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First Amendment

2011-2012 Supreme Court Term: Oral Argument in Reichle v. Howards, No. 11-262: Should the Secret Service Have Immunity From Liability for an Alleged Retaliatory Arrest?

April 7, 2012

During oral argument in Reichle v. Howards the justices of the Supreme Court were understandably skeptical about allowing a man to sue a group of Secret Service agents for "retaliation" where there was probable cause for the agents to arrest the man. On the other hand, the Court struggled to find a way not to give the Secret Service [...]

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Prominent Supporters of Terrorist Organization MEK May Not Be Protected by First Amendment

March 16, 2012

Dozens of prominent American political figures from both political parties may have violated the federal anti-terrorism law by advocating that the MEK should be removed from the list of designated terrorist organizations. Because of the Supreme Court's decision in Holder v. Humanitarian Law Project (2010), what they said may not be not protected by the [...]

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Rush Limbaugh, Hate Speech, and the First Amendment

March 15, 2012

Rush Limbaugh has a long history of demeaning people based upon their gender, race, religion, and sexual orientation. His record is a perfect demonstration of the fact that in the context of a public address hate speech is protected by the First Amendment. That does not mean that other people have to put up with [...]

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2011-2012 Supreme Court Term: Oral Argument in FCC v. Fox, continued

March 5, 2012

Two days ago I summarized the issues in this case.  Yesterday's post described the Solicitor General's presentation to the Supreme Court in oral argument.  Today I describe the television broadcasters' arguments to the Court, through their attorneys Carter G. Phillips and Seth P. Waxman.  The transcript of oral argument is available here.

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Rush Limbaugh, Larry Flynt, and the Westboro Baptist Church: Is Limbaugh Protected by the First Amendment?

March 5, 2012

Over the course of three days conservative commentator Rush Limbaugh repeatedly defamed Sandra Fluke, a third-year Georgetown law student, calling her a "slut" and a "prostitute."  If found guilty of slander or intentional infliction of emotional distress (IIED), Limbaugh would be liable to Ms. Fluke for millions of dollars in actual damages, and his potential [...]

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2011-2012 Supreme Court Term: Oral Argument in Fox v. F.C.C.

March 4, 2012

I described the First Amendment issues that are at stake in this case in yesterday's post. Today's post summarizes what occurred during the government's presentation at oral argument in FCC v. Fox on January 10, 2012. The transcript of oral argument is available here.

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2011-2012 Supreme Court Term: FCC v. Fox Television Stations, No., 10-1293 (Vagueness, Freedom of Expression)

March 3, 2012

The last time this case came before the Supreme Court in 2009 it was for âfleeting expletivesâ uttered by Cher at the 2002 Billboard Music Awards broadcast by Fox and by Nicole Richie and Paris Hilton at the same event in 2003.  The Supreme Court decided that case not on constitutional grounds but rather under principles of [...]

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2011-2012 Supreme Court Term: Reichle v. Howards, No. 11-362 (First Amendment)

February 28, 2012

On June 16, 2006, Stephen Howards was arrested by the Secret Service after he said something to Vice-President Richard Cheney and touched or pushed his shoulder, and then lied to them about whether he had done that.  As a result Howards sued several of the Secret Service agents for violating his rights under the First [...]

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Same-Sex Marriage: 85,600,000 and Growing

February 24, 2012

More than one-fourth of Americans now live in jurisdictions that recognize same-sex marriage.  Within five years more than half of Americans may live in such jurisdictions.  But there are legal barriers.

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Hazma Kashgari Faces Death Penalty in Saudi Arabia for Apostasy

February 12, 2012

Hazma Kashgari, a 23-year-old Saudi journalist, faces the death penalty for tweeting his doubts about the divinity of the Prophet Mohammed.  This is a reminder of our own struggles to establish freedom of speech and freedom of religion.

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2011-2012 Supreme Court Term (1): Hosannah-Tabor Church and School v. EEOC – The Ministerial Exception to Employment Discrimination Laws

September 7, 2011

This case involves a parochial school teacher who was fired because of a disability.  Her employer claimed that it was exempt from the Americans with Disabilities Act because of the "ministerial exception," a judge-created doctrine that exempts religious organizations from the operation of civil rights laws in cases involving "ministerial employees." 

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Lexington, Virginia, Chooses Not to Fly the Confederate Flag

September 3, 2011

Does a city have a constitutional right not to fly a particular flag?

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