Law Commons^™

The First Religious Charter School: A Viable Option For School Choice Or Prohibited Under The State Action Doctrine And Religion Clauses?, Julia Clementi

Fordham Law Review

After the First Amendment’s Religion Clauses were ratified, church and state became increasingly divorced from one another, as practicing religion became a private activity on which the government could not encroach. This separation, however, was slow, and much credit is owed to the U.S. Supreme Court for its efforts to disentangle the two. One particular area in which the Supreme Court exercised its influence was the U.S. education system; the Court invoked the Religion Clauses and neutrality principles to rid public schools of religious influences and ensure that private religious schools could partake in government programs that were available to …

Rereading Pico And The Equal Protection Clause, Johany G. Dubon

Fordham Law Review

More than forty years ago, in Board of Education v. Pico, the U.S. Supreme Court considered the constitutionality of a school board’s decision to remove books from its libraries. However, the Court’s response was heavily fractured, garnering seven separate opinions. In the plurality opinion, three justices stated that the implicit corollary to a student’s First Amendment right to free speech is the right to receive information. Thus, the plurality announced that the relevant inquiry for reviewing a school’s library book removal actions is whether the school officials intended to deny students access to ideas with which the officials disagreed. …

To Mint Or Not To Mint: Non-Fungible Tokens And The Right Of Publicity, Hannah Bobek

Fordham Law Review

Non-fungible tokens (NFTs) allow for authentication and ownership of digital assets, which are notable features in the virtual world given the infiniteness of internet content. The emergence of this novel technology, however, has raised challenges, especially regarding enforcement of the right of publicity. This Note addresses how litigators have approached right of publicity violations arising from NFTs and how courts might respond to future violations that this technology is capable of facilitating. Legal scholars and commentators argue that certain features of NFTs pose pronounced threats to the right of publicity, namely the technology’s novelty, democratized nature, anonymization of creators, transferability …

Police Officers, Policy, And Personnel Files: Prosecutorial Disclosure Obligations Above And Beyond Brady, Lauren Giles

Fordham Law Review

Police officers play a significant role in the criminal trial process and are unlike any other witness who will take the stand. They are trained to testify, and jurors find them more credible than other witnesses, even though officers may have more incentive to lie than the ordinary witness. Despite the role of police officers in criminal proceedings, state statutes say virtually nothing about evidence used to impeach police officers, often contained in the officer’s personnel file. Worse still, the standard for disclosing information in an officer’s personnel file varies among and within states, resulting in inconsistent Brady disclosures. This …

Misunderstanding Meriwether, Brian Soucek, Ryan Chen

Fordham Law Review

Meriwether v. Hartop is widely seen as one of the most important academic freedom and transgender rights cases of recent years. Whether praising it as a victory for free speech or condemning it as a threat to educational equality, commentators across the political spectrum have agreed on one thing: the U.S. Court of Appeals for the Sixth Circuit did something big when it held that professors at public universities have a First Amendment right to misgender their students in class. But contrary to popular belief, Meriwether held no such thing. In fact, the Sixth Circuit could not have held what …

Anything But Prideful: Free Speech And Conversion Therapy Bans, State-Federal Action Plans, And Rooting Out Medical Fraud, Jordan Hutt

Fordham Law Review

At a time when conversion therapy might seem archaic to many people, this practice remains prevalent across the United States and finds legal support in the halls of federal courthouses. In 2020, the U.S. Court of Appeals for the Eleventh Circuit, in Otto v. City of Boca Raton, held that two ordinances banning conversion therapy in Boca Raton and Palm Beach violated First Amendment free speech rights. Specifically, Otto held that conversion therapy bans were content-based restrictions subject to strict scrutiny. Conversely, the U.S. Courts of Appeals for the Third and Ninth Circuits’ prior decisions upheld conversion therapy bans …

Looks Matter On Social Media: How Should Courts Determine Whether A Public Official Operates Their Social Media Account Under Color Of State Law?, John B. Tsimis

Fordham Law Review

The widespread use of social media has presented a novel legal landscape for the application of constitutionally protected rights—particularly the First Amendment’s protection of free speech. The First Amendment prohibits the government from excluding citizens from a public forum on the basis of their viewpoints. Public officials acting under color of state law similarly may not use the authority of their offices to deprive citizens of their First Amendment rights.

