Law Commons^™

Who Can Protect Black Protest?, Brandon Hasbrouck

Scholarly Articles

Police violence both as the cause of and response to the racial justice protests following George Floyd’s murder called fresh attention to the need for legal remedies to hold police officers accountable. In addition to the well-publicized issue of qualified immunity, the differential regimes for asserting civil rights claims against state and federal agents for constitutional rights violations create a further barrier to relief. Courts have only recognized damages as a remedy for such abuses in limited contexts against federal employees under the Bivens framework. The history of Black protest movements reveals the violent responses police have to such challenges …

Facebook And Politicians’ Speech, Sarah C. Haan

Scholarly Articles

In his Article Facebook’s Speech Code and Policies: How They Suppress Speech and Distort Democratic Deliberation, Professor Joseph Thai argues that Facebook skewed public debate with a policy that exempted politicians from its content-based rules. This Response updates the reader on Facebook’s retreat from this policy and identifies some preliminary lessons from it. Between May 2020 and January 2021, Facebook moved away from its “light touch” regulation of politicians’ speech by employing strategies like labeling and down-ranking—and, eventually, removal of content. After the January 6, 2021 insurrection at the U.S. Capitol, Facebook de-platformed President Trump altogether, putting a final …

John Stuart Mill’S Harm Principle And Free Speech: Expanding The Notion Of Harm, Melina Constantine Bell

Scholarly Articles

This article advocates employing John Stuart Mill’s harm principle to set the boundary for unregulated free speech, and his Greatest Happiness Principle to regulate speech outside that boundary because it threatens unconsented-to harm. Supplementing the harm principle with an offense principle is unnecessary and undesirable if our conception of harm integrates recent empirical evidence unavailable to Mill. For example, current research uncovers the tangible harms individuals suffer directly from bigoted speech, as well as the indirect harms generated by the systemic oppression and epistemic injustice that bigoted speech constructs and reinforces. Using Mill’s ethical framework with an updated notion of …

Brief Of Amici Curiae Professors Katherine Mims Crocker And Brandon Hasbrouck In Support Of Neither Party With Respect To Defendant's Motion To Dismiss: Dyer V. Smith, Brandon Hasbrouck, Katherine Mims Crocker

Scholarly Articles

This case illustrates how the First Amendment functions as an essential backstop to Fourth Amendment freedoms—and vice versa. As revealed by the national response to the killing of George Floyd and so many similar injustices, the ability to record encounters with government representatives is critical to preserving civil rights, and especially the right to avoid excessive force. The public only “became aware of the circumstances surrounding George Floyd’s death because citizens standing on a sidewalk exercised their First Amendment rights and filmed a police officer kneeling on Floyd’s neck until he died.” Index Newspapers LLC v. U.S. Marshals Serv., …

Bad Actors: Authenticity, Inauthenticity, Speech, And Capitalism, Sarah C. Haan

Scholarly Articles

“Authenticity” has evolved into an important value that guides social media companies’ regulation of online speech. It is enforced through rules and practices that include real-name policies, Terms of Service requiring users to present only accurate information about themselves, community guidelines that prohibit “coordinated inauthentic behavior,” verification practices, product features, and more.

This Article critically examines authenticity regulation by the social media industry, including companies’ claims that authenticity is a moral virtue, an expressive value, and a pragmatic necessity for online communication. It explains how authenticity regulation provides economic value to companies engaged in “information capitalism,” “data capitalism,” and “surveillance …

Facebook's Alternative Facts, Sarah C. Haan

Scholarly Articles

In this short essay, I argue that Facebook’s adoption of the alternative-facts frame potentially contributes to the divisiveness that has made social media misinformation a powerful digital tool. Facebook’s choice to present information as “facts” and “alternative facts” endorses a binary system in which all information can be divided between moral or tribal categories—“bad” versus “good” speech, as Sandberg put it in her testimony to Congress. As we will see, Facebook’s related-articles strategy adopts this binary construction, offering a both-sides News Feed that encourages users to view information as cleaving along natural moral or political divisions.

The Defamation Injunction Meets The Prior Restraint Doctrine, Doug Rendleman

Scholarly Articles

In Near v. Minnesota, the Supreme Court added the injunction to executive licensing as a prior restraint. Although the Near court circumscribed the injunction as a prior restraint, it approved criminal sanctions and damages judgments. The prior restraint label resembles a death sentence. This article maintains that such massive retaliation is overkill.

A judge’s injunction that forbids the defendant’s tort of defamation tests Near and prior restraint doctrine because defamation isn’t protected by the First Amendment. Arguing that the anti-defamation injunction has outgrown outright bans under the prior restraint rule and the equitable Maxim that “Equity will not enjoin defamation” …

The Post-Truth First Amendment, Sarah C. Haan

Scholarly Articles

Post-truthism is widely understood as a political problem. In this Article, I argue that post-truthism also presents a constitutional law problem—not a hypothetical concern, but a current influence on First Amendment law. Post-truthism, which teaches that evidence-based reasoning lacks value, offers a normative framework for regulating information. Although post-truthism has become a popular culture trope, I argue that we should take it seriously as a theory of decision making and information use, and as a basis for law.

