Law Commons^™

Understanding 303 Creative Llc In A Polycentric Constitutional World, Meg Penrose

William & Mary Bill of Rights Journal

The evolution of rights following Obergefell is not over. Creative 303 LLC marked a new phase in the ongoing legal challenges over the rights and ceremonies attending same-sex marriage. This Essay addresses the anticipated limits of 303 Creative LLC.

The Essay proceeds in three parts. First, how does 303 Creative LLC impact government employees? What rights, if any, should government employees be able to raise in light of 303 Creative LLC? Second, what does 303 Creative LLC mean for private marketplace vendors engaging in expressive commerce? Vendors, particularly wedding vendors, often create unique items for weddings. Will the …

Law Office History And The Unrelenting Attack On Public Accommodations Law, James M. Oleske Jr.

William & Mary Bill of Rights Journal

In recent years, the cause of commercial liberty has found new life in litigation challenging public accommodations laws that prohibit discrimination by businesses on the basis of sexual orientation. Considerable scholarly attention has been paid to the use of the First Amendment as a liability shield in these cases, which have primarily been litigated on the terrain of free speech and religious liberty. But in amicus briefs filed in both cases that have reached the Supreme Court—303 Creative LLC v. Elenis and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission—scholars who are skeptical of commercial regulation have also …

First Amendment Defenses To Alien Transportation Crimes, Charquia Wright

William & Mary Bill of Rights Journal

Florida law now prohibits the transportation of undocumented aliens into the state. Briefings characterize these laws as unconstitutionally preempting federal immigration law and federal due process rights. Despite this emphasis on due process, field, and conflict preemption unconstitutionality, few have addressed the First Amendment implications of human smuggling prosecutions of natural and some corporate persons. The Supreme Court’s Free Exercise precedent protects the religious freedoms of natural persons and some corporations. Under state alien transportation laws, these freedoms cease to exist. Because the Supreme Court has extended these religious protections to some corporations, they too are entitled to First Amendment …

Standpoint Epistemology, The First Amendment, And University Affirmative Action, Paul Gowder

William & Mary Bill of Rights Journal

Egalitarian legal scholars understandably might have been troubled by the end of June 2023, when, on two successive days, the Supreme Court appeared to put an end to public as well as to private university affirmative action on a theory of race discrimination in Students for Fair Admissions v. Harvard, then appeared to put an end to the application of anti-discrimination law to any private enterprise that could be characterized as “expressive” in 303 Creative LLC v. Elenis. Yet the June 30 case, I shall contend, has the potential to undermine the negative impact of the June 29 …

Democratic Vibes, Jonathan Gingerich

William & Mary Bill of Rights Journal

Who should decide who gets to say what on online social media platforms like Facebook, Twitter, and YouTube? American legal scholars have often thought that the private owners of these platforms should decide, in part because such an arrangement is thought to serve valuable free speech interests. This standard view has come under pressure with the enactment of statutes like Texas House Bill 20, which forbids certain platforms from “censoring” user content based on viewpoint. Such efforts to regulate the speech policies of online platforms have been challenged for undermining the editorial speech rights of these platforms and allowing the …

Waiting For Mahanoy: Examining The Still-Unsettled Jurisprudence Of Online Student Speech, Emily Erickson, Matthew D. Bunker

William & Mary Bill of Rights Journal

This Article first explores the constitutional background of student speech rights, beginning with the Tinker decision and continuing through early court attempts to analyze online, off-campus cases. Next, it examines Mahanoy itself, unpacking the frustratingly murky majority opinion written by Justice Stephen Breyer. The Article then breaks new ground by exploring court decisions in the years since Mahanoy, as jurists continue trying to identify First Amendment boundaries in student speech cases involving bullying, threats, and otherwise offensive speech. A concluding section synthesizes the state of the law and offers perspectives on this vital area of constitutional concern.

This abstract …

303 Creative Llc, Public Accommodations Law, And The Many Possible Futures Of Rights, Jacob Eisler

William & Mary Bill of Rights Journal

The unifying theme of the contributions to this Collection of Essays on 303 Creative LLC, which emerged from a panel held at the 2024 American Association of Law Schools meeting, is that while 303 Creative LLC may have brought these themes forward, their full expositions lie in the hands of Supreme Court jurisprudence that is yet to come...

In exploring these possibilities, this Collection seeks to anticipate what might come next for both the First Amendment and public accommodations law.

This abstract has been taken from the author's introduction.

