Law | Open Access Articles | Digital Commons Network™

The Law Of License Plates And Other Inevitabilities Of Free Speech Context Sensitivity, William D. Araiza

Faculty Scholarship

No abstract provided.

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Free Speech Still Matters, Joel M. Gora

Faculty Scholarship

No abstract provided.

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“More Than Tangential”: When Does The Public Have A Right To Access Judicial Records?, Jordan Elias

Journal of Law and Policy

 Public accountability requires open proceedings and access to documents filed with the courts. The strong policy favoring access to judicial records creates a presumption against sealing documents without a compelling reason.  The Ninth Circuit Court of Appeals recently held that this presumption of access arises when a proceeding relates “more than tangentially” to the merits. This is a low standard under which many types of motions qualify for the compelling reasons test.  With too much litigation occurring in secret, courts can use the “more than tangential” standard proactively to keep electronic case dockets available to citizens.

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Preserving Fabled Amateurism: The Benefits Of The Ncaa’S Adoption Of The Olympic Amateurism Model, John Kealey

Journal of Law and Policy

After a century of denying student-athletes from receiving compensation outside the cost of attendance for their athletic contributions to their respective universities, the NCAA finally announced it would change its amateurism rule. The change came in response to multiple class action lawsuits and, more recently, legislation from many states, namely California and New York, which would have mandated that universities do not interfere with student-athletes desire to commercially exploit their own names, image, and likenesses. However, these statutes are potentially flawed in that each could exacerbate or perpetuate the anti-trust and first amendment issues inherent to the current amateurism rule. …

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How Single-Candidate Super Pacs Changed The Game And How To Change It Back: Adopting A Presumption Of Coordination And Fixing The Fec’S Gridlock, Sarah E. Adams

Brooklyn Law Review

A series of Supreme Court decisions chipping away at campaign finance regulations, particularly the regulation of expenditure-only groups, has resulted in a proliferation of single-candidate Super PACs. While purportedly independent of the candidate, in reality, single-candidate Super PACs operate as an extension of the candidate’s own campaign team. This note argues that single-candidate Super PACs, now operating as fundamental extensions of candidates’ campaigns, pose quid pro quo corruption risks by acting as surrogates for donors who have maxed out on contributions made directly to a candidate. This note will prove that curbing the proliferation of candidate Super PAC coordination, and …

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In Defense Of Brandenburg: The Aclu And Incitement Doctrine In 1919, 1969, And 2019, Emerson J. Sykes

Brooklyn Law Review

In the United States, full-throated advocacy—even advocacy of violence—is protected by the First Amendment of the Constitution. Few other countries define “incitement to violence” as narrowly, and governments tend to exploit any authority to regulate speech. The ACLU has played a central role in developing America’s speech-protective modern incitement doctrine over the last century, sometimes by representing clients with abhorrent views, including in the landmark Brandenburg v. Ohio. The Brandenburg test sets a high bar for incitement that should be maintained, even with respect to online speech. Calls for increased regulation of speech should not be heeded.

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The First Amendment And The Imminence Of Harm, Floyd Abrams

Brooklyn Law Review

Noted First Amendment litigator Floyd Abrams engages questions about the past, the present and the future of free speech directly by considering the key words from Justice Holmes’s canonical formulation for the constitutional standard governing regulation of incitement speech—the requirement that any danger justifying such speech regulation must be “clear and present.” Mr. Abrams asks what types of “danger” are sufficiently “present” to provide that justification, using as examples the Communist teachings at issue in Dennis v. United States and The Progressive magazine’s publication of plans for constructing a hydrogen bomb. While Mr. Abrams reaches no hard and fast conclusion …

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#Losingthethread: Recognizing Assembly Rights In The New Public Forum, Liz Grefrath

Brooklyn Law Review

The specter of banishment from the vibrant public forum of social media to the empty streets and deserted sidewalks is a matter of increasing political, social, and cultural importance. Today, nearly every government official maintains a social media presence on Facebook or Twitter, generally to promote initiatives, share ideological positions, engage constituents, and tangle with critics. Privacy controls and content moderation tools, however, offer government officials tantalizing opportunities to discretely and effectively muffle disapproval, stifle dissent, and shield themselves from criticism on their public social media pages through “blocking” features. Courts are just starting to grapple with the First Amendment …

