Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- Washington University in St. Louis (25)
- Loyola University Chicago, School of Law (5)
- University of Pennsylvania Carey Law School (3)
- Maurer School of Law: Indiana University (2)
- New York Law School (2)
-
- University of Florida Levin College of Law (2)
- University of Georgia School of Law (2)
- Valparaiso University (2)
- American University Washington College of Law (1)
- Barry University School of Law (1)
- Boston University School of Law (1)
- Florida International University College of Law (1)
- Georgetown University Law Center (1)
- Mitchell Hamline School of Law (1)
- Northwestern Pritzker School of Law (1)
- Notre Dame Law School (1)
- Nova Southeastern University (1)
- Pace University (1)
- SJ Quinney College of Law, University of Utah (1)
- Seattle University School of Law (1)
- Texas A&M University School of Law (1)
- The Catholic University of America, Columbus School of Law (1)
- University of Arkansas at Little Rock William H. Bowen School of Law (1)
- University of Baltimore Law (1)
- University of Missouri School of Law (1)
- University of Nevada, Las Vegas -- William S. Boyd School of Law (1)
- University of Pittsburgh School of Law (1)
- University of Richmond (1)
- University of Washington School of Law (1)
- Publication Year
- Publication
-
- Scholarship@WashULaw (25)
- Faculty Scholarship (6)
- Faculty Publications & Other Works (5)
- All Faculty Scholarship (4)
- Law Faculty Publications (3)
-
- Scholarly Works (3)
- Faculty Publications (2)
- UF Law Faculty Publications (2)
- Articles (1)
- Articles & Chapters (1)
- Articles by Maurer Faculty (1)
- Articles in Law Reviews & Other Academic Journals (1)
- Elisabeth Haub School of Law Faculty Publications (1)
- Georgetown Law Faculty Publications and Other Works (1)
- Journal Articles (1)
- Maurer Law Events (1)
- NULR Online (1)
- Other Publications (1)
- Presentations (1)
- Scholarly Articles (1)
- Seattle University Law Review Online (1)
- Utah Law Faculty Scholarship (1)
Articles 1 - 30 of 64
Full-Text Articles in Law
American Law In The New Global Conflict, Mark Jia
American Law In The New Global Conflict, Mark Jia
Georgetown Law Faculty Publications and Other Works
This Article surveys how a growing rivalry between the United States and China is changing the American legal system. It argues that U.S.-China conflict is reproducing, in attenuated form, the same politics of threat that has driven wartime legal development for much of our history. The result is that American law is reprising familiar patterns and pathologies. There has been a diminishment in rights among groups with imputed ties to a geopolitical adversary. But there has also been a modest expansion in rights where advocates have linked desired reforms with geopolitical goals. Institutionally, the new global conflict has at times …
From Garcetti To Kennedy: Teachers, Coaches, And Free Speech At Public Schools, Emily Gold Waldman
From Garcetti To Kennedy: Teachers, Coaches, And Free Speech At Public Schools, Emily Gold Waldman
Elisabeth Haub School of Law Faculty Publications
This Article analyzes Kennedy's implications for educators' free speech rights at school. It is important to note, at the outset, that the Kennedy majority's description of the actual facts at issue is highly debatable. Indeed, the majority presented a sanitized account of what actually occurred on the ground, minimizing the highly public nature of Kennedy's prayers and the football players' involvement in them. That said, if we take the facts as the majority presented them, and then move to the majority's assessment of those facts, we emerge with an interesting gloss on Garcetti. Synthesizing Garcetti and Kennedy points toward a …
The Stolen Election Lie And The Freedom Of Speech, Wes Henricksen
The Stolen Election Lie And The Freedom Of Speech, Wes Henricksen
Faculty Scholarship
No abstract provided.
Testimony, Free Speech Under Attack: The Legal Assault On Environmental Activists And The First Amendment, Anita Ramasastry
Testimony, Free Speech Under Attack: The Legal Assault On Environmental Activists And The First Amendment, Anita Ramasastry
Presentations
No abstract provided.
