Digital Commons Network^™

Unraveling A Ball Of Confusion: Layers Of Criminal Intent, Facebook, Rap, And Uncertainty In Elonis V. United States, 135 S. Ct. 2001 (2015), Cameron L. Fields

Mississippi College Law Review

“So, round and around and around we go. Where the world's heading nobody knows...Just a ball of confusion."

Elonis v. United States was a much-awaited case needed to clarify many questions within its realm. Part of the case's allure was its facts: threats, rap, and Facebook. While the alluring circumstances were well-presented, the potential for clarification was not realized. As the quotes from the various opinions above suggest, a song from the oldies had hinted at this ruling correctly when its lyrics said it's "just a ball of confusion." This Note seeks to unravel this ball of confusion to give, …

The Private Abridgment Of Free Speech, Erin L. Miller

William & Mary Bill of Rights Journal

This Article challenges the orthodoxy that First Amendment speech rights can bind only the state. I argue that the primary justification for the freedom of speech is to protect fundamental interests like autonomy, democracy, and knowledge from the kind of extraordinary power over speech available to the state. If so, this justification applies with nearly equal force to any private agents with power over speech rivaling that of the state. Such a class of private agents, which I call quasi-state agents, turns out to be a live possibility once we recognize that state power is more limited than it seems …

Harmonizing Freedom Of Speech And Free Exercise Of Religion, John Fee

William & Mary Bill of Rights Journal

[...]The close relationship between the free exercise of religion and the freedom of speech points to the sensible assumption that they should receive similar interpretation when dealing with parallel types of problems, or at least that differences in interpretation should be carefully justified.

With this premise, this Article compares freedom of speech and free exercise jurisprudence in various parallel applications, with the suggestion of harmonizing them more closely. While other commentators have compared freedom of speech and free exercise case law with a narrower focus (most commonly, focusing on the incidental burdens issue presented in [Employment Division v. Smith] …

Courting Censorship, Philip A. Hamburger

Faculty Scholarship

Has Supreme Court doctrine invited censorship? Not deliberately, of course. Still, it must be asked whether current doctrine has courted censorship — in the same way one might speak of it courting disaster.

The Court has repeatedly declared its devotion to the freedom of speech, so the suggestion that its doctrines have failed to block censorship may seem surprising. The Court’s precedents, however, have left room for government suppression, even to the point of seeming to legitimize it.

This Article is especially critical of the state action doctrine best known from Blum v. Yaretsky. That doctrine mistakenly elevates coercion …

A Pleasure To Burn: How First Amendment Jurisprudence On Book Banning Bolsters White Supremacy, Amy Anderson

Mitchell Hamline Law Review

No abstract provided.

The Revolution Will Not Be Moderated: Examining Florida And Texas's Attempts To Prohibit Social Media Content Moderation, Caroline Jones

American University Journal of Gender, Social Policy & the Law

Today, around seventy percent of American citizens actively use social media for news content, entertainment, and social engagement. Since 2005, the number of Americans using social media in some capacity has increased 13 fold from five to sixty-five percent. Despite numerous studies demonstrating a correlation between social media rhetoric and real-world violence against women, racial and ethnic minority communities, and the LGBTQIA community, both Florida and Texas passed bills limiting the ways in which social media sites can moderate the content and users on their platforms in 2021. Florida’s Senate Bill 7072 requires social media platforms to allow political candidates …

Free Speech On Social Media: Unrestricted Or Regulated?, Alessandra Garcia Guevara

Student Writing

Social media has evolved into an essential mode of communication in recent years, allowing people to express their thoughts with the audience of their choice by sending private messages, posting their thoughts, or sharing their opinions. Such audiences can come from all over the world because this online technology breaks down geographic, linguistic, and cultural barriers. As a result, social media has evolved into a powerful tool for self-expression, allowing anyone with an Internet connection to participate in global debates. However, its misuse has had disastrous consequences in the real world, such as the attack on the Capitol that occurred …

The Coddling Of The American Worker's Mind: The Anti-Free Speech Nature Of Popular Labor Law Reforms, Daniel V. Johns