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"Incitement Lite" For The Nonpublic Forum, Leslie Gielow Jacobs

Brooklyn Law Review

The incitement exception set out in Brandenburg v. Ohio defines the authority of the government, acting in its sovereign capacity, to impose criminal punishment on speakers because the content of their advocacy may persuade listeners to commit crimes. Nonpublic forum managers have much greater flexibility than the government-as-sovereign to restrict the private speakers they invite onto their property because the content of their speech may persuade listeners to engage in harmful conduct. In nonpublic forum management, speakers experience no sanctions and, unlike the government-as-sovereign, nonpublic forum managers may close their forums to all private speakers to avoid unwanted speech. This …

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Assumptions About “Terrorism” And The Brandenburg Incitement Test, Christina E. Wells

Brooklyn Law Review

The incitement standard announced in Brandenburg v. Ohio, which bars government officials from punishing advocacy of illegal activity unless it is directed and likely to imminently incite such activity, is one of the most speech-protective tests in the Supreme Court’s jurisprudence. However, terrorist advocacy – glorification of violence, spreading of propaganda, and recruitment of individuals to their cause – is putting pressure on the Brandenburg standard. Scholars have suggested working around Brandenburg’s incitement standard to counter the dangerous influence of terrorist advocacy, especially online advocacy. Although scholars’ concern with the harms of terrorism is understandable, their willingness to alter Brandenburg …

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Symposium Introduction, William D. Araiza, Joel M. Gora

Brooklyn Law Review

On April 12, 2019, scholars gathered at Brooklyn Law School to consider the past, the present, and the future of free speech, and concerns about incitement that militate toward suppression. The speakers provided incisive and timely insight on these important matters—insight that is reflected in the papers published in this symposium issue of the Brooklyn Law Review. This introduction provides an overview of this symposium issue and the questions presented by each article.

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Words We Fear: Burning Tweets & The Politics Of Incitement, Rachel E. Vanlandingham

Brooklyn Law Review

The United States government has long wrestled with the link between speech and violence, periodically employing speculative claims of potential violence and law-breaking to suppress political speech in times of national insecurity. By the late 1960s, however, the Supreme Court fully operationalized the First Amendment’s premise that most government speech suppression is antithetical to self-government, individual autonomy, equality, and liberty. The Court therefore, required immediacy of potential violence before the government could punish speech advocating such illegality, but left private actors free to censor and suppress speech. Today, social media companies, at the behest of the government, are doing what …

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Brandenburg And Terrorism In The Digital Age, David S. Han

Brooklyn Law Review

This essay explores the tension between the longstanding Brandenburg standard and the current technological context—one in which abstract advocacy of terrorist conduct, widely and cheaply disseminated through the internet and channeled through social media, has contributed to a number of devastating attacks such as the Orlando nightclub shooting, the Boston marathon bombings, and the shootings in San Bernardino. It does so through the lens of the Supreme Court’s recent decision in Carpenter v. United States—a Fourth Amendment case that similarly dealt with the collision between the longstanding constitutional righThis essay explores the tension between the longstanding Brandenburg standard and the …

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The Long Road Back To Skokie: Returning The First Amendment To Mask Wearers, Rob Kahn

Journal of Law and Policy

When the Seventh Circuit upheld the First Amendment right of Nazis to march in Skokie, Illinois in 1978, the protection of mask wearers was not far behind. Since then, doctrinal paths have diverged. While the Supreme Court continues to protect hate speech, mask wearing has been increasingly placed outside First Amendment protection. This article seeks to get to the bottom of this doctrinal divergence by addressing the symbolic purposes of mask bans—rooted in repudiating the Ku Klux Klan—as well as the doctrinal steps taken over the past forty years to restrict the First Amendment claims of mask wearers. It also …

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Grinding Down The Edges Of The Free Expression Right In Hong Kong, Stuart Hargreaves

Brooklyn Journal of International Law

In the liberal-democratic tradition limits on speech must be clear, precise, and subject to justification within the particular constitutional framework of a given jurisdiction. In the Hong Kong Special Administrative Region (HKSAR), the Court of Final Appeal has developed a line of jurisprudence that explains under which circumstances the Government of Hong Kong (Government) may seek to limit the free speech provisions contained within the Basic Law, Hong Kong's quasi-constitution. In its fight against ‘localists,’ however, rather than legislating a clear speech restriction that is consistent with this jurisprudence, the Government has instead attempted to suppress unwelcome political speech in …

