Law Commons^™

Free Speech For Me But Not For Airbnb”: Restricting Hate-Group Activity In Public Accommodations, Sabrina Apple -- J.D. Candidate, 2024

Vanderbilt Law Review

As digital services grow increasingly indispensable to modern life, courts grow inundated with novel claims of entitlement against these platforms. As narrow, formalistic interpretations of Title II permit industry leaders to sidestep equal access obligations, misinformed interpretations of First Amendment protections allow violent speech and conduct to parade uninhibited. Within the mistreatment of these two established doctrines lies a critical distinction: the former is in desperate need of modernization to fulfill its original intent, and the latter is in desperate need of restoration for the same ends. This climate creates conditions ripe for doctrinal upheaval. This Note considers how the …

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 …

What Was The "Dartmouth College" Case Really About?, Charles R.T. O'Kelley

Vanderbilt Law Review

This Article is the first modern work of corporation law scholarship fully examining the Dartmouth College case as it was lived and understood at the time. Earlier scholars, the author of this Article included, have relied on the case to make doctrinal and theory-of-the firm arguments about Supreme Court precedents regarding the constitutional rights of corporations. Moreover, these earlier works have primarily focused on, and found talismanic meaning, in two sentences in Marshall’s opinion:

"A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties …

Licensing Knowledge, Claudia E. Haupt

Vanderbilt Law Review

When professionals give advice, they disseminate professional knowledge to their clients. Professional advice is valuable to clients because they gain access to a body of knowledge they do not otherwise possess. To preserve the accuracy, and hence the value, of this knowledge transfer, the First Amendment should protect professional speech against state interference that seeks to alter the content of professional advice in a way that contradicts professional knowledge. But before professionals can give professional advice, they are routinely subject to licensing by the state. This seemingly creates a tension between state involvement in professional licensing and protection against state …

Terrorist Speech On Social Media, Alexander Tsesis

Vanderbilt Law Review

The presence of terrorist speech on the internet tests the limits of the First Amendment. Widely available cyber terrorist sermons, instructional videos, blogs, and interactive websites raise complex expressive concerns. On the one hand, statements that support nefarious and even violent movements are constitutionally protected against totalitarian-like repressions of civil liberties. The Supreme Court has erected a bulwark of associational and communicative protections to curtail government from stifling debate through overbroad regulations. On the other hand, the protection of free speech has never been an absolute bar against the regulation of low value expressions, such as calls to violence and …

High Value Lies, Ugly Truths, And The First Amendment, Alan K. Chen, Justin Marceau

Vanderbilt Law Review

Lying has a complicated relationship with the First Amendment. It is beyond question that some lies-such as perjury and fraud-are simply not covered by the Constitution's free speech clause.' But it is equally clear that some lies, even intentionally lying about military honors, are entitled to First Amendment protection. Until very recently, however, it has been taken for granted in Supreme Court doctrine and academic writing that any constitutional protection for lies is purely prophylactic-it provides protection to the truth-speaker by also incidentally protecting the liar. What remains unresolved is whether other rationales might also justify First Amendment protection for …

Speech Beyond Borders: Extraterritoriality And The First Amendment, Anna Su

Vanderbilt Law Review

Does the First Amendment follow the flag? In Boumediene v. Bush, the Supreme Court categorically rejected the claim that constitutional rights do not apply at all to governmental actions taken against aliens located abroad. Instead, the Court made the application of such rights, the First Amendment presumably included, contingent on "objective factors and practical concerns." In addition, by affirming previous decisions, Boumediene also extended its functional test to cover even U.S. citizens, leaving them in a situation where they might be without any constitutional recourse for violations of their First Amendment rights. But lower courts have found in the recent …

The Chilling Effect And The Problem Of Private Action, Monica Youn

Vanderbilt Law Review

A First Amendment chilling effect occurs when a governmental action creates a consequence that deters an individual from exercising expressive rights. But in some cases, the chilling effect does not stem directly from the governmental action, but instead from intervening private actions. For example, the mandatory disclosure of campaign contributions may "chill" contributors, due to the potential threat of retaliatory acts by private actors, such as criticism, protests, boycotts, threats, or violence. Is there a point at which the chilling effect is attributable to that private reaction, rather than to the challenged governmental action? And should we distinguish between chilling …

Be A Liar Or You're Fired! First Amendment Protection For Public Employees Who Object To Their Employer's Criminal Demands, Keane A. Barger

