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Full-Text Articles in Law

Privacy's Double Standards, Scott Skinner-Thompson Jan 2018

Privacy's Double Standards, Scott Skinner-Thompson

Articles

Where the right to privacy exists, it should be available to all people. If not universally available, then privacy rights should be particularly accessible to marginalized individuals who are subject to greater surveillance and are less able to absorb the social costs of privacy violations. But in practice, there is evidence that people of privilege tend to fare better when they bring privacy tort claims than do non-privileged individuals. This disparity occurs despite doctrine suggesting that those who occupy prominent and public social positions are entitled to diminished privacy tort protections.

This Article unearths disparate outcomes in public disclosure tort ...


Government Speech And The War On Terror, Helen Norton Jan 2017

Government Speech And The War On Terror, Helen Norton

Articles

The government is unique among speakers because of its coercive power, its substantial resources, its privileged access to national security and intelligence information, and its wide variety of expressive roles as commander-in-chief, policymaker, educator, employer, property owner, and more. Precisely because of this power, variety, and ubiquity, the government's speech can both provide great value and inflict great harm to the public. In wartime, more specifically, the government can affirmatively choose to use its voice to inform, inspire, heal, and unite -- or instead to deceive, divide, bully, and silence.

In this essay, I examine the U.S. government's ...


Siri-Ously 2.0: What Artificial Intelligence Reveals About The First Amendment, Toni M. Massaro, Helen Norton, Margot E. Kaminski Jan 2017

Siri-Ously 2.0: What Artificial Intelligence Reveals About The First Amendment, Toni M. Massaro, Helen Norton, Margot E. Kaminski

Articles

The First Amendment may protect speech by strong Artificial Intelligence (AI). In this Article, we support this provocative claim by expanding on earlier work, addressing significant concerns and challenges, and suggesting potential paths forward.

This is not a claim about the state of technology. Whether strong AI — as-yet-hypothetical machines that can actually think — will ever come to exist remains far from clear. It is instead a claim that discussing AI speech sheds light on key features of prevailing First Amendment doctrine and theory, including the surprising lack of humanness at its core.

Courts and commentators wrestling with free speech problems ...


Siri-Ously? Free Speech Rights And Artificial Intelligence, Toni M. Massaro, Helen Norton Jan 2016

Siri-Ously? Free Speech Rights And Artificial Intelligence, Toni M. Massaro, Helen Norton

Articles

Computers with communicative artificial intelligence (AI) are pushing First Amendment theory and doctrine in profound and novel ways. They are becoming increasingly self-directed and corporal in ways that may one day make it difficult to call the communication ours versus theirs. This, in turn, invites questions about whether the First Amendment ever will (or ever should) cover AI speech or speakers even absent a locatable and accountable human creator. In this Article, we explain why current free speech theory and doctrine pose surprisingly few barriers to this counterintuitive result; their elasticity suggests that speaker humanness no longer may be a ...


Truth And Lies In The Workplace: Employer Speech And The First Amendment, Helen Norton Jan 2016

Truth And Lies In The Workplace: Employer Speech And The First Amendment, Helen Norton

Articles

Employers' lies, misrepresentations, and nondisclosures about workers' legal rights and other working conditions can skew and sometimes even coerce workers' important life decisions as well as frustrate key workplace protections. Federal, state, and local governments have long sought to address these substantial harms by prohibiting employers from misrepresenting workers' rights or other working conditions as well as by requiring employers to disclose truthful information about these matters.

These governmental efforts, however, are now increasingly vulnerable to constitutional attack in light of the recent antiregulatory turn in First Amendment law, in which corporate and other commercial entities seek -- with growing success ...


A Few Thoughts On Free Speech Constitutionalism, Helen Norton Jan 2015

A Few Thoughts On Free Speech Constitutionalism, Helen Norton

Articles

No abstract provided.