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Lactose’S Intolerance: The Role Of Manufacturers’ Rights And Commercial Free Speech In Big Dairy’S Fight To Restrict Use Of The Term “Milk”, Kathleen Justis

Brooklyn Law Review

This note examines the relationship between restrictions on commercial speech and manufacturers’ First Amendment right to describe their products to consumers, with a focus on the DAIRY PRIDE Act. It argues that broad, content-based restrictions of commercial speech, like that proposed in the DAIRY PRIDE Act, likely impose unconstitutional limitations on manufacturers’ First Amendment right to freedom of speech. This note recommends that both Congress and the FDA should refrain from passing a statute or promulgating a regulation like the DAIRY PRIDE Act. Rather, it proposes that adding rules to control the proportions and location of disclaimers on product labels …

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Direct-To-Consumer Calls To Action: Lowering The Volume Of Claims And Disclosures In Prescription Drug Broadcast Advertisements, Andrew Andrzejewski

Brooklyn Law Review

Pharmaceutical companies advertise drugs directly to consumers via television and radio broadcast commercials, print advertisements, and the internet. Although broadcast advertisements are demonstrably unable to adequately convey risk information, a total ban on them would be too restrictive, and any regulation targeting these advertisements must withstand First Amendment scrutiny. The FDA’s recent attempts to modify its requirements for broadcast advertisements do not overcome these challenges. It is in the best interest of patients, doctors, the drug industry, and the government for Congress to authorize the FDA to regulate broadcast drug advertisements as limited calls to action, consisting of restricted product …

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Invasion Of The Content-Neutrality Rule, William D. Araiza

Faculty Scholarship

No abstract provided.

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Pursuing A Universal Threshold For Regulating Incitement To Discrimination, Hostility Or Violence, Rebecca Meyer

Brooklyn Journal of International Law

The International Covenant on Civil and Political Rights (ICCPR) recognizes that although the right to freedom of expression is essential, it is not absolute. The ICCPR prohibits speech that incites to discrimination, hostility, or violence. The provision prohibiting such speech is important to protect individuals and communities. Yet, not all countries are adequately enforcing its mandate. Such countries are letting inciting speech spread and, in some instances, violence has ensued. Conversely, some countries are taking enforcement too far, using the criminalization of inciting speech as a tool to silence political dissent. In light of the divergent interpretations—each problematic in its …

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Prisoner-To-Public Communication, Demetria D. Frank

Brooklyn Law Review

The pervasive problem of over-incarceration in the United States is in part due to lack of correctional facility accountability to the public, and public lack of access to the prisoner experience. In light of the incessant persistence of over-incarceration and “hands off approach” taken by courts in prison administration, this article proposes an unqualified and unfettered prisoner-to-public communication right that would provide prison accountability to the public.

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Speech-And-Display Laws: Balancing Physicians' Free Speech Rights And States' Interests In The Context Of Abortion, Emily Ruppert

Journal of Law and Policy

“The question is not pro-abortion or anti-abortion, the question is who makes the decision: a woman and her physician, or the government.” – Gloria Steinem

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Google, Charlottesville, And The Need To Protect Private Employees’ Political Speech, Chloe M. Gordils

Brooklyn Law Review

At a time when the freedom of speech is increasingly under attack, the question becomes: what protections are available to employees of private companies who wish to engage in political expression while off the clock? Although public employees are in many ways protected by the First Amendment from government intrusion into their political speech, private employees in many states are left largely unprotected. This note examines the current statutory protections offered to protect private employees from being fired or retaliated against based on their political opinions, and argues that the inconsistency and unpredictability of state laws call for a uniform …

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Telemarketing, Technology, And The Regulation Of Private Speech: First Amendment Lessons From The Fcc’S Tcpa Rules, Justin (Gus) Hurwitz

Brooklyn Law Review

This article considers the viability of the Telephone Consumer Protection Act (TCPA) in light of recent Supreme Court First Amendment precedent and technological and regulatory developments. Robocalls—phone calls made using autodialers or prerecorded messages without the consent of the call recipient—have become one of the primary consumer protection issues facing regulators. With more than 2.4 billion of these calls placed each month, consumer concern about them dominate complaints received by both the Federal Communications Commission and Federal Trade Commission. Simultaneously, as cellphones have become a ubiquitous means by which individuals engage with one another and have become the public square, …