However, the application of this protection in the context of social media has been inconsistent across federal circuit courts. Although these courts agree that viewpoint discrimination by the government on …

Don't Pull The Trigger On New York's Concealed Carry Improvement Act: Addressing First And Second Amendment Concerns, Morgan Band

Fordham Law Review

Despite the increasing prevalence of mass shootings in the United States, the U.S. Supreme Court in New York State Rifle & Pistol Ass’n, Inc. v. Bruen struck down a 100-year-old New York statute that had restricted access to concealed carry permits. The statute had required applicants to demonstrate a “proper cause” for needing a concealed carry permit. But even if an applicant made the necessary showing, licensing officials retained discretion under the statute to decline to issue a permit. In striking down the statute, the Court distinguished between “may-issue” jurisdictions, such as New York, which give licensing officials discretion in …

License & (Gender) Registration, Please: A First Amendment Argument Against Compelled Driver's License Gender Markers, Lexi Meyer

Fordham Law Review

For as long as the United States has issued drivers’ licenses, licenses have indicated the holder’s gender in one form or another. Because drivers’ licenses are issued at the state level, states retain the authority to regulate the procedures for amending them. In some states, regulations include requirements that a transgender person undergo gender confirmation surgery before they can amend the gender marker on their driver’s license. Because many transgender people neither desire nor can afford gender confirmation surgery, these laws effectively preclude such people from obtaining gender-accurate identification. In doing so, these laws implicate multiple constitutional rights.

Lower courts …

First Amendment Speech Protections In A Post-Dobbs World: Providing Instruction On Instructional Speech, Samantha Mitchell

Fordham Law Review

In its June 2022 opinion, Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court overruled Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, thus revoking the constitutional right to abortion. As states continue to pass laws outlawing abortion to varying degrees, not only has Dobbs led to uncertainty for medical professionals and those who might want to seek an abortion, but it has also prompted questions for internet users across the world. May an organization or an individual post instructions on the internet regarding how to obtain an abortion if a resident of a …

Let's Get Real: Weak Artificial Intelligence Has Free Speech Rights, James B. Garvey

Fordham Law Review

The right to free speech is a strongly protected constitutional right under the First Amendment to the U.S. Constitution. In 2010, the U.S. Supreme Court significantly expanded free speech protections for corporations in Citizens United v. FEC. This case prompted the question: could other nonhuman actors also be eligible for free speech protection under the First Amendment? This inquiry is no longer a mere intellectual exercise: sophisticated artificial intelligence (AI) may soon be capable of producing speech. As such, there are novel and complex questions surrounding the application of the First Amendment to AI. Some commentators argue that AI …

The Political And Social Change Driven By Protest: The Need To Reform The Anti-Riot Act And Examine Anti-Riot Provisions, Ronald E. Britt Ii

Fordham Law Review

The right to join in peaceful assembly and petition is critical to an effective democracy and is at the core of the First Amendment. The assault of peaceful protestors in the pursuit of racial justice is not a new phenomenon, and legislators at the federal and state levels have drafted anti-riot provisions as a measure to target protestors they deem an existential threat to American society. As these provisions have become increasingly prevalent in light of the protests following the murders of Breonna Taylor and George Floyd, they have the likelihood of severely chilling the effect on protestors’ right to …

Teacher Prayer In Public Schools, Maya Syngal Mcgrath

Fordham Law Review

When American citizens elect to work in government positions, they relinquish certain free speech rights granted by the First Amendment. In Garcetti v. Ceballos, the U.S. Supreme Court ruled that when public employees make statements pursuant to their government job duties, they do not speak as citizens for First Amendment purposes. As such, they are not constitutionally insulated from employer discipline. Determining whether public employees speak as a result of, or in accordance with, their official responsibilities can be difficult, and one government job has proven more challenging than most: the public school teacher. In 2021, the Ninth Circuit …

Mandatory Narrated Ultrasounds: A First Amendment Perspective On Abortion Regulations, Abigail Tubin

Fordham Law Review

Ever since the U.S. Supreme Court recognized the right to terminate a pregnancy in Roe v. Wade, many state legislatures have passed myriad regulations intended to complicate the process of obtaining an abortion. These regulations include “informed consent” provisions, such as the mandatory narrated ultrasound, which impose strict disclosure requirements on physicians who seek to perform abortions. Since these regulations compel physicians to speak when they otherwise might not, these laws implicate the First Amendment’s Free Speech Clause. As a result, physicians looking to perform abortions have an alternative avenue, apart from the Fourteenth Amendment’s Due Process Clause, for challenging …

Choose Your Words Carefully: Reimagining Retaliatory Arrest After Nieves V. Bartlett, Ryan Hor

Fordham Law Review

In the summer of 2020, the United States experienced potentially its largest ever social movement in the protests against racial inequality. Predictably, protestors clashed with law enforcement officers, often leading to arrests. Arrested individuals could bring § 1983 retaliatory arrest claims alleging that the officers deprived them of their First Amendment right to free speech. Such claims underline the tension between two vital interests: free speech and law enforcement effectiveness. In 2019, the U.S. Supreme Court decided Nieves v. Bartlett, which crafted a new framework for retaliatory arrest claims that consequently diminished a plaintiff’s chance to prevail and recover …

