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First Amendment

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Institution
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Full-Text Articles in Law

'‘Male Chauvinism’ Is Under Attack From All Sides At Present': Roberts V. United States Jaycees, Sex Discrimination, And The First Amendment, Linda Mcclain May 2019

'‘Male Chauvinism’ Is Under Attack From All Sides At Present': Roberts V. United States Jaycees, Sex Discrimination, And The First Amendment, Linda Mcclain

Faculty Scholarship

Today, many take it for granted that discriminating against women in the marketplace is illegal and morally wrong. Roberts v. United States Jaycees (1984) remains a foundational case on government’s compelling interest in prohibiting sex (or gender) discrimination in public accommodations, even in the face of First Amendment claims of freedom of association and expression. Curiously, Jaycees seems comparatively neglected by legal scholars, if measured by the cases included in the various collections of “law stories” or “rewritten opinions” projects. Looking back at the Jaycees litigation reveals the parties wrestling over the reach of public accommodations law and the ...


Legislator-Led Legislative Prayer And The Search For Religious Neutrality, Aishwarya Masrani Apr 2019

Legislator-Led Legislative Prayer And The Search For Religious Neutrality, Aishwarya Masrani

Duke Journal of Constitutional Law & Public Policy Sidebar

Leading a group in prayer in a public setting blurs the line between public and private. Such blurring implicates a constitutional tension between the Establishment Clause and the Free Exercise Clause. This tension is magnified when the constitutionality of prayer is questioned in the context of democratic participation. Current Supreme Court precedent holds legislative prayer to be constitutional, but the relevant cases, Marsh v. Chambers and Town of Greece, NY v. Galloway, do not address the specific constitutionality of legislator-led prayer. There is currently a circuit split on the subject: in Bormuth v. County of Jackson, the United States ...


Powerful Speakers And Their Listeners, Helen Norton Jan 2019

Powerful Speakers And Their Listeners, Helen Norton

Articles

In certain settings, law sometimes puts listeners first when their First Amendment interests collide with speakers’. And collide they often do. Sometimes speakers prefer to tell lies when their listeners thirst for the truth. Sometimes listeners hope that speakers will reveal their secrets, while those speakers resist disclosure. And at still other times, speakers seek to address certain listeners when those listeners long to be left alone. When speakers’ and listeners’ First Amendment interests collide, whose interests should prevail? Law sometimes – but not always – puts listeners’ interests first in settings outside of public discourse where those listeners have less information ...


Pregnancy And The First Amendment, Helen Norton Jan 2019

Pregnancy And The First Amendment, Helen Norton

Articles

Suppose that you are pregnant and seated in the waiting room of a Planned Parenthood clinic, or maybe in a facility that advertises “Pregnant? We Can Help You.” This Essay discusses the First Amendment rules that apply to the government’s control of what you are about to hear.

If the government funds your clinic’s program, the U.S. Supreme Court has held that it does not violate the First Amendment’s Free Speech Clause when it forbids your health-care provider from offering you information about available abortion services. Nor does the government violate the Free Speech Clause, the ...


The Invention Of First Amendment Federalism, Jud Campbell Jan 2019

The Invention Of First Amendment Federalism, Jud Campbell

Law Faculty Publications

When insisting that the Sedition Act of 1798 violated the First Amendment, Jeffersonian Republicans cast their argument in historical terms, claiming that the Speech and Press Clauses eliminated any federal power to restrict expression. Scholars, in turn, have generally accepted that Republicans had a consistent understanding of the First Amendment throughout the 1790s. But Founding Era constitutionalism was dynamic in practice, even while often conservative in rhetoric, and scholars have missed the striking novelty of the principal argument against the Sedition Act. Republicans had taken a rights provision and transformed it into a federalism rule.

Mostly ignored in the literature ...


Compelled Subsidies And Original Meaning, Jud Campbell Jan 2019

Compelled Subsidies And Original Meaning, Jud Campbell

Law Faculty Publications

The rule against compelled subsidization of speech is at the forefront of modem First Amendment disputes. Challenges to mandatory union dues, laws preventing discrimination on the basis of sexual orientation, and the federal "contraceptive mandate" have all featured variants of the anti-subsidization principle, reasoning that the government cannot compel people to support the objectionable activities of others. But the literature currently fails to evaluate modem compelled-subsidy doctrine in terms of the original meaning of the First Amendment. This Essay takes up that task.

Approaching any question of original meaning requires a willingness to encounter a constitutional world that looks very ...


Explicit Bias: Why Criminal Justice Reform Requires Us To Challenge Crime Control Strategies That Are Anything But Race Blind, Jonathan Simon Jan 2019

Explicit Bias: Why Criminal Justice Reform Requires Us To Challenge Crime Control Strategies That Are Anything But Race Blind, Jonathan Simon

Faculty Scholarship

No abstract provided.


