application of the exception to an organization's treatment of its ministers. Recently, the Seventh Circuit, sitting en banc, chose to categorically expand the application …

Reconsidering The Public Square, Helen L. Norton

Publications

No abstract provided.

A Pleasure To Burn: How First Amendment Jurisprudence On Book Banning Bolsters White Supremacy, Amy Anderson

Mitchell Hamline Law Review

No abstract provided.

Domestic Terrorism Classification In The United States V. Canada And The United Kingdom, Michelle Hayek

Brooklyn Journal of International Law

For the past two decades, discourse on terrorism (both global and domestic) has been commonplace throughout the international sphere. Following the attacks on September 11, 2001, many nations have followed suit in launching counterterrorism operations to identify and prevent attacks by both radical groups and lone actors. While the common narrative has focused on “why” terrorist actors commit heinous acts and “how” to best prevent future incidents from emerging, it is important to analyze the legal nuances between prosecuting domestic versus international terrorists. With the rise on “homegrown” domestic lone actors, nations have had to reevaluate and adapt counterterrorism statutes …

Different Countries, Same Homophobia And Transphobia: A Cross-Cultural Survey Of So-Called Conversion Therapy Practices And The Move Toward Legislative Protections For The United States Lgbtq+ Community, Samantha J. Past

Brooklyn Journal of International Law

So-called “conversion therapy” consists of dangerous practices that inflict detrimental, long-lasting effects on its victims. As a form of sexual orientation or gender identity or gender expression change efforts, conversion therapy is fostered by global homophobia and transphobia. Despite formal public rejection and scientific discreditation, conversion therapy providers across the world continue to target LGBTQ+ individuals, predominately under the guise of offering health care services or obeying religious practices. The following piece compares conversion therapy in three countries with recently introduced LGBTQ+ legislation––(1) Ghana; (2) Canada; and (3) the United States (U.S.)–––in order to identify factors furthering conversion therapy and …

The Great American Word Purge, Jethro K. Lieberman

Other Publications

No abstract provided.

Revisiting Employment Division V. Smith, Blaine L. Hutchison

University of Cincinnati Law Review

The Supreme Court wrongly decided Employment Division v. Smith. Without briefing or argument over the Free Exercise Clause’s meaning, Smith eliminated the constitutional right to exercise religion and replaced it with an equal protection rule. The decision threatens religious freedom and encourages conflict. The Supreme Court should revisit Smith. This article shows that the majority’s arguments in Smith fail and contradict the Free Exercise Clause’s text, purpose, and original meaning.

The Smith majority gave no sound legal or policy reason for its decision. Indeed, the decision conflicted with settled precedents that no party questioned. Nor did it determine …

Investigative Deception Across Social Contexts, 22-14 Knight First Amend. Inst. (Dec. 16, 2022), Alan K. Chen

Sturm College of Law: Faculty Scholarship

This essay explores investigative deceptions, intentional lies used to gather information that is in the public interest, across different areas of law. In some contexts, such falsehoods are viewed as producing great social benefits. For example, civil rights laws embrace intentional lies by testers to smoke out discriminatory conduct. Under federal labor law, union 'salts' are allowed to hide their identity and acquire jobs with employers whose workers they wish to organize. In most cases, law enforcement officers may engage in elaborate subterfuges when operating 'stings' and interrogating witnesses. In these contexts, the law permits a person to lie in …

Social Media And The Common Law, Leslie Y. Garfield Tenzer

Brooklyn Law Review

The framers of the United States Constitution and those who developed the early common law were no strangers to printed media. They could not, however, have anticipated the widespread ability of average people to communicate instantaneously with large audiences via platforms like Facebook, Instagram, and Twitter. Despite this new technology, courts have primarily relied on pre-social media precedent, rules of law, and the Constitution for guidance when confronted with civil and criminal social media misconduct. On the one hand, relying on existing law is a good thing; it reaffirms the judiciary's commitment to precedent and stare decisis. On the other …

If You Can’T Beat Them, Get Even: A Proposal To Level The Playing Field Between Social Media Platforms And Their Wrongfully Removed Users, Bernie Gabrielle Toledano

Brooklyn Law Review

Millions of individuals in the United States maintain both personal and business accounts on social media platforms, a handful of which dominate the market for online content. However, if one of these platforms removes an account without cause, the affected user has little recourse because most platforms’ Terms of Service contain clauses allowing them to terminate user accounts for any reason. Nevertheless, as the power imbalance between platforms and users grows, scholars and judges are starting to believe that there is a need for greater regulation of these platforms. This note explores the ramifications of the social media regulatory gaps …

New Light On The History Of Free Exercise Exemptions: The Debates In Two Eighteenth-Century State Legislatures, Stanton D. Krauss

Catholic University Law Review

As Justice Gorsuch pointed out in his concurring opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719, 1734 (2018), there is an ongoing debate about whether the First Amendment ever requires the recognition of religion-based exemptions to neutral and generally applicable laws. The leading proponent of such exemptions has argued that the original understanding of the Free Exercise Clause supports his claim, and that the existence of such exemptions in preconstitutional American statutes – which he believed to have been granted because legislators thought them mandated by “the free exercise principle” – is one factor …

