Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Series

First Amendment

Institution
Keyword
Publication Year
Publication
File Type

Articles 1 - 30 of 1821

Full-Text Articles in Law

The Supreme Court’S Two Constitutions: A First Look At The “Reverse Polarity” Cases, Arthur D. Hellman Jan 2021

The Supreme Court’S Two Constitutions: A First Look At The “Reverse Polarity” Cases, Arthur D. Hellman

Articles

In the traditional approach to ideological classification, “liberal” judicial decisions are those that support civil liberties claims; “conservative” decisions are those that reject them. That view – particularly associated with the Warren Court era – is reflected in numerous academic writings and even an article by a prominent liberal judge. Today, however, there is mounting evidence that the traditional assumptions about the liberal-conservative divide are incorrect or at best incomplete. In at least some areas of constitutional law, the traditional characterizations have been reversed. Across a wide variety of constitutional issues, support for claims under the Bill of Rights or the Reconstruction ...


Hands-Off Religion In The Early Months Of Covid-19, Samuel J. Levine Oct 2020

Hands-Off Religion In The Early Months Of Covid-19, Samuel J. Levine

Scholarly Works

For decades, scholars have documented the United States Supreme Court’s “hands-off approach” to questions of religious practice and belief, pursuant to which the Court has repeatedly declared that judges are precluded from making decisions that require evaluating and determining the substance of religious doctrine. At the same time, many scholars have criticized this approach, for a variety of reasons. The early months of the COVID-19 outbreak brought these issues to the forefront, both directly, in disputes over limitations on religious gatherings due to the virus, and indirectly, as the Supreme Court decided important cases turning on religious doctrine. Taken ...


Law Library Blog (September 2020): Legal Beagle's Blog Archive, Roger Williams University School Of Law Sep 2020

Law Library Blog (September 2020): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.


Is This A Christian Nation?: Virtual Symposium September 25, 2020, Roger Williams University School Of Law Sep 2020

Is This A Christian Nation?: Virtual Symposium September 25, 2020, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.


Rethinking Copyright's Relationship To The First Amendment, Alfred C. Yen Sep 2020

Rethinking Copyright's Relationship To The First Amendment, Alfred C. Yen

Boston College Law School Faculty Papers

This Article offers a new account of copyright’s relationship to the First Amendment. Until now, discourse about copyright and the First Amendment appears focused on applying a single standard of review. The Supreme Court has effectively taken the position that courts need only apply rational basis First Amendment scrutiny to copyright law. Some scholars have disagreed, arguing that intermediate scrutiny should be applied to all of copyright. By contrast, this Article argues that the proper level of First Amendment scrutiny depends on the type of copyright provision under review. In particular, courts should apply strict scrutiny to the few ...


Racial Justice Protests & Protestor Rights (July 15, 2020), Timothy Zick, Mikaela Phillips Jul 2020

Racial Justice Protests & Protestor Rights (July 15, 2020), Timothy Zick, Mikaela Phillips

Racial Justice & Social Reform Speaker Series

No abstract provided.


Choosing The Consequences Of Tam And Brunetti, Alfred C. Yen Jun 2020

Choosing The Consequences Of Tam And Brunetti, Alfred C. Yen

Boston College Law School Faculty Papers

In Matal v. Tam and Iancu v. Brunetti, the Supreme Court did something it has never done before – namely apply strict First Amendment scrutiny to trademark law. This is a big deal. Many have argued, to relatively little effect, that intellectual property laws, like trademarks, raise serious free speech problems. It is therefore significant news for the Court to declare portions of the Lanham Act unconstitutional not once, but twice.

Like all Supreme Court decisions that break new ground, Tam and Brunetti raise questions about what comes next. In this Essay, I consider some of those possibilities and conclude that ...


Free Speech In The Digital Age: Deepfakes And The Marketplace Of Ideas, Suyoung Baek May 2020

Free Speech In The Digital Age: Deepfakes And The Marketplace Of Ideas, Suyoung Baek

Honors Theses (PPE)

The threat of deepfakes is well-documented in the existing literature. Deepfake technology has emerged as a powerful tool with which vulnerable individuals could easily become targets of novel forms of exploitation and sabotage. Additionally, deepfakes’ unique capacity to distort people’s sense of reality exacerbates truth decay. The growing influence of social media and our deep-rooted cognitive biases further escalate the harms of deepfakes. Despite these apparent concerns, scholars have noted that the regulation of deepfakes confronts a constitutional challenge in the American context, stemming from Supreme Court cases such as New York Times v. Sullivan and U.S. v ...


