Law Commons^™

The First Amendment In The Second Gilded Age, Jack M. Balkin

Buffalo Law Review

How do we pay for the digital public sphere? In the Second Gilded Age, the answer is primarily through digital surveillance and through finding ever new ways to make money out of personal data. Digital capitalism in the Second Gilded Age features an implicit bargain: a seemingly unlimited freedom to speak in exchange for the right to surveil and manipulate end users.To protect freedom of speech in the Second Gilded Age we must distinguish the values of free speech from the judicially created doctrines of the First Amendment. That is because the practical freedom to speak online depends on a …

The Purpose (And Limits) Of The University, John Inazu

Utah Law Review

Scholars of the university have produced volumes about growing pressures on the coherence and purpose of institutions of higher education. Meanwhile, legal scholars’ writing about the university has typically focused on its First Amendment dimensions. This Article links insights from these two groups of scholars to explore the purpose of the university and defend it against increasing technological, ideological, and cultural pressures. It argues that a better understanding of the relationship between the First Amendment and the university can help strengthen the coherence of the university’s purpose against these pressures. The connection between the First Amendment and institutional purpose is …

Sb 339 - Education, Daniel F. Barrett, Alexander Hegner

Georgia State University Law Review

The Act amends the statutes in the Georgia Code applicable to the University System and Board of Regents statutes in the Georgia Code. It adds new sections that place affirmative requirements on the Board of Regents to adopt and publish new policies, which aim to encourage the dissemination of free speech across university campuses. Further, the Act directs that universities must implement disciplinary sanctions for anyone subject to the jurisdiction of the University System who interferes with the free speech of invited speakers and others on campus. Finally, the Board of Regents must publish annual reports regarding any barriers to …

Let Them Eat Cake: Why Public Proprietors Of Wedding Goods And Services Must Equally Serve All People, Labdhi Sheth, Molly Christ

Loyola of Los Angeles Law Review

No abstract provided.

Laying Siege To The Ivory Tower: Resource Allocation In Response To The Heckler's Veto On University Campuses, Macklin W. Thornton

San Diego Law Review

High in the towers of academia, the lofty ideals of free speech are tossed around with a deceptive ease. However, as legal minds grapple with heady legal doctrines, free speech has concrete consequences down at the foot of those towers. At this ivory base, the property line between the university and the community blur. Students and nonstudents assemble and deliver conflicting speech that, at times, foments violence. Molotov cocktails, gun shots, broken windows, disgruntled students. All attempts to trigger the dreaded heckler’s veto—an attempt the government has an obligation to prevent. In addition to the public relations disasters grown from …

Reasonable Action: Reproductive Rights, The Free Exercise Clause, And Religious Freedom In The United States And The Republic Of Ireland, Liam Ray

St. John's Law Review

(Excerpt)

This Note will argue that by denying certiorari in Stormans v. Wiesman, the Supreme Court missed an important opportunity to provide guidance to the states as to how the Free Exercise Clause applies to the kind of stocking and dispensing regulations adopted by the State of Washington. This Note will further argue from a policy perspective that the approach to these kinds of regulations adopted by the Republic of Ireland (“ROI”) presents the best approach for states to adopt because it provides a balance in terms of respecting the free exercise rights of pharmacists and pharmacy owners with …

Locked Up, Shut Up: Why Speech In Prison Matters, Evan Bianchi, David Shapiro

St. John's Law Review

(Excerpt)

This Article proceeds in three Parts. Part I describes the deferential Turner standard that governs First Amendment claims brought by prisoners. Virtually every word uttered or written to a prisoner and virtually every word uttered or written by a prisoner receives extremely limited legal protection. Largely as a result of this legal regime, senseless censorship is all too common in American prisons. Jailers and prison officials seem to have received the message that they can ban speech with impunity.

