Law Commons^™

Social Media Accountability For Terrorist Propaganda, Alexander Tsesis

Faculty Publications & Other Works

Terrorist organizations have found social media websites to be invaluable for disseminating ideology, recruiting terrorists, and planning operations. National and international leaders have repeatedly pointed out the dangers terrorists pose to ordinary people and state institutions. In the United States, the federal Communications Decency Act's § 230 provides social networking websites with immunity against civil law suits. Litigants have therefore been unsuccessful in obtaining redress against internet companies who host or disseminate third-party terrorist content. This Article demonstrates that § 230 does not bar private parties from recovery if they can prove that a social media company had received complaints …

Regulating Off-Label Promotion — A Critical Test, Christopher Robertson, Aaron S. Kesselheim

Faculty Scholarship

In 2012, the U.S. Court of Appeals for the Second Circuit handed down a landmark decision in the case of pharmaceutical sales representative Alfred Caronia. The Food and Drug Administration (FDA) had approved sodium oxybate (Xyrem) for treating narcolepsy, but Caronia promoted it for a wide range of nonapproved (off-label) indications, including insomnia, Parkinson’s disease, and fibromyalgia. Off-label use is common, especially in specialties such as oncology, in which it may even be considered the standard of care. However, surveys have revealed that supporting evidence is lacking for a majority of off-label uses of medical products.1 The uses Caronia …

Process Without Procedure: National Security Letters And First Amendment Rights, Hannah Bloch-Wehba

Faculty Scholarship

Each year, the FBI uses tens of thousands of NSLs to obtain “transactional records” related to telephone calls, emails, text messages, online forums, and other communicative activity. NSLs are usually accompanied by nondisclosure orders that prevent recipients from speaking about or acknowledging the requests. Although over 100,000 NSLs have been issued since 2001, there have been fewer than 10 known judicial challenges.

I argue that the absence of procedural safeguards within the NSL authority has created a de facto regime of automatic compliance with the requests, endangering First Amendment rights in the process. NSLs are explicitly directed at uncovering the …

Testimony Before The House Committee On Science, Space And Technology, Charles Tiefer

All Faculty Scholarship

Thank you for the opportunity to testify today. I served in the House General Counsel’s office in 1984-1995, becoming General Counsel (Acting). (Since 1995, I have been Professor at the University of Baltimore School of Law,)

So, I have lengthy fulltime experience, including extensive work on Congressional subpoenas. My work takes in whether the House, or this Committee, may justifiably try to enforce subpoenas against state Attorneys General (the answer being: no). I have had more years of experience than almost anyone else in House history focused on this area. While the other professors on this panel have done various …

Newsroom: Good Reason For Secrecy On 38 Studios 8/12/2016, Niki Kuckes, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

The Deregulatory First Amendment At Work, Charlotte Garden

Faculty Articles

It has been more than seventy years since Justice Hugo Black wrote that First Amendment rights were “essential to the poorly financed causes of little people.” Since then, the well-financed causes of the powerful have discovered the First Amendment as well, deploying it to crowd out the little people in electoral politics and undo their legislative successes in the courts. The seeds for this project were planted in the 1970s — the decade in which Justice Lewis Powell joined the Court, and in which the Court decided both Buckley v. Valeo and Virginia State Board of Pharmacy v. Virginia Citizens …

Sex, Videos, And Insurance: How Gawker Could Have Avoided Financial Responsibility For The $140 Million Hulk Hogan Sex Tape Verdict, Christopher French

Journal Articles

On March 18, 2016, and March 22, 2016, a jury awarded Terry Bollea (a.k.a Hulk Hogan) a total of $140 million in compensatory and punitive damages against Gawker Media for posting less than two minutes of a video of Hulk Hogan having sex with his best friend’s wife. The award was based upon a finding that Gawker intentionally had invaded Hulk Hogan’s privacy by posting the video online. The case has been receiving extensive media coverage because it is a tawdry tale involving a celebrity, betrayal, adultery, sex, and the First Amendment. The case likely will be remembered by most …