Brief Of Professor Tobias B. Wolff As Amicus Curiae In Support Of Respondents In U.S. Supreme Court Case 303 Creative Llc V. Elenis, Tobias Barrington Wolff
Brief Of Professor Tobias B. Wolff As Amicus Curiae In Support Of Respondents In U.S. Supreme Court Case 303 Creative Llc V. Elenis, Tobias Barrington Wolff
All Faculty Scholarship
This amicus brief, filed in support of the Colorado anti-discrimination law in 303 Creative v. Elenis, is the product of about ten years of work on these First Amendment issues as a scholar and advocate. Its arguments rest on a core proposition: When a business sells goods and services in the public marketplace, it is not a street corner speaker engaging in a personal act of expression, it is a vendor engaged in commerce. Customers do not pay for the privilege of promoting a commercial vendor’s own personal message, they pay for goods and services chosen by them and …
Tell Elon Musk, The Hell With It, Jethro K. Lieberman
Tell Elon Musk, The Hell With It, Jethro K. Lieberman
Other Publications
No abstract provided.
Nobody's Business: A Novel Theory Of The Anonymous First Amendment, Jordan Wallace-Wolf
Nobody's Business: A Novel Theory Of The Anonymous First Amendment, Jordan Wallace-Wolf
Faculty Scholarship
Namelessness is a double-edged sword. It can be a way of avoiding prejudice and focusing attention on one's ideas, but it can also be a license to defame and misinform. These points have been widely discussed. Still, the breadth of these discussions has left some of the depths unplumbed, because rarely is the question explicitly faced: what is the normative significance of namelessness itself, as opposed to its effects under different conditions? My answer is that anonymity is an evasion of responsibility for one's conduct. Persons should ordinarily be held responsible for what they do, but in some cases, where …
Centering Noncitizens’ Free Speech, Gregory P. Magarian
Centering Noncitizens’ Free Speech, Gregory P. Magarian
Scholarship@WashULaw
First Amendment law pays little attention to noncitizens’ free speech interests. Perhaps noncitizens simply enjoy the same First Amendment rights as citizens. However, ambivalent and sometimes hostile Supreme Court precedents create serious cause for concern. This Essay advocates moving noncitizens’ free speech from the far periphery to the center of First Amendment law. Professor Magarian posits that noncitizens epitomize a condition of speech inequality, in which social conditions and legal doctrines combine to create distinctive, unwarranted barriers to full participation in public discourse. First Amendment law can ameliorate speech inequality by promoting an ethos of free speech obligation, amplifying the …
Lawyers And The Lies They Tell, Bruce Green, Rebecca Roiphe
Lawyers And The Lies They Tell, Bruce Green, Rebecca Roiphe
Articles & Chapters
Noting that the First Amendment protects lies about the government made in the public square, this article explores whether lawyers’ free speech rights ought to be different from that of other speakers. The law holds lawyers to a more demanding standard of conduct than others when it comes to aspects of lawyers’ fiduciary relationships with courts and clients. But how much more demanding can the law be when it comes to lawyers’ speech — in this case, false political speech? Applying the current First Amendment framework, we question the bar’s assumption that lawyers’ speech outside of these contexts can be …
Absolute Publishing Power And Bulletproof Immunity: How Section 230 Shields Internet Service Providers From Liability And Makes It Impossible To Protect Your Reputation Online, Victoria Anderson
Seattle University Law Review Online
No abstract provided.
How Cheap Speech Underserves And Overheats Democracy, Gregory P. Magarian
How Cheap Speech Underserves And Overheats Democracy, Gregory P. Magarian
Scholarship@WashULaw
A quarter century ago, Eugene Volokh’s article Cheap Speech and What It Will Do foretold a new regime of technologically driven “cheap speech” that would fundamentally change how people communicated with one another and navigated the information ecosystem. Professor Volokh’s vision was mainly descriptive, and his normative assessment of cheap speech sounded some circumspect notes of warning. Fundamentally, though, he painted an optimistic picture. In particular, he made the important claim that emerging technologies would democratize and diversify our society by giving many more speakers access to the tools of mass communication and audiences access to many more ideas.
