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Why the unconstitutional conditions doctrine is an anachronism (with particular reference to religion, speech, and abortion)

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... 51 SUNSTEIN (1989) p. 345. Ver también SUNSTEIN (1990). 52 SCHAUER (1994SCHAUER ( -1995 los fundamentos sobre los que se construye dicha doctrina. ...
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This document refers to the unconstitutional condition doctrine in the United States and its possible application in our legal system. The doctrine states that the Constitution does not allow the government to require someone to surrender a constitutional right as a condition to receive some governmental benefit. The following pages analyze this contended doctrine considering the current constitutional debate and the case law in the United States. Then, the article presents some decisions of the Chilean Constitutional Court in order to find the foundations of such doctrine in Chile.
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This Note explores whether a condition of supervised release that restricts computer and Internet access violates the doctrine of unconstitutional conditions. Although a circuit split has developed regarding the scope of a permissible restriction, as Courts of Appeals have been inundated with cases challenging the validity of these technology restrictions, no court has yet viewed these limits through the lens of the doctrine of unconstitutional conditions. This Note begins with a discussion of the First Amendment and the theory of unconstitutional conditions, tracing their respective developments in cases relating to prisoners, speech, and the Internet age. Next, it synthesizes the oft-criticized idea of unconstitutional conditions into a new three-prong framework, judging the propriety of a condition based on the government’s coerciveness in making the offer, the purpose for pursuing the condition, and the condition’s effect on protected speech. Then, this Note surveys cases where courts have ruled on the validity of a computer or Internet restriction, and recasts their reasoning to discuss whether such a condition may be constitutional, using the coercion-purpose-effect framework. Finally, this Note concludes that a condition is constitutional where it is accepted knowingly and voluntarily, is intended to protect the public rather than regulate speech indirectly, and where computer-monitoring and Internet-filtering technology is maximized to minimize First Amendment infringement.
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More than forty-six million Americans are uninsured, and many more are seeking government assistance, which makes congressional spending for federal programs a significant issue. Federal funding often comes with prerequisites in the form of statutory conditions. This Article examines the impact that conditions placed on federal healthcare spending have on the individuals who rely on that spending by exploring the ongoing disconnect between Spending Clause jurisprudence and women's reproductive rights. The first Part reviews the foundational Supreme Court precedents and places them in context from both a statutory and theoretical perspective. The second Part studies what the author denominates "pure funding statutes" and "conscience clause funding statutes." The third Part explores the contours of conditional spending jurisprudence in an effort to determine where individual protection may fit within the existing conditional spending jurisprudence. The Article concludes that the Supreme Court could protect the interests of individuals if its existing conditional spending test is applied in full, which has not been the Court's practice. The Article also concludes that, given the makeup of the Roberts Court and the balance of Congress, the better solution could be legislative constitutionalism. In other words, Congress should remove these funding limitations from legislation-not only because such limitations may be unconstitutional but also because they represent an ongoing disconnect in the law that aggrandizes the spending power.
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Two recent circuit court decisions - first Retail Industry Leaders Ass’n v. Fielder in the Fourth Circuit then Golden Gate Restaurant Ass’n v. San Francisco in the Ninth Circuit - have left far from clear the extent to which state-level employer pay-or-play health insurance schemes are valid in the face of an ERISA preemption challenge. Debate indeed continues as to whether the currently operative, but as yet unchallenged, pay-or-play law in Massachusetts is preempted. The Ninth Circuit reasoned in Golden Gate that the San Francisco scheme it upheld was distinguishable from the Maryland scheme the Fourth Circuit struck down because it did not coerce employers into increasing their ERISA health benefits, and therefore the decision created no circuit split. This Note argues that a coercion-centered test is unlikely to produce a consistent doctrine. To make this point, it analogizes to the unconstitutional conditions doctrine, in which courts have also tried to measure the coercive effect of economic incentive schemes but have failed to fashion a coherent test capable of producing predictable outcomes. Instead of focusing on coercion, courts can, with equal fidelity to the law, apply a rebuttable presumption against preemption to pay-or-play schemes which are part of comprehensive health reform initiatives. This approach provides a superior basis for distinguishing the Maryland and San Francisco schemes, and also leads to the predictable outcome that the Massachusetts pay-or-play law is not preempted.
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This paper argues that the recent decision of the United States Supreme Court in FEC v. Davis renders the idea of public financing of elections largely irrelevant. In Davis, a majority of the Court saw the provision of a "compensatory" benefit to the opponent of a candidate who spends more than a designated amount as a burden on speech. That burden, moreover, cannot be justified by an interest in "leveling the playing field." The paper argues that Davis’ rationale is equally applicable to candidates facing independent expenditures. It suggests that a public financing system cannot be designed in a way that provides asymmetrical funding (often called "rescue" or "fair fight" funds) to those whose candidacies are criticized by such expenditures. If these efforts to level the playing field are not permitted, public financing of campaigns is likely to be either undesirable (because it will drive money to independent expenditures) or irrelevant (because such independent expenditures will swamp any conceivable amount of public funding). I argue that this is not an undesirable development, suggesting that we move from a model of control to competition with respect to the funding of political campaigns.
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Courts confronting First Amendment claims do not often scrutinize the severity of a speaker’s punishment. Embracing a “penalty-neutral” understanding of the free-speech right, these courts tend to treat an individual’s expression as either protected, in which case the government may not punish it at all, or unprotected, in which case the government may punish it to a very great degree. There is, however, a small but important body of “penalty-sensitive” case law that runs counter to the penalty-neutral norm. Within this case law, the severity of a speaker’s punishment affects the merits of her First Amendment claim, thus giving rise to categories of expression that the government may punish, but only to a limited extent. This Article defends penalty-sensitive free- speech adjudication and calls for its expanded use within First Amendment law. Pulling together existing strands of penalty-sensitive doctrine, the Article identifies five ways in which penalty-sensitive analysis can further important constitutional objectives: (1) by increasing fairness for similarly-situated speakers; (2) by mitigating chilling effects on protected speech; (3) by facilitating the “efficient breach” of constitutionally borderline speech restrictions; (4) by rooting out improper government motives; and (5) by promoting transparency in judicial decision-making. The Article also considers and rejects potential objections to the penalty-sensitive approach, concluding that it will often generate proper results in difficult First Amendment cases.
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"[T]he [First] Amendment embraces two concepts-freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be."I © 2010 American Society of Law, Medicine & Ethics Boston University School of Law.
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Government speech creates a paradox at the heart of the First Amendment. In order to satisfy traditional First Amendment tests, the government must show that it is not discriminating against a viewpoint. And yet if the government shows that it is condemning or supporting a viewpoint, it may be able to invoke the government speech defense and thereby avoid constitutional scrutiny altogether. Government speech doctrine therefore rewards what the rest of the First Amendment forbids – viewpoint discrimination against private speech. This is both a theoretical puzzle and an increasingly important practical problem. In cases like Pleasant Grove City v. Summum, the City’s disagreement with a private message was the heart of the successful government speech claim. Why is viewpoint discrimination flatly forbidden in one area of First Amendment law and entirely exempt from scrutiny in another? This Article explores that question and why it matters, and suggests ways to reconcile these apparently incompatible principles.
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