Articles Posted in Speech and Religion

Justia columnist and Cornell law professor Sherry Colb comments on a recent Minnesota ruling that held that the First Amendment protects encouraging or advising another to commit suicide, and also protects assisting a suicide as long as the assistance consists only of speech alone.

Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, predict that Hobby Lobby will prevail in the Hobby Lobby Supreme Court case. They add that it will be very important for the preservation of other important legal principles and public policies that the Court not rule in Hobby Lobby’s favor on too broad a basis. Thus, they comment on how the opinion should—and should not—be crafted.

Justia columnist and Cornell Law professor Michael Dorf critiques the U.S. Supreme Court’s recent decision in McCutcheon v. Federal Election Comm’n striking down aggregate limits on individual contributions to political campaigns. Dorf argues that the Court’s plurality opinion is poorly reasoned and disregards the broader purpose of aggregate limits: to prevent wealthy donors from buying Congress as a whole.

Justia columnist and Cardozo law professor Marci Hamilton discusses the U.S. Supreme Court’s first and only decision on the Religious Freedom Restoration Act (RFRA), and how it represents the Court’s inadequacy to apply RFRA. Hamilton describes the background of that case, Gonzales v. O Centro Esprita Beneficente Unio do Vegetal (UDV), as well as the unintended effects of the decision. She concludes that the Court should seriously contemplate its institutional limitations, think twice before discounting the government’s purposes, and employ common sense when considering the RFRA and the contraception mandate cases.

Justia columnist and Cornell law professor Sherry Colb comments on one manifestation of gender inequity inherent in Orthodox and Conservative Judaism—the “get” requirement for a religiously recognized divorce. Colb explains how this requirement gives the husband the unilateral power to decide whether and for how long the marriage lasts. She suggests that traditional communities should reinterpret divorce in a manner that allows any unhappy partner to successfully exit a marriage.

Justia columnist and Cornell Law professor Michael Dorf discusses yesterday’s oral arguments before the U.S. Supreme Court in Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialty Stores Corp. v. Sebelius, which presented questions over the degree of religious freedom afforded to for-profit corporations. Dorf describes how these issues have evolved over the past two and a half decades and provides several possible reasons they have become so ideologically charged, as they are today.

Justia columnist and Cardozo law professor Marci Hamilton continues her series of columns regarding Religious Freedom Restoration Acts (RFRAs). Here, in her most recent column, Hamilton addresses the argument that RFRAs should be extended to suits between private parties. This issue has surfaced primarily in the states, Hamilton notes, where purportedly rampant fear by bakers and florists of having to deal with same-sex couples has led to proposals to give businesses a RFRA defense that could be invoked against potential customers. The most controversial such bill was eventually vetoed by Arizona’s Governor Brewer; that bill would have permitted private businesses to raise the state RFRA as a defense in lawsuits by customers whom they have turned away.

Justia columnist and attorney Julie Hilden comments on a recent Ninth Circuit case that involves Supreme Court doctrine regarding compelled speech. Here, the compelled speech issue arose when public school students were required to wear uniforms that stated “Tomorrow’s Leaders.” Hilden also describes two Supreme Court cases that also involve compelled speech.

Justia guest columnist, UNLV law professor, and visiting UC Irvine law professor Leslie Griffin comments on the recent controversy regarding Notre Dame, of which she is an alumna. Professor Griffin comments on Notre Dame’s arguments, which include one relating to the Catholic concept of scandal, and another that postulates that whenever Notre Dame signs the form objecting to contraception, the complaint triggers the provision of free objectionable coverage to Notre Dame’s employees in a manner contrary to its beliefs. Notre Dame also argues that by signing the objection, it facilitates contraception, and, by doing so, it will lead many to think that Notre Dame condones these services, and hence undermines its role, as a Catholic educational institution, to educate others on a matter of religious and moral significance. Griffin offers strong counterarguments, both logical and legal, to Notre Dame’s contentions.

Justia columnist and Cornell law professor Michael Dorf contends that recent and ongoing controversies involving First Amendment freedoms pose fundamental questions about the circumstances under which exceptions should be granted to individuals and businesses with objections to complying with general laws. How should these questions be resolved? Dorf posits that the answer may depend upon the particular right in question.

