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The Government’S Lies And The Constitution, Helen L. Norton
The Government’S Lies And The Constitution, Helen L. Norton
Indiana Law Journal
The government’s lies can be devastating. This is the case, for example, of its lies told to resist legal and political accountability for its misconduct; to inflict economic and reputational harm; or to enable the exercise of its powers to imprison, to deploy lethal force, and to commit precious national resources. On the other hand, the government’s lies can sometimes be helpful: consider lies told to thwart a military adversary or to identify wrongdoing through undercover police work. The substantial harms threatened by some government lies invite a search for ways to punish and prevent them. At the same time, …
Regulating Drones Under The First And Fourth Amendments, Marc Jonathan Blitz, James Grimsley, Stephen E. Henderson, Joseph Thai
Regulating Drones Under The First And Fourth Amendments, Marc Jonathan Blitz, James Grimsley, Stephen E. Henderson, Joseph Thai
William & Mary Law Review
The FAA Modernization and Reform Act of 2012 requires the Federal Aviation Administration to integrate unmanned aerial vehicles (UAVs), or drones, into the national airspace system by September 2015. Yet perhaps because of their chilling accuracy in targeted killings abroad, perhaps because of an increasing consciousness of diminishing privacy more generally, and perhaps simply because of a fear of the unknown, divergent UAV-restrictive legislation has been proposed in Congress and enacted in a number of states. Given UAV utility and cost-effectiveness over a vast range of tasks, however, widespread commercial use ultimately seems certain. Consequently, it is imperative to understand …
It’S Not Called Conduct Therapy; Talk Therapy As A Protected Form Of Speech Under The First Amendment, Warren Geoffrey Tucker
It’S Not Called Conduct Therapy; Talk Therapy As A Protected Form Of Speech Under The First Amendment, Warren Geoffrey Tucker
William & Mary Bill of Rights Journal
No abstract provided.
Snap: How The Moral Elasticity Of The Denaturalization Statute Goes Too Far, Aram A. Gavoor, Daniel Miktus
Snap: How The Moral Elasticity Of The Denaturalization Statute Goes Too Far, Aram A. Gavoor, Daniel Miktus
William & Mary Bill of Rights Journal
Comprehensive immigration reform is a popular topic in Congress. While many reform bills have been offered, none have addressed the significant substantive and procedural issues surrounding denaturalization, the process where the federal government may seek to have a naturalized persons citizenship revoked in federal court if his citizenship was unlawfully or fraudulently procured.Though denaturalization serves public policy as a final check on naturalization fraud, existing law also permits the government to denaturalize an individual solely for speech and expressive association that occurs after one acquires citizenship. This provision, 8 U.S.C. § 1451(c), violates naturalized citizens First Amendment rights to free …
The Politics And Incentives Of First Amendment Coverage, Frederick Schauer
The Politics And Incentives Of First Amendment Coverage, Frederick Schauer
William & Mary Law Review
No abstract provided.
Leak Prosecutions And The First Amendment: New Developments And A Closer Look At The Feasibility Of Protecting Leakers, Heidi Kitrosser
Leak Prosecutions And The First Amendment: New Developments And A Closer Look At The Feasibility Of Protecting Leakers, Heidi Kitrosser
William & Mary Law Review
This Article revisits the free speech protections that leakers are due in light of recent commentaries and events. Among other things, the Article critiques arguments to the effect that the Obama Administration’s uptick in leak prosecutions does not threaten the system of free speech because plenty of classified information still makes its way into newspapers and the absolute number of leaker prosecutions remains very low. Such positions overlook the slanted impact that prosecutions and investigations are likely to have—and reportedly have had—on the speech marketplace. The Article also explains that even though the increase in prosecutions and other recent developments, …
Reconciling Privacy And Speech In The Era Of Big Data: A Comparative Legal Analysis, Ronald J. Krotoszynski Jr.
Reconciling Privacy And Speech In The Era Of Big Data: A Comparative Legal Analysis, Ronald J. Krotoszynski Jr.
William & Mary Law Review
In both the United States and the nations of Western Europe, significant constitutional commitments safeguard both expressive freedom (including freedom of speech and of the press) and also a generalized constitutional right of privacy. With some regularity, however, these rights will come into conflict, as the protection of one right can be achieved only at the cost of abridging or denying the other. When a government official or public figure objects to the publication of an embarrassing photograph, perhaps taken by an invasive paparazzo, it is simply not possible to fully vindicate both a newspaper’s interest in publishing the photograph …
New Problems For Subsidized Speech, Joseph Blocher
New Problems For Subsidized Speech, Joseph Blocher
William & Mary Law Review
The constitutionality of conditional offers from the government is a transsubstantive issue with broad and growing practical implications, but it has always been a particular problem for free speech. Recent developments suggest at least three new approaches to the problem, but no easy solutions to it. The first approach would permit conditions that define the limits of the government spending program, while forbidding conditions that leverage funding so as to regulate speech outside the contours of the program. This is an appealing distinction, but runs into some of the same challenges as public forum analysis. The second approach would treat …
The Zombie First Amendment, Julie E. Cohen
The Zombie First Amendment, Julie E. Cohen
William & Mary Law Review
Scholarly and popular critiques of contemporary free speech jurisprudence have noted an attitude of unquestioning deference to the political power of money. Rather than sheltering the ability to speak truth to power, they have lamented, the contemporary First Amendment shelters power’s ability to make and propagate its own truth. This Article relates developments in recent First Amendment jurisprudence to a larger struggle now underway to shape the distribution of information power in the era of informational capitalism. In particular, it argues that cases about political speech—cases that lie at the First Amendment’s traditional core—tell only a small part of the …
The First Amendment’S Public Forum, John D. Inazu
The First Amendment’S Public Forum, John D. Inazu
William & Mary Law Review
The quintessential city park symbolizes a core feature of a democratic polity: the freedom of all citizens to express their views in public spaces free from the constraints of government imposed orthodoxy. The city park finds an unlikely cousin in the federal tax code’s recognition of deductions for contributions made to charitable, religious, and educational organizations. Together, these three categories of tax-exempt organizations encompass a vast array of groups in civil society.