Is The Establishment Clause Asymmetrical?, Sam Foer May 2020

Is The Establishment Clause Asymmetrical?, Sam Foer

Senior Honors Projects

Through numerous Establishment Clause cases, the Supreme Court has concluded that when public educators promote or denigrate religious views in the K-12 classroom, they violate the First Amendment. The Court has found that the protection of ‘freedom of conscience’ is embedded in the purpose of the Establishment Clause, which applies most strictly to the public school setting. This is because the sphere of conscience is most vulnerable to invasion in developing minds, and children are in a captive environment at school - they cannot escape from State instruction. Thus, states, school systems, and teachers who impose their religious beliefs onto students ...


Freedom Of The Press In Post-Truthism America, Ronnell Anderson Jones, Lisa Grow Sun Apr 2020

Freedom Of The Press In Post-Truthism America, Ronnell Anderson Jones, Lisa Grow Sun

Utah Law Faculty Scholarship

Freedom of the press in America is at a critical crossroads in a number of ways, but one stands out as most fundamental: the stark impact of the current debate over “Post-Truthism.” Press freedom jurisprudence has long been structured around the concept of an audience member’s search for truth in a marketplace of ideas. But social science research increasingly suggests that individual information consumers are in fact often driven by emotion, affirmation of political identity, and the need for cognitive shortcuts, and that they may not possess the truth-seeking, rational processing, or information-updating capabilities that the Court assumes. Whether ...


Kansas V. Boettger: On Petition For A Writ Of Certiorari To The Supreme Court Of The State Of Kansas, Paul Cassell, John Ehrett, Allyson N. Ho, Bradley Hubbard, Matthew Scorcio, Philip Axt, Thomas Molloy Apr 2020

Kansas V. Boettger: On Petition For A Writ Of Certiorari To The Supreme Court Of The State Of Kansas, Paul Cassell, John Ehrett, Allyson N. Ho, Bradley Hubbard, Matthew Scorcio, Philip Axt, Thomas Molloy

Utah Law Faculty Scholarship

This amicus brief in support of Kansas’ petition for certiorari in Kansas v. Boettger discusses the important issue of whether the First Amendment require proof of specific intent to criminally punish violent threats. The brief argues that the First Amendment does not contain any such requirement and that creating any such requirement would interfere with effective prosecution of domestic violence.

The Kansas Supreme Court’s decision over which review is being sought required the state to prove that an abuser had a specific intent to cause fear. If allowed to stand, the decision will make prosecuting and preventing domestic violence ...


Brief Of Constitutional Law Scholars As Amici Curiae In Support Of Petitioners, David F. Forte, Ronald J. Colombo, Richard Epstein, Carl H. Esbeck, Robert P. George, Mary Ann Glendon, Brian Mccall, Stacy Scaldo, Steven Smith Mar 2020

Brief Of Constitutional Law Scholars As Amici Curiae In Support Of Petitioners, David F. Forte, Ronald J. Colombo, Richard Epstein, Carl H. Esbeck, Robert P. George, Mary Ann Glendon, Brian Mccall, Stacy Scaldo, Steven Smith

Law Faculty Briefs

Lurking behind the regulatory issues presented by this appeal is a concerted effort to displace the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. ("RFRA"), with a novel approach that would trivialize a law's burden on religion. The Court should not indulge it.

The critics' argument suffers from several analytical defects that can be remedied by (1) a proper constitutional understanding of RFRA's relationship to the Establishment Clause; (2) an accurate understanding of how the Religion Clauses safeguard third-party interests; and (3) the correct application of these understandings to the Final Rules.


Trademarks, Hate Speech, And Solving A Puzzle Of Viewpoint Bias, Kent Greenfield Mar 2020

Trademarks, Hate Speech, And Solving A Puzzle Of Viewpoint Bias, Kent Greenfield

Boston College Law School Faculty Papers

In this article, I argue that in the seemingly straightforward ruling in Iancu v Brunetti, striking down a provision of the law governing trademarks, the Court revealed a significant clarification of the limits of the doctrine of viewpoint discrimination.

In free speech doctrine, the Court is unanimous in condemning viewpoint discrimination, but its contours remain “slippery” because viewpoint bias is rarely a game changer in a given case. One enduring puzzle is whether a limit on the mode or manner of communication – a ban on racial epithets, for example – embodies viewpoint discrimination. This question has been unresolved for almost thirty ...