Blunt Speech Rights, Nicholas Almendares

William & Mary Bill of Rights Journal

There is a lot to be said about the Supreme Court’s decision in 303 Creative LLC. In the wake of the decision there will be a range of commentaries like those presented in this Issue. I want to draw attention to a particular aspect of the opinion, part of a broader trend in the Court’s First Amendment jurisprudence, towards blunt, sweeping rules. By a blunt rule, I mean a simple, coarse one that lacks nuance or distinctions. Blunt rules, by their nature, tend to be sweeping: nuance, that is, distinguishing cases based on various factors, limits the scope of …

The Limits Of Lochnerism, Lucien Ferguson

William & Mary Bill of Rights Journal

The Lochnerism thesis is among the most influential constitutional theories to emerge in recent years. It argues that the judiciary increasingly protects private business from public regulation by enshrining and expanding liberty of contract rights under the First Amendment. Using 303 Creative LLC v. Elenis as a case study, this Essay explores the limits of Lochnerism as a theoretical framework. It argues that, while productively illuminating the judiciary’s attack on the administrative state and democratic processes, the theory may also displace concerns over the concrete harms experienced by vulnerable communities. To bring these harms back into view, this Essay suggests …

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] …

Originalism V. Originalism: How James Madison's Understanding Of The Establishment Clause Can Help Combat Christian Nationalism, Patrick Sawyer

William & Mary Bill of Rights Journal

This Note will focus on what can be done to prevent Christian Nationalism from ending the Establishment Clause. Part I will focus on the cases that defined former Establishment Clause doctrine and how recent cases have done away with the parameters laid out in those earlier cases. Part II will focus on the understanding that James Madison had about the Establishment Clause. Part III will argue that Madison’s understanding of complete separation can and should be codified either under Congress’ enforcement power under the Fourteenth Amendment or the Spending Power of Article I. Part IV will consider how a statute …

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 …

On Inmates And Friendship, Jared Deeds

William & Mary Bill of Rights Journal

That humanity both cherishes friendship and finds it to be fundamental for its own good should be reason enough to justify its legal protection. Yet, there is a serious deficiency of legal discourse on the rights and liberties of friends in America’s courts. In the absence of such discourse—perhaps partially because of it—friendship as a social institution experiences a lack of legal protection in the United States. Though all friends may be exposed to abuses as a result of deficient safeguards, inmates and their unincarcerated friends suffer with particular severity.

[...]

Part I of this Note will further discuss the …

Serious Value, Prurient Appeal, And "Obscene" Books In The Hands Of Children, Todd E. Pettys

William & Mary Bill of Rights Journal

Controversy has erupted across the country concerning sexually explicit books that are available to children in bookstores, schools, and libraries. Many have called for tough enforcement of obscenity laws, with some saying librarians and schoolteachers who distribute certain books to children should face jail time. Using four controversial books as examples, this Article takes today’s book wars as an opportunity to achieve two things. First, the Article explains the narrow circumstances in which the First Amendment permits the government to block the distribution of books to children due to concerns about the books’ prurient appeal. The Article’s second aim is …

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 …

The First Amendment Weaponized: When Guns Become Public Discourse, Danny Li

William & Mary Bill of Rights Journal

This Article discusses First Amendment challenges asserted against gun control measures—inside and outside our courts. It explains at length why existing doctrinal approaches to resolving these challenges fail, providing an alternative account of why the First Amendment should not be construed liberally to protect the open carry of firearms. As guns in public spaces and protests become commonplace, we can expect not only continual First Amendment challenges to gun control measures, but also the growing prevalence of First Amendment claims asserted in the public by advocates and gun owners to justify open carry—and the forging of new constitutional meanings and …

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 …

Ridden With Controversy: Applying The Public Forum Doctrine To Public Transit Advertising, Remy T. B. Oliver

William & Mary Bill of Rights Journal

This Note tackles the application of the First Amendment to public transit advertising. Under the current judicial framework, the First Amendment is filtered through the "public forum doctrine" when discussing the rights of citizens to utilize government property for expressive purposes. The Note will argue that public transit advertising constitutes a "designated public forum" in most (if not all) cases. That characterization would force any content-based restrictions to be narrowly tailored to serve a compelling government interest. The natural result is a significant expansion of access to public transit advertising by interested parties. If the U.S. Supreme Court were to …

Speech Regulation By Algorithm, Enrique Armijo

William & Mary Bill of Rights Journal

The rapid convergence of speech and technology on social media platforms means it is likely the case that, either now or soon, more expressive activity will be regulated by Artificial Intelligence (AI) than by any legislature, regulator, or other government entity. Mark Zuckerberg has repeatedly told Congress and other audiences that AI is the key to resolving Facebook's content moderation challenges, envisioning a moderation regime where algorithms detect and take down speech infringing Facebook's Community Standards ex ante, that is, prior to its public posting and before it reaches other users. According to Zuckerberg, this would eventually replace its initial …

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 …

Fixing False Truths: Rethinking Truth Assumptions And Free-Expression Rationales In The Networked Era, Jared Schroeder

