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Articles 1 - 30 of 227
Full-Text Articles in Law
Different Countries, Same Homophobia And Transphobia: A Cross-Cultural Survey Of So-Called Conversion Therapy Practices And The Move Toward Legislative Protections For The United States Lgbtq+ Community, Samantha J. Past
Brooklyn Journal of International Law
So-called “conversion therapy” consists of dangerous practices that inflict detrimental, long-lasting effects on its victims. As a form of sexual orientation or gender identity or gender expression change efforts, conversion therapy is fostered by global homophobia and transphobia. Despite formal public rejection and scientific discreditation, conversion therapy providers across the world continue to target LGBTQ+ individuals, predominately under the guise of offering health care services or obeying religious practices. The following piece compares conversion therapy in three countries with recently introduced LGBTQ+ legislation––(1) Ghana; (2) Canada; and (3) the United States (U.S.)–––in order to identify factors furthering conversion therapy and …
Domestic Terrorism Classification In The United States V. Canada And The United Kingdom, Michelle Hayek
Domestic Terrorism Classification In The United States V. Canada And The United Kingdom, Michelle Hayek
Brooklyn Journal of International Law
For the past two decades, discourse on terrorism (both global and domestic) has been commonplace throughout the international sphere. Following the attacks on September 11, 2001, many nations have followed suit in launching counterterrorism operations to identify and prevent attacks by both radical groups and lone actors. While the common narrative has focused on “why” terrorist actors commit heinous acts and “how” to best prevent future incidents from emerging, it is important to analyze the legal nuances between prosecuting domestic versus international terrorists. With the rise on “homegrown” domestic lone actors, nations have had to reevaluate and adapt counterterrorism statutes …
The Great American Word Purge, Jethro K. Lieberman
The Great American Word Purge, Jethro K. Lieberman
Other Publications
No abstract provided.
Revisiting Employment Division V. Smith, Blaine L. Hutchison
Revisiting Employment Division V. Smith, Blaine L. Hutchison
University of Cincinnati Law Review
The Supreme Court wrongly decided Employment Division v. Smith. Without briefing or argument over the Free Exercise Clause’s meaning, Smith eliminated the constitutional right to exercise religion and replaced it with an equal protection rule. The decision threatens religious freedom and encourages conflict. The Supreme Court should revisit Smith. This article shows that the majority’s arguments in Smith fail and contradict the Free Exercise Clause’s text, purpose, and original meaning.
The Smith majority gave no sound legal or policy reason for its decision. Indeed, the decision conflicted with settled precedents that no party questioned. Nor did it determine …
Case Summary: Dr. Seuss Enterprises V. Comicmix Llc: Ninth Circuit Affirms Copyright Fair Use And Trademark Infringement Precedents
Golden Gate University Law Review
More than twenty years ago, in Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., the Ninth Circuit favored Seuss, concluding that The Cat NOT in the Hat!, a self-described “parody” of The Cat in the Hat, did not represent “fair use” of the children’s book under the Copyright Act. In 2019, Seuss entered litigation with ComicMix, the creator of Oh, the Places You’ll Boldly Go!
