First Amendment Commons^™

Obergefell, Masterpiece Cakeshop, Fulton, And Public-Private Partnerships: Unleashing V. Harnessing "Armies Of Compassion" 2.0?, Linda C. Mcclain

Faculty Scholarship

Fulton v. City of Philadelphia presented a by-now familiar constitutional claim: recognizing civil marriage equality—the right of persons to marry regardless of gender—inevitably and sharply conflicts with the religious liberty of persons and religious institutions who sincerely believe that marriage is the union of one man and one woman. While the Supreme Court’s 9-0 unanimous judgment in favor of Catholic Social Services (CSS) surprised Court-watchers, Chief Justice Roberts’s opinion did not signal consensus on the Court over how best to resolve the evident conflicts raised by the contract between CSS and the City of Philadelphia. This article argues that it …

Covid-19, Churches, And Culture Wars, John D. Inazu

Scholarship@WashULaw

The First Amendment’s Free Exercise Clause often requires courts to balance competing interests of the highest order. On the one hand, the Constitution recognizes the free exercise of religion as a fundamental right. On the other hand, the government sometimes has compelling reasons for limiting free exercise, especially in situations involving dangers to health and safety. The shutdown and social distancing orders issued during the early phases of the COVID-19 pandemic not only restricted free exercise but also limited what many people consider to be the core of that exercise: religious worship. But the orders did so in order to …

The U.S. Supreme Court's Characterizations Of The Press: An Empirical Study, Sonja R. West, Ronnell Anderson Jones

Scholarly Works

The erosion of constitutional norms in the United States is at the center of an urgent national debate. Among the most crucial of these issues is the fragile and deteriorating relationship between the press and the government. While scholars have responded with sophisticated examinations of the President’s and legislators’ characterizations of the news media, one branch of government has
received little scrutiny—the U.S. Supreme Court. This gap in the scholarship is remarkable in light of the Court’s role as the very institution entrusted with safeguarding the rights of the press. This Article presents the findings of the first comprehensive empirical …

Platforms As Blackacres, Thomas E. Kadri

Scholarly Works

While writing this Article, I interviewed a journalist who writes stories about harmful technologies. To do this work, he gathers information from websites to reveal trends that online platforms would prefer to hide. His team has exposed how Facebook threatens people’s privacy and safety, how Amazon hides cheaper deals from consumers, and how Google diverts political speech from our inboxes. You’d think the journalist might want credit for telling these important stories, but he instead insisted on anonymity when we talked because his lawyer was worried he’d be confessing to breaking the law—to committing the crime and tort of cyber-trespass. …

Las Medidas De “Acomodación” De La Religión En El Derecho Estadounidense [Accommodation Of Religion In U.S. Law], Michael W. Mcconnell, Nathan Chapman

Scholarly Works

En este trabajo se analizan las medidas de acomodación de la religión, que gozan de una gran tradición en el derecho constitucional de los Estados Unidos, así como los debates que han generado desde el punto de vista de su conformidad con las cláusulas de la Primera Enmienda de la Constitución de los Estados Unidos: la cláusula de no establecimiento de una religión oficial y la cláusula de libre ejercicio de la religión. A lo largo del trabajo se analiza la principal jurisprudencia recaída sobre las medidas de acomodación y los test que se han construido para enjuiciarlas.

[This paper …

Battles Of The Mind: The Reaction Against Progressive Education, 1945-1959, Ben Yturri

Graduate Student Theses, Dissertations, & Professional Papers

This thesis discerns the relationships between three interrelated movements of the post-war period (circa 1945-1959): the overwhelming concern among leading intellectuals regarding the relationship between the individual and society, the post-war debates over education, and rising religious observance. Following WWII, the nation’s leading scholars and social critics addressed the most important problem facing the country and, for that matter, the world: how to avoid totalitarianism. Almost naturally, such anxieties influenced new debates over education. Broadly speaking, these controversies involved two related disputes over the efficacy of progressive education and the proper relationship between church and state. After World War II, …

Fragility, Not Superiority? Assessing The Fairness Of Special Religious Protections, Sherif Girgis

Journal Articles

Is it fair to grant exemptions from neutral laws to protect religion but not other deep commitments and pursuits, like secular conscience or care-giving bonds? The 30-year scholarly debate on this question now has legal import, as the Supreme Court stands poised to reverse precedent and restore free exercise exemptions from neutral laws. Whether it should, under stare decisis, turns partly on moral considerations like the fairness issue. And the debate is worth revisiting. Almost everyone has assumed that special religious protections are fair if and only if religion matters more than other interests. Yet protections for religion might be …

Government Employee Speech And Forum Analysis, Randy J. Kozel

Journal Articles

This Article analyzes the institution of government employment as a nonpublic forum. Forum analysis offers a framework for bringing the doctrine of government employee speech into alignment with broader First Amendment principles. It also sharpens the theoretical contours of employee speech law by underscoring the need for vigilance against ordained orthodoxy while acknowledging the necessity of managerial discretion over institutional operations. Characterizing government employment as a nonpublic forum circumvents problematic questions like whether employee speech has provoked an adverse reaction. The proper inquiry, in the employment context as in other nonpublic forums, is whether a speech restriction is reasonable and …

Content Under Pressure, Randy J. Kozel

Journal Articles

The government generally may not punish speakers based on the content of their speech. Or so the story goes. While American courts frequently describe content neutrality as a foundation stone of expressive liberty, the results do not track the recitations. A systematic analysis of free speech jurisprudence reveals that content-based laws remain acceptable across a host of situations. The pervasiveness of content discrimination requires a reorientation of First Amendment doctrine. The core precept of expressive liberty under the U.S. Constitution is that the government may not punish speakers for their positions or perspectives. The cases reveal that so long as …

Representation Without Elections: Civil Society Participation As A Remedy For The Democratic Deficits Of Online Speech Governance, Brenda Dvoskin

Scholarship@WashULaw

Giant social media companies wield oversized power over what gets communicated online. Yet, it remains unclear how to hold that power accountable to the public. In democracies, governments are limited in how much they can regulate speech directly, creating an obstacle for efforts to make online speech governance more democratic. Corporations are touting civil society consultations to try to regain trust in how they write their rules. Scholars and lawmakers, too, are looking to mandate increased reliance on civil society participation as a means to democratize private governance without involving governmental bodies.