Gutting Public Sector Unions: Friedrichs V. California Teachers Association, Jake Wasserman

Duke Journal of Constitutional Law & Public Policy Sidebar

In Friedrichs v. California Teachers Association, public-sector unions face a constitutional challenge that could lead to their demise. In California, all public school employees are represented by a union--whether or not they are union members--and are required to pay an agency fee. This requirement seems to run contrary to the First Amendment, which generally prohibits the government from compelling citizens to support the speech and expressive activities of a private organization. This commentary argues that the Court should not overrule its decision in Abood v. Detroit Board of Education and uphold the validity of agency-shop agreements.

Constitutional Personhood, Zoe Robinson

College of Law Faculty

Over the past decade, in a variety of high-profile cases, the Supreme Court has grappled with difficult questions as to the constitutional personhood of a variety of claimants. Of most note are the recent corporate constitutional personhood claims that the protections of the First Amendment Speech and Religion Clauses extend to corporate entities. Corporate constitutional personhood, however, is only a small slice of a broader constitutional question about who or what is entitled to claim the protection of any given constitutional right. Beyond corporations, courts are being asked to answer very real questions about a person’s constitutional status: Do aliens …

Newsroom: Goldstein On Fossil Fuel Fraud Liability 04-12-2016, Edward Fitzpatrick, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Brief Of The Catholic University Of America School Of Canon Law, The Lutheran Church-Missouri Synod, The Queens Federation Of Churches, And The Serbian Orthodox Church In North And South America, As Amici Curiae In Support Of Petitioners, Richard W. Garnett, David H. Hyams

Court Briefs

This brief addresses the importance of the principle of church autonomy and the protections provided by the First and Fourteenth Amendments and this Court's precedents regarding religious denominations' internal mandatory dispute-resolution procedures.

Privacy Petitions And Institutional Legitimacy, Lauren Henry Scholz

Scholarly Publications

This Article argues that a petitions process for privacy concerns arising from new technologies would substantially aid in gauging privacy social norms and legitimating regulation of new technologies. An accessible, transparent petitions process would empower individuals who have privacy concerns by making their proposals for change more visible. Moreover, data accumulated from such a petitions process would provide the requisite information to enable institutions to incorporate social norms into privacy policy development. Hearing and responding to privacy petitions would build trust with the public regarding the role of government and large companies in shaping the modern privacy technical infrastructure. This …

'Fire Away': I Have No Right To Not Be Insulted, David R. Barnhizer

Law Faculty Articles and Essays

Universities are the institutions responsible for advancing our freedom of thought and discourse through the work of independent scholars and the teaching of each generation of students. But for several decades, universities and other educational institutions have increasingly set up rules aimed at protecting individuals and groups from criticism that those individuals and groups consider insensitive, offensive, harassing, intolerant and disrespectful, critical of their core belief systems or threats to their agendas. Even though it has been claimed that disadvantaged interest groups have a right to use one-sided tactics of intolerance against those they consider to be responsible for their …

Sinclair's Nightmare: Slapp-Ing Down Ag-Gag Legislation As Content-Based Restrictions Chilling Protected Free Speech, Jeffrey Vizcaino

Student Works

Over a century after its publication, Upton Sinclair’s 1906 novel, The Jungle, remains one of the most impactful pieces of investigative literature ever published. During 1904, in an effort to expose the heinous working conditions of Chicago’s meat packing industry, Sinclair went under disguise as a factory worker for seven weeks. While Sinclair’s purpose for The Jungle was to propel federal reform against inhumane work conditions, it was the first-hand depiction of the callous slaughtering and unsanitary processing of meat products which led to national uproar. Gaining the attention of national political leaders, including President Theodore Roosevelt, The Jungle …

Expanding The Schoolhouse Gate: Public Schools (K-12) And The Regulation Of Cyberbullying, Philip Lee

Journal Articles

Cyberbullying has received increasing societal attention in the aftermath of the tragic suicides of some of its youngest and most vulnerable victims — 15-year-old Phoebe Prince from Massachusetts, 13-year-old Ryan Halligan from Vermont, 12-year-old Sarah Lynn Butler from Arkansas, 15-year-old Grace McComas from Maryland, and 12-year-old Rebecca Ann Sedwick from Florida.

