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Monday, June 25, 2007

First Amendment Day at the Court

Today, the Court handed down decisions in Hein (taxpayer standing in Establishment Clause cases), Morse ("Bong Hits 4 Jesus"), and Wisconsin Right to Life ("issue advocacy" under the BCRA).  (Marty Lederman has some preliminary thoughts over at SCOTUSblog.) 

Two quick ones of my own:  First, I was pleased to see that the Court declined in Hein to extend the Flast exception.  This is not to disagree with Marty, or Justice Scalia, and assert that the resulting state-of-the-law is coherent.  As I've suggested before (here and here), it is more that I do not see why -- Madison notwithstanding -- the injury alleged by taxpayers in Establishment Clause cases should be treated differently, for standing purposes, than the injury asserted by, say, an enumerated-powers hawk.

Second, I share the concerns Justice Alito expressed -- concurring in Morse -- about the "advanced by petitioners and the United States that the First Amendment permits public school officials to censor any student speech that interferes with a school's educational mission."  As he observed, "[t]his argument can easily be manipulated in dangerous ways[.]"

UPDATE: Here, thanks to Howard Bashman, is a link to a conversation, on the News Hour with Jim Lehrer, between Prof. Walter Dellinger and me about today's First Amendment cases.

Posted by Rick Garnett on June 25, 2007 at 12:44 PM in Constitutional thoughts | Permalink


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» Is Tinker Dead? from Rhymes With Right
That is the question that springs to mind in the aftermath of today’s decision in the “Bong Hits 4 Jesus” case. In allowing a public school to punish a student who unfurled a banner off school grounds based upon a... [Read More]

Tracked on Jun 25, 2007 2:02:57 PM

» Hein v. Freedom From Religion Foundation from Stubborn Facts
It's been a busy day at the Supreme Court; Pat has coverage of Morse v. Fredrick here and WRTL here. Being our resident threshold doctrine geek, the decision in Hein v. Freedom from Religion Foundation is, ahem, all mine. [Read More]

Tracked on Jun 25, 2007 5:33:37 PM


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