Law Commons^™

I Hope This Email Finds You Well: The Eleventh Circuit Addresses The Standard Of Review For Incarcerated Persons’ Outgoing Emails, Olivia Greenblatt

Mercer Law Review

An unfortunate and inevitable aspect of incarceration is separation from the outside world. The various constraints on communication exemplify one of the many ways through which incarceration creates this divide. Maintaining the connections that incarcerated people have with their loved ones and communities is essential for fostering a vital support system, facilitating the exchange of information, aiding in successful reintegration, and reducing recidivism upon release. Unfortunately, instead of encouraging and safeguarding this communication, prisons often curtail it through restrictive methods: visitation is limited, phone calls are costly, physical mail involves a time-consuming and intrusive process, and now, email is being …

How Free Is Your Speech On Social Media? Reconciling The Circuit Split Created By The Eleventh And Fifth Circuit’S Decisions On Anti-Censorship Laws Governing Social Media Platforms, Stella Preston

Mercer Law Review

If you were to walk up to a random person on the street and ask to look at their cell phone, it is almost guaranteed that you would find one or more social media applications (apps) installed. In fact, according to a 2021 study conducted by Pew Research Center, around 72% of the adult population within the United States uses some form of social media. Some of the most notoriously known and popularly used social media apps include Facebook, Twitter, Instagram, and YouTube. At a fundamental and foundational level, social media is used as a means of communication between people …

The Rise Of Public School Prayer With The Demise Of Lemon V. Kurtzman, Samantha Thompson Lipp

Mercer Law Review

The Supreme Court of the United States has officially overturned Lemon v. Kurtzman. The controversial and heavily criticized Lemon opinion sets forth the primary test courts used for over fifty years in analyzing claims under the Establishment Clause. The official overruling of Lemon signals the Supreme Court’s embrace of a more accommodating approach toward religion in the public sphere. This Comment predicts how, in Lemon’s absence, the Supreme Court will likely reassess precedent in the context of public school prayer and become more accommodating of religion.

In Part II, this Comment addresses the three approaches to interpreting the …

Social Media Platforms And Free Expression: An Introduction, Eric J. Segall

Mercer Law Review

On Friday, October 8, 2021, the Mercer Law Review hosted a virtual Symposium on “Social Media Platforms and Free Expression.” This important topic could not be timelier. With the Right calling for regulation of Facebook and Twitter in order to stop the removal of conservatives from their platforms, to the direct effect of social media on our elections and our politics, the worldwide spread of this technology has brought with it new and difficult legal issues regarding freedom of expression and social harms. Congratulations to the Mercer Law Review for addressing these controversial and complex questions.

To Be Seen But Not Heard: How The Internet’S Negative Impact On Minors’ Constitutional Right To Privacy, Speech, And Autonomy Creates A Need For Empathy-By-Design, Jon M. Garon

Mercer Law Review

This Article reviews the rights of individuals younger than eighteen to engage in their daily activities, now often mediated through online service providers, learning management systems, and other technological intermediaries. Unlike prior generations, modern adolescents must navigate the complex world of online society in addition to their family life, school day, and the time they spend away from school at work or in social activities.

This project includes concerns over bullying and harassment, contractual rights, social media policies, child pornography laws, revenge pornography laws, and end-user license agreements.

The Protection Of Freedom Of Expression From Social Media Platforms, András Koltay

Mercer Law Review

Social media platforms have overturned the previously known system of public communication. As predicted at the outset, the spread of the public Internet that started three decades ago has resulted in a paradigm shift in this field. Now, anyone can publish their opinion outside the legacy media, at no significant cost, and can become known and be discussed by others. Due to the technological characteristics of the Internet, it might also be expected that this kind of mass expression, with such an abundance of content, would necessitate the emergence of gatekeepers, similar in function to the ones that existed earlier …

Social Media And Democracy After The Capitol Riot, Or, A Cautionary Tale Of The Giant Goldfish, Seth Oranburg

Mercer Law Review

Lately, people have been finding giant pet goldfish in lakes across America. You may see these tiny fish swimming in bowls at the county fair, but left alone in a lake or large pond, where they are dropped perhaps by a well-meaning child, they can grow to 20 pounds or more—and destroy ecosystems. The goldfish is a cautionary tale that has been told time and again in different forms, like Pandora’s box.