Justia columnist and Cardozo law professor Marci Hamilton comments on federal RFRAs in the first column in a two-part series of columns that addresses the federal RFRA and the intersection of RFRAs and corporate law, as well as why corporations cannot take advantage of RFRAs. Part Two in the series, which will address state RFRAs, will appear here on Justia on March 20.

Justia columnist and attorney Julie Hilden discusses a First Amendment opinion by a three-judge Ninth Circuit panel: Dariano v. Morgan Hill Unified School District. The lawsuit emerged after school officials at Live Oak High School, in Northern California, learned of threats of race-related violence that had occurred during a school-sanctioned Cinco de Mayo celebration. School authorities then asked a group of students to remove clothing bearing images of the American flag. The students then brought a civil rights suit against the school district and two school officials. The Ninth Circuit panel held that because school officials anticipated violence or substantial disruption, the officials’ response of banning the shirts was tailored to the circumstances, and thus appropriate despite First Amendment concerns.

Justia columnist Vikram Amar and Justia guest columnist Alan Brownstein, both U.C. Davis law professors, comment on two key upcoming Supreme Court cases involving religion: (1) the highly-anticipated Sebelius v. Hobby Lobby Stores, Inc. cases that will be argued in the Supreme Court next month, and that involve challenges under the federal Religious Freedom Restoration Act (RFRA) to the Affordable Care Act’s requirement that employers must provide contraceptive services in their healthcare policies offered to employees; and (2) Town of Greece v. Galloway, which involves the permissibility of state-sponsored prayers before town board meetings.

Justia columnist and Cornell law professor Michael Dorf comments on last week's approval by the Arizona legislature of a bill last week that, if signed by the Governor would greatly expand the scope of religious exemptions from nondiscrimination law in that state. Like measures proposed elsewhere, the Arizona bill grows out of a fear by people opposed to same-sex marriage that they will be required to provide services to same-sex couples. Dorf comments on the relevant issues.

Justia columnist and Cardozo law school professor Marci Hamilton comments on recent stories about the mishandling of reports of sex abuse and assaults at two fundamentalist colleges: Patrick Henry College and Bob Jones University. Hamilton also covers the Catholic Church’s ongoing issues with clergy sex abuse, and cautions these colleges not to follow the Church's lead. Hamilton notes that President Obama has been silent on the epidemic of sex abuse and assaults in religious entities in the United States. She argues that it is high time now, nearing the end of his last Term, for him to step up for all victims, and to stop pandering to religious entities.

Justia columnist and attorney Julie Hilden comments on the Florida state court litigation between wrestler Hulk Hogan and the Gawker website regarding Hogan's sex tape. Hilden comments on the First Amendment, copyright, and tort issues that the litigation involves. Interestingly, the litigation has intersected with considerable publicity for Hogan, suggesting that he may not be solely a victim here.

Justia columnist and attorney Julie Hilden comments on the January 17 decision by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit that ruled, as a matter of first impression, that First Amendment defamation rules apply equally to both the institutional press and to individual speakers and writers, such as bloggers.

Cornell law professor and Justia columnist Michael Dorf comments on the Supreme Court’s Obamacare/RFRA cases, which he notes present a number of important legal issues, as well as a fundamental question for any liberal democracy: To what extent should people be exempted from laws that they regard as requiring them to participate in evil?

Justia columnist and attorney Julie Hilden comments on a recent California Court of Appeals decision that involved a rapper, and an infamous former cocaine dealer. The court held that a person’s name and public persona are First Amendment-protected if they incorporate significant creative elements, and thus count as a transformative use of the original name and/or persona. Hilden argues that the court was correct in its holding in the case.

Justia columnist and attorney Julie Hilden comments on a Texas Appellate Court decision from October. The decision was based on a Texas man’s being charged under the State’s penal code for the third-degree felony of communicating in a sexually-explicit manner with a person whom he believed to be a minor, with intent to arouse or gratify his sexual desire. The Texas appellate court, however, deemed the statute to be overbroad and therefore struck it down for First Amendment reasons, noting that content-based regulations of speech, such as the one at issue here, are presumably invalid, and citing the law's potential to reach even great works of literature.