Analysis and Commentary on Speech and Religion
Why the En Banc Tenth Circuit’s Interpretation of the Religious Freedom Restoration Act in Hobby Lobby v. Sebelius Is Indefensible

Justia columnist and Cardozo law professor Marci Hamilton takes strong issue with the contention that a for-profit company is a religious “person” under the Religious Freedom Restoration Act (RFRA). The U.S. Courts of Appeals for the Third and Tenth Circuits have differed on the issue, and Hamilton argues that the Third Circuit is plainly right, and the Tenth Circuit plainly wrong. She also contends that the federal government should take an anti-RFRA position, just as it took an anti-DOMA position.

A College Student Prevails on a First Amendment Claim Based on His Peaceful Protest on the Supreme Court Plaza

Justia columnist and attorney Julie Hilden comments on a decision by U.S. District Judge Beryl A. Howell in favor of a man who protested on the Supreme Court Plaza, and was arrested as a result. Hilden agrees with Judge Howell that the statute under which the protester was charged was unconstitutional in that it violated the First Amendment, and explains why.

Texas’s New Retraction Statute: Why This Strongly Pro-First Amendment Measure Should Be Passed Into Law

Justia columnist and attorney Julie Hilden comments on a new Texas measure that will become law if Governor Rick Perry signs it. As Hilden explains, the bill at issue—a kind of retraction statute—would allow publishers to limit the damages that can be received by plaintiffs in libel lawsuits if the plaintiffs at issue did not request a correction to, or a retraction of, the offending material. Hilden praises the bill, but also asks whether, with so many and varied media, and the pervasive influence of Google searches in amassing facts and viewpoints on a particular topic, we still need retraction statutes at all.

The Newtown School Massacre; Connecticut’s New, Related Law; and How Such Laws Might Change in the Future

Justia columnist and attorney Julie Hilden comments on the new Connecticut law, banning the release of crime-scene photos and videos from the tragic massacre that occurred at Sandy Hook Elementary School, in Newtown, Connecticut. Hilden covers the key Supreme Court decision related to the new law, and questions whether future generations—acclimated to Facebook and to broad disclosure of personal material—may change the default rules in this area of law, and if so, how.

What Should the Supreme Court do With Town Board Prayers in Galloway v. Town of Greece? A Liberty-Based Analysis That Bolsters the Second Circuit’s Equality-Based Ruling

Justia columnist Vikram Amar and Justia guest columnist Alan Brownstein, both U.C. Davis law professors, comment on last week’s Supreme Court grant in Galloway v. Town of Greece, a case which raised the question whether it is constitutional for a Town board meeting to begin with a prayer that—while the Town claims that anyone can deliver the invocation—has in practice nearly only been delivered by Christian clergy. Amar and Brownstein agree with Judge Guido Calabresi of the U.S. Court of Appeals for the Second Circuit that the Town’s practice constitutes an unconstitutional establishment of religion, and thus violates principles of religious equality. But they also contend that there is another important constitutional issue here, regarding religious liberty, as well, and they focus their column on that issue. They also contrast the roles of Town Boards and of State Legislatures in this context, and note why analogies to public schools are inapposite here.

The Supreme Court Takes the Case of Town of Greece v. Galloway, Which Raises the Questions Whether—And If So, How—a Town Board May Open Its Meetings With Prayer

Justia columnist and Cardozo law professor Marci Hamilton discusses a church/state case that the Supreme Court has recently taken up, which concerns the question whether a town board may constitutionally open its meetings with prayer. Hamilton predicts that this case will be a landmark Establishment Clause battle, and a key development in America’s ongoing culture war over control of government programs and spaces, and of American culture itself. In addition to analyzing prior Establishment Clause precedents that are relevant here, Hamilton suggests where each of the Justices is likely to fall on the possible spectrum of views, and votes, regarding the Town of Greece case.

Why Tennessee Might—and Should—Reject Its Proposed “Ag Gag” Bill

Justia columnist and attorney Julie Hilden comments on a Tennessee controversy over a proposed ag-gag law that would require anyone who intentionally records images of animal abuse to submit their unedited footage or photos to law enforcement within 48 hours. Hilden argues that, as Tennessee Attorney General Bob Cooper—who called the proposed law “constitutionally suspect”—has argued, it has numerous serious flaws.