Kent State And The Failure Of First Amendment Law, Gregory P. Magarian
Kent State And The Failure Of First Amendment Law, Gregory P. Magarian
Scholarship@WashULaw
Since the U.S. Supreme Court decided its first free speech case 100 years ago, two very different eras have defined First Amendment law. For a half century, before 1970, the Supreme Court focused on protecting the expressive freedom of political dissidents and social reformers. In 1970, amid protests against the Vietnam War, the Ohio National Guard senselessly gunned down four students at Kent State University. The Kent State massacre exposed the fragility in our country of political protest, free speech, and democracy itself. That atrocity should have inspired First Amendment law to affirm and enhance its protection of dissenters and …
The Legal Landscape For Frontline Student Journalists, Jonathan Peters
The Legal Landscape For Frontline Student Journalists, Jonathan Peters
Scholarly Works
They have exposed campus outbreaks and questioned reopening plans. They have documented social-distancing violations at fraternity and sorority houses. They have tracked and explained fast-breaking changes to instructional modes and commencement events. They have demanded transparency from school administrators. And through it all they have boldly told the story of the human experience.
Famously, at the University of North Carolina, the Daily Tar Heel published a biting editorial under the headline “UNC has a clusterfuck on its hands,” after virus clusters were identified in campus housing. And the day that Notre Dame announced it would move only temporarily …
Conflicting Reports: When Gun Rights Threaten Free Speech, Gregory P. Magarian
Conflicting Reports: When Gun Rights Threaten Free Speech, Gregory P. Magarian
Scholarship@WashULaw
This Article catalogs and analyzes collisions between free speech and gun rights. The most important and hotly debated of those collisions is the clash between the First Amendment rights to assemble and speak in public political protests and the asserted Second Amendment right to carry firearms openly in public places. Beyond protests, public university students’ First Amendment rights to speak and learn clash with the asserted Second Amendment right to carry concealed weapons on university campuses; First Amendment interests in robust political deliberation clash with Second Amendment interests in promoting and securing the right to keep and bear arms; and …
Taming Uncivil Discourse, Gregory P. Magarian, James L. Gibson, Lee Epstein
Taming Uncivil Discourse, Gregory P. Magarian, James L. Gibson, Lee Epstein
Scholarship@WashULaw
In an era of increasingly intense populist politics, a variety of issues of intergroup prejudice, discrimination, and conflict have moved center stage in American politics. Among these is “political correctness” and, in particular, what constitutes a legitimate discourse of political conflict and opposition. Yet the meaning of legitimate discourse is being turned on its head as some disparaged groups seek to reclaim, or re-appropriate, the slurs directed against them. Using a Supreme Court decision about whether “The Slants” – a band named after a traditional slur against Asians – can trademark its name, we test several hypotheses about re-appropriation processes, …
Trade Secrets And The Right To Information: A Comparative Analysis Of E.U. And U.S. Approaches To Freedom Of Expression And Whistleblowing, Sharon Sandeen, Ulla-Maija Mylly
Trade Secrets And The Right To Information: A Comparative Analysis Of E.U. And U.S. Approaches To Freedom Of Expression And Whistleblowing, Sharon Sandeen, Ulla-Maija Mylly
Faculty Scholarship
Both the EU Trade Secrets Directive and US trade secret law seek to balance the protection of trade secrets against other values, including freedom of expression, but the EU Trade Secret Directive is more explicit about the need to do so. This article examines EU and US trade secret law through the right to information, a recognized human right under the Universal Declaration of Human Rights and implementing laws and conventions. In particular, it discusses how principles of freedom of expression and whistleblowing should apply in the trade secret context in the EU and U.S.
Memorializing The Right To Free Speech: Hess V. Indiana And The Iu Bicentennial, Ashley A. Ahlbrand
Memorializing The Right To Free Speech: Hess V. Indiana And The Iu Bicentennial, Ashley A. Ahlbrand
Articles by Maurer Faculty
No abstract provided.
