Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- First Amendment (21)
- Constitutional Law (12)
- Education Law (3)
- Civil Rights and Discrimination (2)
- Computer Law (2)
-
- Immigration Law (2)
- Intellectual Property Law (2)
- Internet Law (2)
- Land Use Law (2)
- Torts (2)
- Antitrust and Trade Regulation (1)
- Communications Law (1)
- Conflict of Laws (1)
- Consumer Protection Law (1)
- Criminal Law (1)
- Election Law (1)
- Food and Drug Law (1)
- Health Law and Policy (1)
- International Law (1)
- Labor and Employment Law (1)
- Law and Gender (1)
- Law and Society (1)
- Legal Ethics and Professional Responsibility (1)
- Legal Remedies (1)
- President/Executive Department (1)
- Science and Technology Law (1)
- Sexuality and the Law (1)
- Institution
Articles 1 - 28 of 28
Full-Text Articles in Law
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 …
Restoring Student Press Freedoms: Why Every State Needs A 'New Voices' Law, Clare R. Norins, Taran Harmon-Walker, Navroz Tharani
Restoring Student Press Freedoms: Why Every State Needs A 'New Voices' Law, Clare R. Norins, Taran Harmon-Walker, Navroz Tharani
Scholarly Works
Scholastic journalists across America have long provided vital reporting, commentary, and fresh perspective on issues of public concern to their readers. Never has this been more true than in the current age of dwindling print media, where scholastic journalists at both the high school and post-secondary levels are stepping in to populate what would otherwise be news deserts. Yet the Supreme Court’s decision in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), allows school officials to censor both the content and style of school-sponsored media without offending the First Amendment. This essay traces the history of student speech rights …
Speech, Innovation, And Competition, Greg Day
Speech, Innovation, And Competition, Greg Day
Scholarly Works
Critics contend that concentrated power in digital markets has generated threats to free speech. For a variety of reasons, market power is naturally thought to concentrate in digital markets. The consequence is that “big tech” is said to face little competition; Facebook controls 72 percent of the social media market while the parent of YouTube (72 percent of the video market) is Google (92 percent of the search market). This landscape has potentially vested private companies with unprecedented power over the flow of information. If Facebook, for example, decides to ban certain types of speech or ideas, it would potentially …
The Modern Fight For Media Freedom In The United States, Jonathan Peters
The Modern Fight For Media Freedom In The United States, Jonathan Peters
Scholarly Works
The First Amendment as a subject is challenging and provocative, and scholarly and popular understandings of it are changing. New communication technologies are pushing lawyers, judges, and scholars to revisit, and sometimes rethink, old legal doctrines and concepts. In the area of privacy, we have to think today about encryption and a website's terms of service. In the area of copyright, we have to think about peer-to-peer file sharing and the licenses granted by iTunes. In the area of sexual expression, we have to think about sexting, revenge porn, and deep fakes.'
This is the emerging state of play for …
Brief Of Amici Curiae Legal Scholars In Support Of Equality In Support Of Respondents, Fulton V. City Of Philadelphia, Michael J. Higdon
Brief Of Amici Curiae Legal Scholars In Support Of Equality In Support Of Respondents, Fulton V. City Of Philadelphia, Michael J. Higdon
Scholarly Works
No abstract provided.
Monopolizing Free Speech, Greg Day
Monopolizing Free Speech, Greg Day
Scholarly Works
The First Amendment prevents the government from suppressing speech, though individuals can ban, chill, or abridge free expression without offending the Constitution. Hardly an unintended consequence, Justice Oliver Wendell Holmes famously likened free speech to a marketplace where the responsibility of rejecting dangerous, repugnant, or worthless speech lies with the people. This is supposed to maximize social welfare since the market is believed to promote good ideas and condemn bad ones better than the state. Nevertheless, anxiety is mounting that large technology corporations exercise unreasonable power in the marketplace of ideas.