Part II argues that the combination of Turner deference and mass incarceration divests prisoners of expressive power, thereby distorting public …

Trafficking Technology: A Look At Different Approaches To Ending Technology-Facilitated Human Trafficking, David Barney

Pepperdine Law Review

In 2018, many believe that slavery is an antiquated concept. But as with anything else, if it has not become extinct, it has evolved with time. Human trafficking is no different. Each year, millions of men, women and children are trafficked in the United States, and internationally, and forced to work against their will. Through the rise of technology and an increasingly globalized world, traffickers have learned to use technology as a tool to help facilitate the trafficking of persons and to sell those victims to others they never could have reached before. But what are we doing about it? …

The Meaning Of Wrongdoing - A Crime Of Disrespecting The Flag: Grounds For Preserving National Unity, Mohammed Saif-Alden Wattad

San Diego International Law Journal

To conclude on this issue, the rights of others, as individuals and as a whole, are formulated as the social protected interest that criminal law seeks to protect through criminal means, and it is with these rights that criminal law theory should be concerned in the first level of scrutiny. However, in the second level of scrutiny, an additional set of rights are brought into play; these are the rights of the individual, namely the actor, to exercise their constitutional rights e.g., free speech, liberty, free exercise of religion. The second level of scrutiny requires balancing those rights with the …

Culture Wars On Campus: Academic Freedom, The First Amendment, And Partisan Outrage In Polarized Times, Jason M. Shepard, Kathleen B. Culver

San Diego Law Review

After a California community college professor called the election of President Donald Trump an “act of terrorism” in her classroom the week after the vote, a student-recorded viral video sparked a national conservative media firestorm. Critics said the professor should be fired for outrageous liberal bias, while supporters defended her comments as being protected by academic freedom and the First Amendment. The student, meanwhile, was suspended for his unauthorized recording while defenders decried his punishment as evidence of anti-conservative discrimination and harassment. By examining tensions between faculty and student speech rights, the use of technologies to take ideological disagreements viral …

Punitive Preemption And The First Amendment, Rachel Proctor May

San Diego Law Review

In recent years, state legislators have begun passing a new breed of “punitive” preemption laws–those that impose fines, civil and criminal sanctions, and other sanctions on local governments and their officials as a consequence of passing laws or enacting policies that are inconsistent with state laws. This represents a significant change from traditional preemption, under which a local government could enact laws based on its view of preempting state statutes and applicable state constitutional provisions and, if necessary, defend its interpretation in court. When punitive preemption prevents a local lawmaking process from taking place, the state forecloses a unique form …

Martin, Ghana, And Global Legal Studies, H. Timothy Lovelace Jr.

Indiana Journal of Global Legal Studies

This brief essay uses global legal studies to reconsider Dr. Martin Luther King, Jr.'s activism after Gayle v. Browder. During this undertheorized portion of King's career, the civil rights leader traveled the world and gained a greater appreciation for comparative legal and political analysis. This essay explores King's first trip abroad and demonstrates how King's close study of Kwame Nkrumah's approaches to law reform helped to lay the foundation for watershed moments in King's own life. In To Redeem the Soul of America: The Southern Christian Leadership Conference and Martin Luther King, Jr., renowned civil rights scholar and author, Adam …

Suppression Of Free Tweets: How Packingham Impacts The New Era Of Government Social Media And The First Amendment, Elise Berry

ConLawNOW

As social media popularity grows, so too does the constitutional conflicts between the First Amendment’s public forum doctrine and a public official’s social media. More and more claims of viewpoint discrimination are arising from the district courts, stemming from a public official’s use of his or her social media to delete comments or ban users from their official social media pages. Similarly, President Donald Trump’s use of his Twitter has also instigated a law suit against him for viewpoint discrimination under the public forum doctrine. While the Supreme Court has been silent on the issue, its decision in Packingham v. …

Harmonizing The Tension Between The First Amendment And Publicity Rights And Finding The Right Balance: Discerning How Much Freedom Is Warranted And What Needs Protection, William Buchsbaum

