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Articles 1 - 30 of 965
Full-Text Articles in Law
Communication With Public Officials In The Modern Age Of Social Media: Does It Violate The First Amendment When Public Officials Block Private Individuals From Their Social Media Pages?, Emily Cohen
Duke Journal of Constitutional Law & Public Policy Sidebar
In the modern world, social media dominates. It is considered an almost essential function of public officials, ranging from the President of the United States to local politicians, to maintain at least one social media page to keep the public updated on their policies and current events. As public officials shift toward social media to communicate with the public, these social media sites become the new spaces for public discourse, with members of the public often commenting on or responding to public officials' posts. As more public discourse occurs on these sites, and individuals begin to criticize their public officials …
The Worst Choice For School Choice: Tuition Tax Credits Are A Bad Idea And Direct Funding Is Wiser, Michael J. Broyde, Anna G. Gabianelli
The Worst Choice For School Choice: Tuition Tax Credits Are A Bad Idea And Direct Funding Is Wiser, Michael J. Broyde, Anna G. Gabianelli
Faculty Articles
School choice is on the rise, and states use various mechanisms to implement it. One prevalent mechanism is also a uniquely problematic one: the tax credit. Tax credits are deficient at equitably distributing a benefit like school choice; they are costly, and they invite fraud. Instead of using tax credits, states opting for school choice programs should use direct funding. Direct funding will more efficiently achieve the goals of school choice because it can be regulated like any other government benefit, even if it ends up subsidizing religious private schools.
Tax credits’ prevalence is not inexplicable, of course. It is …
Risky Speech Systems: Tort Liability For Ai-Generated Illegal Speech, Margot E. Kaminski
Risky Speech Systems: Tort Liability For Ai-Generated Illegal Speech, Margot E. Kaminski
Publications
No abstract provided.
Do Public Accommodations Laws Compel “What Shall Be Orthodox”?: The Role Of Barnette In 303 Creative Llc V. Eleni, Linda C. Mcclain
Do Public Accommodations Laws Compel “What Shall Be Orthodox”?: The Role Of Barnette In 303 Creative Llc V. Eleni, Linda C. Mcclain
Faculty Scholarship
This article addresses the U.S. Supreme Court’s embrace, in 303 Creative LLC v. Elenis, of a First Amendment objection to state public accommodations laws that the Court avoided in Masterpiece Cakeshop v. Colorado Civil Rights Commission: such laws compel governmental orthodoxy. These objections invoke West Virginia Board of Education v. Barnette’s celebrated language: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein.” They also …
Florida’S Stop Woke Act And Its Function As A Content-Based Restriction, Emily Kearns
Florida’S Stop Woke Act And Its Function As A Content-Based Restriction, Emily Kearns
GGU Law Review Blog
May 2023, Florida Governor Ron Desantis signed into law Florida Senate Bill 266 (SB 266) concerning changes to funding requirements for Florida State University System institutions.. Under SB 266, university undergraduate courses may not “distort significant historical events or include a curriculum that teaches identity politics…or is based on theories that systemic racism, sexism, oppression, and privilege are inherent in the institutions of the United States and were created to maintain social, political, and economic inequities”.
The bill is popularly known as the “Stop Woke Act” (hereafter “the Act”)—an attempt to curtail the apparent horrors of Critical Race …
(E)Racing Speech In School, Francesca I. Procaccini
(E)Racing Speech In School, Francesca I. Procaccini
Vanderbilt Law School Faculty Publications
Speech on race and racism in our nation’s public schools is under attack for partisan gain. The Free Speech Clause of the First Amendment teaches a lot about the wisdom and legality of laws that chill such speech in the classroom. But more importantly, a First Amendment analysis of these laws reveals profound insights about the health and meaning of our free speech doctrine.