(“Boldly”), another self-proclaimed parody of the Dr. Seuss classic Oh, the Places You’ll Go! (“Go!”). The case presented a set of facts strikingly similar to those in …
If You Can’T Beat Them, Get Even: A Proposal To Level The Playing Field Between Social Media Platforms And Their Wrongfully Removed Users, Bernie Gabrielle Toledano
If You Can’T Beat Them, Get Even: A Proposal To Level The Playing Field Between Social Media Platforms And Their Wrongfully Removed Users, Bernie Gabrielle Toledano
Brooklyn Law Review
Millions of individuals in the United States maintain both personal and business accounts on social media platforms, a handful of which dominate the market for online content. However, if one of these platforms removes an account without cause, the affected user has little recourse because most platforms’ Terms of Service contain clauses allowing them to terminate user accounts for any reason. Nevertheless, as the power imbalance between platforms and users grows, scholars and judges are starting to believe that there is a need for greater regulation of these platforms. This note explores the ramifications of the social media regulatory gaps …
Social Media And The Common Law, Leslie Y. Garfield Tenzer
Social Media And The Common Law, Leslie Y. Garfield Tenzer
Brooklyn Law Review
The framers of the United States Constitution and those who developed the early common law were no strangers to printed media. They could not, however, have anticipated the widespread ability of average people to communicate instantaneously with large audiences via platforms like Facebook, Instagram, and Twitter. Despite this new technology, courts have primarily relied on pre-social media precedent, rules of law, and the Constitution for guidance when confronted with civil and criminal social media misconduct. On the one hand, relying on existing law is a good thing; it reaffirms the judiciary's commitment to precedent and stare decisis. On the other …
New Light On The History Of Free Exercise Exemptions: The Debates In Two Eighteenth-Century State Legislatures, Stanton D. Krauss
New Light On The History Of Free Exercise Exemptions: The Debates In Two Eighteenth-Century State Legislatures, Stanton D. Krauss
Catholic University Law Review
As Justice Gorsuch pointed out in his concurring opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719, 1734 (2018), there is an ongoing debate about whether the First Amendment ever requires the recognition of religion-based exemptions to neutral and generally applicable laws. The leading proponent of such exemptions has argued that the original understanding of the Free Exercise Clause supports his claim, and that the existence of such exemptions in preconstitutional American statutes – which he believed to have been granted because legislators thought them mandated by “the free exercise principle” – is one factor …
Reconciling Self-Censorship: A Qualitative Study Of The Experiences Of University Staff And Administrators, Leigh C. Morales
Reconciling Self-Censorship: A Qualitative Study Of The Experiences Of University Staff And Administrators, Leigh C. Morales
Doctoral Dissertations
In addition to a global pandemic, the past three years have been marked by racial, social, and political unrest. These circumstances add meaningful context to examine and better understand factors that undermine free expression and contribute to self-censorship among university staff and administrators. To date, few studies have holistically explored the unique experiences of university staff and administrators with self-censorship and how this phenomenon affects their experience on college and university campuses. Understanding why staff and administrators choose to self-censor may allow for a deeper discussion about speech climate and the degree to which colleges and universities implement and uphold …
Let's Get Real: Weak Artificial Intelligence Has Free Speech Rights, James B. Garvey
Let's Get Real: Weak Artificial Intelligence Has Free Speech Rights, James B. Garvey
Fordham Law Review
The right to free speech is a strongly protected constitutional right under the First Amendment to the U.S. Constitution. In 2010, the U.S. Supreme Court significantly expanded free speech protections for corporations in Citizens United v. FEC. This case prompted the question: could other nonhuman actors also be eligible for free speech protection under the First Amendment? This inquiry is no longer a mere intellectual exercise: sophisticated artificial intelligence (AI) may soon be capable of producing speech. As such, there are novel and complex questions surrounding the application of the First Amendment to AI. Some commentators argue that AI …
Hacking Copyright: Holding Cops Accountable For Abusing Youtube’S Copyright Filter System, Tyler Bloom
Hacking Copyright: Holding Cops Accountable For Abusing Youtube’S Copyright Filter System, Tyler Bloom
Journal of Law and Policy
This Note both explores the mechanisms and incentive structures that make “copyright hacking” possible and explains the legal system’s failure to provide recourse for victims of successful “copyright hacks” by police officers. Because the DMCA has failed to keep pace with the internet’s exponential growth, OSPs, such as YouTube, have developed filtering systems that can be exploited to “copyright hack” users and ultimately suppress their speech. A victim of “copyright hacking” by a police officer currently has no recourse; the doctrine of qualified immunity functionally precludes them from suing for violating their First Amendment rights. This Note proposes two possible …
Native America: Universities As Quasi-Cities, Sovereignty And The Power To Name, Victoria Sutton
Native America: Universities As Quasi-Cities, Sovereignty And The Power To Name, Victoria Sutton
American Indian Law Journal
Universities as quasi-cities have an obligation to reflect on their educational mission, and public universities have a responsibility to Native America through the unique federal trust responsibility owed to Native Nations by the federal government. The naming of buildings and transitioning to responsible adulthood requires universities, administrators, and students to reflect on who we were, who we are now, and whom we hope to be. Collaborative efforts to work with Native Nations should be undertaken with regard to naming issues.
