Law Commons^™

Where To Place The “Nones” In The Church And State Debate? Empirical Evidence From Establishment Clause Cases In Federal Court, Gregory C. Sisk, Michael Heise

St. John's Law Review

In this third iteration of our ongoing empirical examination of religious liberty decisions in the lower federal courts, we studied all digested Establishment Clause decisions by federal circuit and district court judges from 2006 through 2015. The first clause of the First Amendment to the United States Constitution directs that “Congress shall make no law respecting an establishment of religion.” That provision has generated decades of controversy regarding the appropriate role of religion in public life.

Holding key variables constant, we found that Catholic judges approved Establishment Clause claims at a 29.6% rate, compared with a 41.5% rate before non-Catholic …

Disinformation And The First Amendment: Fraud On The Public, Wes Henricksen

St. John's Law Review

(Excerpt)

Following the 2020 presidential election, the losing candidate, Donald Trump, along with most of the Republican Party, spread the false claim that the election had been stolen by Democrats. Joe Biden, so the claim went, had not been legitimately elected, and was therefore an illegitimate President and needed to be removed. This profitable falsehood6 became known as the “Big Lie.” It was not only baseless, but it was in fact made in spite of and in direct conflict with the overwhelming evidence debunking it. This did not stop people from believing it. Millions bought into the Big Lie, which …

Public Accommodations Originalism’S Inability To Solve The Problems Of Online Content Moderation, Vincent A. Marrazzo

St. Mary's Law Journal

In response to online platforms’ increasing ability to moderate content in what often seems to be an arbitrary way, Justice Clarence Thomas recently suggested that platforms should be regulated as public accommodations such that the government could prevent platforms from banning users or removing posts from their sites. Shortly thereafter, Florida passed the Transparency in Technology Act, which purported to regulate online platforms as public accommodations and restricted their ability to ban users, tailor content through algorithmic decision-making, and engage in their own speech. Texas followed suit by passing a similar law, and Arizona debated a bill purporting to regulate …

Establishing An End To Lemon In The Eleventh Circuit, Amanda Harmon Cooley

University of Miami Law Review

Over half a century ago, the Supreme Court decided Lemon v. Kurtzman, the most controversial Establishment Clause case in judicial history. And despite the Lemon test’s constant criticism, the Court has never expressly overruled the decision in its entirety. This continues to be the case even after Kennedy v. Bremerton School District, in which the Court noted Lemon’s abandonment rather than its complete abrogation. As a result, lower federal district courts have been left in limbo regarding whether Lemon is fair game for any of their Establishment Clause determinations and have been inconsistent in using it as …

Texas’ War On Social Media: Censorship Or False Flag, Leni Morales

DePaul Journal of Art, Technology & Intellectual Property Law

No abstract provided.

The Junk Food Problem: Why The Law Allows Advertising To Kids And How To Implement Change, Makenna Hardy, Madison Maloney

Brigham Young University Prelaw Review

Rapid technological advancements have increased the methods in which advertisers can reach the public, specifically children. As obesity rates increase among America’s youth, more stringent advertising laws barring junk food exposure have been advocated for. Since the Supreme Court has determined commercial free speech as deserving full First Amendment coverage, the rights of advertisers frequently inhibit productive methods of protecting children from junk food advertisements. This article examines the current standards safeguarding both children and advertisers and the feasibility of restricting advertising to kids within the limitations of commercial speech protections.

Public School Teachers Who Refuse To Use Preferred Names And Pronouns: A Brief Exploration Of The First Amendment Limitations In K-12 Classrooms, Suzanne Eckes

ConLawNOW

This article focuses on whether a teacher has a First Amendment right under both the free speech and free exercise clauses of the U.S. Constitution when refusing to use a student’s preferred name or pronoun in a public school classroom. The article begins by briefly summarizing a recent case from Kansas and then examines prior precedent involving teachers’ classroom speech and teachers’ rights to freely exercise their religious rights in public schools. It then briefly highlights how these issues have been addressed in previous pronoun cases and concludes with a discussion of related constitutional issues.