In this Article, I hope to provide states and their schools better guidance on how to effectively regulate cyberbullying that originates off campus. Specifically, I aim to make four unique contributions to the conversation.

First and foremost, I argue that cyberbullying is so harmful in and of itself that …

Liberal, Conservative, And Political: The Supreme Court's Impact On The American Family In The Uber-Partisan Era, Marsha B. Freeman

Faculty Scholarship

No abstract provided.

Informed Consent As Compelled Professional Speech: Fictions, Facts, And Open Questions, Nadia N. Sawicki

Faculty Publications & Other Works

No abstract provided.

Balancing Free Speech, Alexander Tsesis

Faculty Publications & Other Works

This article develops a theory for balancing free speech against other express and implied constitutional, statutory, and doctrinal values. It posits that free speech considerations should be connected to the underlying purpose of constitutional governance. When deciding difficult cases involving competing rights, judges should examine (1) whether unencumbered expression is likely to cause constitutional, statutory, or common law harms; (2) whether the restricted expression has been historically or traditionally protected; (3) whether a government policy designed to benefit the general welfare weighs in favor of the regulation; (4) the fit between the disputed speech regulation and the public end; and …

Multifactoral Free Speech, Alexander Tsesis

Faculty Publications & Other Works

This Article presents a multifactoral approach to free speech analysis. Difficult cases present a variety of challenges that require judges to weigh concerns for the protection of robust dialogue, especially about public issues, against concerns that sound in common law (such as reputation), statutory law (such as repose against harassment), and in constitutional law (such as copyright). Even when speech is implicated, the Court should aim to resolve other relevant individual and social issues arising from litigation. Focusing only on free speech categories is likely to discount substantial, and sometimes compelling, social concerns warranting reflection, analysis, and application. Examining the …

First Amendment Right To Receive Information And Ideas Justifies Citizens' Videotaping Of The Police, David L. Hudson Jr.

Law Faculty Scholarship

Several courts have declared that members of the public have a First Amendment-protected right to film or videotape the police. At least one legal commentator has posited that this right falls within three of the five textually-based freedoms of the First Amendment - the Speech, Press, and Petition Clauses. This right to receive information and ideas is a "corollary" of the right to speak that triggers the First Amendment interests of not only speakers, but also audiences. This right to receive information and ideas applies in the context of citizens recording the police. The public has a right to know …

Speech-Facilitating Conduct, Jud Campbell

Law Faculty Publications

Free speech doctrine generally protects only expression, leaving regulations of nonexpressive conduct beyond the First Amendment’s scope. Yet the Supreme Court has recognized that abridgments of the freedom of speech “may operate at different points in the speech process.” This notion of protection for nonexpressive conduct that facilitates speech touches on many of the most contentious issues in First Amendment law— restrictions on photography and audiovisual recording, limits on campaign contributions, putative newsgathering privileges for journalists, compelled subsidization of speech, and associational rights, to name just a few. Scholars, however, have generally approached these topics in isolation, typically focusing on …

The Media Exemption Puzzle Of Campaign Finance Laws, Sonja R. West

Scholarly Works

In the 2010 case of Citizens United v. Federal Election Commission, the United States Supreme Court solidified the media exemption dilemma in campaign finance law. When attempting to address concerns about corporate campaign expenditures (i.e., corporate political speech), legislatures are now stuck between a rock and a hard place. Regulate media corporations, and they violate press freedoms. Exempt media corporations from the regulations, however, and they are accused of speaker discrimination.

