Law Commons^™

Immigration Detention And Dissent: The Role Of The First Amendment On The Road To Abolition, Alina Das

Georgia Law Review

The movement to abolish slavery relied heavily on the exercise and protection of enslaved and formerly enslaved people’s freedom of speech against robust efforts to suppress their messaging. The same is true in the context of the movement to abolish immigration detention. For decades, people in immigration detention, formerly detained people, and their allies have exercised their First Amendment rights to expose the conditions of their confinement and demand their freedom. In response to their protests and other forms of individual and collective expression, detained and formerly detained immigrants have faced suppression and retaliation, threatening not only their right to …

Executive Discretion And First Amendment Constraints On The Deportation State, Jennifer Lee Koh

Georgia Law Review

Given the federal courts’ reluctance to provide clarity on the degree to which the First Amendment safeguards the free speech and association rights of immigrants, the immigration policy agenda of the President now appears to determine whether noncitizens engaging in speech, activism, and advocacy are protected from retaliation by federal immigration authorities. This Essay examines two themes: first, the discretion exercised by the Executive Branch in the immigration context; and second, the courts’ ambivalence when it comes to enforcing immigrants’ rights to be free from retaliation. To do so, this Essay explores the Supreme Court’s influential 1999 decision in Reno …

Regulatory Constitutional Law: Protecting Immigrant Free Speech Without Relying On The First Amendment, Michael Kagan

Georgia Law Review

The Supreme Court has long deprived immigrants of the full protection of substantive constitutional rights, including the right to free speech, leaving undocumented immigrants exposed to detention and deportation if they earn the government’s ire through political speech. The best remedy for this would be for the Supreme Court to reconsider its approach. This Essay offers an interim alternative borrowed from an analogous problem that arises under the Fourth Amendment. Under the Constitution, the Supreme Court has indicated that illegally obtained evidence may be suppressed in a removal proceeding only if the Fourth Amendment violation was “egregious.” Yet, some circuit …

Fear Foreigners, And Free Expression: A Brief Reflection On Ideological Exclusion And Deportation In The United States, Julia Rose Kraut

Georgia Law Review

“Why should we be afraid of this man and his ideas?” asked Secretary of State William P. Rogers, referring to Belgian, Marxist economist Ernest Mandel.1 In 1969, Mandel applied for a nonimmigrant visa to visit the United States after receiving invitations to speak at several American colleges and universities, including Amherst College, Columbia University, Princeton University, Massachusetts Institute of Technology, and the New School for Social Research.2 Mandel had received visas to visit the United States twice before: one in 1962 and another in 1968.3 Yet, this time, Mandel’s application for a visa was denied.4

The State Department informed Mandel …

The Contested "Bright Line" Of Territorial Presence, Shalini Ray

Georgia Law Review

For this symposium on “Immigrants and the First Amendment,” this Essay considers the current scope of First Amendment protection for noncitizens abroad. Courts have interpreted the constitutional rights of noncitizens to vary with factors including status, ties, and location. But in a recent case, Agency for International Development v. Alliance for Open Society International, the Supreme Court announced that the First Amendment simply does not apply to noncitizens abroad. This Essay considers this new rule and its implications, concluding that a bright-line rule based on territorial presence masks more complex questions about the meaning of “here” and “abroad.”

Centering Noncitizens' Free Speech, Gregory P. Margarian

Georgia Law Review

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 …

State Of The Unions: The Impact Of Janus On Public University Student Fees, Jonathan Kaufman

Georgia Law Review

In Janus v. American Federation of State, County,
and Municipal Employees, Council 31, the U.S.
Supreme Court overruled forty-one years of precedent
that had allowed public-sector unions to collect
agency-shop fees from nonmembers. The Court ruled this
mandatory fee collection unconstitutional as a violation
of nonmember First Amendment rights. This decision
may pose problems for other public entities, such as
public universities, who also collect mandatory fees that
support political speech.

