The first amendment has long protected a complex and interwoven range of individual interests. Pr... more The first amendment has long protected a complex and interwoven range of individual interests. Protected freedoms often involve expressive activities-religion, speech, the press, assembly, and association. The first amendment also protects an individual\u27s freedom to refrain from expressive activity. Two distinct kinds of liberty interest support the right to refrain from expressive activity. First, individuals have an interest in not being forced to reveal information about personal beliefs or associations. Such a claim may arise in a variety of contexts: a reporter may not wish to reveal the identity of news sources for fear of discouraging future revelations; a public school teacher may not wish to reveal all organizations to which that teacher has belonged for fear of community hostility or loss of employment; or a litigant may seek to prevent disclosure of trade secrets or other private information through the discovery process. As a group, these cases are rightfully viewed a...
While it has long been apparent that the First Amendment protection for freedom of expression lim... more While it has long been apparent that the First Amendment protection for freedom of expression limits the discretion of public school teachers and administrators, it has been assumed that those limitations do not constrain equally all aspects of a school's operation. One area that has seemed somewhat immune from First Amendment free speech oversight has been the pedagogic choices made by schools in defining their own educational objectives. Public schools have been permitted to select curricular materials for use in their classrooms and have been able to evaluate whether students have fulfilled course requirements without concern that they may be violating the free speech rights of their students. The cases discussed raise issues about the possibility of First Amendment review of school assignments that schools will ignore at their peril.
The first amendment has long protected a complex and interwoven range of individual interests. Pr... more The first amendment has long protected a complex and interwoven range of individual interests. Protected freedoms often involve expressive activities - religion, speech, the press, assembly, and association. The first amendment also protects an individual's freedom to refrain from expressive activity.Two distinct kinds of liberty interest support the right to refrain from expressive activity. First, individuals have an interest in not being forced to reveal information about personal beliefs or associations. Such a claim may arise in a variety of contexts: a reporter may not wish to reveal the identity of news sources for fear of discouraging future revelations; a public school teacher may not wish to reveal all organizations to which that teacher has belonged for fear of community hostility or loss of employment; or a litigant may seek to prevent disclosure of trade secrets or other private information through the discovery process. As a group, these cases are rightfully viewed...
This Article examines the Supreme Court's decision in Hurley v. Irish-American and compares i... more This Article examines the Supreme Court's decision in Hurley v. Irish-American and compares it to the decision in Stropnicky v. Nathanson. It then considers whether there are sufficient distinctions between the two cases so as to defeat the First Amendment argument that was successful in Hurley. It concludes that the differences between the two cases are not sufficiently significant from the point of view of the First Amendment and that the application of the state public accommodation statute to a lawyer's ideologically motivated decision not to represent a client violates the First Amendment.
Controversies arising over the extent of the First Amendment speech rights of public school stude... more Controversies arising over the extent of the First Amendment speech rights of public school students while at school are resolved by an analysis of the familiar quartet of major decisions of the United States Supreme Court: Tinker, Fraser, Kuhlmeier, and Morse. While these decisions have not removed all uncertainty over the scope of student speech rights, they at least have divided these cases into distinct categories and identified the standard to be applied within each category. The wide range of judicial views on the issue of when student off-campus speech can be the basis of discipline by school authorities makes it difficult for schools to develop sound policies to address this situation. Until a more definitive answer is provided by the U.S. Supreme Court, schools face this issue without clear judicial guidance.
The United States Supreme Court confronted the issue of a classroom display of the Ten Commandmen... more The United States Supreme Court confronted the issue of a classroom display of the Ten Commandments almost 25 years ago in the case of Stone v. Graham. In that case, the Court struck down a Kentucky statute that required the posting of the Ten Commandments in all public school classrooms. In a per curiam opinion, the Court summarily reversed a decision of the Supreme Court of Kentucky and concluded that the statute violated the First Amendment's Establishment Clause because it had no secular purpose. The outcomes of recent judicial decisions considering the constitutionality of the display of the Ten Commandments have not been uniform. While the courts have all applied similar legal standards, considering both whether the government had a secular purpose for its display and whether the display gave the appearance of government endorsement of religion, their analysis has been far from uniform. Courts have disagreed over a number of critical issues including how to assess governme...
Over its twenty-year history, the Equal Access Act has continued to spark controversy. Despite a ... more Over its twenty-year history, the Equal Access Act has continued to spark controversy. Despite a large number of court decisions that have interpreted the scope of the statute, those controversies have not yet subsided nor are they likely to for the foreseeable future. Interpretation of the Equal Access Act is complicated by ambiguities in the statute's language and the complex relationship that exists between the statute and the First Amendment's prohibition on religious establishments combined with its protection for freedom of expression. The delicate constitutional balancing act that the statute attempts to accomplish complicates the task of statutory interpretation in a way that courts have still been unable to fully resolve.
In recent years courts have begun to ponder the first amendment issue of public school library bo... more In recent years courts have begun to ponder the first amendment issue of public school library book censorship. These fledgling judicial efforts have produced a mostly inadequate analysis of the complex legal picture presented by school library book censorship. Courts that desire to intervene in censorship disputes almost unthinkingly have relied on first amendment doctrines developed outside of the censorship area and assumed their easy application to this new problem. Courts that take a hands-off attitude toward the area rely heavily on the appropriateness of judicial intervention as their central theme. Nowhere to be found in these judicial responses is there a comprehensive analysis of the difficult issues raised by these cases. Recently, the United States Supreme Court granted certiorari in a case of school library censorship. That case may establish the first amendment boundaries of such disputes, or it may mark only the first of several Supreme Court probings of this complex ...