This Article uses the example of compelled speech to explore how post-truth rhetoric and values are being integrated into law. When the …

Speech And The Truth-Seeking Value, Brian C. Murchison

Scholarly Articles

Courts in First Amendment cases long have invoked the truth-seeking value of speech, but they rarely probe its meaning or significance, and some ignore it altogether. As new cases implicate questions of truth and falsity, thorough assessment of the value is needed. This Article fills the gap by making three claims. First, interest in truth-seeking has resurfaced in journalism, politics, philosophy, and fiction, converging on a concept of provisional or “functional” truth. Second, the appeal of functional truth for the law may be that it clarifies thinking about a range of human priorities—survival, progress, and character—without insisting on truth in …

Overcriminalizing Speech, Michal Buchhandler-Raphael

Scholarly Articles

Recent years have seen a significant expansion in the criminal justice system’s use of various preemptive measures, aimed to prevent harm before it occurs. This development consists of adopting a myriad of prophylactic statutes, including endangerment crimes, which target behaviors that merely pose a risk of future harm but are not in themselves harmful at the time they are committed.

This Article demonstrates that a significant portion of these endangerment crimes criminalize various forms of speech and expression. Examples include conspiracies, attempts, verbal harassment, instructional speech on how to commit crimes, and possession crimes. The Article argues that in contrast …

Class Actions, Heightened Commonality, And Declining Access To Justice, A. Benjamin Spencer

Scholarly Articles

A prerequisite to being certified as a class under Rule 23 of the Federal Rules of Civil Procedure is that there are "questions of law or fact common to the class." Although this “commonality” requirement had heretofore been regarded as something that was easily satisfied, in Wal-Mart Stores, Inc. v. Dukes the Supreme Court gave it new vitality by reading into it an obligation to identify among the class a common injury and common questions that are "central" to the dispute. Not only is such a reading of Rule 23’s commonality requirement unsupported by the text of the rule, but …

Categories, Tiers Of Review, And The Roiling Sea Of Free Speech Doctrine And Principle: A Methodological Critique Of United States V. Alvarez, Rodney A. Smolla

Scholarly Articles

None available.

First Amendment Martyr, First Amendment Opportunist: Commentary On Larry Flynt's Role In The Free Speech Debate, Rodney A. Smolla

Scholarly Articles

Not available.

Reflections On Breach Of Confidence From The U.S. Experience, Brian C. Murchison

Scholarly Articles

Not available.

Words "Which By Their Very Utterance Inflict Injury": Evolving Treatment Of Inherently Dangerous Speech In Free Speech Law And Theory, Rodney A. Smolla

Scholarly Articles

Not available.

The First Amendment, Journalists, And Sources: A Curious Study In "Reverse Federalism", Rodney A. Smolla

Scholarly Articles

Not available.

The Fact-Conjecture Framework In U.S. Libel Law: Four Problems, Brian C. Murchison

Scholarly Articles

A requirement of U.S. defamation law is that an actionable statement be factual in nature, but courts since Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), have had considerable difficulty in distinguishing factual from non-factual statements and in articulating the value of non-factual public discourse in all its diversity. This Article reviews four topics - intent, context, conjecture, and hyperbole - that have been particularly troublesome to courts. It argues for a fresh appraisal of Justice Brennan's dissenting opinion in Milkovich and brings into the conversation the works of several current political theorists on the contributions of passionate political …

Revisiting The American Action For Public Disclosure Of Facts, Brian C. Murchison

Scholarly Articles

None available.

Lawyer Advertising And The Dignity Of The Profession, Rodney A. Smolla

Scholarly Articles

None available.

The Cabining Of Rosenberger: Locke V. Davey And The Broad Nondiscrimination Principle That Never Was, Alan M. Trammell

Scholarly Articles

In Rosenberger (1995), the Supreme Court decided that the University of Virginia could not exclude religious organizations from an activities fund that subsidized student organizations. Nine years later, the Court in Locke v. Davey held that Washington could exclude students of devotional theology from a generally available scholarship program; there was, in the Court’s words, “play in the joints” between what the Establishment Clause forbids and what the Free Exercise Clause requires. The cases seemed to contradict one another.

This Note explores whether Rosenberger announced a broad principle of nondiscrimination with respect to religion and whether Davey reneged on that …

Content And Context: The Contributions Of William Van Alstyne To First Amendment Interpretation, Rodney A. Smolla

Scholarly Articles

Not available.

Free The Fortune 500! The Debate Over Corporate Speech And The First Amendment, Rodney A. Smolla

Scholarly Articles

Examines the lessons to be learned in the U.S. Supreme Court landmark free speech case in "Nike Inc. v. Kasky".

Terrorism And The Bill Of Rights, Rodney A. Smolla

Scholarly Articles

In this article, Professor Smolla examines the right to free speech in the context of Black v. Commonwealth, a case which dealt with a Virginia law that banned cross-burning. While the legal doctrines argued in the Black case were certainly important then, they took on a whole new importance in light of the attacks on September 11, 2001. Professor Smolla discusses whether the terrorist attacks should affect the freedoms of speech and expression in America, concluding that, while horrific and life-changing, the attack on America should not alter our First Amendment rights.

The Puffery Of Lawyers, Rodney A. Smolla

Scholarly Articles

Not available.

The First Amendment And The New Civil Liability, Rodney A. Smolla

Scholarly Articles

Not available.

From Hit Man To Encyclopedia Of Jihad: How To Distinguish Freedom Of Speech From Terrorist Training, Rodney A. Smolla

Scholarly Articles

Not available.

Information As Contraband: The First Amendment And Liability For Trafficking In Speech, Rodney A. Smolla

Scholarly Articles

Not available.

What Passes For Policy And Proof In First Amendment Litigation?, Rodney A. Smolla

Scholarly Articles

Not available.

Should The Brandenburg V. Ohio Incitement Test Apply In Media Violence Cases?, Rodney A. Smolla

Scholarly Articles

None available.

Qualified Intimacy, Celebrity, And The Case For A Newsgathering Privilege, Rodney A. Smolla

Scholarly Articles

Not available.