Sovereigns possess power to control historical narratives and outcomes through their sovereign power to (1) name geographical places; (2) protect …
The Dilemma Of Liberal Pluralism, Abner S. Greene
The Dilemma Of Liberal Pluralism, Abner S. Greene
Buffalo Law Review
Supporters of reproductive rights and of queer rights may sometimes live in harmony with advocates for religious exemptions. But sometimes these goals conflict. This Article explores this tension as a matter of liberal democratic theory and U.S. constitutional law, offering a case for seeing a robust pluralism as contained within a proper understanding of the liberal democratic state. The state’s claimed authority may be the starting point, but just as the modern state was born in decentralized religious toleration, so should the modern state accommodate religious and other views of the good that compete with the state’s own views. The …
Indoctrination By Elimination: Why Banning Critical Race Theory In Public Schools Is Unconstitutional, Emma Postel
Indoctrination By Elimination: Why Banning Critical Race Theory In Public Schools Is Unconstitutional, Emma Postel
William & Mary Bill of Rights Journal
This Note argues that Texas public school students’ First Amendment Rights have been violated by the passage of Senate Bill 3 (SB 3), which bans the teaching of Critical Race Theory (CRT) in K–12 public schools. The First Amendment is violated here because (1) students have a First Amendment right to speech, and this law bans protected speech; (2) students have a right to receive information, and this ban prevents them from receiving information; and (3) schools are meant to be the marketplace of ideas for students and banning CRT amounts to unconstitutional viewpoint discrimination. This Note does not suggest …
Put Mahanoy Where Your Mouth Is: A Closer Look At When Schools Can Regulate Online Student Speech, Courtney Klaus
Put Mahanoy Where Your Mouth Is: A Closer Look At When Schools Can Regulate Online Student Speech, Courtney Klaus
Notre Dame Law Review
This Note proposes a way to approach online student speech in three different contexts: cyberbullying, online threats, and other kinds of incendiary speech. Each approach is informed by a combination of lower court precedent, historical trends, and Supreme Court dicta to piece together when exceptions to online student speech protection may apply. Each analysis provides an explanation of how Tinker can and should be used to justify school discretion over particular kinds of online speech. Part I provides the history behind how the First Amendment has been used to protect public school student speech and discusses the unique issues the …
Rethinking Absolute Immunity From Defamation Suits In Private Quasi-Judicial Proceedings, Nat Stern
Rethinking Absolute Immunity From Defamation Suits In Private Quasi-Judicial Proceedings, Nat Stern
The University of New Hampshire Law Review
No abstract provided.
The First Amendment And Military Justice: Threats To Political Neutrality, Joshua Paldino
The First Amendment And Military Justice: Threats To Political Neutrality, Joshua Paldino
Notre Dame Law Review Reflection
This backdrop illustrates a throughline that runs throughout, and creates tension within, the Military Justice system. On the one hand, there is a need to protect the individual rights of servicemembers. This concern is driven (in part) by the intuition reflected in Judge O’Connor’s opening sentences—those sworn to protect constitutional liberties should surely enjoy the benefits of that which they protect. On the other, individual rights protections must yield, to some degree, to the needs of military life and military exigency. Of course, "to some degree" is the space in which debate and maneuverability resides. But while discretionary space certainly …
The First Amendment And Online Access To Information About Abortion: The Constitutional And Technological Problems With Censorship, John Villasenor
The First Amendment And Online Access To Information About Abortion: The Constitutional And Technological Problems With Censorship, John Villasenor
Northwestern Journal of Technology and Intellectual Property
To what extent could an abortion-restrictive state impede access to online information about abortion? After Dobbs, this question is no longer theoretical. This essay engages with this issue from both a legal and technological perspective, analyzing First Amendment jurisprudence as well as the technological implications of state-level online censorship. It concludes that the weight of Supreme Court precedent indicates that state attempts to censor information regarding out-of-state abortion services would violate the First Amendment. That said, the essay also recognizes that as Dobbs itself upended precedent, it is unclear what Supreme Court would do when ruling on questions regarding …
Predictors Of College Student Support Toward Colin Kaepernick’S National Anthem Protests, Brooke Coursen, Nicole Peiffer, Sakira Coleman, Philip Lucius