Free Speech And Off-Label Rights, Amy J. Sepinwall

Georgia Law Review

When a litigant invokes a constitutional right to
protect interests different from the ones underpinning
the right, he engages in what this Article calls an
off-label rights exercise. The Free Speech Clause has
recently become an especially prominent, and troubling,
site of off-label rights exercises. Two of the most
prominent cases in the Supreme Court’s last term
involved litigants who invoked their constitutional
rights to free speech to protect interests unrelated to
speech or expression. In Janus v. American Federation
of State, County, & Municipal Employees, a state
employee argued that forcing him to pay for the union’s
bargaining activities …

You Have The Right To Free Speech: Retaliatory Arrests And The Pretext Of Probable Cause, Katherine G. Howard

Georgia Law Review

An important question about an individual's First
Amendment freedoms arises when a citizen or journalist is
arrested while verbally challenging, filming, or writing
about police actions. Did the police officer have legitimate
law enforcement reasons for the arrest, or was the arrest in
retaliationfor engaging in First Amendment activities the
officer did not like? Courts have grappled with the best
way to resolve this question, often importing the Fourth
Amendment's bright-line rule about probable cause into
analyses of FirstAmendment retaliatoryarrest claims and
barringthose claims were the officer had probable cause to
arrest. This Note argues that when retaliatory arrest
claims …

Sanitizing Cyberspace: Obscenity, Miller,And The Future Of Public Discourse On The Intemet, John Tehranian

Journal of Intellectual Property Law

No abstract provided.

Human Rights Law And Racial Hate Speech Regulation In Australia: Reform And Replace?, Dr. Alan Berman

Georgia Journal of International & Comparative Law

No abstract provided.

Taking A Bite Out Of Michael Vick's Publicity Rights: An Analysis Of How Teh Right Of Publicity Should Be Treated After A Celebrity Is Convicted Of A Crime, Stephen Reginald Fowler

Journal of Intellectual Property Law

No abstract provided.

Copyright And Freedom Of Expression In Historical Perspective, Pamela Samuelson

Journal of Intellectual Property Law

No abstract provided.

Etw Corp. V. Jireb Publishing, Inc.: Turning An Athlete's Publicity Over To The Public, Michael J. Breslin

Journal of Intellectual Property Law

No abstract provided.

The Dmca: A Modern Version Of The Licensing Act Of 1662, L. Ray Patterson

Journal of Intellectual Property Law

No abstract provided.

Copyright Term Extensions, The Public Domain And Intertextuality Intertwined, Ashley Packard

Journal of Intellectual Property Law

No abstract provided.

A New Test To Reconcile The Right Of Publicity With Core First Amendment Values, Mark Joseph Stern, Nat Stern

Journal of Intellectual Property Law

No abstract provided.

Explicitly Explicit: The Rogers Test And The Ninth Circuit, Daniel Jacob Wright

Journal of Intellectual Property Law

No abstract provided.

To Speak, Perchance To Have A Dream: The Malicious Author And Orator Estate As A Critique Of The Digital Millennium Copyright Act's Subversion Of The First Amendment In The Era Of Notice And Takedown, Michael Bradford Patterson

Journal of Intellectual Property Law

No abstract provided.

Digital Medicine, The Fda, And The First Amendment, Adam Candeub

Georgia Law Review

Digital medicine might transform healthcare more fundamentally than the introduction of anesthesia or germ basis theory of disease. Already, tens of thousands of "medical apps" are available for smartphones. These computer applications can measure blood pressure, pulse, lung function, oxygenation level, sugar level, breathing rate and body temperature-and can even diagnose skin cancer, analyze urine, and take an echocardiogram. In fall 2013, the Federal Drug Administration (FDA) asserted regulatory authority over mobile medical applications and other digital medical services, threatening to chill, if not, destroy this innovation. This Article argues that the FDA stands on firm legal ground regulating medical …

The First Amendment, Public School Students, And The Need For Clear Limits On School Officials' Authority Over Off-Campus Student Speech, Rory A. Weeks

Georgia Law Review

When, if ever, can school officials punish a student's off-
campus speech? The Supreme Court's student-speech
jurisprudence does not provide a clear answer. But this
much is clear: School officials do not possess absolute
authority over students' on-campus speech. Public school
students do not shed their First Amendment rights at the
schoolhouse gate. And yet during school or school-related
activities, public school students do not have coequal First
Amendment rights with adults in other contexts. During
school or school-related activities, school officials may
proscribe otherwise-permitted speech in order to fulfill the
school's basic educational mission, which includes
instructingstudents in civility. …