The city park is a traditional public forum under First Amendment doctrine, and the charitable, educational, and religious deductions under the federal tax code function much like a …
First Amendment Expansionism, Leslie Kendrick
First Amendment Expansionism, Leslie Kendrick
William & Mary Law Review
In recent years, many litigants have found the First Amendment to be a useful tool. One could mention pornography actors, tattoo artists, death row inmates, and corporate interests from small photography shops to meat trade associations to cigarette manufacturers to pharmaceutical companies. All have raised First Amendment claims in the last few years, and nearly all of them have met with some level of success.
These claims are examples of what has been called First Amendment opportunism, where litigants raise novel free speech claims that may involve the repackaging of other types of legal arguments. To the extent that many …
National Security Information Disclosures And The Role Of Intent, Mary-Rose Papandrea
National Security Information Disclosures And The Role Of Intent, Mary-Rose Papandrea
William & Mary Law Review
In the public discourse, the perceived intent of those who disclose national security information without authorization plays an important role in whether they are labeled as heroes or traitors. Should it matter whether Chelsea (formerly Bradley) Manning leaked government information to WikiLeaks knowing that our enemies might benefit from the information? Is it relevant that Edward Snowden believed—or that a reasonable person would believe—that the topsecret government surveillance programs he revealed were illegal, or that the public value in knowing about these programs outweighed any risk of harm to national security? This Article examines whether intent—and what kind of intent— …
The Right Of Publicity And The First Amendment In The Modern Age Of Commercial Speech, Martin H. Redish, Kelsey B. Shust
The Right Of Publicity And The First Amendment In The Modern Age Of Commercial Speech, Martin H. Redish, Kelsey B. Shust
William & Mary Law Review
The so-called right of publicity gives individuals a legally protected interest against commercially motivated communicators’ use of their names or likenesses for purposes of commercial gain. Although the right is sometimes viewed as a subcategory of the right of privacy, it may be exercised by the best known celebrities, as well as by the most private individual. It is therefore more properly characterized as a property interest in one’s name and likeness than a protection of one’s privacy.
In order to satisfy the concerns of the First Amendment right of free expression, however, the statutory and common law development of …
Why Data Privacy Law Is (Mostly) Constitutional, Neil M. Richards
Why Data Privacy Law Is (Mostly) Constitutional, Neil M. Richards
William & Mary Law Review
Laws regulating the collection, use, and disclosure of personal data are (mostly) constitutional, and critics who suggest otherwise are wrong. Since the New Deal, American law has rested on the wise judgment that, by and large, commercial regulation should be made on the basis of economic and social policy, rather than blunt constitutional rules. This has become one of the basic principles of American constitutional law. Although some observers have suggested that the United States Supreme Court’s recent decision in Sorrell v. IMS Health Inc. changes this state of affairs, such readings are incorrect. Sorrell involved a challenge to a …
When Are Constitutional Rights Non-Absolute? Mccutcheon, Conflicts, And The Sufficiency Question, Mark D. Rosen
When Are Constitutional Rights Non-Absolute? Mccutcheon, Conflicts, And The Sufficiency Question, Mark D. Rosen
William & Mary Law Review
No abstract provided.
Internet Exceptionalism: An Overview From General Constitutional Law, Mark Tushnet
Internet Exceptionalism: An Overview From General Constitutional Law, Mark Tushnet
William & Mary Law Review
This Article considers First Amendment Internet exceptionalism. I use that term in what I think is a reasonably standard way to refer to the question of whether the technological characteristics of the Internet (and, more generally, twenty-first-century information technologies) justify treating regulation of information dissemination through the Internet differently from regulation of such dissemination through nineteenth- and twentieth-century media, such as print, radio, and television. My aim here is not to provide an answer to that question, but to identify several subquestions whose answers must be part of the larger answer.
The Marrow Of Tradition: The Roberts Court And Categorical First Amendment Speech Exclusions, Gregory P. Magarian
The Marrow Of Tradition: The Roberts Court And Categorical First Amendment Speech Exclusions, Gregory P. Magarian
William & Mary Law Review
No abstract provided.
Producing Speech, Ashutosh Bhagwat
Producing Speech, Ashutosh Bhagwat
William & Mary Law Review
In recent years, a large number of disputes have arisen in which parties invoke the First Amendment, but the government action they challenge does not directly regulate “speech,” as in communication. Instead, the government is restricting the creation of communicative materials that are intended to be disseminated in the future—in other words, they restrict producing speech. Examples of such disputes include bans on recording public officials in public places, Los Angeles County’s ban on bareback (condom-less) pornography, restrictions on tattoo parlors, so-called “Ag-Gag” laws forbidding making records of agricultural operations, as well as many others. The question this Article addresses …