On January 6, 2021, a somewhat organized group of rioters overran and briefly took control of the U.S. Capitol. Social media clearly played a role in the riots …

Social Media, Section 230, And Free Expression, Russell L. Weaver

Mercer Law Review

Throughout history, as new communications technologies have been developed, they have been controlled by “gatekeepers” who had the power to decide who could access those technologies. Although Johannes Gutenberg’s invention of the printing press in the Fifteenth century was revolutionary and ultimately led to major innovations in science and technology, as well as to dramatic societal changes, Gutenberg’s invention was not accessible by everyone. Because printing presses were expensive, only wealthy individuals could afford to own and operate them, and those few individuals had the power to control who could use their technologies to mass communicate. Many of the technologies …

Amazon’S Prime Reliance On The First Amendment’S Free Expression Protections In Coral Ridge Ministries Media, Inc., V. Amazon.Com, Inc., Avery Hart Hayes

Mercer Law Review

Is freedom of expression sometimes more important than one’s reputation and religious inclusion? Spoiler alert—the Eleventh Circuit Court of Appeals says yes.

The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” Defamation law has existed for centuries; however, it was not until the Civil Rights Movement of the 1960s that the Supreme Court of the United States considered defamation law in conjunction with the First Amendment. Since then, the protections of the First Amendment are especially heightened when it comes to published criticism of public officials and public figures. The rationale …

Religion And Local Power, Brian M. Miller

Mercer Law Review

In December of 2017, hundreds of protestors descended on Washington, D.C., from all over the United States. The crowds converged on the blocks surrounding the Supreme Court of the United States, where onlookers might have spotted signs reading “It’s Not About the Cake,” and “Open to All,” rising from one side of the crowd, and signs reading “Serves All People, But Can’t Create All Art,” and “Justice for Jack” rising from the other side. That morning the Supreme Court heard a case about a Colorado cake shop owner who, because of his religious convictions, refused to create a cake that …

Cameras Down, Hands Up: How The Supreme Court Chilled The Development Of The First Amendment Right To Record The Police, Christina Murray

Mercer Law Review

You may not realize this, but the Supreme Court of the United States has possibly jeopardized one of your First Amendment rights: the right to record the police. While this right may mean little to you now, it could serve as a means of protecting your other rights and in keeping law enforcement accountable. Because of the right to record the police, we have documented footage of police brutality from Missouri to Louisiana. These recordings have sparked outrage and fueled a conversation around policing, race, and our country's values.

This Comment will track the development of the right to record …

A Look Back At Reed V. Town Of Gilbert, Newton M. Galloway, Steven L. Jones

Mercer Law Review

Three years have passed since the Supreme Court of the United States invalidated the Sign Code enacted by the Town of Gilbert, Arizona (the Town), and virtually every other sign ordinance enacted by local governments across the country. Reed v. Town of Gilbert arose when the Town determined that temporary signs advertising the place and time of the transient Sunday services conducted by the Good News Community Church (the Church), led by Pastor Clyde Reed, violated its Sign Code. The Church was cited for Sign Code violations, and the Church challenged the Sign Code on constitutional grounds in the United …

A Constitutional Counterpunch To Georgia's Anti-Slapp Statute, Nick Phillips, Ryan Pumpian

Mercer Law Review

A "Strategic Lawsuit Against Public Participation"-commonly referred to as a "SLAPP-is a lawsuit intended to chill free speech and healthy public debate and to otherwise intimidate people from speaking out on issues of public concern. True SLAPP suits strike at the heart of the United States and Georgia Constitutions, specifically the rights to free speech and to petition the government enshrined therein. In recent years, state legislatures, including the Georgia General Assembly, have attempted to ward off SLAPP suits through legislation-commonly referred to as "anti-SLAPP" statutes-aimed at the early dismissal of SLAPPs and the award of attorney's fees and costs …

Religious Arguments By Citizens To Influence Public Policy: The Lessons Of The Establishment Clause, Gary J. Simson

Mercer Law Review

I am delighted to be a part of this richly deserved celebration of Jack Sammons's scholarship. As a scholar, Jack is truly in a class of his own. He offers a rare combination of qualities. For now, I will mention three of the qualities that together make him so special, but they by no means exhaust the list.

First of all, over a career as a legal scholar going back to his appointment to the Mercer law faculty in the late 1970s and continuing unabated today more than a year into his retirement from teaching, Jack has been wonderfully productive. …

Taking A Bite Out Of Speech Regulation: The Supreme Court Upholds First Amendment Protection For Depictions Of Animal Cruelty In United States V. Stevens, J. Matthew Barnwell

Mercer Law Review

The First Amendment is tested most strenuously when called upon to protect expression that many people would find indefensible. This occurred in United States v. Stevens when the Supreme Court of the United States refused to categorically remove depictions of animal cruelty from the bulwark of free speech. Further, the Court invalidated section 48 of Title 18 of the United States Code, which prohibited the creation, sale, or possession of depictions of animal cruelty,' as unconstitutionally overbroad. By not allowing speech to be categorically excluded from First Amendment protection because of its inherent lack of value, the Court revealed an …

Bullying In Public Schools: The Intersection Between The Student's Free Speech Rights And The School's Duty To Protect, Elizabeth M. Jaffe, Robert J. D'Agostino

Mercer Law Review

The 2009 case of eleven-year-old Jaheem Herrera's suicide in Georgia, which resulted after alleged repeated verbal bullying by his classmates, presents an interesting question regarding whether public schools must take action to prevent this type of behavior even if it does not disrupt the classroom. The issue to be addressed is not what speech schools can censor but whether schools must censor or prevent certain speech that has a harmful effect on the educational environment for a specific student or a specifically identifiable group of students.