Put Mahanoy Where Your Mouth Is: A Closer Look At When Schools Can Regulate Online Student Speech, Courtney Klaus

Notre Dame Law Review

This Note proposes a way to approach online student speech in three different contexts: cyberbullying, online threats, and other kinds of incendiary speech. Each approach is informed by a combination of lower court precedent, historical trends, and Supreme Court dicta to piece together when exceptions to online student speech protection may apply. Each analysis provides an explanation of how Tinker can and should be used to justify school discretion over particular kinds of online speech. Part I provides the history behind how the First Amendment has been used to protect public school student speech and discusses the unique issues the …

The First Amendment And Military Justice: Threats To Political Neutrality, Joshua Paldino

Notre Dame Law Review Reflection

This backdrop illustrates a throughline that runs throughout, and creates tension within, the Military Justice system. On the one hand, there is a need to protect the individual rights of servicemembers. This concern is driven (in part) by the intuition reflected in Judge O’Connor’s opening sentences—those sworn to protect constitutional liberties should surely enjoy the benefits of that which they protect. On the other, individual rights protections must yield, to some degree, to the needs of military life and military exigency. Of course, "to some degree" is the space in which debate and maneuverability resides. But while discretionary space certainly …

The Dilemma Of Liberal Pluralism, Abner S. Greene

Buffalo Law Review

Supporters of reproductive rights and of queer rights may sometimes live in harmony with advocates for religious exemptions. But sometimes these goals conflict. This Article explores this tension as a matter of liberal democratic theory and U.S. constitutional law, offering a case for seeing a robust pluralism as contained within a proper understanding of the liberal democratic state. The state’s claimed authority may be the starting point, but just as the modern state was born in decentralized religious toleration, so should the modern state accommodate religious and other views of the good that compete with the state’s own views. The …

Rethinking Absolute Immunity From Defamation Suits In Private Quasi-Judicial Proceedings

The University of New Hampshire Law Review

No abstract provided.

Native America: Universities As Quasi-Cities, Sovereignty And The Power To Name, Victoria Sutton

American Indian Law Journal

Universities as quasi-cities have an obligation to reflect on their educational mission, and public universities have a responsibility to Native America through the unique federal trust responsibility owed to Native Nations by the federal government. The naming of buildings and transitioning to responsible adulthood requires universities, administrators, and students to reflect on who we were, who we are now, and whom we hope to be. Collaborative efforts to work with Native Nations should be undertaken with regard to naming issues.

Sovereigns possess power to control historical narratives and outcomes through their sovereign power to (1) name geographical places; (2) protect …

Hacking Copyright: Holding Cops Accountable For Abusing Youtube’S Copyright Filter System, Tyler Bloom

Journal of Law and Policy

This Note both explores the mechanisms and incentive structures that make “copyright hacking” possible and explains the legal system’s failure to provide recourse for victims of successful “copyright hacks” by police officers. Because the DMCA has failed to keep pace with the internet’s exponential growth, OSPs, such as YouTube, have developed filtering systems that can be exploited to “copyright hack” users and ultimately suppress their speech. A victim of “copyright hacking” by a police officer currently has no recourse; the doctrine of qualified immunity functionally precludes them from suing for violating their First Amendment rights. This Note proposes two possible …

Let's Get Real: Weak Artificial Intelligence Has Free Speech Rights, James B. Garvey

Fordham Law Review

The right to free speech is a strongly protected constitutional right under the First Amendment to the U.S. Constitution. In 2010, the U.S. Supreme Court significantly expanded free speech protections for corporations in Citizens United v. FEC. This case prompted the question: could other nonhuman actors also be eligible for free speech protection under the First Amendment? This inquiry is no longer a mere intellectual exercise: sophisticated artificial intelligence (AI) may soon be capable of producing speech. As such, there are novel and complex questions surrounding the application of the First Amendment to AI. Some commentators argue that AI …

Juridical Discourse For Platforms, Thomas E. Kadri

Articles

Facebook founder Mark Zuckerberg has created a private "Supreme Court," or so he says. Since 2021, his company's Oversight Board has issued verdicts on a smattering of Facebook's decisions about online speech. Cynics frame the Board as a Potemkin village, but defenders invoke analogies to separation of powers to claim that this new body empowers the public and restrains the company. Some are even calling for a single "platform supreme court" to rule over the entire industry.

Juridical discourse for platforms is powerful, but it can also be deceptive. This Response explores how juridical discourse has legitimized and empowered Facebook's …

Indoctrination By Elimination: Why Banning Critical Race Theory In Public Schools Is Unconstitutional, Emma Postel

William & Mary Bill of Rights Journal

This Note argues that Texas public school students’ First Amendment Rights have been violated by the passage of Senate Bill 3 (SB 3), which bans the teaching of Critical Race Theory (CRT) in K–12 public schools. The First Amendment is violated here because (1) students have a First Amendment right to speech, and this law bans protected speech; (2) students have a right to receive information, and this ban prevents them from receiving information; and (3) schools are meant to be the marketplace of ideas for students and banning CRT amounts to unconstitutional viewpoint discrimination. This Note does not suggest …