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A Nation Of Informants: Reining In Post-9/11 Coercion Of Intelligence Informants, Diala Shamas

Brooklyn Law Review

This article challenges the adequacy of the existing legal and regulatory framework governing informant recruitment and coercion practices to protect fundamental rights, informed by the Muslim-American experience. It looks at the growing law enforcement practice of recruiting informants among Muslim-American communities for intelligence gathering purposes. Although the coercion of law-abiding individuals to provide information to federal law enforcement agencies for intelligence gathering purposes implicates significant rights, it is left unregulated. Existing, albeit limited, restraints on the government agents’ ability to coerce individuals to provide information either assume a criminal context, or are driven by historical concerns over FBI corruption. As …

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Search Query: Can America Accept A Right To Be Forgotten As A Publicity Right?, James J. Lavelle

Brooklyn Law Review

Search engines have profoundly changed the relationship between privacy and free speech by making personal information widely and cheaply available to a global audience. This has raised many concerns both over how online companies handle the information they collect and how regular citizens use online services to invade other people’s privacy. One way Europe has addressed this change is by providing European Union citizens with a right to petition search engines to deindex links from search results—a so-called “right to be forgotten.” If the information contained in a search result is “inadequate, irrelevant or no longer relevant,” the search engine …

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Political Ideology As A Limited Protected Class Under Federal Title Vii Antidiscrimination Law, Anne Carey

Journal of Law and Policy

As the political climate in the United States becomes increasingly divided, more and more employees are fired for their off-duty political speech. Political speech is highly protected from government interference under the First Amendment, but it is not well protected from discrimination in employment matters. This is despite the fact that employers can be just as powerful and influential as the government. Although employee political speech is not currently protected at the federal level, there are a myriad of state statutes that protect employee speech from employer retaliation. Some of these state statutes protect speech on a broader level, others …

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When The Fourth Estate’S Well Runs Dry, Megan L. Shaw

Brooklyn Law Review

The press is under fire. Members of the press often face subpoenas or similar court orders, compelling the disclosure of a source’s identity. By issuing media subpoenas, the government has effectively censored the press—the exact type of censorship that the Supreme Court held presumptively unconstitutional over eight decades ago in Near v. Minnesota. Yet the least protected—and most complicated—aspect of the newsgathering process is a reporter’s relationship with her source. For decades, journalists have tried to assert defenses to government compulsions on First Amendment grounds as well as by invoking a “reporter’s privilege,” a testimonial privilege similar to that of …

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Pickering, Garcetti, & Academic Freedom, Mark Strasser

Brooklyn Law Review

While the U. S. Supreme Court long ago recognized that individuals do not lose their free speech rights simply by virtue of being state employees, the contours of their First Amendment protections have been evolving over the past several decades. The proper way to apply these protections in the academic context is confusing, especially after Garcetti v. Ceballos in which the Court suggested that First Amendment protections do not attach insofar as individuals are speaking as employees rather than as citizens. The circuit courts have adopted a dizzying set of rules to determine when First Amendment protections are triggered in …

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Section 230’S Liability Shield In The Age Of Online Terrorist, Jaime M. Freilich

Brooklyn Law Review

In recent years, “home grown” terrorists—individuals inspired to violence after watching terrorist videos online—have been responsible for devastating attacks in the United States and across Europe. Such terrorist propaganda falls outside the realm of the First Amendment’s protection because it has been proven to indoctrinate attackers, thus inciting imminent lawless action. Seizing on this, victims’ families have brought suits alleging that social media platforms, including Twitter, Facebook, and Google, provided material support to terrorists in violation of the Anti-Terrorism Act (ATA). The Communications Decency Act (CDA), however, has served as an impenetrable shield against these claims, protecting social media companies …

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The Scrivener’S Secrets Seen Through The Spyglass: Gchq And The International Right To Journalistic Expression, Matthew B. Hurowitz

Brooklyn Journal of International Law

As part of the U.K.’s electronic surveillance program, the Government Communications Headquarters (GCHQ), started in 1909 to combat German Spies, now collects metadata from both foreigners and its own citizens. Through the express statutory authority of the Regulation of Investigatory Powers Act of 2000 (RIPA), and a loophole in section 94 of the Telecommunications Act of 1984, the GCHQ collects metadata, which is all of the information that is extrinsic to the actual contents of a communication. The GCHQ can request an authorization from a public authority—a member of its own staff—to collect traffic data, service use information, or subscriber …