Because the ability of “big tech” to abridge speech …
'Water Is Life!' (And Speech!): Death, Dissent, And Democracy In The Borderlands, Jason A. Cade
'Water Is Life!' (And Speech!): Death, Dissent, And Democracy In The Borderlands, Jason A. Cade
Scholarly Works
Decades of stringent immigration enforcement along the Southwest border have pushed migrants into perilous desert corridors. Thousands have died in border regions, out of the general public view, yet migrants continue to attempt the dangerous crossings. In response to what they see as a growing humanitarian crisis, activists from organizations such as No More Deaths seek to expand migrant access to water, to honor the human remains of those who did not survive the journey, and to influence public opinion about border enforcement policies. Government officials, however, have employed a range of tactics to repress this border-policy “dissent,” including blacklists, …
All The Border's A Stage: Humanitarian Aid As Expressive Dissent, Jason A. Cade
All The Border's A Stage: Humanitarian Aid As Expressive Dissent, Jason A. Cade
Scholarly Works
Immigration enforcement along the Southwest border between the United States and Mexico has long channeled immigrants into perilous desert corridors, where many thousands have dies, out of the public view. In response to this humanitarian crisis, activists from organizations such as No More Deaths (NMD) trek deep into the treacherous desert, hoping to save lives, honor the remains of those who did not survive, and influence public opinion about border enforcement policies. NMD's activism is not merely utilitarian but also deeply expressive; ultimately, they hope to convey the message that all lives -- including those of unauthorized migrants-- are worth …
Facebook V. Sullivan: Public Figures And Newsworthiness In Online Speech, Thomas E. Kadri, Kate Klonick
Facebook V. Sullivan: Public Figures And Newsworthiness In Online Speech, Thomas E. Kadri, Kate Klonick
Scholarly Works
In the United States, there are now two systems to adjudicate disputes about harmful speech. The first is older and more established: the legal system in which judges apply constitutional law to limit tort claims alleging injuries caused by speech. The second is newer and less familiar: the content-moderation system in which platforms like Facebook implement the rules that govern online speech. These platforms are not bound by the First Amendment. But, as it turns out, they rely on many of the tools used by courts to resolve tensions between regulating harmful speech and preserving free expression—particularly the entangled concepts …
Drawing Trump Naked: Curbing The Right Of Publicity To Protect Public Discourse, Thomas E. Kadri
Drawing Trump Naked: Curbing The Right Of Publicity To Protect Public Discourse, Thomas E. Kadri
Scholarly Works
From Donald Trump to Lindsay Lohan to Manuel Noriega, real people who are portrayed in expressive works are increasingly targeting creators of those works for allegedly violating their “right of publicity”—a state-law tort, grounded in privacy concerns, that prohibits the unauthorized use of a person’s name, likeness, and other identifying characteristics. This Article provides a new framework to reconcile publicity rights with a robust commitment to free speech under the First Amendment. After describing the current landscape in the courts, this Article scrutinizes the “educative” First Amendment theory that has motivated many of the past decisions confronting the right of …
Favoring The Press, Sonja R. West
Favoring The Press, Sonja R. West
Scholarly Works
In the 2010 case of Citizens United v. Federal Election Commission, the United States Supreme Court caught the nation’s attention by declaring that corporations have a First Amendment right to independently spend unlimited amounts of money in political campaigns. The Court rested its 5-4 decision in large part on a concept of speaker-based discrimination. In the Court’s words, “the Government may commit a constitutional wrong when by law it identifies certain preferred speakers.”
To drive home its point that speaker-based distinctions are inherently problematic, the Court focused on one type of speaker distinction — the treatment of news media corporations. …
Suing The President For First Amendment Violations, Sonja R. West
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 …
The “Sovereigns Of Cyberspace” And State Action: The First Amendment’S Application (Or Lack Thereof) To Third-Party Platforms, Jonathan Peters
The “Sovereigns Of Cyberspace” And State Action: The First Amendment’S Application (Or Lack Thereof) To Third-Party Platforms, Jonathan Peters
Scholarly Works
Many scholars have commented that the state action doctrine forecloses use of the First Amendment to constrain the policies and practices of online service providers. But few have comprehensively studied this issue, and the seminal article exploring “[c]yberspace and the [s]tate [a]ction [d]ebate” is fifteen years old, published before the U.S. Supreme Court reformulated the federal approach to state action. It is important to give the state action doctrine regular scholarly attention, not least because it is increasingly clear that “the private sector has a shared responsibility to help safeguard free expression.” It is critical to understand whether the First …
Politics At Work After Citizens United, Ruben J. Garcia
Politics At Work After Citizens United, Ruben J. Garcia
Scholarly Works
There are seismic changes going on in the political system. The United States Supreme Court has constitutionalized the concentration of political power in the "one percent" in several recent decisions, including Citizens United v. FEC. At the same time, unions are representing a shrinking share of the workforce, and their political power is also being diminished. In order for unions to recalibrate the balance of political power at all, they must collaborate with grassroots community groups, as they have done in several recent campaigns. There are, however, various legal structures that make coordination between unions and nonunion groups difficult, …
Off-Label Drug Marketing, The First Amendment, And Federalism, David Orentlicher
Off-Label Drug Marketing, The First Amendment, And Federalism, David Orentlicher
Scholarly Works
In this article, Professor Orentlicher explores free speech and federalism issues arising from FDA regulation of off-label uses and off-label marketing of drugs. In light of the FDA's desire to respect state government authority, together with other considerations discussed in this article, he argues for the rejection of the analysis of the Caronia court and to give the FDA significant leeway in its regulation of off-label marketing.
Land Use Law Update: Will Reed V. Town Of Gilbert Require Municipalities Throughout The Country To Rewrite Their Sign Codes?, Sarah Adams-Schoen
Land Use Law Update: Will Reed V. Town Of Gilbert Require Municipalities Throughout The Country To Rewrite Their Sign Codes?, Sarah Adams-Schoen
Scholarly Works
The author discusses the imminent Supreme Court decision in Reed v. Town of Gilbert. Depending on how the Court decides the case, municipalities may need to act quickly to amend their sign regulations.