Predictors Of College Student Support Toward Colin Kaepernick’S National Anthem Protests, Brooke Coursen, Nicole Peiffer, Sakira Coleman, Philip Lucius
VA Engage Journal
Racial discrimination and inequality have perpetuated within the U.S. since its inception. In 2016, Colin Kaepernick initiated the national anthem protests to oppose the oppression of people of color in America. This study was developed in 2018 to identify social determinants of health underlying discriminatory beliefs and behaviors. The objective was to investigate the impacts of college students’ race, gender, political ideology, socio-economic status [SES], NFL interest, patriotism, and general protest support on support for the national anthem protests. We administered paper-and-pencil surveys across locations on the James Madison University campus using a convenience sample. There were 408 participants included, …
The Last Lecture: State Anti-Slapp Statutes And The Federal Courts, Charles W. Adams, Mbilike M. Mwafulirwa
The Last Lecture: State Anti-Slapp Statutes And The Federal Courts, Charles W. Adams, Mbilike M. Mwafulirwa
St. John's Law Review
(Excerpt)
An old proverb says that “when the student is ready[,] the teacher appears.” In this collaborative effort, a civil procedure law professor has partnered with his former student to address one of the most challenging topics to confront the federal courts in recent times: whether state anti-SLAPP statutes conflict with the Federal Rules of Civil Procedure. The acronym “SLAPP” stands for “Strategic Lawsuits Against Public Participation.” Anti-SLAPP statutes are a spate of state legislation of recent vintage, designed “to give more breathing space for free speech about contentious public issues” and to “try to decrease the ‘chilling effect’ of …
Brief Amicus Curiae Of The Becket Fund For Religious Liberty, John A. Meiser, Francesca Matozzo
Brief Amicus Curiae Of The Becket Fund For Religious Liberty, John A. Meiser, Francesca Matozzo
Court Briefs
No. 22-1876
Mohamed Solah Mohamed A Emad v. Dodge County
Appeal from the United States District Court for the Eastern District of Wisconsin, Honorable Lynn Adelman (19-cv-0598)
From the Summary of Argument
Cases concerning the expression of constitutional rights in prison settings often pose difficult questions regarding the appropriate balance between the government’s penological interests and the prisoner’s fundamental freedoms. This case does not. Mohamed Salah Ahmed Emad did not ask the Dodge County Detention Facility (nor does he ask this Court) to locate the appropriate degree to which a prison must accommodate a novel or historically unusual religious exercise. …
Incitement And Social Media-Algorithmic Speech: Redefining Brandenburg For A Different Kind Of Speech, Anna Rhoads
Incitement And Social Media-Algorithmic Speech: Redefining Brandenburg For A Different Kind Of Speech, Anna Rhoads
William & Mary Law Review
Assuming that these scholars are correct and that social media algorithms’ decisions qualify as speech to which the First Amendment applies (social media-algorithmic speech), this Note proposes a legal solution to the increasing problem of violence stemming from social media. This Note asserts that the incitement standard for social media-algorithmic speech should be less stringent because the Brandenburg standard does not apply well to new media, social media-algorithmic speech is much more likely than other speech to actually produce lawless action, and the traditional First Amendment justifications do not apply to social media algorithms’ speech. Therefore, the Supreme Court should …
Can't Really Teach: Crt Bans Impose Upon Teachers' First Amendment Pedagogical Rights, Mary L. Krebs
Can't Really Teach: Crt Bans Impose Upon Teachers' First Amendment Pedagogical Rights, Mary L. Krebs
Vanderbilt Law Review
The jurisprudence governing K-12 teachers’ speech protection has been a convoluted hodgepodge of caselaw since the 1960s when the Supreme Court established that teachers retain at least some First Amendment protection as public educators. Now, as new so-called Critical Race Theory bans prohibit an array of hot button topics in the classroom, K-12 teachers must either preemptively censor themselves or risk running afoul of these vague bans with indeterminate legal protection. This Note proposes an elucidation of K-12 teachers’ free speech rights via a two-part test to assess the reasonability of instructional speech. Rather than analogizing K-12 teacher speech to …
First Amendment Scholar Timothy Zick Dismantles Trump V. Cnn Lawsuit, Timothy Zick
First Amendment Scholar Timothy Zick Dismantles Trump V. Cnn Lawsuit, Timothy Zick
Popular Media
Former President Donald Trump filed a $475 million defamation lawsuit against CNN arguing the network has maligned him with “fake news” for the purposes of damaging his political future heading into 2024.