Vanderbilt Law Review

Public perception of the Roberts Court has been defined, to a significant degree, by its First Amendment jurisprudence. Defending free speech has been hailed as one of the Court's "signature projects." However, as some commentators have noted, once one looks beyond the high-profile cases, the Roberts Court has been decidedly less pro- speech. Recent Supreme Court rulings have not looked kindly upon free speech claims raised by students, humanitarian organizations, and, most pertinent for this Note, public employees. The apparent disparity between the treatment of corporate and financial interests, on the one hand, and the interests of labor, students, and …

Falsely Shouting Fire In A Global Theater: Emerging Complexities Of Transborder Expression, Timothy Zick

Vanderbilt Law Review

This Article examines the First Amendment complexities associated with the dissemination of potentially harmful information in the global theater. These complexities include global dissemination of offensive expression, incitement to unlawful activities abroad, enemy-aiding expression that crosses territorial borders, and global free press concerns. The author argues that traditional First Amendment doctrines and principles ought generally to apply in the global theater. Reliance on marketplace and self-governance principles, application of speech-protective incitement standards, and continued support for an expansive and robust conception of press freedoms will preserve transborder First Amendment liberties in the digital era and allow the global theater to …

Hope-Fulfilling Or Effectively Chilling? Reconciling The Hate Crimes Prevention Act With The First Amendment, Carter T. Coker

Vanderbilt Law Review

Living on a meager disability pension and without means of transportation, forty-nine-year-old African American James Byrd, Jr. of Jasper, Texas thought he had caught a break when three white men offered him a ride home on June 6, 1998. The following morning, police found Byrd's torso in the middle of the road, his head and arm in a ditch a mile away, and a three-mile trail of blood staining the road. That racial animus was the motivation for Byrd's torture, dragging, and death was hardly in dispute. Two of the three perpetrators were members of white supremacist organizations and bore …

Street Shootings: Covert Photography And Public Privacy, Nancy D. Zeronda

Vanderbilt Law Review

Street photographers, like snipers, pride themselves on stealth.' Camouflaged in nondescript clothing, they wander the streets undetectable, armed, and on the hunt. When they find their mark, they act quickly. As the famous twentieth-century street photographer Henri Cartier-Bresson described: "The creative act lasts but a brief moment, a lightning instant of give-and-take, just long enough for you to level the camera and to trap the fleeting prey in your little box." While methods of "trapping prey" vary from shooter to shooter, the mission remains the same-staying as covert as possible and catching an unknowing subject in a candid pose. In …

Assisted Suicide, Morality, And Law: Why Prohibiting Assisted Suicide Violates The Establishment Clause, Edward Rubin

Vanderbilt Law Review

This Article argues that general prohibitions against assisted suicide violate the Establishment Clause because they support a particular and religiously based moral position. Many laws overlap with religious proscriptions, of course. The conclusion that laws against assisted suicide are unconstitutional because of their religious origin is based on the specific historical context of these laws within our existing culture. Over the course of Western civilization, attitudes about suicide have oscillated from positive approbation in many Greek and Roman sources, to outright and unalterable opposition by Christian writers, to acceptance and limited approval by contemporary secular thinkers and health practitioners. At …

Toward A Rfra That Works, Nicholas Nugent

Vanderbilt Law Review

The history of the Supreme Court's First Amendment jurisprudence regarding the proper standard of protection for the free exercise of religion is complicated. In determining how the First Amendment speaks to situations in which generally applicable health, welfare, and safety laws incidentally or accidentally burden certain individuals' religious practices, the Court has vacillated between different standards and different extremes, overruling itself several times. Early on, the Court held that, provided the government did not interfere deliberately with religion for religious reasons, an inadvertent interference with religious practice raised no Free xercise Clause problem,' "no matter how trivial the state's nonreligious …

Changing The Rules Of Establishment Clause Litigation: An Alternative To The Public Expression Of Religion Act, Christopher D. Tomlinson

Vanderbilt Law Review

In 2004, the American Civil Liberties Union ("ACLU") threatened to sue the city of Redlands, California, if it did not remove a small cross from its city seal.' The cross represented the city's religious heritage and its history as a city of churches. Instead of facing the possibility of litigation and the more daunting risk of losing in court and being forced to pay the ACLU's attorneys' fees in addition to its own, the Redlands City Council agreed to change the seal. The City of Redlands not only could ill afford the risk of paying the ACLU's attorneys' fees; it …

First Amendment Protection For The Publication Of Private Information, Jared Lenow

Vanderbilt Law Review

Over one hundred years ago, Samuel Warren and Louis Brandeis wrote, "Of the desirability-indeed of the necessity-of some protection [of the right of privacy], there can, it is believed, be no doubt. The press is overstepping in every direction the obvious bounds of propriety and decency." This observation rings even more true today than it did when it was made in 1890. In the past hundred years, members of the media have drastically revised the unwritten rules regarding what topics are fair game. While media outlets uniformly declined to publish photographs of Franklin Delano Roosevelt in a wheelchair while he …

Defining Freedom Of The College Press After "Hosty V. Carter", Jessica B. Lyons

Vanderbilt Law Review

The application of the First Amendment to public universities has long been a source of confusion and frustration for both universities and courts. In particular, application of the First Amendment to student publications such as newspapers, magazines, and yearbooks has led to a great deal of litigation and controversy. The protection afforded by the First Amendment to these publications at the university level is extremely unclear and the circuit courts' inconsistent treatment of the college press has further confused the issue.