The first amendment has long protected a complex and interwoven range of individual interests. Pr... more The first amendment has long protected a complex and interwoven range of individual interests. Protected freedoms often involve expressive activities-religion, speech, the press, assembly, and association. The first amendment also protects an individual\u27s freedom to refrain from expressive activity. Two distinct kinds of liberty interest support the right to refrain from expressive activity. First, individuals have an interest in not being forced to reveal information about personal beliefs or associations. Such a claim may arise in a variety of contexts: a reporter may not wish to reveal the identity of news sources for fear of discouraging future revelations; a public school teacher may not wish to reveal all organizations to which that teacher has belonged for fear of community hostility or loss of employment; or a litigant may seek to prevent disclosure of trade secrets or other private information through the discovery process. As a group, these cases are rightfully viewed a...
While it has long been apparent that the First Amendment protection for freedom of expression lim... more While it has long been apparent that the First Amendment protection for freedom of expression limits the discretion of public school teachers and administrators, it has been assumed that those limitations do not constrain equally all aspects of a school's operation. One area that has seemed somewhat immune from First Amendment free speech oversight has been the pedagogic choices made by schools in defining their own educational objectives. Public schools have been permitted to select curricular materials for use in their classrooms and have been able to evaluate whether students have fulfilled course requirements without concern that they may be violating the free speech rights of their students. The cases discussed raise issues about the possibility of First Amendment review of school assignments that schools will ignore at their peril.
The first amendment has long protected a complex and interwoven range of individual interests. Pr... more The first amendment has long protected a complex and interwoven range of individual interests. Protected freedoms often involve expressive activities - religion, speech, the press, assembly, and association. The first amendment also protects an individual's freedom to refrain from expressive activity.Two distinct kinds of liberty interest support the right to refrain from expressive activity. First, individuals have an interest in not being forced to reveal information about personal beliefs or associations. Such a claim may arise in a variety of contexts: a reporter may not wish to reveal the identity of news sources for fear of discouraging future revelations; a public school teacher may not wish to reveal all organizations to which that teacher has belonged for fear of community hostility or loss of employment; or a litigant may seek to prevent disclosure of trade secrets or other private information through the discovery process. As a group, these cases are rightfully viewed...
This Article examines the Supreme Court's decision in Hurley v. Irish-American and compares i... more This Article examines the Supreme Court's decision in Hurley v. Irish-American and compares it to the decision in Stropnicky v. Nathanson. It then considers whether there are sufficient distinctions between the two cases so as to defeat the First Amendment argument that was successful in Hurley. It concludes that the differences between the two cases are not sufficiently significant from the point of view of the First Amendment and that the application of the state public accommodation statute to a lawyer's ideologically motivated decision not to represent a client violates the First Amendment.
Controversies arising over the extent of the First Amendment speech rights of public school stude... more Controversies arising over the extent of the First Amendment speech rights of public school students while at school are resolved by an analysis of the familiar quartet of major decisions of the United States Supreme Court: Tinker, Fraser, Kuhlmeier, and Morse. While these decisions have not removed all uncertainty over the scope of student speech rights, they at least have divided these cases into distinct categories and identified the standard to be applied within each category. The wide range of judicial views on the issue of when student off-campus speech can be the basis of discipline by school authorities makes it difficult for schools to develop sound policies to address this situation. Until a more definitive answer is provided by the U.S. Supreme Court, schools face this issue without clear judicial guidance.
The United States Supreme Court confronted the issue of a classroom display of the Ten Commandmen... more The United States Supreme Court confronted the issue of a classroom display of the Ten Commandments almost 25 years ago in the case of Stone v. Graham. In that case, the Court struck down a Kentucky statute that required the posting of the Ten Commandments in all public school classrooms. In a per curiam opinion, the Court summarily reversed a decision of the Supreme Court of Kentucky and concluded that the statute violated the First Amendment's Establishment Clause because it had no secular purpose. The outcomes of recent judicial decisions considering the constitutionality of the display of the Ten Commandments have not been uniform. While the courts have all applied similar legal standards, considering both whether the government had a secular purpose for its display and whether the display gave the appearance of government endorsement of religion, their analysis has been far from uniform. Courts have disagreed over a number of critical issues including how to assess governme...
Over its twenty-year history, the Equal Access Act has continued to spark controversy. Despite a ... more Over its twenty-year history, the Equal Access Act has continued to spark controversy. Despite a large number of court decisions that have interpreted the scope of the statute, those controversies have not yet subsided nor are they likely to for the foreseeable future. Interpretation of the Equal Access Act is complicated by ambiguities in the statute's language and the complex relationship that exists between the statute and the First Amendment's prohibition on religious establishments combined with its protection for freedom of expression. The delicate constitutional balancing act that the statute attempts to accomplish complicates the task of statutory interpretation in a way that courts have still been unable to fully resolve.
In recent years courts have begun to ponder the first amendment issue of public school library bo... more In recent years courts have begun to ponder the first amendment issue of public school library book censorship. These fledgling judicial efforts have produced a mostly inadequate analysis of the complex legal picture presented by school library book censorship. Courts that desire to intervene in censorship disputes almost unthinkingly have relied on first amendment doctrines developed outside of the censorship area and assumed their easy application to this new problem. Courts that take a hands-off attitude toward the area rely heavily on the appropriateness of judicial intervention as their central theme. Nowhere to be found in these judicial responses is there a comprehensive analysis of the difficult issues raised by these cases. Recently, the United States Supreme Court granted certiorari in a case of school library censorship. That case may establish the first amendment boundaries of such disputes, or it may mark only the first of several Supreme Court probings of this complex ...
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