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Copyright (c) 2008 Texas Tech University School of Law
Texas Tech Law Review

FIFTH CIRCUIT SURVEY: June 2006-May 2007: SURVEY ARTICLE: FIRST AMENDMENT

Spring, 2008

Texas Tech Law Review

40 Tex. Tech L. Rev. 561

Author

by David A. Furlow*

Excerpt



I. Introduction

The Fifth Circuit continues to be one of the most conservative federal appellate courts addressing First Amendment issues. Two en banc decisions demonstrate that standing has become one of the most important issues in separation of church and state cases under the First Amendment's Establishment Clause. 1

During the survey period-June 1, 2006, through May 31, 2007-the Fifth Circuit continued to protect commercial speech by striking down statutes restricting truthful, non-misleading speech in cases involving auto body repair shops and bail bonds. 2 The court remained hostile toward sexually oriented businesses and thus often deferred to justifications for those ordinances. 3 In commercial speech and sexually oriented business cases, a wide circuit split now separates the Fifth Circuit from most other federal courts on the issue of whether a governmental entity must justify a speech restriction with pre- or at-enactment evidence as opposed to post-enactment evidence created during litigation. 4

Employment cases are now incorporating the Supreme Court's recent Garcetti v. Ceballos ruling by limiting government employees' rights to recover damages for retaliation. 5 The Fifth Circuit has now clarified previous precedent that district courts lack discretion to deny prevailing plaintiffs their reasonable and necessary attorneys' fees in the absence of detailed findings of extraordinary circumstances. 6



II. Mooting a First Amendment Establishment Clause Challenge to State Endorsement of Religion: Staley v. Harris County



In Staley v. Harris County, a divided, en banc Fifth Circuit broke new ground while addressing mootness, vacatur, and attorneys' ...
 
 
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