The University of Cincinnati Intellectual Property and Computer Law Journal

This paper examines the tension between the First Amendment and Publicity Rights considering why and how friction is emerging, the legal underpinnings and theories behind the development of publicity rights and how to reconcile this with values raised in support of the First Amendment. This collision course of rights occurs where property interests have vested in human identity itself which brings us face to face with the outer limits of free speech and expression under the First Amendment and evens tests the notion of how we define speech. The paper takes a dive into some of the currently arising issues …

Professional Standards And The First Amendment In Higher Education: When Institutional Academic Freedom Collides With Student Speech Rights, Clay Calvert

St. John's Law Review

(Excerpt)

Using the decisions in Keefe, Oyama and Tatro as analytical springboards, this Article examines rising tensions between institutional academic freedom and the First Amendment speech rights of college students. Specifically, the friction addressed here occurs when universities enforce external professional standards on students within their curricula. Initially, Part I provides a primer on institutional academic freedom. Part II then contrasts the vastly deferential Hazelwood approach to professional-standards disputes embraced by the Eighth Circuit in Keefe with the somewhat more rigorous ones adopted by the Ninth Circuit in Oyama and Minnesota’s Supreme Court in Tatro.

Part III then …

Being Forced To Code In The Technology Era As A Violation Of The First Amendment Protection Against Compelled Speech, Adrianna Oddo

Catholic University Law Review

Over the past several decades, technological advancements led several courts to hold that computer code is protected as speech under the First Amendment of the Constitution. However, after fourteen people were killed in the 2015 San Bernardino massacre the U.S. Government sought to ignore those findings when it ordered Apple, Inc. to write a computer code to bypass the encryption software on the shooter’s cell phone. To access this particular phone Apple would need to write a code that could potentially compromise its customers’ data and personal information. Apple vehemently opposed the Government’s order and claimed that compelling it to …

Remedies Symposium: On Critical Junctures, Intercurrence, And Dynamic Political Orders, Paul Baumgardner

ConLawNOW

Relying on contemporary historical-institutionalist literature concerning processes of American political development, this article argues that the nebulous status of religious rights in the United States is largely a recent phenomenon—the result of one coalition (centered around rights protections for the LGBTQ community) growing and making important strides at the same time that a separate "religious rights” coalition attempts to push beyond a disorienting critical juncture. How long this state of intercurrence will persist, and how it will be resolved, are unresolved questions.

Reconciling Agency Fee Doctrine, The First Amendment, And The Modern Public Sector Union, Courtlyn G. Roser-Jones

Northwestern University Law Review

Few institutions have done more to improve working conditions for the middle class than labor unions. Their efforts, of course, cost money. To fund union activities, thousands of collective bargaining agreements across the nation have long included provisions permitting employers to require employees to pay “fair share” or “agency” fees. In public unions—when the employer is the government—this arrangement creates tension between two important values: the First Amendment’s protection against compelled expression and the collective benefits of worker representation. When confronted with this tension forty years ago in Abood v. Detroit Board of Education, the Supreme Court struck an …

Deference And Prisoner Accommodations Post-Holt: Moving Rluipa Toward "Strict In Theory, Strict In Fact", Barrick Bollman

Northwestern University Law Review

The Religious Land Use and Institutionalized Persons Act (RLUIPA) requires prisons to make accommodations to regulations that substantially burden a prisoner’s religious exercise, unless the prison can show that the regulation is the least restrictive means to meeting a compelling interest. This language suggests strict scrutiny, and yet in Cutter v. Wilkinson, the Supreme Court instead intimated in dicta that courts should give prison officials “due deference” when applying this test. The 2015 case of Holt v. Hobbs presented the Court with an opportunity to clarify how much deference is due under RLUIPA. Though Holt declared that there should …

The Save Act Of 2015: Congress' Attempt To Reprioritize Online Child Sex Trafficking, Ashley A. Cardenas

St. John's Law Review

(Excerpt)

This Note argues that the SAVE Act will not achieve Congress’ goal of prosecuting website operators and stopping the influx of online child sex trafficking advertisements. However, the potential pitfalls of this legislation does not mean the Act should be thrown out in its entirety. Instead, the Act should be rewritten to include well-crafted, yet informative definitions of online child sex trafficking, while also lowering the mens rea requirement and requiring website operators to engage in more due diligence.