Limiting Principles And Empowering Practices In American Indian Religious Freedoms, Kristen A. Carpenter Jan 2012

Limiting Principles And Empowering Practices In American Indian Religious Freedoms, Kristen A. Carpenter

Articles

Employment Division v. Smith was a watershed moment in First Amendment law, with the Supreme Court holding that neutral statutes of general applicability could not burden the free exercise of religion. Congress's subsequent attempts, including the passage of Religious Freedom Restoration Act and Religious Land Use and Institutionalized Persons Act, to revive legal protections for religious practice through the legislative and administrative process have received tremendous attention from legal scholars. Lost in this conversation, however, have been the American Indians at the center of the Smith case. Indeed, for them, the decision criminalizing the possession of their peyote sacrament ...


Secrets, Lies, And Disclosure, Helen Norton Jan 2012

Secrets, Lies, And Disclosure, Helen Norton

Articles

This symposium essay suggests that we can sometimes understand those who resist campaign disclosure or disclaimer requirements as interested in keeping a secret and occasionally even in telling a sort of lie about the source or intensity of support for a particular candidate or cause. Such secrets and lies threaten listeners’ autonomy interests when the speaker seeks to keep such secrets (and sometimes seeks to tell such lies) to enhance her ability to influence her listeners’ decisions. For these reasons, I suggest greater attention to the reasons speakers seek to keep secrets (or occasionally tell such lies) in assessing the ...


Campaign Speech Law With A Twist: When The Government Is The Speaker, Not The Regulator, Helen Norton Jan 2011

Campaign Speech Law With A Twist: When The Government Is The Speaker, Not The Regulator, Helen Norton

Articles

Although government entities frequently engage in issue-related campaign speech on a variety of contested ballot and legislative measures, this fact has been entirely overlooked in contemporary First Amendment debates over campaign speech law specifically and government speech more generally. The Supreme Court's "campaign speech" and "government speech" dockets have focused to date on claims by private parties that the government has restricted or silenced their speech in violation of the First Amendment. In contrast, disputes over what this Article calls "governmental campaign speech" involve Free Speech Clause and other challenges by private parties who seek instead to silence the ...


Imaginary Threats To Government's Expressive Interests, Helen Norton Jan 2011

Imaginary Threats To Government's Expressive Interests, Helen Norton

Articles

The Supreme Court’s emerging government speech doctrine permits the government to refuse to allow other parties to join, and thus change or distort, its own message. In this way, the government speech doctrine appropriately protects government’s legitimate – and valuable – expressive interests by providing a defense to free speech clause claims by private speakers who seek to compel the government to deliver their own views. Too often, however, governmental bodies are asserting their own expressive interests to claim – and some courts are permitting them to exercise – the power to punish private parties’ speech that does not threaten the government ...


Government Speech 2.0, Helen Norton, Danielle Keats Citron Jan 2010

Government Speech 2.0, Helen Norton, Danielle Keats Citron

Articles

New expressive technologies continue to transform the ways in which members of the public speak to one another. Not surprisingly, emerging technologies have changed the ways in which government speaks as well. Despite substantial shifts in how the government and other parties actually communicate, however, the Supreme Court to date has developed its government speech doctrine--which recognizes "government speech" as a defense to First Amendment challenges by plaintiffs who claim that the government has impermissibly excluded their expression based on viewpoint--only in the context of disputes involving fairly traditional forms of expression. In none of these decisions, moreover, has the ...


House Of Wisdom Or A House Of Cards? Why Teaching Islam In U.S. Foreign Detention Facilities Violates The Establishment Clause, Scott Thompson Jan 2009

House Of Wisdom Or A House Of Cards? Why Teaching Islam In U.S. Foreign Detention Facilities Violates The Establishment Clause, Scott Thompson

Articles

In an attempt to erase Islamic-fundamentalist sentiments held by detainees apprehended in the course of the "war on terror," the United States government began teaching and preaching a more moderate version of the Qur'an and Islam to detainees in Iraq. One such detention program in Iraq was dubbed the House of Wisdom. But the wisdom of such a practice is highly suspect--both because it likely runs afoul of the Establishment Clause of the First Amendment and because it may be doing more harm than good to the American effort to defuse Islamic-extremism and anti-American sentiment. This Article examines the ...