Data Subjects' Privacy Rights: Regulation Of Personal Data Retention And Erasure, Alexander Tsesis
Data Subjects' Privacy Rights: Regulation Of Personal Data Retention And Erasure, Alexander Tsesis
Faculty Publications & Other Works
The European Union's right to erasure came into effect May 25, 2018, as Article 17 of the General Data Protection Regulation ("GDPR"). Unlike the U.S. "marketplace of ideas" model of free speech, the GDPR gives greater weight to data subjects' privacy interests than to audiences' curiosity about others' intimate lives. The U.S. and EU models advance human thirst for knowledge through open and uninhibited debates, whereas the internet marketplace tends to favor social media companies' commercial interests: put more specifically, free speech is not entirely harmonious with the interests of social media intermediaries whose algorithms tend to favor companies' bottom …
Marketplace Of Ideas, Privacy, And The Digital Audience, Alexander Tsesis
Marketplace Of Ideas, Privacy, And The Digital Audience, Alexander Tsesis
Faculty Publications & Other Works
The availability of almost limitless sets of digital information has opened a vast marketplace of ideas. Information service providers like Facebook and Twitter provide users with an array of personal information about products, friends, acquaintances, and strangers. While this data enriches the lives of those who share content on the internet, it comes at the expense of privacy. Social media companies disseminate news, advertisements, and political messages, while also capitalizing on consumers' private shopping, surfing, and traveling habits. Companies like Cambridge Analytica, Amazon, and Apple rely on algorithmic programs to mash up and scrape enormous amounts of online and otherwise …
Political And Non-Political Speech And Guns, Gregory P. Magarian
Political And Non-Political Speech And Guns, Gregory P. Magarian
Scholarship@WashULaw
Constitutional rights depend on justifications. Some combination of theory, his- tory, and practical reasoning needs to establish why and to what extent a given right warrants legal protection. The justifications that courts and theorists articulate for a given right determine the right’s breadth and the specific contours of its protection. Justification has particular importance at the formative stage of a newly recognized constitutional right. At present, courts are building doctrine around the Second Amendment “right of the people to keep and bear Arms,”1 recognized as an individ- ual right just over a decade ago in District of Columbia v. Heller.2 …
When Audiences Object: Free Speech And Campus Speaker Protests Articles & Essays, Gregory P. Magarian
When Audiences Object: Free Speech And Campus Speaker Protests Articles & Essays, Gregory P. Magarian
Scholarship@WashULaw
In March 2017, conservative author Charles Murray arrived to speak at Middlebury College in Vermont, invited by a student affiliate of the American Enterprise Institute. Murray planned to discuss his 2013 book, Coming Apart: The State of White America, 1960-2010. Many Middlebury students and faculty, however, deplored Murray for an earlier book, 1994’s The Bell Curve, where he drew specious connections between race and intelligence. Others simply considered Murray an intellectual lightweight who didn’t warrant a speaking slot at the prestigious college. Murray’s critics objected to the Political Science Department’s co-sponsorship of his ppearance and the college president’s plan to …
Digitizing Brandenburg: Common Law Drift Toward A Causal Theory Of Imminence, J. Remy Green
Digitizing Brandenburg: Common Law Drift Toward A Causal Theory Of Imminence, J. Remy Green
Faculty Scholarship
The Supreme Court’s Brandenburg v. Ohio test provides an exception to the First Amendment’s broad guarantee of freedom of speech. Where speech is (1) directed to inciting or producing imminent lawless action, and (2) is likely to incite or produce such action, the First Amendment withdraws its promise of protection. Thus, where the “imminence” of lawless action cannot be shown, free speech cannot be restricted. Since Brandenburg, Courts have applied a test for imminence that turns on proximity in space and in time — that is, the test evaluates how spatiotemporally imminent lawless activity is. In this Article, I argue …
Cheers To Central Hudson: How Traditional Intermediate Scrutiny Helps Keep Independent Craft Beer Viable, Daniel J. Croxall
Cheers To Central Hudson: How Traditional Intermediate Scrutiny Helps Keep Independent Craft Beer Viable, Daniel J. Croxall
NULR Online
Independent craft breweries contributed approximately $68 billion to the national economy last year. However, an arcane regulatory scheme governs the alcohol industry in general and the craft beer industry specifically, posing both obstacles and benefits to independent craft brewers. This Essay examines regulations that arguably infringe on free speech: namely, commercial speech regulations that prohibit alcohol manufacturers from purchasing advertising space from retailers. Such regulations were enacted to prohibit undue influence and anticompetitive behavior stemming from vertical and horizontal integration in the alcohol market. Although these regulations are necessary to prevent global corporate brewers from dominating the craft beer market …
Inciting Terrorism On The Internet: The Limits Of Tolerating Intolerance, Amos N. Guiora
Inciting Terrorism On The Internet: The Limits Of Tolerating Intolerance, Amos N. Guiora
Utah Law Faculty Scholarship
The Internet is a limitless platform for information and data sharing. It is, in addition, however, a low-cost, high-speed dissemination mechanism that facilitates the spreading of hate speech, including violent and virtual threats. Indictment and prosecution for social media posts that transgress from opinion to incitable hate speech are appropriate in limited circumstances. Several real-world examples discussed here help to explore when limitations on Internet-based hate speech are appropriate.
