First Amendment Law Review最新文献

{"title":"A Comparative Analysis of the Academic Freedom of Public University Professors","authors":"V. Amar","doi":"10.2139/SSRN.3013697","DOIUrl":"https://doi.org/10.2139/SSRN.3013697","url":null,"abstract":"One of the topics we have been asked to address at this symposium is the academic freedom enjoyed by faculty at public universities. Now is a good time to be discussing this topic, and the University of North Carolina (“UNC”) is a particularly apt place at which to be discussing it. As would two other places I’ve spent professional time at recently—the University of Illinois at Urbana-Champaign (“U of I”), where I became the Dean of the College of Law this year, and the University of California system (“UC”), where I spent my academic career until this fall. Indeed, given the dust-ups here at UNC, the controversy surrounding the (non)hiring of Steven Salaita at the U of I, and the UC Office of the President’s guidance concerning, and possible definitions of, microaggressions, it is fair to say these three great public universities lie at the epicenter of the conflict between freedom of expression and the orderly operation of public higher education. \u0000In my (necessarily) abbreviated contribution on this topic, I’d like to examine the breadth of so-called “academic freedom” enjoyed by (even fully tenured) faculty at public universities by comparing the scope of liberties of public professors with relevant counterparts. For these purposes, I focus primarily on the liberties enjoyed by virtue of the federal Constitution—freedoms that arise from state constitutions or contract law are important to be sure, but they fall largely outside of my remarks today.","PeriodicalId":285381,"journal":{"name":"First Amendment Law Review","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128517890","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Cross, Crucifix, Culture: An Approach to the Constitutional Meaning of Confessional Symbols","authors":"F. M. Gedicks, Pasquale Annicchino","doi":"10.2139/SSRN.2361260","DOIUrl":"https://doi.org/10.2139/SSRN.2361260","url":null,"abstract":"In the United States and Europe the constitutionality of government displays of confessional symbols depends on whether the symbols also have nonconfessional secular meaning (in the U.S.) or whether the confessional meaning is at least absent (in Europe). Yet both the United States Supreme Court (USSCt) and the European Court of Human Rights (ECtHR) lack a workable approach to determining whether secular meaning is present or confessional meaning absent.The problem is that the government can nearly always articulate a possible secular meaning for the confessional symbols that it uses, or argue that the confessional meaning is passive and ineffective. What matters, however, is not the possibility that secular meaning is present or confessional meaning absent, but whether this presence or absence is historically and culturally authentic. Courts largely ignore this, routinely appealing to history and culture to justify government use of confessional symbols without undertaking a serious investigation of either history or culture.Drawing on the work of C.S. Peirce, we propose that courts ask three successive questions in religious symbol cases: (1) Is the ordinary meaning of the symbol confessional or otherwise religious?(2) Does the immediate context in which the symbol is displayed suggest a possible historical, cultural, or other secular meaning?(3) Is this alternate secular meaning authentically present and genuinely recognized in the history and culture of the place where the symbol is displayed? We illustrate this approach with Salazar v. Buono, in which the USSCt upheld government display of a Christian cross, and Lautsi & Others v. Italy, in which the ECtHR deferred to Italian court decisions upholding government display of a Catholic crucifix. While the USSCt in Buono and the Italian courts in Lautsi imagine conceivable nonconfessional meanings for the confessional symbol at issue, neither meaning can be found in American or Italian history or culture. In Lautsi, therefore, the ECtHR ends up deferring to an Italian “tradition” that doesn’t exist.Judicial denial of obvious confessional meaning and invention of substitute secular meanings for confessional symbols betrays a cultural schizophrenia: Majoritarian religions rail against the secularization of culture and its subversion of belief, yet they insist that their confessional symbols remain at home in this culture. But confessional symbols no longer fit in mainstream culture as confessional — hence the characterization of their meanings as secular or passive, even and especially by the majoritarian religions that use them. Ironically, judicial secularization or minimization of the meaning of these symbols to validate their use by government is likely to accelerate and entrench the very secularization that such religions deplore.","PeriodicalId":285381,"journal":{"name":"First Amendment Law