William & Mary Bill of Rights Journal

As the nation enters an era in which a new presidential administration will likely push such labor law reforms, it is worth considering whether transparently anti-free speech reform measures make sense for the future of labor policy and law. This Article argues that they do not. Because employee free choice is furthered, not diminished, by hearing both sides of an issue, American workers should have the opportunity to hear and evaluate employer speech in the course of union campaigns. Only then can employees make an informed decision about their workplace future. In the end, freedom of speech furthers employee freedom …

Constitutional Rights As Human Rights: Freedom Of Speech, Equal Protection, And The Right Of Privacy, Michael J. Perry

Faculty Articles

Much of my recent scholarly work has addressed questions concerning the political morality - the global political morality of human rights. This essay continues in that vein; I focus on a relationship I began to discuss almost forty years ago, in my first book: the relationship between (some) constitutional rights and (some) human rights. My overarching claim here: There is a significant interface between the constitutional law of the United States and the political morality of human rights. My principal aim in this Essay is to defend (and illustrate) that broad claim by defending three narrower claims:

1. The constitutional …

Animal Rights Activism And The Constitution: Are Ag-Gag Laws Justifiable Limits?, Jodi Lazare

Articles, Book Chapters, & Popular Press

Forthcoming in the Osgoode Hall Law Journal (2022).

It is a troubling time to be an animal rights activist in Canada. Recently, Alberta adopted legislation to create harsh penalties for trespassing onto private property, for obtaining permission to enter private property based on false pretences, and for interfering with vehicles on public highways. These laws relate to agricultural lands, to private property generally, and, where roads are concerned, to public property. Ontario, for its part, has adopted similar legislation aimed specifically at agricultural property. The legislation in both provinces purports to protect the security of farmers, their families, and rural …

Manipulation And The First Amendment, Helen Norton

William & Mary Bill of Rights Journal

This Article examines new conceptual tools for understanding manipulation and its harms. More specifically, Part I draws from ethicists' insights to explain how manipulation can inflict harms distinct from those imposed by coercion and deception, and to explain why addressing these distinct harms is a government interest sufficiently strong to justify appropriately tailored interventions.

Part II explores how these conceptual tools also help us understand when, how, and why government can regulate manipulation consistent with the First Amendment. As a threshold matter, note that manipulative online interfaces and related design choices may be better understood as conduct, rather than speech …

Fundamental Rights Or Hand-Me-Down Restrictions: The Specter Of Sumptuary Law In Clothing Expression Doctrines Of The U.K., The U.S., & Canada, Taran Harmon-Walker

Georgia Journal of International & Comparative Law

No abstract provided.

Free Speech, Strict Scrutiny And A Better Way To Handle Speech Restrictions, Aaron Pinsoneault

William & Mary Bill of Rights Journal

When it comes to unprotected speech categories, the Roberts Court has taken an amoral and inaccurate approach. When the Court first created unprotected speech categories-- defined categories of speech that are not protected by the First Amendment-- it was unclear what rendered a category of speech unprotected. One school of thought argued that speech was unprotected if it provided little or no value to society. The other school of thought argued that speech was unprotected if it fell into a certain category of speech that was simply categorically unprotected. Then, in 2010, the Court strongly sided with the latter approach, …

Keeping Up: Walking With Justice Douglas, Charles A. Reich

Touro Law Review

No abstract provided.

The First Amendment And Algorithms, Stuart M. Benjamin

Faculty Scholarship

No abstract provided.

The Second Founding And The First Amendment, William M. Carter Jr.