If a public school student has a civil or liberty right to his education,' …

You Better Smile When You Say "Cheese!": Whether The Photograph Requirement For Drivers' Licenses Violates The Free Exercise Clause Of The First Amendment, Lauren N. Harris

Mercer Law Review

All fifty states require that a licensee's photograph be included on his or her driver's license. While many people willingly comply with the photograph requirement and say "Cheese!" without complaint, the photograph requirement presents an obstacle to others that may in fact prevent them from obtaining valid drivers' licenses even though they are otherwise qualified. The photograph requirement causes a problem when an applicant for a driver's license has religious beliefs that forbid the taking of his or her photograph. An applicant is faced with the dilemma of following his or her religious beliefs or obtaining a valid driver's license …

Is Worship A Unique Subject Or A Way Of Approaching Many Different Subjects? Two Recent Decisions That Attempt To Answer This Question Set The Second And Ninth Circuits On A Course Toward State Entanglement With Religion, John Tyler

Mercer Law Review

Does exclusion of worship services from a limited public forum constitute discrimination on the basis of viewpoint or subject matter? Is worship a unique subject matter or a way of expressing views on many different subjects? And if worship is a unique subject matter, what expressive activities fall within that category? In other words, what is the legal definition of worship?

These are the questions that the United States Supreme Court's seminal decision in Good News Club v. Milford Central School left unanswered. Good News Club was a case from New York that involved a constitutional challenge to the local …

Standing Room Only: Federal Taxpayers Denied Standing To Challenge President's Faith-Based Programs In Hein V. Freedom From Religion Foundation, Inc., Patricia Mary Quinlan

Mercer Law Review

During the 2006-2007 Term, the United States Supreme Court addressed the issue of whether federal taxpayers have standing to challenge the constitutionality of executive expenditures that allegedly violate the First Amendment to the United States Constitution. In Hein v. Freedom from Religion Foundation, Inc., the plaintiffs, asserting standing based on their status as federal taxpayers, objected to the use of congressional appropriations to fund a faith-based program created by President George W. Bush as a violation of the Establishment Clause. Although no single analysis commanded five votes, a majority of the Court agreed to dismiss the case for lack …

Signed, Your Coach: Restricting Speech In Athletic Recruiting In Tennessee Secondary School Athletic Ass'n V. Brentwood Academy, Brian Craddock

Mercer Law Review

In Tennessee Secondary School Athletic Ass'n v. Brentwood Academy ("Brentwood I/,), the United States Supreme Court unanimously held that an athletic association may enforce its anti-undue-influence recruiting policy, restricting the speech of its voluntary member schools, to avoid undue influence on young student athletes during the recruitment process. In reaching its holding, the Court extended two lines of First Amendment jurisprudence. First, the Court extended the application of Ohralik v. Ohio State Bar Ass'n to a context other than attorney-client solicitation for the first time. In doing so, the Court held that the possibility of undue influence in athletic recruiting …

King Solomon: Did The Supreme Court Make A Wise Decision In Upholding The Solomon Amendment In Rumsfeld V. Forum For Academic & Institutional Rights, Inc.?, Brook Bristow

Mercer Law Review

In a unanimous decision in Rumsfeld v. Forum for Academic & Institutional Rights, Inc., the United States Supreme Court upheld the constitutionality of the Solomon Amendment. The Court ruled that under the Solomon Amendment, military recruiters must be given the same access as nonmilitary recruiters on university campuses. The Court's holding clarified three First Amendment tangential freedom issues: (1) what is and what is not expressive conduct; (2) what constitutes compelled speech; and (3) what is meant by expressive association.