Part I outlines the background of Internet sex trafficking in general. Section A discusses the parties involved in online child …

Social Media And The Government: Why It May Be Unconstitutional For Government Officials To Moderate Their Social Media, Alex Hadjian

Loyola of Los Angeles Law Review

No abstract provided.

Constitutional Law: Protecting Our Youth: A Necessary Limit On The First Amendment—State V. Muccio, Richard A. Podvin

Mitchell Hamline Law Review

No abstract provided.

Deepfake Videos: When Seeing Isn't Believing, Holly Kathleen Hall

Catholic University Journal of Law and Technology

Videos, known as deepfakes, use readily available software to create a work that shows people saying and doing things they may never have uttered or engaged in. The technology making the videos appear very authentic is advancing at such a rate that people may not be able to detect if the videos are fact or fiction. Given the hasty acceptance of other forms of fake news in society, deepfake videos have the ability to affect the nature of information the public receives about candidates and policies. This study examines the potential use of deepfake videos in the democratic process, analyzes …

Action And Reaction: The Trump Executive Orders And Their Reception By The Federal Courts, Anthony S. Winer

Mitchell Hamline Law Review

No abstract provided.

Is It Bad Law To Believe A Politician? Campaign Speech And Discriminatory Intent, Shawn E. Fields

University of Richmond Law Review

No abstract provided.

Public Fora Purpose: Analyzing Viewpoint Discrimination On The President’S Twitter Account, James M. Lopiano

Fordham Intellectual Property, Media and Entertainment Law Journal

Today, protectable speech takes many forms in many spaces. This Note is about the spaces. This Note discusses whether President Donald J. Trump’s personal Twitter account functions as a public forum, and if so, whether blocking constituents from said account amounts to viewpoint discrimination—a First Amendment freedom of speech violation. Part I introduces the core legal devices and doctrines that have developed in freedom of speech jurisprudence relating to issues of public fora. Part II analyzes whether social media generally serves as public fora, whether the President’s personal Twitter account is a public forum, and whether his recent habit of …

Watching Big Brother: A Citizen’S Right To Record Police, Vincent Nguyen

Fordham Intellectual Property, Media and Entertainment Law Journal

Due to growing technological advances and the ubiquity of mobile phones, it has become increasingly common for citizens to use these devices to photograph and record events. Though largely uncontroversial, when used to record public police activity, some citizens have been arrested and charged under state wiretapping r eavesdropping statutes. Over time, various circuit courts have held that this right to record public police actions is a protected activity. Most recently, however, the U.S. Court of Appeals for the Eighth Circuit affirmed a lower court decision, which held that this act of recording is unprotected, thereby exemplifying how circuit courts …

Group Defamation, Power, And A New Test For Determining Plaintiff Eligibility, Jeffrey Greenwood

Fordham Intellectual Property, Media and Entertainment Law Journal

In the fall of 2014, Rolling Stone Magazine published an article describing the rape of a woman at a University of Virginia fraternity house. The story turned out to be false, and members of the fraternity sued for defamation. The suit raises an interesting question: under what circumstances may anonymous individual members of the fraternity recover? This Note describes the case, related common and constitutional law, as well as differences in group defamation doctrine across jurisdictions. After detailing problems with the existing paradigm, the Note proposes a new method for performing the analysis.

The Formulary Fix Buries Fritz & Harvey: Drug Promotion Escapes Its Past Constraints, James T. O'Reilly

Washington and Lee Law Review

No abstract provided.

Playing Word Games With New York’S No Surcharge Law, Katie Coggins

Touro Law Review

No abstract provided.