Law Commons^™

Compelled Speech And Proportionality, Alexander Tsesis

Faculty Publications & Other Works

This Article argues for a proportional First Amendment approach to compelled speech jurisprudence. It discusses the evolution of doctrine and how it led to recent opinions finding unconstitutional consumer protection, health disclosure, and collective bargaining statutes. In place of the currently formalistic approach, the Article argues for a transparent balancing of interests to avoid litigants’ opportunistic reliance on categorical First Amendment doctrines. Missing from the recent decisions that relied on the compelled speech doctrine is any systematic or contextual weighing of private and public concerns about disclosure regulations. The Roberts Court has been rather formalistic and categorical in its compelled …

Why Do The Poor Not Have A Constitutional Right To File Civil Claims In Court Under Their First Amendment Right To Petition The Government For A Redress Of Grievances?, Henry Rose

Faculty Publications & Other Works

Since 1963, the United States Supreme Court has recognized the constitutional right of entities and persons to pursue civil legal claims in American courts under the First Amendment right to petition government for redress of grievances. However, in a series of three cases decided by the Supreme Court in the early 1970’s - Boddie v. Connecticut, United States v. Kras and Ortwein v. Schwab - the Court inexplicably declined to address the appellants’ claims that they have a constitutional right to access the courts to seek resolution of their civil legal claims. In each of these three cases, the indigent …

Enforcement Of The Reconstruction Amendments, Alexander Tsesis

Faculty Publications & Other Works

This Article systematically analyzes the delicate balance of congressional and judicial authority granted by the Reconstruction Amendments. The Thirteenth, Fourteenth, and Fifteenth Amendments vest Congress with powers to enforce civil rights, equal treatment, and civic participation. Their reach extends significantly beyond the Rehnquist and Roberts Courts’ narrow construction of congressional authority. In recent years, the Court has struck down laws that helped secure voter rights, protect religious liberties, and punish age or disability discrimination. Those holdings encroach on the amendments’ allocated powers of enforcement.

Textual, structural, historical, and normative analyses provide profound insights into the appropriate roles of the Supreme …

Enforcement Of The Reconstruction Amendments, Alexander Tsesis

Faculty Publications & Other Works

This Article systematically analyzes the delicate balance of congressional and judicial authority granted by the Reconstruction Amendments. The Thirteenth, Fourteenth, and Fifteenth Amendments vest Congress with powers to enforce civil rights, equal treatment, and civic participation. Their reach extends significantly beyond the Rehnquist and Roberts Courts’ narrow construction of congressional authority. In recent years, the Court has struck down laws that helped secure voter rights, protect religious liberties, and punish age or disability discrimination. Those holdings encroach on the amendments’ allocated powers of enforcement.

Textual, structural, historical, and normative analyses provide profound insights into the appropriate roles of the Supreme …

The Lost History Of Delegation At The Founding, Christine Chabot

Faculty Publications & Other Works

The new Supreme Court is poised to bring the administrative state to a grinding halt. Five Justices have endorsed Justice Gorsuch's dissent in Gundy v. United States--an opinion that threatens to invalidate countless regulatory statutes in which Congress has delegated significant policymaking authority to the Executive Branch. Justice Gorsuch claimed that the “text and history” of the Constitution required the Court to replace a longstanding constitutional doctrine that permits broad delegations with a more restrictive one. But the supposedly originalist arguments advanced by Justice Gorsuch and like-minded scholars run counter to the understandings of delegation that prevailed in the Founding …

Categorizing Student Speech, Alexander Tsesis

Faculty Publications & Other Works

No abstract provided.

Social Media Accountability For Terrorist Propaganda, Alexander Tsesis

Faculty Publications & Other Works

Terrorist organizations have found social media websites to be invaluable for disseminating ideology, recruiting terrorists, and planning operations. National and international leaders have repeatedly pointed out the dangers terrorists pose to ordinary people and state institutions. In the United States, the federal Communications Decency Act's § 230 provides social networking websites with immunity against civil law suits. Litigants have therefore been unsuccessful in obtaining redress against internet companies who host or disseminate third-party terrorist content. This Article demonstrates that § 230 does not bar private parties from recovery if they can prove that a social media company had received complaints …

Balancing Free Speech, Alexander Tsesis

Faculty Publications & Other Works

This article develops a theory for balancing free speech against other express and implied constitutional, statutory, and doctrinal values. It posits that free speech considerations should be connected to the underlying purpose of constitutional governance. When deciding difficult cases involving competing rights, judges should examine (1) whether unencumbered expression is likely to cause constitutional, statutory, or common law harms; (2) whether the restricted expression has been historically or traditionally protected; (3) whether a government policy designed to benefit the general welfare weighs in favor of the regulation; (4) the fit between the disputed speech regulation and the public end; and …