Through a First Amendment analysis of “anti-critical race theory” laws, this essay illuminates the first principles of free speech law. Specifically, it shows that the First Amendment offers little refuge to teachers or parents looking to …
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
All Faculty Scholarship
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 …
The Disembodied First Amendment, Nathan Cortez, William M. Sage
The Disembodied First Amendment, Nathan Cortez, William M. Sage
Faculty Scholarship
First Amendment doctrine is becoming disembodied—increasingly detached from human speakers and listeners. Corporations claim that their speech rights limit government regulation of everything from product labeling to marketing to ordinary business licensing. Courts extend protections to commercial speech that ordinarily extended only to core political and religious speech. And now, we are told, automated information generated for cryptocurrencies, robocalling, and social media bots are also protected speech under the Constitution. Where does it end? It begins, no doubt, with corporate and commercial speech. We show, however, that heightened protection for corporate and commercial speech is built on several “artifices” - …
Of Systems Thinking And Straw Men, Kate Klonick
Of Systems Thinking And Straw Men, Kate Klonick
Faculty Publications
(Excerpt)
In Content Moderation as Systems Thinking, Professor Evelyn Douek, as the title suggests, endorses an approach to the people, rules, and processes governing online speech as one not of anecdote and doctrine but of systems thinking. She constructs this concept as a novel and superior understanding of the problems of online-speech governance as compared to those existent in what she calls the “standard [scholarly] picture of content moderation.” This standard picture of content moderation — which is roughly five years old — is “outdated and incomplete,” she argues. It is preoccupied with anecdotal, high-profile adjudications in which platforms …
Speech Regulation And Tobacco Harm Reduction, Jonathan Adler, Jacob James Rich
Speech Regulation And Tobacco Harm Reduction, Jonathan Adler, Jacob James Rich
Faculty Publications
Regulation of commercial speech is a major component of federal regulation of tobacco products. Since adoption of federal tobacco legislation, the Food and Drug Administration has asserted regulatory authority over ENDS and other vaping products as “tobacco products,” subjecting them to the same regulatory regime as traditional tobacco products even though such projects appear to pose less of a threat to public health. Such regulation, and the restriction on truthful speech in particular, may be having negative consequences for public health. Barring producers from informing consumers about the relative risks of vaping products and their potential to reduce smoking eliminates …
History's Speech Acts, Jessie Hill
History's Speech Acts, Jessie Hill
Faculty Publications
This Essay considers the historic relationship between symbolic public expressions of racial and religious identity—in particular, Confederate symbols and Christian religious displays. These displays sometimes comprise shared symbology, and the adoption of this symbology overlaps at distinct moments in U.S. history in which Confederate and Christian symbolism converged to express messages of combined religious and racial superiority. This Essay argues that these forms of expression can best be understood as “speech acts” that seek to construct a particular social reality, often in defiance of political and social fact. They thus not only express but also enact social hierarchies. It further …
The New Fourth Era Of American Religious Freedom, John Witte Jr., Eric Wang
The New Fourth Era Of American Religious Freedom, John Witte Jr., Eric Wang
Faculty Articles
The U.S. Supreme Court has entered decisively into a new fourth era of American religious freedom. In the first era, from 1776 to 1940, the Court largely left governance of religious freedom to the individual states and did little to enforce the First Amendment Religion Clauses. In the second era, from 1940 to 1990, the Court “incorporated” the First Amendment into the Fourteenth Amendment Due Process Clause and applied both a strong Free Exercise Clause and a strong Establishment Clause against federal, state, and local governments alike. In the third era, from the mid-1980s to 2010, the Court softened the …
Surveillance Normalization, Christian Sundquist
Surveillance Normalization, Christian Sundquist
Articles
Since the start of the COVID-19 pandemic, the government has expanded public surveillance measures in an attempt to combat the spread of the virus. As the pandemic wears on, racialized communities and other marginalized groups are disproportionately affected by this increased level of surveillance. This article argues that increases in public surveillance as a result of the COVID-19 pandemic give rise to the normalization of surveillance in day-to-day life, with serious consequences for racialized communities and other marginalized groups. This article explores the legal and regulatory effects of surveillance normalization, as well as how to protect civil rights and liberties …
Mysterizing Religion, Marc O. Degirolami
Mysterizing Religion, Marc O. Degirolami
Faculty Publications
(Excerpt)
A mystery of faith is a truth of religion that escapes human understanding. The mysteries of religion are not truths that human beings happen not to know, or truths that they could know with sufficient study and application, but instead truths that they cannot know in the nature of things. In the Letter to the Colossians, St. Paul writes that as a Christian apostle, his holy office is to “bring to completion for you the word of God, the mystery hidden from ages and from generations past.” Note that Paul does not say that his task is to make …
Reconsidering The Public Square, Helen L. Norton
Political Advertising In Virtual Reality, Scott P. Bloomberg
Political Advertising In Virtual Reality, Scott P. Bloomberg
Faculty Publications
This Article is about how biometric data collected through VR technologies will greatly exacerbate existing problems with political ad microtargeting. Commercially available VR devices can—and in some cases, must—be integrated with sensors that track users’ eyes, faces, hands, and bodies. Political campaigns will be able to leverage this data to target ads with extraordinary precision. Indeed, targeting ads with biometric data may well be the next step in the evolution of microtargeted political messaging—a practice that has contributed to a rise in disinformation, filter-bubbles, and privacy invasions. If this sounds like science fiction, it is closer than you may think. …
American Religious Liberty Without (Much) Theory: A Review Of Religion And The American Constitutional Experiment, 5th Edition, Nathan S. Chapman
American Religious Liberty Without (Much) Theory: A Review Of Religion And The American Constitutional Experiment, 5th Edition, Nathan S. Chapman
Scholarly Works
Book review of Religion and the American Constitutional Experiment, 5th ed. By John Witte Jr., Joel A. Nichols, and Richard W. Garnett. Oxford: Oxford University Press, 2022. Pp. 464. $150.00 (cloth); $39.95 (paper); $26.99 (digital). ISBN: 9780197587614.