Using Bruen To Overturn New York Times V. Sullivan, Michael L. Smith, Alexander S. Hiland

Pepperdine Law Review

While New York Times Co. v. Sullivan is a foundational, well-regarded First Amendment case, Justice Clarence Thomas has repeatedly called on the Court to revisit it. Sullivan, Thomas claims, is policy masquerading as constitutional law, and it makes almost no effort to ground itself in the original meaning of the First and Fourteenth Amendments. Thomas argues that at the time of the founding, libelous statements were routinely subject to criminal prosecution—including libel of public figures and public officials. This Essay connects Justice Thomas’s calls to revisit Sullivan to his recent opinion for the Court in New York State Rifle & …

Freedom Of Algorithmic Expression, Inyoung Cheong

University of Cincinnati Law Review

Can content moderation on social media be considered a form of speech? If so, would government regulation of content moderation violate the First Amendment? These are the main arguments of social media companies after Florida and Texas legislators attempted to restrict social media platforms’ authority to de-platform objectionable content.

This article examines whether social media companies’ arguments have valid legal grounds. To this end, the article proposes three elements to determine that algorithms classify as “speech:” (1) the algorithms are designed to communicate messages; (2) the relevant messages reflect cognitive or emotive ideas beyond mere operational matters; and (3) they …

Warren/Burger Courts Exalted “Free” Expression Over Other American Values, Louis W. Hensler Iii

Marquette Law Review

Anglo-American defamation law started with a simple condemnation of the sin of evil speaking. Eventually, this value condemning harmful speech was accommodated to the value of speaking the truth, even hurtful truth. A third value of fostering responsible self-government was injected into American defamation law at and around the time of the American Revolution. This value makes it especially important for citizens to freely speak even hurtful truth about their government.

A 180 On Section 230: State Efforts To Erode Social Media Immunity, Leslie Y. Garfield Tenzer, Hayley Margulis

Pepperdine Law Review

The turmoil of the 2020 presidential election renewed controversy surrounding 47 U.S.C § 230. The law, adopted as part of the 1996 Communications Decency Act (CDA), shields Interactive Computer Services (ICS) from civil liability for third-party material posted on their Platforms—no matter how heinous and regardless of whether the material enjoys constitutional protection. Consequently, any ICS, which is broadly defined to include Internet service providers (ISPs) and social media platforms (Platforms), can police its own postings but remains free from government intervention or retribution. In 2022, members of the Texas and Florida legislatures passed laws aiming to limit the scope …

Comment: Secondary Effects: The First Amendment And Defective 3d Firearm Files, Liam Casey

Golden Gate University Law Review

Three-dimensional printing brought the factory inside the home, leaving behind traditional government oversight and industry safeguards common to the free market. Anyone in the world with a 3D printer can produce a functional firearm, and most adult citizens in the United States. may do so legally. While 3D printing has demonstrated its utility, novel issues such as commercial liability and broad access to computer code for 3D-printable guns remain in the technology’s legal periphery.

This Comment analyzes Washington v. Defense Distributed, in which the United States Department of State attempted to prevent an online organization, Defense Distributed, from posting …

The ‘Weaponized’ First Amendment At The Marble Palace And The Firing Line: Reaction And Progressive Advocacy Before The Roberts Court And Lower Federal Courts, Seth F. Kreimer

Emory Law Journal

It once seemed that the First Amendment doctrine developed by the Supreme Court stood as a bulwark protecting grassroots struggles for social change. In the twenty-first century, however, particularly since the appointments of Chief Justice Roberts and Justice Alito in 2005, a number of observers have begun to view the Supreme Court’s First Amendment work as a “weaponized” redoubt of reaction.

This sense of the rightward tilt of Supreme Court decisions is rooted in reality. Examining 104 Supreme Court First Amendment cases decided during the 2005–2020 Terms, it turns out that successful litigants are four times as likely to come …

First Amendment Protections For "Good Trouble", Dawn C. Nunziato

Emory Law Journal

In the classical era of the Civil Rights Movement in the 1950s, 1960s, and 1970s, activists and protestors sought to march, demonstrate, stage sit-ins, speak up, and denounce the system of racial oppression in our country. This was met not just by counterspeech—the preferred response within our constitutional framework—but also by efforts by the dominant power structure to censor and shut down those forms of public rebuke of our nation’s racist practices. Fast forward seventy years, and the tactics of the dominant power structure have essentially remained the same in response to today’s civil rights activists who seek to protest …

A Pleasure To Burn: How First Amendment Jurisprudence On Book Banning Bolsters White Supremacy, Amy Anderson

Mitchell Hamline Law Review

No abstract provided.