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Full-Text Articles in Law

The Law Of License Plates And Other Inevitabilities Of Free Speech Context Sensitivity, William D. Araiza

Faculty Scholarship

Free Speech Still Matters, Joel M. Gora

Faculty Scholarship

“More Than Tangential”: When Does The Public Have A Right To Access Judicial Records?, Jordan Elias

Journal of Law and Policy

Preserving Fabled Amateurism: The Benefits Of The Ncaa’S Adoption Of The Olympic Amateurism Model, John Kealey

Journal of Law and Policy

How Single-Candidate Super Pacs Changed The Game And How To Change It Back: Adopting A Presumption Of Coordination And Fixing The Fec’S Gridlock, Sarah E. Adams

Brooklyn Law Review

In Defense Of Brandenburg: The Aclu And Incitement Doctrine In 1919, 1969, And 2019, Emerson J. Sykes

Brooklyn Law Review

The First Amendment And The Imminence Of Harm, Floyd Abrams

Brooklyn Law Review

#Losingthethread: Recognizing Assembly Rights In The New Public Forum, Liz Grefrath

Brooklyn Law Review

"Incitement Lite" For The Nonpublic Forum, Leslie Gielow Jacobs

Brooklyn Law Review

Assumptions About “Terrorism” And The Brandenburg Incitement Test, Christina E. Wells

Brooklyn Law Review

Symposium Introduction, William D. Araiza, Joel M. Gora

Brooklyn Law Review

Words We Fear: Burning Tweets & The Politics Of Incitement, Rachel E. Vanlandingham

Brooklyn Law Review

Brandenburg And Terrorism In The Digital Age, David S. Han

Brooklyn Law Review

The Long Road Back To Skokie: Returning The First Amendment To Mask Wearers, Rob Kahn

Journal of Law and Policy

Grinding Down The Edges Of The Free Expression Right In Hong Kong, Stuart Hargreaves

Brooklyn Journal of International Law

Lactose’S Intolerance: The Role Of Manufacturers’ Rights And Commercial Free Speech In Big Dairy’S Fight To Restrict Use Of The Term “Milk”, Kathleen Justis

Brooklyn Law Review

Direct-To-Consumer Calls To Action: Lowering The Volume Of Claims And Disclosures In Prescription Drug Broadcast Advertisements, Andrew Andrzejewski

Brooklyn Law Review

Invasion Of The Content-Neutrality Rule, William D. Araiza

Faculty Scholarship

Pursuing A Universal Threshold For Regulating Incitement To Discrimination, Hostility Or Violence, Rebecca Meyer

Brooklyn Journal of International Law

Prisoner-To-Public Communication, Demetria D. Frank

Brooklyn Law Review

Speech-And-Display Laws: Balancing Physicians' Free Speech Rights And States' Interests In The Context Of Abortion, Emily Ruppert

Journal of Law and Policy

Google, Charlottesville, And The Need To Protect Private Employees’ Political Speech, Chloe M. Gordils

Brooklyn Law Review

Telemarketing, Technology, And The Regulation Of Private Speech: First Amendment Lessons From The Fcc’S Tcpa Rules, Justin (Gus) Hurwitz

Brooklyn Law Review

A Nation Of Informants: Reining In Post-9/11 Coercion Of Intelligence Informants, Diala Shamas

Brooklyn Law Review

Search Query: Can America Accept A Right To Be Forgotten As A Publicity Right?, James J. Lavelle

Brooklyn Law Review

Political Ideology As A Limited Protected Class Under Federal Title Vii Antidiscrimination Law, Anne Carey

Journal of Law and Policy

When The Fourth Estate’S Well Runs Dry, Megan L. Shaw

Brooklyn Law Review

Pickering, Garcetti, & Academic Freedom, Mark Strasser

Brooklyn Law Review

Section 230’S Liability Shield In The Age Of Online Terrorist, Jaime M. Freilich

Brooklyn Law Review

The Scrivener’S Secrets Seen Through The Spyglass: Gchq And The International Right To Journalistic Expression, Matthew B. Hurowitz

Brooklyn Journal of International Law