Presuming Trustworthiness, Ronnell Anderson Jones, Sonja R. West
Presuming Trustworthiness, Ronnell Anderson Jones, Sonja R. West
Scholarly Works
A half-century ago, the U.S. Supreme Court often praised speakers performing the press function. While the Justices acknowledged that press reports are sometimes inaccurate and that media motivations are at times less than public-serving, their laudatory statements nonetheless embraced a baseline presumption of the value and trustworthiness of press speech in general. Speech in the exercise of the press function, they told us, is vitally important to public discourse in a democracy and therefore worthy of protection even when it falls short of the ideal in a given instance. Those days are over. Our study of every reference to the …
Campbell V. Reisch: The Dangers Of The Campaign Loophole In Social Media Blocking Litigation, Clare R. Norins, Mark Bailey
Campbell V. Reisch: The Dangers Of The Campaign Loophole In Social Media Blocking Litigation, Clare R. Norins, Mark Bailey
Scholarly Works
Since 2016, social media blocking by government officials has been a lively battleground for First Amendment rights of free speech and petition. Government officials increasingly rely on social media to communicate with the public while ever greater numbers of private individuals are voicing their opinions and petitioning for change on government officials' interactive social media accounts. Perhaps not surprisingly, this has prompted many government officials to block those users whose comments they deem to be critical or offensive. But such speech regulation by a government actor introduces viewpoint discrimination—a cardinal sin under the First Amendment.
In 2019, three United States …
First Amendment Protections For “Good Trouble”, Dawn C. Nunziato
First Amendment Protections For “Good Trouble”, Dawn C. Nunziato
GW Law Faculty Publications & Other Works
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 …
The Violence Of Free Speech And Press Metaphors, Erin C. Carroll
The Violence Of Free Speech And Press Metaphors, Erin C. Carroll
Georgetown Law Faculty Publications and Other Works
Today, our free speech marketplace is often overwhelming, confusing, and even dangerous. Threats, misdirection, and lies abound. Online firestorms lead to offline violence. This Article argues that the way we conceptualize free speech and the free press are partly to blame: our metaphors are hurting us.
The primary metaphor courts have used for a century to describe free speech—the marketplace of ideas—has been linked to violence since its inception. Originating in a case about espionage and revolution, in a dissent written by Oliver Wendell Holmes, a thrice-injured Civil War veteran, the marketplace has been described as a space where competition …
The Disembodied First Amendment, Nathan Cortez, William M. Sage
The Disembodied First Amendment, Nathan Cortez, William M. Sage
Faculty Journal Articles and Book Chapters
First Amendment doctrine is becoming disembodied—increasingly detached from human speakers and listeners. Corporations claim that their speech rights limit government regulation of everything from product labeling to marketing to ordinary business licensing. Courts extend protections to commercial speech that ordinarily extended only to core political and religious speech. And now, we are told, automated information generated for cryptocurrencies, robocalling, and social media bots are also protected speech under the Constitution. Where does it end? It begins, no doubt, with corporate and commercial speech. We show, however, that heightened protection for corporate and commercial speech is built on several “artifices” - …
First Amendment Scrutiny: Realigning First Amendment Doctrine Around Government Interests, John D. Inazu
First Amendment Scrutiny: Realigning First Amendment Doctrine Around Government Interests, John D. Inazu
Scholarship@WashULaw
This Article proposes a simpler way to frame judicial analysis of First Amendment claims: a government restriction on First Amendment expression or action must advance a compelling interest through narrowly tailored means and must not excessively burden the expression or action relative to the interest advanced. The test thus has three prongs: (1) compelling interest; (2) narrow tailoring; and (3) proportionality.