Platforms And The Fall Of The Fourth Estate: Looking Beyond The First Amendment To Protect Watchdog Journalism, Erin C. Carroll Jan 2019

Platforms And The Fall Of The Fourth Estate: Looking Beyond The First Amendment To Protect Watchdog Journalism, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

Journalists see the First Amendment as an amulet, and with good reason. It has long protected the Fourth Estate—an independent institutional press—in its exercise of editorial discretion to check government power. This protection helped the Fourth Estate flourish in the second half of the twentieth century and ably perform its constitutional watchdog role.

But in the last two decades, the media ecology has changed. The Fourth Estate has been subsumed by a Networked Press in which journalists are joined by engineers, algorithms, audience, and other human and non-human actors in creating and distributing news. The Networked Press’s ...


A Skeptical View Of Information Fiduciaries, Lina Khan, David E. Pozen Jan 2019

A Skeptical View Of Information Fiduciaries, Lina Khan, David E. Pozen

Faculty Scholarship

The concept of “information fiduciaries” has surged to the forefront of debates on online platform regulation. Developed by Professor Jack Balkin, the concept is meant to rebalance the relationship between ordinary individuals and the digital companies that accumulate, analyze, and sell their personal data for profit. Just as the law imposes special duties of care, confidentiality, and loyalty on doctors, lawyers, and accountants vis-à-vis their patients and clients, Balkin argues, so too should it impose special duties on corporations such as Facebook, Google, and Twitter vis-à-vis their end users. Over the past several years, this argument has garnered remarkably broad ...


The Law Of Advertising Outrage, Mark Bartholomew Oct 2018

The Law Of Advertising Outrage, Mark Bartholomew

Journal Articles

This article examines the stimulation of audience outrage, both as a marketing strategy and as a subject of legal regulation. A brief history of advertising in the United States reveals repeated yet relatively infrequent attempts to attract consumer attention through overt transgressions of social norms relating to sex, violence, race, and religion. Natural concerns over audience reaction limited use of this particular advertising tactic as businesses needed to be careful not to alienate prospective purchasers. But now companies can engage in “algorithmic outrage”—social media advertising meant to stimulate individual feelings of anger and upset—with less concern for a ...


Deep Fakes: A Looming Challenge For Privacy, Democracy, And National Security, Danielle K. Citron, Robert Chesney Jul 2018

Deep Fakes: A Looming Challenge For Privacy, Democracy, And National Security, Danielle K. Citron, Robert Chesney

Faculty Scholarship

Harmful lies are nothing new. But the ability to distort reality has taken an exponential leap forward with “deep fake” technology. This capability makes it possible to create audio and video of real people saying and doing things they never said or did. Machine learning techniques are escalating the technology’s sophistication, making deep fakes ever more realistic and increasingly resistant to detection. Deep-fake technology has characteristics that enable rapid and widespread diffusion, putting it into the hands of both sophisticated and unsophisticated actors. While deep-fake technology will bring with it certain benefits, it also will introduce many harms. The ...


The Problem Isn't Just Backpage: Revising Section 230 Immunity, Danielle K. Citron, Benjamin Wittes Jul 2018

The Problem Isn't Just Backpage: Revising Section 230 Immunity, Danielle K. Citron, Benjamin Wittes

Faculty Scholarship

Backpage is a classifieds hub that hosts “80 percent of the online advertising for illegal commercial sex in the United States.” This is not by happenstance but rather by design. Evidence suggests that the advertising hub selectively removed postings discouraging sex trafficking. The site also tailored its rules to protect the practice from detection, including allowing anonymized email and photographs stripped of metadata. Under the prevailing interpretation of 47 U.S.C. § 230 (“Section 230”) of the CDA, however, Backpage would be immune from liability connected to sex trafficking even though it proactively helped sex traffickers from getting caught. No ...


Cheers To Central Hudson: How Traditional Intermediate Scrutiny Helps Keep Independent Craft Beer Viable, Daniel J. Croxall May 2018

Cheers To Central Hudson: How Traditional Intermediate Scrutiny Helps Keep Independent Craft Beer Viable, Daniel J. Croxall

NULR Online

Independent craft breweries contributed approximately $68 billion to the national economy last year. However, an arcane regulatory scheme governs the alcohol industry in general and the craft beer industry specifically, posing both obstacles and benefits to independent craft brewers. This Essay examines regulations that arguably infringe on free speech: namely, commercial speech regulations that prohibit alcohol manufacturers from purchasing advertising space from retailers. Such regulations were enacted to prohibit undue influence and anticompetitive behavior stemming from vertical and horizontal integration in the alcohol market. Although these regulations are necessary to prevent global corporate brewers from dominating the craft beer market ...