The complaint filed Oct. 3 stated, “CNN has sought to use its massive influence – purportedly as a ‘trusted’ news source – to defame the Plaintiff in the minds of its viewers and readers for the purpose of defeating him politically, culminating in CNN claiming credit for ‘[getting] Trump out’ in the 2020 presidential election.”
First Amendment Watch asked First Amendment scholar Timothy Zick to annotate the 29-page …
Democracy Harms And The First Amendment, Deborah Pearlstein
Democracy Harms And The First Amendment, Deborah Pearlstein
Faculty Articles
The First Amendment tolerates—has long tolerated—the regulation of certain kinds of false speech. Indeed, regulable lies are not limited to traditionally less-protected categories of speech like defamation and commercial deception. They include an array of other established speech regulations, administered by government institutions every day, from criminal laws barring perjury and other lies to government officials, to disciplinary measures by elected bodies sanctioning members for false or otherwise objectionable speech. Yet while it is easy to identify the kinds of lies that existing doctrinal categories make regulable for the personal, physical, or reputational harms they inflict on individuals¸ it has …
The Connick/Garcetti Split: Is Public Employee Association A Matter Of Public Concern?, Austin J. Wishart
The Connick/Garcetti Split: Is Public Employee Association A Matter Of Public Concern?, Austin J. Wishart
University of Cincinnati Law Review
No abstract provided.
Consider Freedom Of Speech: Perspectives On How To Hold Difficult Conversations With Respect, Vivian E. Hamilton, Andrew D. Stelljes
Consider Freedom Of Speech: Perspectives On How To Hold Difficult Conversations With Respect, Vivian E. Hamilton, Andrew D. Stelljes
Popular Media
No abstract provided.
The Disappearing Freedom Of The Press, Ronnell Andersen Jones, Sonja R. West
The Disappearing Freedom Of The Press, Ronnell Andersen Jones, Sonja R. West
Washington and Lee Law Review
At this moment of unprecedented decline of local news and amplified attacks on the American press, scholars are increasingly turning their attention to the Constitution’s role in protecting journalism and the journalistic function. Recent calls by some U.S. Supreme Court Justices to reconsider the core press-protecting precedent from New York Times Co. v. Sullivan have intensified these conversations. This scholarly dialogue, however, appears to be taking place against a mistaken foundational assumption that the U.S. Supreme Court continues to articulate and embrace at least some notion of freedom of the press. Yet despite the First Amendment text specifically referencing it …
Countering Personalized Speech, Leon G. Ho
Countering Personalized Speech, Leon G. Ho
Northwestern Journal of Technology and Intellectual Property
Social media platforms use personalization algorithms to make content curation decisions for each end user. These personalized recommendation decisions are essentially speech conveying a platform's predictions on content relevance for each end user. Yet, they are causing some of the worst problems on the internet. First, they facilitate the precipitous spread of mis- and disinformation by exploiting the very same biases and insecurities that drive end user engagement with such content. Second, they exacerbate social media addiction and related mental health harms by leveraging users' affective needs to drive engagement to greater and greater heights. Lastly, they erode end user …
Regulating Charitable Crowdfunding, Lloyd H. Mayer
Regulating Charitable Crowdfunding, Lloyd H. Mayer
Indiana Law Journal
Charitable crowdfunding is a global and rapidly growing new method for raising money to benefit charities and individuals in need. While mass fundraising has existed for hundreds of years, crowdfunding is distinguishable from those earlier efforts because of its low cost, speed of implementation, and broad reach. Reflecting these advantages, it now accounts annually for billions of dollars raised from tens of millions of donors through hundreds of internet platforms, including Charidy, Facebook, GoFundMe, and GlobalGiving. Although most charitable crowdfunding campaigns raise only modest amounts, on occasion a campaign attracts tens of millions of dollars in donations. However, charitable crowdfunding …