The Breadth of the Ministerial Exception and Ecclesiastical Deference: A State Supreme Court Case Highlights Questions Left Open by Last Year’s U.S. Supreme Court Hosanna-Tabor Ruling

Justia columnist and U.C., Davis law professor Vikram David Amar comments on a decision from the Kentucky Supreme Court concerning the ministerial exception to employment discrimination law, which leaves some inquiries to ecclesiastical, rather than secular resolutions. In this area of law, Amar notes that last year’s U.S. Supreme Court case on the ministerial exception, Hosanna-Tabor, left a number of questions still to be answered by the courts, both state and federal—including the U.S. Supreme Court, meaning, Amar says, that future High Court clarification is likely.

A New Mexico School District Censors Students’ Attempts to Use Plastic Fetus Dolls to Talk About Abortion

Justia columnist and attorney Julie Hilden comments on a New Mexico free speech case, in which the U.S. Court of Appeals for the Tenth Circuit ruled against students’ First Amendment claims, among other claims that their attorneys had brought. Hilden argues that the students’ First Amendment claims were valid, and should have been upheld by the court. She also raises an interesting wrinkle regarding the Tinker test for speech in public schools: What if the speaker is not the disruptor of the school environment, and other students are, but the seed of the other students’ disruption did come from the speaker?

The First Amendment and Ag-Gag Laws

Justia columnist and attorney Julie Hilden writes in opposition to Ag-Gag laws, which penalize those who (1) covertly take videos of abuse at facilities where animals are held; and/or (2) apply for a job at such a facility without revealing that they are affiliated with an animal rights group. She also comments on Duke law professor Jed Purdy’s argument in a recent New York Times Op Ed that webcams should be placed in slaughterhouses and other animal facilities, because Purdy doesn’t go further to advocate the use of such cameras to make slaughterhouses a thing of the past.

The Plague of Proposed Legislation by Religious Entities in the States: An Explosion in Foolhardy State Religious Liberty Proposals and a Sneaky Addition to the Pennsylvania Task Force’s Legislative Proposals

Justia columnist and Cardozo law professor Marci Hamilton comments on two recent developments: (1) a new kind of state-level religious freedom restoration act (RFRA) that omits the requirement of a substantial burden upon the plaintiff's religious conduct; a mere burden is enough under this new kind of RFRA; (2) the deeply disappointing nature of the Pennsylvania Task Force Legislative Package to protect children, which omitted child-sex-abuse statute of limitations reform, and failed to protect children from medical neglect by faith-healing parents.

The U.S. Court of Appeals for the Third Circuit Rules in Favor of a Public Elementary School Student Who Sought to Pass Out Invitations to Her Church’s Party to Her Classmates

Justia columnist and attorney Julie Hilden comments on a recent school speech decision from the U.S. Court of Appeals for the Third Circuit. The case involved a fifth grader who had sought to invite her classmates to her church's Christmas party. The court invoked the Tinker test, which asks whether student speech causes substantial disruption in the school's setting. The case also raised the intriguing question of how old students need to be to have their speech in the school setting protected by the Tinker precedent.

Is Hawaii’s Steven Tyler Act Consistent With the First Amendment?

Justia columnist and attorney Julie Hilden comments on Hawaii’s Steven Tyler Act, which seeks to attract more celebrities to Hawaii by addressing the paparazzi problem for those celebrities who may want to vacation there—or have a house there, as well-known musician Steven Tyler does. Hilden contends that the Act raises two key First Amendment issues—one regarding failed attempts to photograph celebrities, and another regarding how much consideration should have to be exchanged to trigger a violation of the statute.

A New Pope, A New Beginning for Clergy Child Sex Abuse Survivors? Why It’s Unlikely

Justia columnist and Cardozo law professor Marci Hamilton predicts that the new Pope, formerly the Archbishop of Buenos Aires, will be no more successful than his predecessor in effectively addressing the Catholic Church’s problem with clergy child sex abuse. In making her case, Hamilton cites the name the new Pope chose, Francis for St. Francis Xavier, not St. Francis of Assisi; and the fact that he is a Jesuit—and thus a member of an order that despite the respect it claims still has clergy child abuse problems and problems with related cover-ups. Hamilton also points out that Pope Francis—unlike Cardinal Oullet of Canada, another top contender—has not been an outspoken critic of clergy child abuse. For these and other reasons, Hamilton predicts that true reform in this area will only come from the legal system, not the Church.