Student Speech Rights In The Modern Era, Brett Thompson

Mercer Law Review

Many things have changed since the United States Supreme Court's last major student speech case, Hazelwood School District v. Kuhlmeier, was decided in 1988. In 1999 a tragic school shooting occurred at Columbine High School in Colorado. During that same time period, there were a number of other occurrences of major violence at public schools. Since then, schools and legislatures have scrambled to prevent the occurrence of similar incidents. For example, a number of states have enacted anti-bullying statutes. Some were motivated to do so by a U.S. Secret Service report indicating that bullying played a role in many …

Holy Moses: What Do We Do With The Ten Commandments?, Haynes Maier, Eric R. Mull

Mercer Law Review

In McCreary County v. ACLU, the United States Supreme Court held displays of the Ten Commandments in two county courthouses unconstitutional because the displays violated the Establishment Clause of the United States Constitution. However, in Van Orden v. Perry, the United States Supreme Court held that a display of the Ten Commandments on the Texas State Capitol grounds did not violate the Establishment Clause. This obvious contradiction does little to resolve the uncertainty of current Establishment Clause jurisprudence. In McCreary the Court reaffirmed the Establishment Clause test articulated in Lemon v. Kurtzman, while at the same time …

Locke V. Davey: The Fine Line Between Free Exercise And Establishment, Brett Thompson

Mercer Law Review

In Locke v. Davey, the United States Supreme Court held that a state-sponsored scholarship program that excluded students who were majoring in devotional theology did not violate the Free Exercise Clause of the United States Constitution. The Court's holding left a great deal of uncertainty on when states may withhold benefits on the basis of religion.

Filtering Software In Public Libraries: Traditional Collection Decision Or Congressionally Induced First Amendment Violation?, Christopher Harne

Mercer Law Review

In United States v. American Library Ass'n, the United States Supreme Court held that filtering provisions of the Children's Internet Protection Act ("CIPA" or "Act") are constitutional and are a valid exercise of Congress's spending power because they do not induce public libraries to violate their patrons' First Amendment rights. The Court also held that CIPA does not place unconstitutional conditions upon public libraries' receipt of federal funding.

Rewriting Near V. Minnesota: Creating A Complete Definition Of Prior Restraint, Michael I. Meyerson

Mercer Law Review

The Supreme Court's opinion in Near v. Minnesota was both a major step on the road to free expression and a missed opportunity. It represented the first time a law was struck down as violating the First Amendment's guarantee of free expression. Moreover, it placed the concept of "prior restraint" at the forefront of the theory of free expression. As one scholar noted: "Since the 1931 release of the Supreme Court's opinion in Near v. Minnesota, the doctrine of prior restraint has been an essential element of first amendment jurisprudence."

Unfortunately, the Court neither defined prior restraint, nor explained precisely …

Dale V. Boy Scouts Of America: Whether The Application Of New Jersey's Public Accommodations Law, Forcing The Boy Scouts To Include An Avowed Homosexual, Violates The Scouts' First Amendment Freedom Of Expressive Associations, Joseph M. Carpenter

Mercer Law Review

In Dale v. Boy Scouts of America, the United States Supreme Court held that the application of a New Jersey public accommodations law, forcing the Boy Scouts to extend membership to an avowed homosexual and gay rights activist, violated the Boy Scout's First Amendment right to freedom of expressive association. The Court held New Jersey's law burdens the Boy Scouts' right to oppose homosexual conduct, and New Jersey's interest in curbing discrimination does not justify the intrusion on the Boy Scouts' right to freedom of expressive association.

Chandler V. James: Welcoming Student Prayer Back In The Schoolhouse Gate, Sarah Beth Mabery

Mercer Law Review

In Chandler v. James, the Eleventh Circuit Court of Appeals vacated the district court's order permanently enjoining enforcement of an Alabama statute that permitted student-initiated religious speech in public schools. The court of appeals concluded that permitting student initiated religious speech did not violate the Establishment Clause and such speech is protected by the Free Exercise and Free Speech Clauses of the First Amendment.

Greater New Orleans Broadcasting Ass'n V. United States: A Retreat From Full First Amendment Protection For Commercial Speech, Frances Clay

Mercer Law Review

In Greater New Orleans Broadcasting Ass'n v. United States, the United States Supreme Court considered whether 18 U.S.C. § 1304 which prohibits the broadcast of gambling advertisements, violated First Amendment protection of commercial speech—speech related only to the speaker's and the audience's economic interests—when applied to broadcast advertisements within states that have legalized casino gambling. Many critics expected, and perhaps hoped, the Supreme Court would seize this opportunity to discard, or at least drastically modify, the Central Hudson balancing test that the Court has used in commercial speech cases for almost twenty years. The Court refused to do so, …

National Endowment For The Arts V. Finley: First Amendment Free Speech No Longer Guaranteed For The Arts, Andrea Mccoy

Mercer Law Review

In National Endowment for the Arts v. Finley, the United States Supreme Court confronted the decency and respect criteria of the 1990 Amendment ("Amendment") to the National Foundation on the Arts and Humanities Act of 1965. At issue was whether the Amendment violated the First and Fifth Amendments of the United States Constitution by impermissibly discriminating based on viewpoint and being void for vagueness. The Supreme Court upheld the Amendment as facially valid.