Archive for December 2009
Blog on Vacation; 2010 Plans
Vacation
My blog and I are busy grading exams, finishing an article and then vacationing afterward. We will return during the week of January 18, 2010, the first week of the spring semester.
In 2010
I will continue my series of posts on all aspects of § 1983, from the basics to the complexities.
I will also continue to address interesting and important constitutional law issues as they arise in the courts and in the classroom. I will likely focus on speech, press and religion issues in the first half of 2010, since I will be teaching the First Amendment course next semester.
Thanks
These first four months of this blog have been rewarding to me and I hope to some of you as well. I look forward to resuming it next month.
In the meantime, I wish you a happy and healthy new year.
Sheldon Nahmod
The Religion Clauses: ‘Tis the Season
Introduction
The first part of the First Amendment reads as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”
These sixteen words containing the Religion Clauses have for the last fifty years caused a great deal of controversy not only in the United States Supreme Court but among the public at large. What I would like to do here is set out some basic points without getting bogged down in the legalities.
History
The Framers studied the religious wars of Europe and knew of their terrible impact on religious freedom and on the lives of Europeans. They also had a good understanding of the political divisions that religion created in the colonies. In drafting the First Amendment, they were determined to avoid as much of this divisiveness as possible while at the same time insisting on the importance of religious belief for morality, and on freedom of thought.
Public Employee Free Speech: The New Regime
Introduction
Several years ago the United States Supreme Court handed down Garcetti v. Ceballos, 126 S. Ct. 1951 (2006), the most important public employee free speech case in decades.
[Note: my article, Public Employee Speech, Categorical Balancing and Section 1983: A Critique of Garcetti v. Ceballos, 42 U. of Richmond L. Rev. 561 (2008), is downloadable. This article extensively criticizes Garcetti at the theoretical and doctrinal levels.]
The First Amendment Background: The Pickering Two-Step
In 1968, the Supreme Court decided Pickering v. Bd. of Educ., 391 U.S. 563 (1968), which held that certain speech of public employees was protected by the First Amendment from public employer discipline. Specifically: (1) if the content of the public employee’s speech was a matter of public concern, (2) then the First Amendment kicked in and protected the employee so long as the employer’s interests did not outweigh the free speech interests of the employee and the public. If, however, the employee’s speech was a matter of private concern only, then the First Amendment was inapplicable.
As a practical matter, in most cases where the employee’s speech was a matter of public concern, the employee won under the First Amendment. But this all changed in Garcetti. Read the rest of this entry »
Nahmod Law 