Can California’s Anti-Paparazzi Statute Survive a First Amendment Challenge?

Justia columnist and attorney Julie Hilden comments on the first case invoking the 2010 California anti-paparazzi statute. The paparazzo at issue had mounted a high-speed chase following Justin Bieber, which fell within the statute’s prohibitions; he was then charged not only with reckless driving, but also with an offense under the anti-paparazzi statute. But does that statute violate the First Amendment? Hilden explains why it might be thought to. Notably, if the statute is upheld, Hilden suggests that it may substantially change the cat-and-mouse games that paparazzi play with the celebrities whom they seek to photograph.

Hurricane Sandy Disaster Relief for Houses of Worship: Why the Establishment Clause Forbids this Most Recent Attempt by Religious Lobbyists to Obtain Government Support and Funding

Justia columnist and Cardozo law professor Marci Hamilton argues that Hurricane Sandy disaster relief cannot constitutionally be extended to religious institutions, and notes that such relief was not extended to houses of worship in prior, similar situations. She also contends that religious institutions should go back to their days of eschewing government funding entirely. Accordingly, Hamilton opposes the Federal Disaster Assistance Non-Profit Fairness Act, and notes that the church/state entanglement issues that will arise if the government is involved in funding the rebuilding of a damaged house of worship.

The Minnesota Supreme Court Rules for the Defendant in a Suit Alleging Online Defamation

Justia columnist and attorney Julie Hilden comments on a case of online defamation, in which a doctor sued a patient’s son for the son’s harsh online reviews regarding the doctor’s care of the patient's father. The Minnesota Supreme Court ruled that none of the statements in the son’s reviews could be sued upon, either because they were substantially true, because they were not capable of defamatory meaning, or because, in one case, the statement at issue was a statement of pure opinion. Hilden explains why the online-review-writer prevailed here, and notes some other reasons why online reviews may or may not successfully be sued upon.

The American Bishops, Contraception, and Gender Discrimination

Justia columnist and Cardozo law professor Marci Hamilton comments on last week's issuance by, the Obama Administration, of revised HHS regulations that accommodate religious organizations that object to providing contraception and abortion services as part of their requirement to provide health insurance under the Affordable Care Act (ACA). Hamilton explains the exemption, its four criteria, and how the rules work. She also notes that the religious exemption does not apply to for-profit entities, and likely will be held not to apply to nonprofit entities, either. The reason the exemption likely does not apply, Hamilton explains, is that employers are completely out of the loop, with the health insurance issue (including issues regarding contraception and abortion) now solely an issue, under the regulations, between a woman and her doctor.

Do Special Legislative Protections for Labor Picketing Violate the First Amendment? The California Supreme Court in the Ralphs Grocery Case Says “No,” Disagreeing with the D.C. Circuit and Setting Up a Split Only the Supreme Court Can Resolve

Justia columnist and U.C., Davis law professor Vikram David Amar comments on the possible First Amendment issues that could arise from the application of laws that especially favor labor picketing, above other kinds of picketing. Amar covers a recent California Supreme Court ruling on the issue, and the relevant U.S. Supreme Court precedents as well. Amar critiques the California Supreme Court's analysis, but also concludes that, in the end, the California Supreme Court's result was the right one. Amar also notes the reasons why this important First Amendment/labor rights issue may ultimately land at the U.S. Supreme Court in the coming years.

The First Amendment and a New York State Newspaper’s Reportage of the Names of All Area Individuals Holding Pistol Permits

Justia columnist and attorney Julie Hilden comments on the controversial decision by the suburban New York newspaper The Journal News to report the names of area residents who possess pistol permits. Hilden discusses both a possible defense for the newspaper’s controversial action, and also some reasons why that action, while legal under area law and First-Amendment-protected, may not have been prudent—particularly since revealing who is armed in a given community also implicitly reveals who is unarmed and thus potentially vulnerable and therefore, the newspaper’s reportage might cause many area residents to arm themselves.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, holds the James J. Freeland Eminent Scholar... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School... more

Marci A. Hamilton
Marci A. Hamilton

MARCI A. HAMILTON is the Robert A. Fox Leadership Program Professor of Practice, and Fox Family... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately... more