Review","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-01-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125372025","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Weighing Constitutional Anchors: New York Times Co. v. Sullivan and the Misdirection of First Amendment Doctrine","authors":"R. Cass","doi":"10.2139/SSRN.2516776","DOIUrl":"https://doi.org/10.2139/SSRN.2516776","url":null,"abstract":"This essay explains why so many law professors, most notably Harry Kalven (my own First Amendment teacher at the University of Chicago) were excited by the U.S. Supreme Court’s decision in New York Times Co. v. Sullivan (announced 50 years ago), why it was so widely embraced as a triumph for the soul of constitutional governance, and why ― despite its virtues ― the New York Times decision was a mistake in constitutional jurisprudence that set First Amendment doctrine down a path that threatened to undermine the very values Kalven embraced. It is an essay not about Harry Kalven, but about constitutional values, interpretive virtues, and unintended consequences.","PeriodicalId":285381,"journal":{"name":"First Amendment Law Review","volume":"74 5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121104988","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Privacy and the Right of Free Expression","authors":"J. A. Humbach","doi":"10.2139/SSRN.1996581","DOIUrl":"https://doi.org/10.2139/SSRN.1996581","url":null,"abstract":"Nobody likes to be talked about but everybody likes to talk. Trying to stop the dissemination of private information is, however, an impingement on free expression and the freedom to observe. A freestanding \"right of privacy\" that violates these interests is constitutionally permissible only if it can be justified using one of the standard bases for allowing restrictions on First Amendment rights. The three most likely possibilities are that the law in question: (1) can pass strict scrutiny, (2) falls within a recognized \"categorical\" exception, or (3) has only an \"incidental\" burden on First Amendment interests. Of these three, only the last would seem to support a broad protection for privacy in the face of First Amendment challenge and, indeed, such protection has long been provided under the ordinary law of property. The exclusivity provided by ordinary property rights has long protected privacy in the places where most people spend most of their time, viz. privately owned spaces, and with respect to the objects that hold our personal information, including papers, digital equipment and other such privately-owned chattels. To the extent that privacy interests can be protected through ordinary property law (as most can), they should not encounter the serious constitutional objections that can be raised against laws that directly impinge on First Amendment interests. Any burdens on First Amendment interests imposed by property laws would qualify as merely \"incidental” burdens, since the law of property (unlike many \"privacy\" laws) does not exist for the very purpose of limiting First Amendment interests such as the interest in free dissemination of truthful information. By contrast, rights of privacy that are divorced from property rights typically are meant to operate as direct impingements on the exercise of First Amendment rights and they are, therefore, of dubious constitutional validity.","PeriodicalId":285381,"journal":{"name":"First Amendment Law Review","volume":"51 3","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120897677","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Licensing Facially Religious Government Speech: Summum’s Impact on the Free Speech and Establishment Clauses","authors":"S. W. Gaylord","doi":"10.2139/SSRN.1463335","DOIUrl":"https://doi.org/10.2139/SSRN.1463335","url":null,"abstract":"It is the rare case that is decided solely on Free Speech grounds yet directly impacts the Supreme Court’s Establishment Clause jurisprudence. Pleasant Grove City v. Summum is such a case. Although all nine Justices concurred in the judgment — that a privately donated monument in a public park is a form of “government speech” that is not subject to scrutiny under the Free Speech Clause — the case spawned five different opinions as the Justices attempted to explain the proper scope of the Court’s decision on the Free Speech and Establishment Clauses. This paper analyzes the interaction between Summum’s “recently minted” government speech doctrine and the Establishment Clause. In particular, with respect to the Free Speech Clause, I argue that Summum resolves an ongoing Circuit split regarding a common medium of expression — specialty license plates. Recently, six Circuits have reached at least three different conclusions with respect to the status of specialty license plates, and two other Circuits have addressed the First Amendment issue in passing. In addition, a petition for writ of certiorari has been submitted seeking Supreme Court review of a 2008 Seventh Circuit case dealing with this very issue. I maintain