Part I explores how current First Amendment doctrine too often minimizes or ignores a meaningful assessment of the government’s purported interest in limiting First Amendment liberties. Part II shows how First Amendment inquiry is further confused by threshold inquiries …
January 6, Ambiguously Inciting Speech, And The Overt-Acts Rule, Alan Z. Rozenshtein, Jed Handelsman Shugerman
January 6, Ambiguously Inciting Speech, And The Overt-Acts Rule, Alan Z. Rozenshtein, Jed Handelsman Shugerman
Faculty Scholarship
A prosecution of Donald Trump for his role in the January 6 attack on the Capitol would have to address whether the First Amendment protects the inflammatory remarks he made at the “Stop the Steal” rally. A prosecution based solely on the content of Trump’s speech—whether for incitement, insurrection, or obstruction—would face serious constitutional difficulties under Brandenburg v. Ohio’s dual requirements of intent and likely imminence. But a prosecution need not rely solely on the content of Trump’s speech. It can also look to Trump’s actions: his order to the remove the magnetometers from the entrances to the rally and …
Weaponizing Proof Of Harm In First Amendment Cases: When Scientific Evidence And Deference To The Views Of Professional Associations Collide In The Battle Against Conversion Therapy, Clay Calvert
UF Law Faculty Publications
This Article uses the U.S. Court of Appeals for the Eleventh Circuit’s divided decision in Otto v. City of Boca Raton in late 2020 as a springboard for examining battles in First Amendment jurisprudence over proof of causation of harm and the level of deference owed to the judgments of learned societies. A two-judge majority held in Otto that a pair of local ordinances banning speechbased conversion therapy on minors violated the First Amendment, with those measures failing the rigorous strict scrutiny standard of review. Crucial to the majority’s ruling was its conclusion that insufficient evidence exists that conversion therapy—also …
Testimony, Free Speech Under Attack: The Legal Assault On Environmental Activists And The First Amendment, Anita Ramasastry
Testimony, Free Speech Under Attack: The Legal Assault On Environmental Activists And The First Amendment, Anita Ramasastry
Presentations
No abstract provided.
Brief Of Professor Tobias B. Wolff As Amicus Curiae In Support Of Respondents In U.S. Supreme Court Case 303 Creative Llc V. Elenis, Tobias Barrington Wolff
Brief Of Professor Tobias B. Wolff As Amicus Curiae In Support Of Respondents In U.S. Supreme Court Case 303 Creative Llc V. Elenis, Tobias Barrington Wolff
All Faculty Scholarship
This amicus brief, filed in support of the Colorado anti-discrimination law in 303 Creative v. Elenis, is the product of about ten years of work on these First Amendment issues as a scholar and advocate. Its arguments rest on a core proposition: When a business sells goods and services in the public marketplace, it is not a street corner speaker engaging in a personal act of expression, it is a vendor engaged in commerce. Customers do not pay for the privilege of promoting a commercial vendor’s own personal message, they pay for goods and services chosen by them and …
Is Corporate Law Nonpartisan?, Ofer Eldar, Gabriel V. Rauterberg
Is Corporate Law Nonpartisan?, Ofer Eldar, Gabriel V. Rauterberg
Law & Economics Working Papers
Only rarely does the United States Supreme Court hear a case with fundamental implications for corporate law. In Carney v. Adams, however, the Supreme Court had the opportunity to address whether the State of Delaware’s requirement of partisan balance for its judiciary violates the First Amendment. Although the Court disposed of the case on other grounds, Justice Sotomayor acknowledged that the issue “will likely be raised again.” The stakes are high because most large businesses are incorporated in Delaware and thus are governed by its corporate law. Former Governors and Chief Justices of Delaware lined up to defend the state’s …
Is Corporate Law Nonpartisan?, Ofer Eldar, Gabriel V. Rauterberg
Is Corporate Law Nonpartisan?, Ofer Eldar, Gabriel V. Rauterberg
Articles
Only rarely does the United States Supreme Court hear a case with fundamental implications for corporate law. In Carney v. Adams, however, the Supreme Court had the opportunity to address whether the State of Delaware’s requirement of partisan balance for its judiciary violates the First Amendment. Although the Court disposed of the case on other grounds, Justice Sotomayor acknowledged that the issue “will likely be raised again.” The stakes are high because most large businesses are incorporated in Delaware and thus are governed by its corporate law. Former Delaware governors and chief justices lined up to defend the state’s “nonpartisan” …
Most Favored Racial Hierarchy: The Ever-Evolving Ways Of The Supreme Court's Superordination Of Whiteness, David Simson
Most Favored Racial Hierarchy: The Ever-Evolving Ways Of The Supreme Court's Superordination Of Whiteness, David Simson
Articles & Chapters
This Article engages in a critical comparative analysis of the recent history and likely future trajectory of the Supreme Court’s constitutional jurisprudence in matters of race and religion to uncover new aspects of the racial project that Reggie Oh has recently called the “racial superordination” of whiteness—the reinforcing of the superior status of whites in American society by, among other things, prioritizing their interests in structuring constitutional doctrine. This analysis shows that the Court is increasingly widening the gap between conceptions of, and levels of protection provided for, equality in the contexts of race and religion in ways that prioritize …