Articles

Constitutional doctrine generally proceeds from the premise that the original intent and public understanding of pre-Civil War constitutional provisions carries forward unchanged from the colonial Founding era. This premise is flawed because it ignores the Nation’s Second Founding: i.e., the constitutional moment culminating in the Thirteenth, Fourteenth, and Fifteenth Amendments and the civil rights statutes enacted pursuant thereto. The Second Founding, in addition to providing specific new individual rights and federal powers, also represented a fundamental shift in our constitutional order. The Second Founding’s constitutional regime provided that the underlying systemic rules and norms of the First Founding’s Constitution …

The Fossil Fuel Industry’S Push To Target Climate Protesters In The U.S., Grace Nosek

Pace Environmental Law Review

At the very moment when the United Nations has called for profound shifts in social and economic systems to avert climate catastrophe, state and non-state actors in the United States (U.S.) are using a series of tactics to target and stifle climate protesters. Although the move to stifle climate protesters is often framed as a government effort, this Article argues it is critical to draw out the role of the fossil fuel industry in initiating, amplifying, and supporting such tactics.

This Article highlights the role the fossil fuel industry has played in supporting the targeting and restricting of climate protesters …

Dissent, Disagreement And Doctrinal Disarray: Free Expression And The Roberts Court In 2020, Clay Calvert

William & Mary Bill of Rights Journal

Using the United States Supreme Court’s 2019 rulings in Manhattan Community Access Corp. v. Halleck, Nieves v. Bartlett, and Iancu v. Brunetti as analytical springboards, this Article explores multiple fractures among the Justices affecting the First Amendment freedoms of speech and press. All three cases involved dissents, with two cases each spawning five opinions. The clefts compound problems witnessed in 2018 with a pair of five-to-four decisions in National Institute of Family and Life Advocates v. Becerra and Janus v. American Federation of State, County, and Municipal Employees. Partisan divides, the Article argues, are only one problem with First Amendment …

Speak Up, Or Not: Lack Of Freedom Of Speech Protection In Vietnam, Its Global Impact, And Proposed Solutions For Adequate Remedies, H. Grant Doan

Georgia Journal of International & Comparative Law

No abstract provided.

Masterpiece's Equal Treatment Of The Religious And Expressive Freedoms Under The First Amendment, Hwi Won Kim

Maurer Theses and Dissertations

This thesis aims at examining the validity of free speech claims for religious exemptions on the one hand and reviewing the Masterpiece Court's holdings on the current complex entanglement of religious exemption theories, on the other hand; and finally, it also provides a possible suggestion for co-existing between two constitutional values without an all-or-nothing solution.

As to the free speech argument, the Court would likely decide that a compelled speech argument should succeed if, and only if, the vendor’s good or service is expressive under the Free Speech Clause. For a baker, the Court would protect making a custom cake …

Privileged Violence, Principled Fantasy, And Feminist Method: The Colby Fraternity Case, Martha T. Mccluskey

Maine Law Review

Colby College banned fraternities and sororities in 1984 after many years of unsuccessfully attempting to improve fraternity behavior. Sexual harassment and sex discrimination were major reasons for the college's decision. At first the college withheld official recognition of and financial benefits to the fraternities. Membership in fraternities was not punished, although Colby established a policy prohibiting any participation in fraternities. The college had hoped that without houses, financing, and other support from the administration, the fraternities would disband—particularly once all students who had belonged to the officially sanctioned groups had graduated. Although the sororities soon dissolved, most of the male …

"The Road I Can't Help Travelling": Holmes On Truth And Persuadability, Joseph Blocher

Faculty Scholarship

No abstract provided.

The Supreme Court’S Two Constitutions: A First Look At The “Reverse Polarity” Cases, Arthur D. Hellman

Articles

In the traditional approach to ideological classification, “liberal” judicial decisions are those that support civil liberties claims; “conservative” decisions are those that reject them. That view – particularly associated with the Warren Court era – is reflected in numerous academic writings and even an article by a prominent liberal judge. Today, however, there is mounting evidence that the traditional assumptions about the liberal-conservative divide are incorrect or at best incomplete. In at least some areas of constitutional law, the traditional characterizations have been reversed. Across a wide variety of constitutional issues, support for claims under the Bill of Rights or …