These proposals often make two assumptions. One is …

Centering Noncitizens’ Free Speech, Gregory P. Magarian

Scholarship@WashULaw

First Amendment law pays little attention to noncitizens’ free speech interests. Perhaps noncitizens simply enjoy the same First Amendment rights as citizens. However, ambivalent and sometimes hostile Supreme Court precedents create serious cause for concern. This Essay advocates moving noncitizens’ free speech from the far periphery to the center of First Amendment law. Professor Magarian posits that noncitizens epitomize a condition of speech inequality, in which social conditions and legal doctrines combine to create distinctive, unwarranted barriers to full participation in public discourse. First Amendment law can ameliorate speech inequality by promoting an ethos of free speech obligation, amplifying the …

Ships Passing In The Night: The Communications Act And The Convergence On Broadband, Stuart Minor Benjamin

Faculty Scholarship

The Communications Act of 1934 and its amendments (the “Act”), and the regulations implementing them, have been enormously important to traditional telephony, broadcasting, and multichannel video. Meanwhile, the internet is barely mentioned in the Act. It thus might seem reasonable to conclude that the Act stands as a colossus and that the argument for overhauling it has grown much stronger as the Telecommunications Act of 1996 (the “1996 Act”) becomes ever more outdated. In this Article I suggest otherwise. Specifically, I make three claims—one descriptive, one a bit speculative, and one normative. The descriptive claim is that significant portions of …

Protecting Women's Voices: Preventing Retaliatory Defamation Claims In The #Metoo Context, Nicole Ligon

Faculty Scholarship

No abstract provided.

The Supreme Court’S Hands-Off Approach To Religious Questions In The Era Of Covid-19 And Beyond, Samuel J. Levine

Scholarly Works

No abstract provided.

Executive Discretion And First Amendment Constraints On The Deportation State, Jennifer Lee Koh

Georgia Law Review

Given the federal courts’ reluctance to provide clarity on the degree to which the First Amendment safeguards the free speech and association rights of immigrants, the immigration policy agenda of the President now appears to determine whether noncitizens engaging in speech, activism, and advocacy are protected from retaliation by federal immigration authorities. This Essay examines two themes: first, the discretion exercised by the Executive Branch in the immigration context; and second, the courts’ ambivalence when it comes to enforcing immigrants’ rights to be free from retaliation. To do so, this Essay explores the Supreme Court’s influential 1999 decision in Reno …

Fear Foreigners, And Free Expression: A Brief Reflection On Ideological Exclusion And Deportation In The United States, Julia Rose Kraut

Georgia Law Review

“Why should we be afraid of this man and his ideas?” asked Secretary of State William P. Rogers, referring to Belgian, Marxist economist Ernest Mandel.1 In 1969, Mandel applied for a nonimmigrant visa to visit the United States after receiving invitations to speak at several American colleges and universities, including Amherst College, Columbia University, Princeton University, Massachusetts Institute of Technology, and the New School for Social Research.2 Mandel had received visas to visit the United States twice before: one in 1962 and another in 1968.3 Yet, this time, Mandel’s application for a visa was denied.4

The State Department informed Mandel …

Immigration Detention And Dissent: The Role Of The First Amendment On The Road To Abolition, Alina Das

Georgia Law Review

The movement to abolish slavery relied heavily on the exercise and protection of enslaved and formerly enslaved people’s freedom of speech against robust efforts to suppress their messaging. The same is true in the context of the movement to abolish immigration detention. For decades, people in immigration detention, formerly detained people, and their allies have exercised their First Amendment rights to expose the conditions of their confinement and demand their freedom. In response to their protests and other forms of individual and collective expression, detained and formerly detained immigrants have faced suppression and retaliation, threatening not only their right to …

Intentional Discrimination And Haredi Jews, Michael Lewyn

Scholarly Works

No abstract provided.

Why Arkansas Act 710 Was Upheld, And Will Be Again, Mark Goldfeder

Scholarly Works

The recent Eighth Circuit ruling in Arkansas Times, LP v. Waldrip, a lawsuit revolving around an Arkansas state anti-discrimination bill, has been widely misreported and generally misunderstood. While the decision was actually very narrow, case-specific, and ripe for review, the misleading information presented to the public has led to speculation and fear that similar anti-discrimination legislation in dozens of other states might somehow be constitutionally deficient. This essay will clarify what actually happened in the Arkansas case, and explain why legislators and advocates around the country do not have to worry about this very limited opinion affecting the legality of …

In The Name Of Diversity: Why Mandatory Diversity Statements Violate The First Amendment And Reduce Intellectual Diversity In Academia, Daniel M. Ortner

Catholic University Law Review

In the 1950s and 1960s in many parts of the country, a professor could be fired or never hired if he refused to denounce communism or declare loyalty to the United States Constitution. The University of California system took the lead in enforcing these loyalty oaths. These loyalty oaths were challenged all the way up to the United States Supreme Court and were soundly rejected, establishing the centrality of academic freedom and open inquiry on the university campus. So why are loyalty oaths making their resurgence in the form of mandatory diversity statements? Universities have begun requiring faculty members to …