First Amendment

  • January 22, 2015
    BookTalk
    Madison's Music: On Reading the First Amendment
    By: 
    Burt Neuborne

    by Burt Neuborne, Inez Milholland Professor of Civil Liberties, NYU Law, and Founding Legal Director, Brennan Center for Justice

    We honor James Madison as the driving force behind the Bill of Rights.  We recognize him as Thomas Jefferson’s indispensable political lieutenant.  We applaud him as the nation’s fourth president.  But we will never do Madison full justice until we revere him as a great poet.

    Not a literary poet like Wallace Stevens, or a prophet-poet like Abraham Lincoln, or even a peoples’ poet like Ronald Reagan.  Madison’s poetic genius was structural – a mastery of the interplay between democracy and individual liberty.  His poetic voice speaks to us in the harmony of the 462 words, 31 ideas, and 10 amendments – each in its perfectly chosen place and all interacting to form a coherent whole – that is the magnificent poem to democracy and individual freedom called the Bill of Rights.

    Today, we hear only broken fragments of Madison’s music.  Madison’s poetic vision of the interplay between democracy and individual freedom is hiding in plain sight in the brilliantly ordered text and structure of the Bill of Rights, but we have forgotten how to look for it.  Instead of seeking harmony and coherence in the Bill of Rights, the current Supreme Court majority reads the Bill of Rights as a set of self-contained commands, as if each clause – and at times, each word of each clause – existed in splendid isolation from the body of the constitutional text.  Consider the fate of the 45 words in Madison’s remarkable First Amendment:

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble; and to petition the Government for a redress of grievances.

  • January 7, 2015

    by Geoffrey R. Stone. He is the Edward H. Levi Distinguished Service Professor of Law for the University of Chicago, the former ACS Board Chair and current Co-Chair of the Board of Advisors for the ACS Chicago Lawyer Chapter, and a Co-Faculty Advisor for the University of Chicago Law School ACS Student Chapter

    *This post originally appeared on the Huffington Post.


    In light of recent events that have tested the commitment of colleges and universities across the nation to free and open discourse on campus, University of Chicago President Robert J. Zimmer appointed a faculty committee, chaired by me, to prepare a statement articulating the University of Chicago's commitment "to free, robust, and uninhibited debate and deliberation among all members of the University's community."

    After carefully reviewing the University's history, examining events at other institutions, and consulting a broad range of individuals both inside and outside the University of Chicago, the committee crafted the following statement, which "reflects the long-standing and distinctive values of the University of Chicago and affirms the importance of maintaining and, indeed, celebrating those values for the future." I thought it might be instructive to share this statement more generally.

    From its very founding, the University of Chicago has dedicated itself to the preservation and celebration of the freedom of expression as an essential element of the University's culture. In 1902, in his address marking the University's decennial, President William Rainey Harper declared that "the principle of complete freedom of speech on all subjects has from the beginning been regarded as fundamental in the University of Chicago" and that "this principle can neither now nor at any future time be called in question."

    Thirty years later, a student organization invited William Z. Foster, the Communist Party's candidate for President, to lecture on campus. This triggered a storm of protest from critics both on and off campus. To those who condemned the University for allowing the event, President Robert M. Hutchins responded that "our students . . . should have freedom to discuss any problem that presents itself." He insisted that the "cure" for ideas we oppose "lies through open discussion rather than through inhibition." On a later occasion, Hutchins added that "free inquiry is indispensable to the good life, that universities exist for the sake of such inquiry, [and] that without it they cease to be universities."

  • December 23, 2014

    by Nanya Springer

    Just because a prisoner relinquishes her freedom doesn’t mean she must also relinquish her freedom of religion. At least that’s the way it’s supposed to be, pursuant to the Constitution’s First Amendment.

    Unfortunately for Sakeena Majeed—and countless inmates in facilities throughout the U.S.—the fact that inmates retain their fundamental constitutional rights is either not well known, or simply not well respected. 

    Majeed argues in a recently filed lawsuit that upon her arrival to serve a 60-day sentence at the Cuyahoga County Jail in Cleveland, Ohio, a corrections officer told her attendance at weekly Christian prayer services was mandatory. When she objected to mandatory participation, explaining she was Muslim, the corrections officer threatened to send her to solitary confinement. Majeed was therefore forced to attend Christian services every Friday for the duration of her sentence, at one point being publicly mocked by another corrections officer for not actively participating in the worship.

    This is not a difficult case if the corrections officer is found to have coerced Majeed into religious practice. The Supreme Court has held repeatedly and unequivocally that the Constitution prohibits the government from compelling individuals to engage in religious practices, and that includes inmates. 

    Though not a difficult case, it is one that occurs far too often, as Rob Boston of Americans United for Separation of Church and State points out. Boston notes that coercing inmates to participate in faith-based programs and services is not an uncommon occurrence in American jails and prisons. Even following release, former inmates have been compelled to participate in religious-themed programs as a condition of parole.

    Majeed’s case is indicative of a broader trend, one in which government institutions abuse their authority by forcing religion on a captive and powerless population. Prisoners give up many rights, but their right to engage (or not engage) in a faith of their choosing isn’t one of them.  

  • December 11, 2014

    by Caroline Cox

    Christie Thompson of The Marshall Project takes a look at “Skewed Justice,” the ACS-sponsored report on state judicial elections, and argues that ugly judicial elections are bad news for defendants.

    In The Washington Post, Matea Gold reports that a last-minute provision in a congressional spending deal could result in a financial resurgence of large donations to national political parties.

    David Cole, Co-Faculty Adviser to the Georgetown University Law Center ACS Student Chapter, argues in The New Yorker that the report on the C.I.A.’s interrogation program is only a start to taking responsibility for the wrongs done.

    At Bloomberg View, Noah Feldman asserts that the Supreme Court does not understand wage labor.

    At The Hill, Alexander Bolton reports that President Obama’s nominees are in a critical situation as the 113th Congress approaches adjournment.

    Anemona Hartocollis writes in The New York Times that insurers in New York are now obligated to cover gender reassignment surgery.

  • December 9, 2014
    Guest Post

    by Rob BostonDirector of Communications for Americans United for Separation of Church and State.

    The December holidays took an unusual turn at the State Capitol Building in Tallahassee, Fla., this year: A display sponsored by a group called The Satanic Temple is coming to the rotunda.

    How did this come about? Ironically, a series of actions by state officials led to this unorthodox display. A few years ago, Florida officials decided it would be nice to have a nativity scene in the capitol rotunda in December. They were aware that they couldn’t put one up themselves. A Supreme Court decision from 1989 called County of Allegheny v. ACLU bars governments from erecting purely religious symbols in public spaces.

    But a private group could do it – as long as the area in question was deemed an open forum for free speech. Lo and behold, the rotunda was declared an open forum, and the crèche came in.

    Of course, an open forum for free speech means just that – open to all kinds of free speech. So in 2013 the nativity scene wasn’t alone. An atheist group erected a banner offering people a happy Winter Solstice. One Floridian erected a “Festivus pole” made of empty beer cans. And “Pastafarians” put up a depiction of their beloved Flying Spaghetti Monster.