Next spring semester, I will be teaching a First Amendment class. So I request advice from commenters about what textbooks they liked, or did not like, and why. For the recommendations, please ignore entirely the textbook’s treatment of the religion clauses. Denver University has a separate class on them, so my class will be entirely […]
Archive | First Amendment
Occupy Wall Street and Popular Constitutionalism
By Ilya Somin on January 20, 2012 3:44 pm in Constitutional Law, Constitutional Theory, First Amendment, Freedom of Speech, Popular Constitutionalism
The Occupy Wall Street movement is often seen as a left-wing counterpart to the Tea Party movement. Until recently, however, OWS has differed from the Tea Party in so far as it paid little attention to constitutional issues. By contrast, constitutional issues are a central focus of the Tea Party, which claims that the courts […]
Court Reaffirms Ministerial Exception
By Jonathan H. Adler on January 11, 2012 10:26 am in First Amendment, Religion and the Law, Religious Freedom, Supreme Court
SCOTUSBlog reports that the Supreme Court has issued its opinion in Hosanna Tabor v EEOC, unanimously reversing the U.S. Court of Appeals for the Sixth Circuit on the question whether the First Amendment precludes employment discrimination suits against religious entities by those in “ministerial” positions. The Court was unanimous in the judgment. Chief Justice Roberts […]
The original meaning of the 14th Amendment regarding interracial marriage
By David Kopel on December 5, 2011 5:38 pm in Anti-Semitism, Congress, Constitutional History, Constitutional Law, Federalism, First Amendment, Fourteenth Amendment, History, Racism, Supreme Court
Over at Balkinization, Andrew Koppelman (Northwestern) has an interesting and thoughtful post on the state of originalism. Synthesizing analysis by Jamal Greene and Jack Balkin, Koppelman writes, “Originalism is fundamentally about a narrative of rhetorical self-identification with the achievements of a founding historical moment. That is the real basis of its power. An originalist argument […]
Me and Kim Kardashian
Because of the press of business at my day job, I’ve had less than usual worth saying recently. In fact, I haven’t posted in months. But all that blood, toil, tears, and sweat have at least done some good, because yesterday my work was mentioned alongside news that really matters. An amicus brief I did […]
“Harassment” of SSM Opponents in Washington State
By Dale Carpenter on October 19, 2011 12:45 am in Election Law, First Amendment, Freedom of Speech, Same-Sex Marriage
Yesterday, in Doe v. Reed, Federal District Judge Benjamin Settle rejected an as-applied challenge on First Amendment grounds to a Washington state law requiring the public disclosure of the names of initiative signers. The initiative in question would have blocked the legislatively approved recognition of domestic partnerships. (The initiative made it onto the state ballot but […]
Brown v. EMA casts doubt on the “weapons effect” justification for gun control
By David Kopel on June 27, 2011 9:38 pm in Child Protection, Constitutional Law, Expert Evidence, First Amendment, Freedom of Speech, Guns, Supreme Court
The State’s evidence is not compelling. California relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies purport toshow a connection between exposure to violent video games and harmful effects on children. These studies have been rejected by every court to consider them,6 and with good reason: They […]
Is There a First Amendment Right of Access to Material Witness Proceedings?
Yesterday, in United States v. Brice, the U.S. Court of Appeals for the D.C. Circuit turned away a convicted defendant’s effort to unseal the records of material witness proceedings that were referred to during his sentencing hearing. Even assuming there was a “qualified” First Amendment right of access to material witness proceedings the Court held […]
Elwood Wins
This morning the Supreme Court issued a near-unanimous opinion in Nevada Commission on Ethics v. Carrigan, reversing the Nevada Supreme Court. Justice Scalia wrote the opinion for the Court. Justice Kennedy concurred, and Justice Alito wrote a separate opinion concurring-in-part and concurring in the judgment. The Court held that Nevada’s Ethics in Government Law was […]
Campaign Finance Law Can Be Funny
Steve Simpson and Paul Sherman of the Institute for Justice detail Stephen Colbert’s travails with federal campaign finance law. Comedy Central funnyman Stephen Colbert, like most of his friends and allies on the left, thinks that last year’s Supreme Court ruling in Citizens United v. FEC is, literally, ridiculous. To make his case that the […]
Dog Wars and the First Amendment
A new app for Google’s Android phone is “Dog Wars.” The player takes the role of a thug who trains a pit bull to fight. In Denver television Channel 7’s coverage of the story, I explained that the First Amendment protects the right of the game producers to make and distribute the game, and also […]
The Decline of Free Speech at Yale
Glenn Reynolds has a full report. I hope he’s over-reacting, but I fear he is not. UPDATE: Peter Berkowitz has more here.
Copyright and Free Expression:
By David Post on March 13, 2011 9:50 pm in Copyright, First Amendment, Freedom of Speech, Supreme Court
Last week brought the news that the Supreme Court has granted cert in a pretty interesting copyright case case from the 10th Circuit, Golan v. Holder, that promises to raise some important questions at the ever-elusive copyright/first amendment boundary. The background is this: the US signed on to the Berne Convention on Literary Property, the […]
Funeral Protesters Win at High Court
Today the Supreme Court issued its opinion in Snyder v. Phelps. The funeral protesters won 8-1. Chief Justice Roberts wrote for the Court. Justice Breyer concurred, and Justice Alito dissented. The majority opinion concludes: Our holding today is narrow. We are required in First Amendment cases to carefully review the record, and the reach of […]
Goldsmith: Don’t Try to Try Assange
Jack Goldsmith argues that it would be a mistake for the United States to try and prosecute Wikileaks’ Julian Assange. The government should fully investigate how this major breach of national security occurred. But prosecuting Assange would be a mistake. The first problem with going after Assange is that the effort is likely to fail. […]