How should the First Amendment apply to public universities? An instinctive response is that a college student should enjoy …

Islamic Arbitration: A New Path For Interpreting Islamic Legal Contracts, Charles P. Trumbull

Vanderbilt Law Review

Muslims living in a secular, liberal democratic state face a fundamental dilemma: reconciling the obligation to live according to Shari'a with their civic duty to follow secular laws. Muslims attempt to resolve this dilemma in a number of ways. Some enter public office and try to influence the generally applicable laws of their country. Others advocate greater legal pluralism, thus allowing Muslims to settle certain disputes under Islamic law. In Canada, for example, the Islamic Institute for Civil Justice ("IICJ") announced plans to create Shari'a tribunals and claimed that it would begin arbitrating family and commercial disputes according to Islamic …

Regulation Of Political Signs In Private Homeowner Associations: A New Approach, Brian J. Fleming

Vanderbilt Law Review

The concept of the home as a zone of nearly unfettered individual liberty is one of the bedrock principles of American law and culture. Chief among the liberties safeguarded from governmental interference within this zone is freedom of speech, a liberty protected by the First Amendment. While the First Amendment prevents the government from infringing on an individual's speech in many settings, its protection is especially strong in the home. As Justice Stevens wrote in City of Ladue v. Gilleo, any attempt by the government to prohibit certain forms of speech in the home is so antithetical to our common …

"Gouging The Government": Why A Federal Contingency Fee Lobbying Prohibition Is Consistent With First Amendment Freedoms, Meredith A. Capps

Vanderbilt Law Review

Washington Post writer David Segal once observed, "[f]or most Americans the words 'Washington lobbyist' have roughly the same cachet as, say, 'deadbeat dad."" Both lawmakers and the public regard lobbying as an unsavory part of the political process. Much of this perception stems from the vast sums of money spent each year on lobbying activity. For example, in the first half of 2004 alone, mortgage funding companies Fannie Mae and Freddie Mac reported spending over $11 million on lobbying activities, General Electric spent $8.5 million, and the U.S. Chamber of Commerce spent $20.1 million-and these were only three of the …

Unincorporated, Unprotected: Religion In An Established State, Kathryn E. Komp

Vanderbilt Law Review

In the summer of 2004, the group American Veterans Standing for God and Country ("American Veterans") began a cross-country pilgrimage to carry a 5,200-pound statue of the Ten Commandments to Washington D.C. The infamous statue cost Roy Moore his job as Chief Justice of the Alabama Supreme Court when he refused to remove it from the lobby of the state courthouse in 2002. American Veterans took up Moore's cause, however, and in October they brought the Commandments statue to a Christian rally in Washington, D.C. The group then planned to ask Congress to display the statue permanently in the Capitol …

Public Confidence Laws Gone Awry: A Modern Circuit Split Reveals That Some Federal Courts Manipulate Standing Rules To Promulgate Severe First Amendment Restrictions On The Spouses And Children Of Public Employees, Nicholas R. Farrell

Vanderbilt Law Review

Federal courts in the United States have consistently upheld the constitutional doctrine that "[t]he essential rights of the First Amendment in some instances are subject to the elemental need for order without which the guarantees of civil rights to others would be a mockery." Given the central role of government workers in maintaining that order, the First Amendment rights of public employees have been particularly susceptible to restriction. For example, in 1940, Congress enacted the Hatch Act, which declared unlawful certain political activities of federal employees. Specifically, section nine of the Act prohibited officers and employees in the executive branch …

"Charitable Choice" And The Accountability Challenge: Reconciling The Need For Regulation With The First Amendment Religion Clauses, Michele E. Gilman

Vanderbilt Law Review

Charitable choice, or the use of federal money to fund social services provided by religious organizations, has engendered controversy and confusion since its inception in the 1996 welfare reform legislation. Under the welfare reform statute, entitled the Personal Responsibility and Work Opportunity Reconciliation Act ("PRA"), states may contract out administration of their welfare programs to private entities, including houses of worship. President Bush is promoting the expansion of charitable choice into other federal social service programs as a major policy initiative of his administration. Federal funding of faith-based organizations has supporters and opponents on both the left and the right. …