William & Mary Bill of Rights Journal

The First Amendment makes no mention of truth. Assumptions about truth, however, have become the foundations for free-expression rationales, the very bases for such freedoms in a democratic society. The Supreme Court gradually, over time, wedded Enlightenment assumptions about truth to the marketplace of ideas rationale for free expression. This Article examines, in light of massive, widespread adoption of networked technologies and AI and Supreme Court decisions that have undermined the distinctive role of truth, whether truth should be removed or replaced as a crucial, justifying concept in freedom of expression. The Article examines the marketplace approach’s history and assumptions, …

No Aid, No Agency, Steven K. Green

William & Mary Bill of Rights Journal

Over the past three decades, members of the Supreme Court have demonstrated increasing hostility to the Establishment Clause’s rule against funding religion, first enunciated in 1947. Over the years, the Court has not only narrowed the rule to allow for government aid to flow to religious schools and faith-based charities, it has more recently declared that to enforce that rule may amount to discrimination against religion. This Article argues that a key reason for the decline in the no-aid principle rests on the weakness of the rationale underlying that rule: that funding of religion coerces the conscience of taxpayers. The …

Deepfakes: A New Content Category For A Digital Age, Anna Pesetski

William & Mary Bill of Rights Journal

Technology has advanced rapidly in recent years, greatly benefitting society. One such benefit is people’s ability to have quick and easy access to information through news and social media. A recent concern, however, is that manipulated media, otherwise known as “deepfakes,” are being released and passed off as truth. These videos are crafted with technology that allows the creator to carefully change details of the video’s subject to make him appear to do or say things that he never did. Deepfakes are often depictions of political candidates or leaders and have the potential to influence voter choice, thereby altering the …

The Pure-Hearted Abrams Case, Andres Yoder

William & Mary Bill of Rights Journal

One hundred years ago, Justice Oliver Wendell Holmes changed his mind about the right to free speech and wound up splitting the history of free speech law into two. In his dissent in Abrams v. United States, he called for the end of the old order—in which courts often ignored or rejected free speech claims—and set the stage for the current order—in which the right to free speech is of central constitutional importance. However, a century on, scholars have been unable to identify a specific reason for Holmes’s Abrams transformation, and have instead pointed to more diffuse influences. By …

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, …

You Must Present A Valid Form Of (Gender) Identification: The Due Process And First Amendment Implications Of Tennessee's Birth Certificate Law, Brooke Lowell

William & Mary Bill of Rights Journal

This Note analyzes Tennessee’s prohibition against transgender people changing their gender markers on their birth certificates under both Fourteenth Amendment Substantive Due Process and the First Amendment. Part I discusses the relevant terms related to transgender rights, the importance of birth certificates, and the relevant laws at play. Part II focuses on the Substantive Due Process argument. It lays out the foundational cases and then applies them to analyze whether gender identity is a fundamental right. Part III explores the First Amendment analysis, focusing on gender as speech. It also discusses how government speech affects the analysis. The Note concludes …

Secondary Meaning And Religion: An Analysis Of Religious Symbols In The Courts, Eric D. Yordy, Elizabeth Brown

William & Mary Bill of Rights Journal

In the Supreme Court’s most recent freedom of religion case, Justice Alito and Justice Ginsburg disagreed about the actual and potential meaning of the Latin cross, a traditional symbol of Christianity in which the upright leg of the cross is longer than the horizontal arms of the cross. Justice Alito stated that the Latin cross, while not losing its religious meaning, has acquired what might be called a “secondary meaning” as a symbol of World War I. He couched his analysis in language suggesting that a religious symbol’s meaning may depend on its circumstances. While he also denied that he …

Not Gill-Ty: Challenging And Providing A Workable Alternative To The Supreme Court's Gerrymandering Standing Analysis In Gill V. Whitford, Colin Neal

William & Mary Bill of Rights Journal

No abstract provided.

Information Gathering Or Speech Creation: How To Think About A First Amendment Right To Record, Jared Mullen

William & Mary Bill of Rights Journal

No abstract provided.

Saving The Marketplace From Market Failure: Reorienting Marketplace Theory In The Era Of Ai Communicators, Jared Schroeder

William & Mary Bill of Rights Journal

Artificially Intelligent (AI) communicators represent a new type of actor within public discourse. These entities have played influential roles in recent elections in the U.S. and Europe. This Article examines expression rights for AI actors through the lenses provided by the foundational assumptions of the marketplace of ideas theory and existing free-expression-related rationales regarding non-human actors in the U.S. and European legal systems. The Article contends that the fundamental assumptions of the marketplace model must be revised to focus on the flow of information, the development of truth, rather than the more Enlightenment-oriented competition of ideas that leads to the …