Awakening The Law: Unmasking Free Exercise Exceptionalism, Berta Esperanza Hernández-Truyol

Emory Law Journal

The U.S. Constitution protects myriad, often intertwined, individual rights. Sometimes, protected fundamental rights collide, yet the Constitution lacks a methodology to resolve such clashes. Indeed, an internal tension exists even within the rights included in the First Amendment, as whenever the government acts to protect Free Exercise it advances religion. Rather than adopt a methodology that respects and considers all constitutional rights at issue in instances when constitutional rights are in collision, the Court has embraced Free Exercise Exceptionalism (“FEE”), a doctrine pursuant to which the Court elevates Free Exercise above all rights, including the prohibition expressed in the Establishment …

Militant Democracy Comes To The Metaverse?, Aziz Z. Huq

Emory Law Journal

Social media platforms such as Facebook, Twitter, Instagram, and Parlor are an increasingly central part of the democratic public sphere in the United States. But the prevailing view of this ensuing platform-based public sphere has lately become increasingly sour and pessimistic. What were once seen as technologies of liberation have come to be viewed with skepticism. They are now perceived as channels and amplifiers of “antisystemic” forces, damaging the quality and feasibility of democracies. If it is justified, this skepticism yields a difficult tension: How can the state protect its democratic character against unravelling pressure from actors who are usually …

Separation Of Church And Law: The Ministerial Exception In Demkovich V. St. Andrew The Apostle Parish, Jonathan Murray

University of Colorado Law Review

Religious freedom is increasingly invoked to defeat liability for behavior that has long been regulated under accepted, neutral law, an argument to which many courts and judges appear receptive. One such area of law seeing this activity is the ministerial exception-a judicial principle recognized under the First Amendment. The ministerial exception guarantees religious organizations' discretion in how they select their "ministers,"or religious employees dedicated to the organization's religious mission. However, current law lacks clarity regarding the application of the exception to an organization's treatment of its ministers. Recently, the Seventh Circuit, sitting en banc, chose to categorically expand the application …

Sex Offenders And Internet Speech: First Amendment Protections For America's Most Reviled Outcasts, Gabriel Aderhold

Mitchell Hamline Law Review

No abstract provided.

Put Mahanoy Where Your Mouth Is: A Closer Look At When Schools Can Regulate Online Student Speech, Courtney Klaus

Notre Dame Law Review

This Note proposes a way to approach online student speech in three different contexts: cyberbullying, online threats, and other kinds of incendiary speech. Each approach is informed by a combination of lower court precedent, historical trends, and Supreme Court dicta to piece together when exceptions to online student speech protection may apply. Each analysis provides an explanation of how Tinker can and should be used to justify school discretion over particular kinds of online speech. Part I provides the history behind how the First Amendment has been used to protect public school student speech and discusses the unique issues the …

The Last Lecture: State Anti-Slapp Statutes And The Federal Courts, Charles W. Adams, Mbilike M. Mwafulirwa

St. John's Law Review

(Excerpt)

An old proverb says that “when the student is ready[,] the teacher appears.” In this collaborative effort, a civil procedure law professor has partnered with his former student to address one of the most challenging topics to confront the federal courts in recent times: whether state anti-SLAPP statutes conflict with the Federal Rules of Civil Procedure. The acronym “SLAPP” stands for “Strategic Lawsuits Against Public Participation.” Anti-SLAPP statutes are a spate of state legislation of recent vintage, designed “to give more breathing space for free speech about contentious public issues” and to “try to decrease the ‘chilling effect’ of …

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 …

Big Data, Big Gap: Working Towards A Hipaa Framework That Covers Big Data, Ryan Mueller

Indiana Law Journal

One lasting impact of the Health Insurance Portability and Accountability Act (HIPAA) is the privacy protections it provides for our sensitive health information. In the era of Big Data, however, much of our health information exists outside the traditional doctor-patient dynamic. From wearable technology, to mobile applications, to social media and internet browsing, Big Data organizations collect swaths of data that shed light on sensitive health information. Big Data organizations largely fall outside of HIPAA’s current framework because of the stringent requirements for when the HIPAA protections apply, namely that the data must be held by a covered entity, and …