Commercial Speech And The Unconstitutional Conditions Doctrine: A Second Look At "The Greater Includes The Lesser", Mitchell N. Berman

Vanderbilt Law Review

Over half a century ago, the Puerto Rico legislature legalized casino gambling in an effort to promote tourism to the island.' To help ensure that the local population would not overindulge in this particular vice, however, the legislature at the same time provided that "[n]o gambling room shall be permitted to advertise or other- wise offer their facilities to the public of Puerto Rico."' Thirty years later a casino operator challenged the statutory advertising ban and its implementing regulations as violating the freedom of speech guaranteed by the First Amendment. Although the Superior Court of Puerto Rico agreed with the …

First Amendment Limits On Copyright, C. Edwin Baker

Vanderbilt Law Review

Although the tension between copyright and the First Amendment has long been noted and increasing numbers of First Amendment challenges to copyright have recently been filed, few scholarly commentaries have gone beyond relatively narrow attempts at doctrinal accommodation. Under the assumption either that existing copyright law fully accommodates First Amendment interests or that some balance is appropriate, commentators have avoided any principled exploration of the full force of First Amendment principles. This Essay aims to fill that gap. Rather than use mechanical doctrine to evaluate existing copyright law, this Essay begins with a theoretical approach to the First Amendment and …

Assessing The Risk Of Executing The Innocent: A Case For Allowing Access To Physical Evidence For Posthumous Dna Testing, Anne-Marie Moyes

Vanderbilt Law Review

On February 5, 1985, Helen Schartner was raped and murdered on her way home from a bar in Virginia Beach. Joseph O'Dell was at the same bar that night, and fellow patrons claim he left the bar shortly after Schartner departed. Several hours later, O'Dell was seen entering a convenience store with blood on his hands, face, and clothes. O'Dell's estranged girlfriend--who had previously falsely accused O'Dell of other murders--read about Schartner's murder and called the police to report that O'Dell had left some bloody clothes in her garage. The police arrested O'Dell and charged him with the rape and …

Mistaken Identity: Unveiling The Property Characteristics Of Political Money, Spencer A. Overton

Vanderbilt Law Review

This Article argues that money contributed to and spent on political campaigns ('political money") possesses many of the traits that explain judicial respect for regulation of property, and that courts reviewing restrictions on political money should consider doctrines associated with the Fifth and Fourteenth Amendment Property Clauses. As evidenced by the different degrees of respect afforded to regulations of property and speech, judicial treatment of a particular liberty interest can be explained by the presence and particular posturing of distinct functional issues such as distrust, scarcity, distribution, and interference with others' interests. Campaign finance jurisprudence, however, has categorized political money …

Anything Goes: Examining The State's Interest In Protecting Children From Controversial Speech, Catherine J. Ross

Vanderbilt Law Review

Protecting children from contamination by speech has become the focus of national attention. The content of the protected speech that the state seeks to regulate is as varied as the form of communications targeted, including the allegedly indecent, sacrilegious, and violent in media ranging from books to the Internet. Echoing similar crusades to protect children from virtually every new form of entertainment over the last century, contemporary regulatory efforts to protect children reflect the unique legal status of children and the fragility of constitutional liberties where their vulnerabilities are invoked. But content-based restrictions on speech--even in the name of protecting …

Government Of The Good, Abner S. Greene

Vanderbilt Law Review

Webster's definition of the noun "good" begins: "something that possesses desirable qualities, promotes success, welfare, or happiness, or is otherwise beneficial."' Whether government should promote the good, and in particular whether government should use its powers of persuasion-its "speech," if you will-to promote contested views of the good, is the subject of this Article. I will argue that, as a matter of political theory, government in a liberal democracy not only may pro- mote contested views of the good, but should do so, as well. Further, nothing in our constitutional jurisprudence demands otherwise, assuming certain conditions are met. In taking …

The Graduation Prayer Cases: Coercion By Any Other Name, Colin Delaney

Vanderbilt Law Review

The Supreme Court's decision in Lee v. Weisman held clergy- delivered invocations at public-school graduation ceremonies unconstitutional. In the wake of this landmark case, school boards across the country instituted a variety of policies to avoid the establishmentarian attributes fatal to the prayers in Lee. Several Courts of Appeals soon heard cases involving authorities seeking to divorce themselves from speakers and speaker selection, in the apparent belief that school involvement placed the imprimatur of the state on graduation prayer. Yet two facts mark all of the situations challenged to date. First, an agent of the state, the school board, exercised …