Las Vegas Review-Journal V. Eighth Judicial Dist. Court, 134 Nev. Adv. Op. 7 (Feb. 27, 2018), Matthew J. Mckissick Feb 2018

Las Vegas Review-Journal V. Eighth Judicial Dist. Court, 134 Nev. Adv. Op. 7 (Feb. 27, 2018), Matthew J. Mckissick

Nevada Supreme Court Summaries

The Court determined that the First Amendment does not allow a court to prevent the press from reporting on a redacted autopsy report already released to the public.


What Did The First Amendment Originally Mean?, Jud Campbell Jan 2018

What Did The First Amendment Originally Mean?, Jud Campbell

Law Faculty Publications

The First Amendment says that “Congress shall make no law … abridging the freedom of speech, or of the press.” For Americans, this language is familiar. But what exactly does it mean? How far do the speech and press clauses restrict governmental power? The founders, as we will see, answered these questions very differently than we typically do today. And the reasons why highlight fundamental shifts in American constitutional thought.


(At Least) Thirteen Ways Of Looking At Election Lies, Helen Norton Jan 2018

(At Least) Thirteen Ways Of Looking At Election Lies, Helen Norton

Articles

Lies take many forms. Because lies vary so greatly in their motivations and consequences (among many other qualities), philosophers have long sought to catalog them to help make sense of their diversity and complexity. Legal scholars too have classified lies in various ways to explain why we punish some and protect others. This symposium essay offers yet another taxonomy of lies, focusing specifically on election lies — that is, lies told during or about elections. We can divide and describe election lies in a wide variety of ways: by speaker, by motive, by subject matter, by audience, by means of delivery ...


Essay: Justice Thurgood Marshall, Great Defender Of First Amendment Free-Speech Rights For The Powerless, David L. Hudson Jr. Jan 2018

Essay: Justice Thurgood Marshall, Great Defender Of First Amendment Free-Speech Rights For The Powerless, David L. Hudson Jr.

Law Faculty Scholarship

This essay explains that Justice Thurgood Marshall’s passionate defense of freedom of expression can be seen most clearly in his defense of free-speech rights even when the government acts not as sovereign, but as warden, employer, or educator. In other words, Marshall’s commitment to free-speech is shown most forcefully by how he consistently protected the free-expression rights of inmates, public employees, and public school students.


Thirty Years Of Hazelwood And Its Spread To Colleges And University Campuses, David L. Hudson Jr. Jan 2018

Thirty Years Of Hazelwood And Its Spread To Colleges And University Campuses, David L. Hudson Jr.

Law Faculty Scholarship

This Article first examines K-12 student speech law before Hazelwood School District v. Kuhlmeier and then discusses the Hazelwood decision. Next, the article focuses on the spread of Hazelwood and its deferential standard to the college and university level. This section examines cases from five different areas where the standard has been utilized with increasing frequency. Finally, the Article offers a few concluding thoughts on the Hazelwood standard and why it should be limited, if not interred.


No First Amendment Shield For Homophobic Prof, Arthur S. Leonard Jan 2018

No First Amendment Shield For Homophobic Prof, Arthur S. Leonard

Other Publications

No abstract provided.


The First Queer Right, Scott Skinner-Thompson Jan 2018

The First Queer Right, Scott Skinner-Thompson

Articles

Current legal disputes may lead one to believe that the greatest threat to LGBTQ rights is the First Amendment’s protections for speech, association, and religion, which are currently being mustered to challenge LGBTQ anti-discrimination protections. But underappreciated today is the role of free speech and free association in advancing the well-being of LGBTQ individuals, as explained in Professor Carlos Ball’s important new book, The First Amendment and LGBT Equality: A Contentious History. In many ways the First Amendment’s protections for free expression and association operated as what I label “the first queer right.”

Decades before the Supreme ...


The Government's Manufacture Of Doubt, Helen Norton Jan 2018

The Government's Manufacture Of Doubt, Helen Norton

Articles

“The manufacture of doubt” refers to a speaker’s strategic efforts to undermine factual assertions that threaten its self-interest. This strategy was perhaps most famously employed by the tobacco industry in its longstanding campaign to contest mounting medical evidence linking cigarettes to a wide range of health risks. At its best, the government’s speech can counter such efforts and protect the public interest, as exemplified by the Surgeon General’s groundbreaking 1964 report on the dangers of tobacco, a report that challenged the industry’s preferred narrative. But the government’s speech is not always so heroic, and governments ...