Student Press Exceptionalism, Sonja R. West
Student Press Exceptionalism, Sonja R. West
Scholarly Works
Constitutional protection for student speakers is an issue that has been hotly contested for almost 50 years. Several commentators have made powerful arguments that theCourt has failed to sufficiently protect the First Amendment rights of all students. But this debate has overlooked an even more troubling reality about the current state ofexpressive protection for student — the especially harmful effect of the Court’s precedents on student journalists. Under the Court’s jurisprudence, schools may regulate with far greater breadth and ease the speech of student journalists than of their non-press classmates. Schools are essentially free to censor the student press even …
The Future Of Cybertravel: Legal Implications Of The Evasion Of Geolocation, Marketa Trimble
The Future Of Cybertravel: Legal Implications Of The Evasion Of Geolocation, Marketa Trimble
Scholarly Works
Although the Internet is valued by many of its supporters particularly because it both defies and defeats physical borders, these important attributes are now being exposed to attempts by both governments and private entities to impose territorial limits through blocking or permitting access to content by Internet users based on their geographical location—a territorial partitioning of the Internet. One of these attempts, for example, is the recent Stop Online Piracy Act (“SOPA”) proposal in the United States. This article, as opposed to earlier literature on the topic discussing the possible virtues and methods of erecting borders in cyberspace, focuses on …
Sanctionable Conduct: How The Supreme Court Stealthily Opened The Schoolhouse Gate, Sonja R. West
Sanctionable Conduct: How The Supreme Court Stealthily Opened The Schoolhouse Gate, Sonja R. West
Scholarly Works
The Supreme Court's decision in Morse v. Frederick signaled that public school authority over student expression extends beyond the schoolhouse gate. This authority may extend to any activity in which a student participates that the school has officially sanctioned. The author argues that this decision is unsupported by precedent, and could encourage schools to sanction more events in the future. Because the Court failed to limit or define the power of a school to sanction an activity, the decision could have a chilling effect on even protected student expression. The author commends the Court for taking up this issue after …
Book Review, Walking A Gantlet: Nielsen’S License To Harass, Lynne Henderson
Book Review, Walking A Gantlet: Nielsen’S License To Harass, Lynne Henderson
Scholarly Works
No abstract provided.
If The Shoe Fits: Kasky V. Nike And Whether Corporate Statements About Business Operations Should Be Deemed Commercial Speech, Jason A. Cade
If The Shoe Fits: Kasky V. Nike And Whether Corporate Statements About Business Operations Should Be Deemed Commercial Speech, Jason A. Cade
Scholarly Works
This Note argues that the Kasky court was correct to recognize that today's commercial speech encompasses communications beyond traditional advertisements about products or services. Corporations are aware that a sizeable number of consumers rely on their statements about their business operations when making investment and purchasing decisions. In order to ensure the accuracy of these statements, and thereby protect the integrity of the market, this speech is properly considered commercial speech.
First Amendment Protects Crude Protest Of Police Action, Martin A. Schwartz
First Amendment Protects Crude Protest Of Police Action, Martin A. Schwartz
Scholarly Works
No abstract provided.
The Supreme Court Rules In Favor Of Religious Club’S Right To Meet On Public School Premises: Is This “Good News” For First Amendment Rights?, Thomas A. Schweitzer
The Supreme Court Rules In Favor Of Religious Club’S Right To Meet On Public School Premises: Is This “Good News” For First Amendment Rights?, Thomas A. Schweitzer
Scholarly Works
No abstract provided.
Who Shall We Admit To Our Club?, Lawrence Raful
Marketing Goods, Marketing Images: The Impact Of Advertising On Race, Deseriee A. Kennedy
Marketing Goods, Marketing Images: The Impact Of Advertising On Race, Deseriee A. Kennedy
Scholarly Works
No abstract provided.
New York City Zones Out Free Expression, Martin A. Schwartz
New York City Zones Out Free Expression, Martin A. Schwartz
Scholarly Works
No abstract provided.
Copyright And Free Speech Rights, L. Ray Patterson, Stanley F. Birch, Jr.
Copyright And Free Speech Rights, L. Ray Patterson, Stanley F. Birch, Jr.
Scholarly Works
By letter of 1 March 1993, the Copyright Compliance Office of the Association of American Publishers (AAP) informed a copyshop that it had “without prior permission, made multiple copies of excerpts of copyrighted works for distribution to students in course anthologies.” Stating that this copying was an infringement of copyright, the letter requested the copyshop to sign an enclosed agreement stating it would not commit such acts again and to pay a penalty of “$2,500 to help defray the costs of the AAP's copyright enforcement program in this matter and to impress on your business the need to operate in …
Habeas Corpus And Freedom Of Speech, Michael L. Wells
Habeas Corpus And Freedom Of Speech, Michael L. Wells
Scholarly Works
Discussion concerning the proper scope of federal habeas corpus for state prisoners usually focuses upon the use of the writ as a federal remedy for procedural errors of constitutional magnitude in state criminal trials. Proponents of “liberal” habeas argue that only federal courts can adequately protect the federal procedural rights of state criminal defendants, while critics contend that the states' interest in administering their criminal laws free from federal interference overshadows the asserted benefits. Setting the proper scope of the writ requires a weighing of these competing values.
The focus on procedure is appropriate, because the vast majority of habeas …