The Disappearing Freedom Of The Press, Ronnell Andersen Jones, Sonja R. West

Washington and Lee Law Review

At this moment of unprecedented decline of local news and amplified attacks on the American press, scholars are increasingly turning their attention to the Constitution’s role in protecting journalism and the journalistic function. Recent calls by some U.S. Supreme Court Justices to reconsider the core press-protecting precedent from New York Times Co. v. Sullivan have intensified these conversations. This scholarly dialogue, however, appears to be taking place against a mistaken foundational assumption that the U.S. Supreme Court continues to articulate and embrace at least some notion of freedom of the press. Yet despite the First Amendment text specifically referencing it …

The First Amendment And The Regulation Of Speech Intermediaries, Shaun B. Spencer

Marquette Law Review

Calls to regulate social media platforms abound on both sides of the political spectrum. Some want to prevent platforms from deplatforming users or moderating content, while others want them to deplatform more users and moderate more content. Both types of regulation will draw First Amendment challenges. As Justices Thomas and Alito have observed, applying settled First Amendment doctrine to emerging regulation of social media platforms presents significant analytical challenges.

Inherent Powers And The Limits Of Public Health Fake News, Michael P. Goodyear

St. John's Law Review

(Excerpt)

In a Vero Beach, Florida, supermarket, Susan Wiles rode her motorized cart through the produce aisle. In any year other than 2020 or 2021, this would have been a routine trip to the grocery store. But in 2020, Mrs. Wiles was missing an accessory that had become ubiquitous in society during that year: a face mask. Despite causing a commotion, Mrs. Wiles stood by her decision, claiming that the concerns about COVID-19 were overblown: “I don’t fall for this. It’s not what they say it is.” Mrs. Wiles’ statement is emblematic of the year 2020. This is not the …

Maritime Magic: How Cruise Lines Can Avoid State Law Compliance Through Passenger Contracts, Cameron Chuback

University of Miami Law Review

Florida Statutes section 381.00316 prohibits businesses in Florida from requiring consumers to provide documentary proof of COVID-19 vaccination to access businesses’ goods and services. Norwegian Cruise Line Holdings (“NCLH”) has recently challenged section 381.00316’s applicability to its cruise operations because NCLH believes that requiring its passengers to provide documentary proof of COVID-19 vaccination is the one constant that allows NCLH’s cruise ships to smoothly access foreign ports, which have differing COVID-19 protocols and rules. In Norwegian Cruise Line Holdings, Ltd. v. Rivkees, the United States District Court for the Southern District of Florida ruled in favor of NCLH on this …

Tort Law Implications Of Compelled Physician Speech, Nadia N. Sawicki

Indiana Law Journal

Abortion-specific informed consent laws in many states compel physicians to communicate state-mandated information that is arguably inaccurate, immaterial, and inconsistent with their professional obligations. These laws face ongoing First Amendment challenges as violations of the constitutional right against compelled speech. This Article argues that laws compelling physician speech also pose significant problems that should concern scholars of tort law.

State laws that impose tort liability on physicians who refuse to communicate a state-mandated message often do so by deviating from foundational principles of tort law. Not only do they change the substantive disclosure duties of physicians under informed consent law, …

The Pledge Of Allegiance And Compelled Speech Revisited: Requiring Parental Consent, Caroline Mala Corbin

Indiana Law Journal

Since the Supreme Court decided West Virginia State Board of Education v. Barnette in 1943, free speech law has been clear: public schools may not force students to recite the Pledge of Allegiance. Nevertheless, in two states—Texas and Florida— students may decline to participate only with parental permission. The Eleventh Circuit Court of Appeals upheld the law on the grounds that the parental requirement furthered parents’ substantive due process right to control the upbringing of their children.

The Eleventh Circuit decision is flawed both in its understanding of the First Amendment right to be free of compelled speech and the …

Nifla And The Construction Of Compelled Speech Doctrine, Robert Post

Indiana Law Journal

Virginia State Board of Education v. Barnette. There are good and convincing explanations for the Court’s decision in Barnette, but the Court’s recent expansion of the doctrine, culminating in National Institute of Family & Life Advocates (NIFLA) v. Becerra, holds that compelled speech is in most instances “content-based” regulation requiring heightened judicial scrutiny.

Using examples ranging from professional malpractice to compulsory tax returns, this Article argues that the doctrinal rule of NIFLA is demonstrably incorrect. It suggests that the doctrinal category of “compelled speech” may itself be confused insofar as it imagines that all legal obligations to communicate are equally …