Remedies And The Government's Constitutionally Harmful Speech, Helen Norton Jan 2018

Remedies And The Government's Constitutionally Harmful Speech, Helen Norton

Articles

Although governments have engaged in expression from their inception, only recently have we begun to consider the ways in which the government’s speech sometimes threatens our constitutional rights. In my contribution to this symposium, I seek to show that although the search for constitutional remedies for the government’s harmful expression is challenging, it is far from futile. This search is also increasingly important at a time when the government’s expressive powers continue to grow—along with its willingness to use these powers for disturbing purposes and with troubling consequences.

More specifically, in certain circumstances, injunctive relief, declaratory ...


Government Lies And The Press Clause, Helen Norton Jan 2018

Government Lies And The Press Clause, Helen Norton

Articles

This essay considers a particular universe of potentially dangerous governmental falsehoods: the government's lies and misrepresentations about and to the press.

Government's efforts to regulate private speakers' lies clearly implicate the First Amendment, as many (but not all) of our own lies are protected by the Free Speech Clause. But because the government does not have First Amendment rights of its own when it speaks, the constitutional limits, if any, on the government's own lies are considerably less clear.

In earlier work I have explored in some detail the Free Speech and Due Process Clauses as possible ...


Decisive Win For Lesbians In Oregon Cake Case, Arthur S. Leonard Jan 2018

Decisive Win For Lesbians In Oregon Cake Case, Arthur S. Leonard

Other Publications

No abstract provided.


Petitioning And The Making Of The Administrative State, Maggie Blackhawk Jan 2018

Petitioning And The Making Of The Administrative State, Maggie Blackhawk

Faculty Scholarship at Penn Law

The administrative state is suffering from a crisis of legitimacy. Many have questioned the legality of the myriad commissions, boards, and agencies through which much of our modern governance occurs. Scholars such as Jerry Mashaw, Theda Skocpol, and Michele Dauber, among others, have provided compelling institutional histories, illustrating that administrative lawmaking has roots in the early American republic. Others have attempted to assuage concerns through interpretive theory, arguing that the Administrative Procedure Act of 1946 implicitly amended our Constitution. Solutions offered thus far, however, have yet to provide a deeper understanding of the meaning and function of the administrative state ...


Robotic Speakers And Human Listeners, Helen Norton Jan 2018

Robotic Speakers And Human Listeners, Helen Norton

Articles

In their new book, Robotica, Ron Collins and David Skover assert that we protect speech not so much because of its value to speakers but instead because of its affirmative value to listeners. If we assume that the First Amendment is largely, if not entirely, about serving listeners’ interests—in other words, that it’s listeners all the way down—what would a listener-centered approach to robotic speech require? This short symposium essay briefly discusses the complicated and sometimes even dark side of robotic speech from a listener-centered perspective.


Citing Baker’S “Win,” Arizona Court Rejects Stationary Store’S Opt-Out Claim, Arthur S. Leonard Jan 2018

Citing Baker’S “Win,” Arizona Court Rejects Stationary Store’S Opt-Out Claim, Arthur S. Leonard

Other Publications

No abstract provided.


Of Course The First Amendment Protects Google And Facebook (And It’S Not A Close Question), Eric Goldman Jan 2018

Of Course The First Amendment Protects Google And Facebook (And It’S Not A Close Question), Eric Goldman

Faculty Publications

It has become trendy in some circles to strategize how to negate Constitutional protection for Internet giants like Google and Facebook so that they can be more heavily regulated. As part of the Knight First Amendment Institute’s Emerging Threats series, Heather Whitney published a paper in this genre, Search Engines, Social Media, and the Editorial Analogy, questioning whether Google and Facebook were properly analogized to newspapers for First Amendment purposes.

This short essay responds to Ms. Whitney's paper with two main points. First, the newspaper analogy isn't necessary to determine that Google and Facebook engage in speech ...


Categorizing Student Speech, Alexander Tsesis Jan 2018

Categorizing Student Speech, Alexander Tsesis

Faculty Publications & Other Works

No abstract provided.


Suing The President For First Amendment Violations, Sonja R. West Jan 2018

Suing The President For First Amendment Violations, Sonja R. West

Scholarly Works

On any given day, it seems, President Donald Trump can be found attacking, threatening, or punishing the press and other individuals whose speech he dislikes. His actions, moreover, inevitably raise the question: Do any of these individuals or organizations (or any future ones) have a viable claim against the President for violating their First Amendment rights?

One might think that the ability to sue the President for violation of the First Amendment would be relatively settled. The answer, however, is not quite that straightforward. Due to several unique qualities about the First Amendment and the presidency, it is not entirely ...