Media Consolidation & Political Polarization: Reviewing The National Television Ownership Rule, Mary R. Hornak

Fordham Law Review

Local television plays an important role in the democratic society. The medium is viewed as being trustworthy, and it is accessible and uniquely situated to report on matters of local interest. Among other roles, the Federal Communications Commission (FCC) regulates firms’ ownership interests in the media through regulations that permit a certain degree of consolidation at both the local and national levels. Since 1996, Congress has mandated that the FCC regularly review broadcast media ownership regulations. Originally, this requirement mandated biennial review. In 2004, however, Congress revised the mandate, requiring review on a quadrennial basis and excluding from such review …

Lgbtqia+ Public Accomodation Cases: The Battle Between Religious Freedom And Civil Rights, Jamie Reinah

Fordham Law Review

Protections for LGBTQIA+ Americans have greatly expanded since the U.S. Supreme Court recognized marriage equality in Obergefell v. Hodges, but the debate about whether business owners can refuse to serve LGBTQIA+ couples on religious grounds has grown more bitterly divided. The free exercise of religion is a fundamental constitutional right, and it is strongly protected at both the federal and state levels. At the same time, LGBTQIA+ couples are protected from receiving unequal treatment in public places under state antidiscrimination laws. The clash between religion and LGBTQIA+ rights has culminated in a line of cases that present difficult questions …

Monopolizing Free Speech, Gregory Day

Fordham Law Review

The First Amendment prevents the government from suppressing speech, though individuals can ban, chill, or abridge free expression without offending the Constitution. Hardly an unintended consequence, Justice Oliver Wendell Holmes famously likened free speech to a marketplace where the responsibility of rejecting dangerous, repugnant, or worthless speech lies with the people. This supposedly maximizes social welfare on the theory that the market promotes good ideas and condemns bad ones better than the state can. Nevertheless, there is a concern that large technology corporations exercise unreasonable power in the marketplace of ideas. Because “big tech’s” ability to abridge speech lacks constitutional …

A Public Concern: Protecting Whistleblowers Under The First Amendment, Steven Still

Fordham Law Review

The United States has just witnessed an impeachment debate which may have far-reaching ramifications for our democratic institutions. These hostilities began with an anonymous whistleblower complaint from a government employee, disclosing what he or she believed were illegal activities directed by President Donald J. Trump. Ever since, discussion of whistleblowers has taken on greater salience in the news cycle. Today, there are a number of whistleblower statutes that protect employees who disclose knowledge of their employer’s illicit activities from workplace retaliation. Although whistleblowing is not unique to government workers, these individuals have an added layer of protection afforded to them …

Regulating Habit-Forming Technology, Kyle Langvardt

Fordham Law Review

Tech developers, like slot machine designers, strive to maximize the user’s “time on device.” They do so by designing habit-forming products— products that draw consciously on the same behavioral design strategies that the casino industry pioneered. The predictable result is that most tech users spend more time on device than they would like, about five hours of phone time a day, while a substantial minority develop life-changing behavioral problems similar to problem gambling. Other countries have begun to regulate habit-forming tech, and American jurisdictions may soon follow suit. Several state legislatures today are considering bills to regulate “loot boxes,” a …

"'Male Chauvinism' Is Under Attack From All Sides At Present": Roberts V. United States Jaycees, Sex Discrimination, And The First Amendment, Linda C. Mcclain

Fordham Law Review

This Article considers the relationship between gender equality and freedom of association. Part I begins with the Supreme Court’s recognition of the freedom of association as first articulated in NAACP v. Alabama. It shows how, in the context of race discrimination, some key civil rights victories have enlisted claims of the freedom of association, while some other victories have prevailed against such claims. Those precedents set the foundation for the Court’s decision in Jaycees, which concerned gender discrimination. Part II focuses on the role of Jaycees in drawing an analogy between the harms of gender discrimination and sexual-orientation …

Gender Equality And The First Amendment: Foreword, Jeanmarie Fenrich, Benjamin C. Zipursky, Danielle Keats Citron

Fordham Law Review

Gender equality demands equal opportunity to speak and be heard. Yet, in recent years, the clash between equality and free speech in the context of gender has intensified—in the media, the workplace, college campuses, and the political arena, both online and offline. The internet has given rise to novel First Amendment issues that particularly affect women, such as nonconsensual pornography, online harassment, and online privacy. On November 1–2, 2018, the Fordham Law Review brought together scholars and practicing lawyers from around the nation to address many of the pressing challenges facing feminists and free speech advocates today. The Symposium was …