How We Talk About The Press, Erin C. Carroll Feb 2020

How We Talk About The Press, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

In 2017, the term “fake news” was so popular that it received the “Word of the Year” honor from the American Dialect Society. Since then, its popularity may have abated some, but its use persists. Most obviously, anti-press speakers weaponize the term fake news to undermine journalists and the press as an institution. Perhaps more surprisingly, however, the term is also in regular rotation among many who would seem to support a free and independent press, including scholars, teachers, and journalists themselves.

The continued and often-uncritical use of fake news should worry us. As thinkers across disciplines have recognized for ...


Promoting Journalism As Method, Erin C. Carroll Jan 2020

Promoting Journalism As Method, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

The marketplace of ideas has been a centerpiece of free speech jurisprudence for a century. According to the marketplace theory, the vigorous competition of ideas, free from government interference, is the surest path to truth. As our metaphorical marketplace has moved online, the competition has never been so heated. We should be drowning in truth. Yet, in reality, truth has perhaps never been more elusive.

As we struggle to promote democratic debate and surface truth in our chaotic networked public sphere, we are understandably drawn to familiar frames and tools. These include the source of the marketplace of ideas theory ...


News As Surveillance, Erin C. Carroll Jan 2020

News As Surveillance, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

As inhabitants of the Information Age, we are increasingly aware of the amount and kind of data that technology platforms collect on us. Far less publicized, however, is how much data news organizations collect on us as we read the news online and how they allow third parties to collect that personal data as well. A handful of studies by computer scientists reveal that, as a group, news websites are among the Internet’s worst offenders when it comes to tracking their visitors.

On the one hand, this surveillance is unsurprising. It is capitalism at work. The press’s business ...


Avoidance Creep, Charlotte Garden Jan 2020

Avoidance Creep, Charlotte Garden

Faculty Scholarship

At first glance, constitutional avoidance—the principle that courts construe statutes so as to avoid conflict with the Constitution whenever possible—appears both unremarkable and benign. But when courts engage in constitutional avoidance, they frequently construe statutory language in a manner contrary to both its plain meaning and to the underlying congressional intent. Then, successive decisions often magnify the problems of avoidance—a phenomenon I call “avoidance creep.” When a court distorts a statute in service of constitutional avoidance, a later court may amplify the distortion, incrementally changing both statutory and constitutional doctrine in ways that are unsupported by any ...


First Amendment (Un)Exceptionalism: A Comparative Taxonomy Of Campaign Finance Reform Proposals In The United States And United Kingdom, Lori A. Ringhand Jan 2020

First Amendment (Un)Exceptionalism: A Comparative Taxonomy Of Campaign Finance Reform Proposals In The United States And United Kingdom, Lori A. Ringhand

Scholarly Works

There is an urgent conversation happening among the world’s democracies about how to respond to the combined threat of online electioneering and foreign interference in domestic elections. Despite the shadow such activities cast over the 2016 presidential election in the United States, the US has been largely absent from comparative discussions about how to tackle the problem. This is not just because of a recalcitrant president. The assumption that America’s “First Amendment Exceptionalism” – the idea that American freedom of expression law is simply too much of an outlier to warrant useful comparative consideration – is strong on both sides ...


Religious Accommodation, The Establishment Clause, And Third-Party Harm, Mark Storslee Jan 2020

Religious Accommodation, The Establishment Clause, And Third-Party Harm, Mark Storslee

Journal Articles

In the wake of Burwell v. Hobby Lobby, religious accommodation has become increasingly controversial. That controversy has given rise to a new legal theory gaining popularity among academics and possibly a few Supreme Court justices: the idea that the First Amendment's Establishment Clause condemns accommodations whenever they generate anything beyond a minimal cost for third parties.

The third-party thesis is appealing. But this Article argues that there are good reasons to believe it falls short as an interpretation of the Establishment Clause. In its place, the Article offers a new theory for understanding the relationship between costly accommodations and ...


Brief For Child Usa Et Al. As Amici Curiae Supporting Respondents, Our Lady Of Guadalupe School V. Morrissey-Berru, Leslie C. Griffin Jan 2020

Brief For Child Usa Et Al. As Amici Curiae Supporting Respondents, Our Lady Of Guadalupe School V. Morrissey-Berru, Leslie C. Griffin

Court Briefs

No abstract provided.


Brief For Child Usa Et Al. As Amici Curiae Supporting Respondents, Little Sisters Of The Poor Saints Peter And Paul Home V. Pennsylvania, Leslie C. Griffin Jan 2020

Brief For Child Usa Et Al. As Amici Curiae Supporting Respondents, Little Sisters Of The Poor Saints Peter And Paul Home V. Pennsylvania, Leslie C. Griffin

Court Briefs

No abstract provided.