that Summum’s new test for government speech is inconsistent with the test that the majority of Circuits has applied to specialty plates. Whereas the majority considers whether a reasonable observer would identify the government as the speaker, Summum focuses on the level of control that the government has over the specialty plate program. Under Summum’s “control” test, many (and possibly all) specialty plate programs — as well as many other forms of speech that are subject to government control — are government speech and, therefore, are exempt from First Amendment scrutiny. Moreover, I contend that Summum’s control test necessarily alters the Court’s analysis of facially religious government speech under the Establishment Clause. Although the Establishment Clause still applies to government speech, the endorsement test does not. To understand why, the paper explores the effect of the government speech doctrine on an issue of first impression — a specialty license plate containing the phrase “I Believe” and a picture of a cross superimposed on a stained glass window. Although the lower court concluded that the plate violated the endorsement test, Summum changes the analysis. Under Summum, the government has the right to say what it wants even though the government’s intended message may differ significantly from the message that observers ascribe to the government. As a result, when dealing with government speech, Justice O’Connor’s “reasonable observer” test focuses on the wrong party — the reasonable observer instead of the government speaker. That is, when determining whether facially religious government speech violates the Establishment Clause post-Summum, the Court must determine whether the government actually has an improper rel","PeriodicalId":285381,"journal":{"name":"First Amendment Law Review","volume":"76 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-08-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126208746","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Reconstructing the Blaine Amendments","authors":"F. M. Gedicks","doi":"10.2139/SSRN.419221","DOIUrl":"https://doi.org/10.2139/SSRN.419221","url":null,"abstract":"In the wake of the Supreme Court's decision upholding school vouchers in Zelman v. Simmons-Harris, school choice proponents have turned their attention to the state Blaine Amendments. Blaine Amendments are contained in 37 state constitutions, and are modeled after a failed federal constitutional amendment sponsored by James G. Blaine in 1876 that would have prohibited the states from allocating state funds and other resources to sectarian organizations. Thus, even though Zelman appears to have removed all federal Establishment Clause impediments to properly structured school choice programs, Blaine Amendments continue to stand in the way of such programs. The validity of the Blaine Amendments as currently enacted is doubtful. Blaine's federal amendment and the state amendments it inspired were largely motivated by anti-immigrant and (in particular) anti-Catholic sentiment. In addition, the Amendments by their terms impose special burdens on religious schools in the distribution of state funds and other financial aid to education. Both characteristics generally trigger heightened judicial scrutiny. Nevertheless, important constitutional questions would remain even if most of the Blaine Amendments are struck down. Though they were originally motivated by anti-Catholic hostility, the Blaine Amendments were also early manifestations of an ideology of church-state separation which remains well within the constitutional mainstream. Thus, even if the Blaine Amendments are struck down, separationist sentiment in many states is likely to stimulate exploration of alternative means of restricting the allocation of state education funds to religious schools, such as requiring that all private schools participating in school choice programs meet secular requirements, such as antidiscrimination laws, as a condition to such participation. Such conditions would raise questions about the meaning and scope of the neutrality that now appears to have become the dominant doctrinal concept in Religion Clause jurisprudence. I argue that neutrality prevents government from conditioning the receipt of social welfare benefits on religious affiliation (or lack thereof), but should not generally prevent government from imposing secular conditions on such receipt. I close with a brief discussion of issues raised by three likely conditions that states would attach to a religious school's participation in school choice programs: the school's compliance with antidiscrimination laws, its satisfaction of curriculum and other state educational mandates, and its condemnation or advocacy of certain ideas.","PeriodicalId":285381,"journal":{"name":"First Amendment Law Review","volume":"51 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-09-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129593289","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}