When Law Frees Us To Speak, Danielle Keats Citron, Jonathon W. Penney

Fordham Law Review

A central aim of online abuse is to silence victims. That effort is as regrettable as it is successful. In the face of cyberharassment and sexualprivacy invasions, women and marginalized groups retreat from online engagement. These documented chilling effects, however, are not inevitable. Beyond its deterrent function, the law has an equally important expressive role. In this Article, we highlight law’s capacity to shape social norms and behavior through education. We focus on a neglected dimension of law’s expressive role: its capacity to empower victims to express their truths and engage with others. Our argument is theoretical and empirical. We …

Pregnancy And The First Amendment, Helen Norton

Fordham Law Review

Suppose that you are pregnant and seated in the waiting room of a Planned Parenthood clinic, or maybe in a facility that advertises “Pregnant? We Can Help You.” This Essay discusses the First Amendment rules that apply to the government’s control of what you are about to hear. This Essay considers what First Amendment law, as applied to speech to pregnant women, would look like if the Court attended to the First Amendment interests of pregnant women themselves.

Toxic Misogyny And The Limits Of Counterspeech, Lynne Tirrell

Fordham Law Review

Gender equality, across all the ways that we humans are engendered, is an unrealized ideal of many contemporary Americans. It is not enshrined in the U.S. Constitution, unless one interprets “men” to include women, which the Framers did not. Although passed by Congress in 1972, the Equal Rights Amendment (ERA) failed to gain the necessary thirty-eight state ratifications, and it has never become law. Thirty-five states initially ratified it between 1972 and 1977, then two more in 2017 and 2018. It remains one state short. These ratifications indicate significant social progress for women, but the progress is uneven, even within …

Free Speech And The Diverse University, Keith E. Whittington

Fordham Law Review

There are those who think that free speech and inclusivity on college campuses are inconsistent. The notion that the two values are in tension with one another has become a common framing for thinking about the modern campus. A Gallup-Knight Foundation poll of college students asked respondents not only whether they valued free speech or diversity but also to choose between them and indicate which was “more important for colleges.” When forced to choose, a substantial minority of students said they would prioritize inclusivity over the freedom to express “viewpoints that are offensive” on campus. Following the Gallup-Knight poll the …

Managing The Misinformation Marketplace: The First Amendment And The Fight Against Fake News, Daniela C. Manzi

Fordham Law Review

In recent years, fake news has overtaken the internet. Fake news publishers are able to disseminate false stories widely and cheaply on social media websites, amassing millions of likes, comments, and shares, with some fake news even “trending” on certain platforms. The ease with which a publisher can create and spread falsehoods has led to a marketplace of misinformation unprecedented in size and power. People’s vulnerability to fake news means that they are far less likely to receive accurate political information and are therefore unable to make informed decisions when voting. Because a democratic system relies on an informed populace …

Fosta: A Hostile Law With A Human Cost, Lura Chamberlain

Fordham Law Review

The Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (“FOSTA”) rescinded legal immunity for websites that intentionally host user-generated advertisements for sex trafficking. However, Congress’s mechanism of choice to protect sex-trafficking victims has faced critique and backlash from advocates for those involved in commercial sex, who argue that FOSTA’s broad legislative language does far more to harm sex workers—a group distinct from sex-trafficking victims—than it does to end sex trafficking, chilling significant protected speech in the process. These critics posit that FOSTA’s results toward eradicating sex trafficking have been negligible and that its chief outcome has …

The "Uncontroversial" Controversy In Compelled Commercial Disclosures, Lauren Fowler

Fordham Law Review

Federal and state administrative agencies increasingly advance public health goals through the use of mandatory disclosures, like warning labels on cigarettes, that are intended to both inform and influence consumer decisions. However, the standard for determining whether these requirements violate a commercial speaker’s First Amendment rights is unsettled. In Zauderer v. Office of Disciplinary Counsel, the U.S. Supreme Court adopted a test that defers to the government’s determination that the compelled disclosure of “factual and uncontroversial information” is justified. Since Zauderer was decided, lower courts have disagreed about the meaning of “uncontroversial.” A recent Supreme Court case, National Institute …

Lady Justice Cannot Hear Your Prayers, Deborah Ogali

Fordham Law Review

The Islamic finance industry continues to grow quickly as the appetite for everything, from Sharia-compliant home mortgages and car loans to sophisticated financial products, increases. This growth has triggered an interest in sukuk, bond-like financial instruments. And while the international market for sukuk has long been dominated by foreign issuers and English law, the attraction of a niche market compatible with U.S. federal and international securities laws may propel increased participation by U.S. issuers and investors who wish to transact under U.S. federal and state laws. As with all Islamic financial products, sukuk transactions inherently pose a Sharia compliance risk. …