In October 2015, twenty thousand Israelis joined a civil lawsuit filed against Facebook in the Supreme Court for the State of New York. Led by the civil rights organization Shurat HaDin, …
Categorizing Student Speech, Alexander Tsesis
Categorizing Student Speech, Alexander Tsesis
Faculty Publications & Other Works
No abstract provided.
Four Principles For Digital Expression (You Won't Believe #3!), Neil M. Richards, Danielle Keats Citron
Four Principles For Digital Expression (You Won't Believe #3!), Neil M. Richards, Danielle Keats Citron
Scholarship@WashULaw
At the dawn of the Internet’s emergence, the Supreme Court rhapsodized about its potential as a tool for free expression and political liberation. In ACLU v. Reno (1997), the Supreme Court adopted a bold vision of Internet expression to strike down a federal law–the Communications Decency Act–that restricted digital expression to forms that were merely “decent.” Far more than the printing press, the Court explained, the mid-90s Internet enabled anyone to become a town crier. Communication no longer required the permission of powerful entities. With a network connection, the powerless had as much luck reaching a mass audience as the …
Forward Into The Past: Speech Intermediaries In Television And Internet Ages Symposium: Falsehoods, Fake News, And The First Amendment: Panel 3: The Brave New World Of Free Speech, Gregory P. Magarian
Forward Into The Past: Speech Intermediaries In Television And Internet Ages Symposium: Falsehoods, Fake News, And The First Amendment: Panel 3: The Brave New World Of Free Speech, Gregory P. Magarian
Scholarship@WashULaw
Communication constructs society. By speaking to, with, and among one another, people and groups build relationships that allow us all to live more fully, understand the world better, and govern ourselves collectively. As societies grow, expression and engagement become more challenging. The presence of more ideas, larger and more diverse potential audiences, and more powerful and remote institutions threatens to reduce communication to a futile exercise. Whatever normative goals different people and groups may want public discourse to serve, pursuing those goals gets harder.
Science As Speech, Natalie Ram
Science As Speech, Natalie Ram
All Faculty Scholarship
In April 2015, researchers in China reported the successful genetic editing of human embryos using a new technology that promised to make gene editing easier and more effective than ever before. In the United States, the announcement drew immediate calls to regulate or prohibit
outright any use of this technology to alter human embryos, even for purely research purposes. The fervent response to the Chinese announcement was, in one respect, unexceptional. Proposals to regulate or prohibit scientific research following a new breakthrough occur with substantial frequency. Innovations in cloning technology and embryonic stem cell research have prompted similar outcries, and …
"Free Speech, First Amendment, And New Media For Cons And Festivals" From Pop Culture Business Handbook For Cons And Festivals, Jon Garon
Faculty Scholarship
This article is part of a series of book excerpts from The Pop Culture Business Handbook for Cons and Festivals, which provides the business, strategy, and legal reference guide for fan conventions, film festivals, musical festivals, and cultural events.Although most events are organized by private parties, the location of these events in public venues and the crowd management issues involving free speech make First Amendment and free speech issues a critical component of event management. This excerpt provides a framework for understanding the legal and security issues involving free speech at public events.
Campus Speech And Harassment, Alexander Tsesis
Campus Speech And Harassment, Alexander Tsesis
Faculty Publications & Other Works
No abstract provided.