Six Opinions By Mr. Justice Stevens: A New Methodology For Constitutional Cases?, Robert F. Nagel Jan 2003

Six Opinions By Mr. Justice Stevens: A New Methodology For Constitutional Cases?, Robert F. Nagel

Articles

No abstract provided.


Voice In Government: The People, Emily Calhoun Jan 1994

Voice In Government: The People, Emily Calhoun

Articles

No abstract provided.


Advocacy And Scholarship, Paul F. Campos Jan 1993

Advocacy And Scholarship, Paul F. Campos

Articles

The apex of American legal thought is embodied in two types of writings: the federal appellate opinion and the law review article. In this Article, the author criticizes the whole enterprise of doctrinal constitutional law scholarship, using a recent U.S. Supreme Court case and a Harvard Law Review article as quintessential examples of the dominant genre. In a rhetorical tour de force, the author argues that most of modern constitutional scholarship is really advocacy in the guise of scholarship. Such an approach to legal scholarship may have some merit as a strategic move towards a political end; however, it ...


Silence And The Word, Paul Campos Jan 1993

Silence And The Word, Paul Campos

Articles

No abstract provided.


How To Do Things With The First Amendment, Pierre Schlag Jan 1993

How To Do Things With The First Amendment, Pierre Schlag

Articles

No abstract provided.


Girls Should Bring Lawsuits Everywhere . . . Nothing Will Be Corrupted: Pornography As Speech And Product, Marianne Wesson Jan 1993

Girls Should Bring Lawsuits Everywhere . . . Nothing Will Be Corrupted: Pornography As Speech And Product, Marianne Wesson

Articles

No abstract provided.


Against Constitutional Theory, Paul Campos Jan 1992

Against Constitutional Theory, Paul Campos

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No abstract provided.


Commentary, The Selling Of Jury Deliberations, Robert F. Nagel Jan 1989

Commentary, The Selling Of Jury Deliberations, Robert F. Nagel

Articles

No abstract provided.


Forgetting The Constitution, Robert F. Nagel Jan 1989

Forgetting The Constitution, Robert F. Nagel

Articles

No abstract provided.


Teaching Tolerance, Robert F. Nagel Jan 1987

Teaching Tolerance, Robert F. Nagel

Articles

No abstract provided.


Freedom Of Speech As Therapy, Pierre Schlag Jan 1986

Freedom Of Speech As Therapy, Pierre Schlag

Articles

No abstract provided.


Washington's Ballot Restriction For Minor Party Candidates: When Is A Primary Not A Primary?, Emily Calhoun Jan 1986

Washington's Ballot Restriction For Minor Party Candidates: When Is A Primary Not A Primary?, Emily Calhoun

Articles

No abstract provided.


Book Review, Pierre Schlag Jan 1985

Book Review, Pierre Schlag

Articles

No abstract provided.


The First Amendment And Distributional Voting Rights Controversies, Emily M. Calhoun Jan 1985

The First Amendment And Distributional Voting Rights Controversies, Emily M. Calhoun

Articles

No abstract provided.


Rules And Standards, Pierre Schlag Jan 1985

Rules And Standards, Pierre Schlag

Articles

No abstract provided.


How Useful Is Judicial Review In Free Speech Cases?, Robert F. Nagel Jan 1984

How Useful Is Judicial Review In Free Speech Cases?, Robert F. Nagel

Articles

No abstract provided.


An Attack On Categorical Approaches To Freedom Of Speech, Pierre J. Schlag Jan 1983

An Attack On Categorical Approaches To Freedom Of Speech, Pierre J. Schlag

Articles

No abstract provided.


The Supreme Court And The Constitutional Rights Of Prisoners: A Reappraisal, Emily Calhoun Jan 1977

The Supreme Court And The Constitutional Rights Of Prisoners: A Reappraisal, Emily Calhoun

Articles

No abstract provided.