Constitutional Moral Hazard And Campus Speech, Jamal Greene

William & Mary Law Review

One underappreciated cost of constitutional rights enforcement is moral hazard. In economics, moral hazard refers to the increased propensity of insured individuals to engage in costly behavior. This Essay concerns what I call “constitutional moral hazard,” defined as the use of constitutional rights (or their conspicuous absence) to shield potentially destructive behavior from moral or pragmatic assessment. What I have in mind here is not simply the risk that people will make poor decisions when they have a right to do so, but that people may, at times, make poor decisions because they have a right. Moral hazard is not …

Masterpiece Of Misdirection?, Mark Strasser

Washington and Lee Law Review

In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the United States Supreme Court overruled a finding that a religious baker had violated a state antidiscrimination law when refusing to create a wedding cake for a same-sex couple. The decision might seem to have been a masterful resolution of an extremely difficult case because the Court issued a narrow opinion that seemed to affirm free exercise rights while at the same time affirming the right of same-sex couples to marry. Yet, the opinion, along with the accompanying concurrences and dissent, may well destabilize various settled areas of constitutional law …

The Invention Of First Amendment Federalism, Jud Campbell

Law Faculty Publications

When insisting that the Sedition Act of 1798 violated the First Amendment, Jeffersonian Republicans cast their argument in historical terms, claiming that the Speech and Press Clauses eliminated any federal power to restrict expression. Scholars, in turn, have generally accepted that Republicans had a consistent understanding of the First Amendment throughout the 1790s. But Founding Era constitutionalism was dynamic in practice, even while often conservative in rhetoric, and scholars have missed the striking novelty of the principal argument against the Sedition Act. Republicans had taken a rights provision and transformed it into a federalism rule.

Mostly ignored in the literature, …

Free Speech And Justified True Belief, Joseph Blocher

Faculty Scholarship

Law often prioritizes justified true beliefs. Evidence, even if probative and correct, must have a proper foundation. Expert witness testimony must be the product of reliable principles and methods. Prosecutors are not permitted to trick juries into convicting a defendant, even if that defendant is truly guilty. Judges’ reasons, and not just the correctness of their holdings, are the engines of precedent. Lawyers are, in short, familiar with the notion that one must be right for the right reasons.

And yet the standard epistemic theory of the First Amendment—that the marketplace of ideas is the “best test of truth”—has generally …

Compelled Subsidies And Original Meaning, Jud Campbell

Law Faculty Publications

The rule against compelled subsidization of speech is at the forefront of modem First Amendment disputes. Challenges to mandatory union dues, laws preventing discrimination on the basis of sexual orientation, and the federal "contraceptive mandate" have all featured variants of the anti-subsidization principle, reasoning that the government cannot compel people to support the objectionable activities of others. But the literature currently fails to evaluate modem compelled-subsidy doctrine in terms of the original meaning of the First Amendment. This Essay takes up that task.

Approaching any question of original meaning requires a willingness to encounter a constitutional world that looks very …

Quiet-Revolution Rulings In Constitutional Law, Dan T. Coenen

Scholarly Works

The Supreme Court ordinarily supports its establishment of major constitutional principles with detailed justifications in its opinions. On occasion, however, the Court proceeds in a very different way, issuing landmark pronouncements without giving any supportive reasons at all. This Article documents the recurring character and deep importance of these “quietrevolution rulings” in constitutional law. It shows that—however surprising it might seem—rulings of this sort have played key roles in shaping incorporation; reverse incorporation; congressional power; federal courts; and freedom-ofspeech, freedom-of-religion, and equal-protection law. According to the synthesis offered here, these rulings fall into two categories. One set of cases involves …

Listeners' Choices, James Grimmelmann

University of Colorado Law Review

Speech is a matching problem. Speakers choose listeners, and listeners choose speakers. When their choices conflict, law often decides who speaks to whom. The pattern is clear: First Amendment doctrine consistently honors listeners' choices for speech. When willing and unwilling listeners' choices conflict, willing listeners win. And when competing speakers' choices conflict, listeners'choices break the tie. This Essay provides a theoretical framework for analyzing speech problems in terms of speakers' and listeners' choices, an argument for the centrality of listener choice to any coherent theory of free speech, and supporting examples from First Amendment caselaw.