Tinkering With Circuit Conflicts Beyond The Schoolhouse Gate, Stephen Wermiel Jan 2020

Tinkering With Circuit Conflicts Beyond The Schoolhouse Gate, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.


Speech Inequality After Janus V. Afscme, Charlotte Garden Jan 2020

Speech Inequality After Janus V. Afscme, Charlotte Garden

Faculty Scholarship

This Article explores the growing divide between the Roberts Court’s treatment of the free speech rights of wealthy individuals and corporations in campaign finance cases as compared to its treatment of the rights of public-sector labor unions and their members. First, it highlights some internal contradictions in the Janus Court’s analysis. Then, it discusses the growing—yet mostly ignored—divergence in the Court’s treatment of corporate and labor speakers with respect to the use of market influence to achieve political influence.The Article has two Parts. In Part I, I explain how the Court reached its decision ...


The Facebook Oversight Board: Creating An Independent Institution To Adjudicate Online Free Expression, Kate Klonick Jan 2020

The Facebook Oversight Board: Creating An Independent Institution To Adjudicate Online Free Expression, Kate Klonick

Faculty Publications

For a decade and a half, Facebook has dominated the landscape of digital social networks, becoming one of the most powerful arbiters of online speech. Twenty-four hours a day, seven days a week, over two billion users leverage the platform to post, share, discuss, react to, and access content from all over the globe. Through a system of semipublic rules called “Community Standards,” Facebook has created a body of “laws” and a system of governance that dictate what users may say on the platform. In recent years, as this intricately built system to dispatch the company’s immense private power ...


United States Supreme Court Survey: 2018 Term: Iancu V. Brunetti: Free Speech Meets "Immoral And Scandalous" Trademarks In The Supreme Court, Niki Kuckes Jan 2020

United States Supreme Court Survey: 2018 Term: Iancu V. Brunetti: Free Speech Meets "Immoral And Scandalous" Trademarks In The Supreme Court, Niki Kuckes

Law Faculty Scholarship

No abstract provided.


Defense Against The Dark Arts: Justice Jackson, Justice Kennedy And The No-Compelled-Speech Doctrine, Richard F. Duncan Jan 2020

Defense Against The Dark Arts: Justice Jackson, Justice Kennedy And The No-Compelled-Speech Doctrine, Richard F. Duncan

College of Law, Faculty Publications

According to Justice Anthony M. Kennedy, "The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought. " If this is so, and I believe it is, then the greatest threat to freedom, the darkest of the dark arts of government, occurs when the law compels persons to speak and thus commandeers their intellectual autonomy. Only a vibrant First Amendment is an adequate defense against this darkest of the dark arts.

This Article traces the Supreme Court's First Amendment jurisprudence protecting speaker autonomy and the "right not ...


A Recent Renaissance In Privacy Law, Margot Kaminski Jan 2020

A Recent Renaissance In Privacy Law, Margot Kaminski

Articles

Considering the recent increased attention to privacy law issues amid the typically slow pace of legal change.


Internet Architecture And Disability, Blake E. Reid Jan 2020

Internet Architecture And Disability, Blake E. Reid

Articles

The Internet is essential for education, employment, information, and cultural and democratic participation. For tens of millions of people with disabilities in the United States, barriers to accessing the Internet—including the visual presentation of information to people who are blind or visually impaired, the aural presentation of information to people who are deaf or hard of hearing, and the persistence of Internet technology, interfaces, and content without regard to prohibitive cognitive load for people with cognitive and intellectual disabilities—collectively pose one of the most significant civil rights issues of the information age. Yet disability law lacks a comprehensive ...


Examining The Anomalies, Explaining The Value: Should The Usa Freedom Act’S Metadata Program Be Extended?, Susan Landau, Asaf Lubin Jan 2020

Examining The Anomalies, Explaining The Value: Should The Usa Freedom Act’S Metadata Program Be Extended?, Susan Landau, Asaf Lubin

Articles by Maurer Faculty

Edward Snowden’s disclosure of National Security Agency (“NSA”) bulk collection of communications metadata was a highly disturbing shock to the American public. The intelligence community was surprised by the response, as it had largely not anticipated a strong negative public reaction to this surveillance program. Controversy over the bulk metadata collection led to the 2015 passage of the ave caused the “technical irregularities” leading to the purge of records. This Article also exposes a rather remarkable lacuna in Congressional oversight: even at the time of the passage of the USA FREEDOM Act a changing terrorist threat environment and changing ...


Free Speech Idealism, Timothy Zick Jan 2020

Free Speech Idealism, Timothy Zick

Faculty Publications

No abstract provided.