Thus the question of how to treat the press in campaign finance law can no longer be ignored. Can legislatures, without running afoul of the First Amendment, ever regulate …

Holmes And Brennan, Howard Wasserman

Faculty Publications

This article jointly examines two legal biographies of two landmark First Amendment decisions and the justices who produced them. In The Great Dissent (Henry Holt and Co. 2013), Thomas Healy explores Oliver Wendell Holmes’s dissent in Abrams v. United States (1919), which arguably laid the cornerstone for modern American free speech jurisprudence. In The Progeny (ABA 2014), Stephen Wermiel and Lee Levine explore William J. Brennan’s majority opinion in New York Times v. Sullivan (1964) and the development and evolution of its progeny over Brennan’s remaining twenty-five years on the Court. The article then explores three ideas: 1) the connections …

Thugs, Crooks, And Rebellious Negroes: Racist And Racialized Media Coverage Of Michael Brown And The Ferguson Demonstrations, Bryan Adamson

Faculty Articles

The article explores how the media constructs news, and offers extensive history on the adverse narrative media tropes about Black men since colonial newspapers. Through qualitative and quantitative analysis of news narratives and images, this article demonstrates how Ferguson accounts emphasized Brown’s deviance and chaos and disorder. After offering comparative analysis of White criminality and protest news narratives, the article presses upon the social effects of racist and racialized media narratives. The article examines the controversy through First Amendment free speech, hate crimes, and true threat principles as well as FCC regulation of broadcasting, and media ownership. While explicating the …

In The Shadows Of Sunlight: The Effects Of Transparency On State Political Campaigns, Abby K. Wood, Douglas M. Spencer

Publications

In recent years, the courts have invalidated a variety of campaign finance laws while simultaneously upholding disclosure requirements. Courts view disclosure as a less-restrictive means to root out corruption while critics claim that disclosure chills speech and deters political participation. Using individual-level contribution data from state elections between 2000 and 2008, we find that the speech-chilling effects of disclosure are negligible. On average, less than one donor per candidate is likely to stop contributing when the public visibility of campaign contributions increases. Moreover, we do not observe heterogeneous effects for small donors or ideological outliers despite an assumption in First …

Conspiracy As Contract, Laurent Sacharoff

Sturm College of Law: Faculty Scholarship

This article considers the central concept of criminal conspiracy — the agreement. It shows how both courts and scholars have almost entirely failed to define it. Even more surprisingly, neither discusses how “agreement” in criminal conspiracy compares with the agreement in contract law. Instead, courts have diluted the agreement requirement by substituting “mutual understanding” or “slight connection,” leading to uncertainty, unfairness, and a profusion of conspiracy convictions for mere presence or association.

This article argues courts should define agreement, and do so as an exchange of promises between the conspirators to commit a crime. An exchange of promises meets the …

Persistent Threats To Commercial Speech, Jonathan Adler

Faculty Publications

The current Supreme Court is very protective of speech, including commercial speech. Threats to commercial speech persist nonetheless. This paper, prepared for a symposium at Brooklyn Law School, examines two: 1) the use of commercial speech restrictions as a form of rent-seeking; 2) compelled commercial speech. Regulation of commercial speech protect is sometimes used to protect established corporate interests from competitors who are less able to bear the costs of regulation, with consequences that extend beyond the economic marketplace. In the case of commercial speech, courts have been unduly deferential to claims of a consumer “right to know” as a …

Re-Ordering The First Amendment, Melissa Hart

Publications

No abstract provided.

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

Publications

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 …

The Court And The Cannonball: An Inside Look, Stephen Wermiel, Lee Levine

Articles in Law Reviews & Other Academic Journals

As lawsuits over the right of publicity proliferate among athletes and other celebrities, there is renewed interest, by litigants and judges alike, in the one decision by the U.S. Supreme Court that addresses a tort action arising from a "publicity" related claim, Zacchini v. Scripps-Howard Broadcasting Co. Although the 1977 ruling is often cited as holding that the right of publicity tort survives constitutional scrutiny under the First Amendment, an examination of the case and of the Supreme Court justices' available papers shows that the Court did not view the case as presenting the type of claim that has become …