Law Commons^™

The Nfl Player, The Schoolchild, And The Entertainer: When The Term "Free Speech" Is Too Freely Spoken, Exactly "Who's On First?", Christian Ketter

Cleveland State Law Review

As America’s media and politicians continue to debate the free speech rights of NFL players, schoolchildren, and entertainers, the dialogue has confused many Americans as to what exactly the First Amendment protects. Chief Justice John G. Roberts ultimately assumes the role of an umpire in many of these issues, guiding the United States Supreme Court to incrementally “call balls and strikes.” In recent years, the Court has umpired employment rights and state action cases, and Roberts’s calls will likely further distance the Court that decided Morse v. Frederick from the one that decided Tinker v. Des Moines. Amid a …

Masterpiece Cakeshop'S Homiletics, Marc Spindelman

Cleveland State Law Review

Viewed closely and comprehensively, Masterpiece Cakeshop, far from simply being the narrow, shallow, and modest decision many have taken it to be, is a rich, multi-faceted decision that cleaves and binds the parties to the case, carefully managing conflictual crisis. Through a ruling for a faithful custom-wedding-cake baker against a state whose legal processes are held to have been marred by anti-religious bias, the Court unfolds a cross-cutting array of constitutional wins and losses for cultural conservatives and traditional moralists, on the one hand, and for lesbians and gay men and their supporters committed to civil and equal rights, …

In God We Trust (Unless We Change Our Mind): How State Of Mind Relates To Religious Arbitration, Skylar Reese Croy

Pepperdine Dispute Resolution Law Journal

Arguably, binding religious arbitration agreements are constitutionally problematic because they hinder freedom of religion: They inhibit parties’ ability to change their beliefs. However, religious arbitration agreements also offer an outlet for the religiously inclined to further practice their beliefs. This Article offers a middle ground: If a party to a religious arbitration agreement changes religion, he or she can claim a “conscientious objector” status if he or she can prove the agreement violates his or her sincerely held religious beliefs. Courts are allowed to inquire into the sincerity of a person’s religious beliefs. The religious question doctrine — which restricts …

First Amendment “Harms”, Stephanie H. Barclay

Indiana Law Journal

What role should harm to third parties play in the government’s ability to protect religious rights? The intuitively appealing “harm” principle has animated new theories advanced by scholars who argue that religious exemptions are indefensible whenever they result in cognizable harm to third parties. This third-party harm theory is gaining traction in some circles, particularly in light of the Supreme Court’s pending cases in Little Sisters of the Poor and Fulton v. City of Philadelphia. While focusing on harm appears at first to provide an appealing, simple, and neutral principle for avoiding other difficult moral questions, the definition of harm …

Losing Liberty: A Biblical Defense For The Freedom Of Speech On Campus, Joseph J. Martins

Faculty Publications and Presentations

In the following scenario, two student groups face a philosophical dilemma at a major state university. The Young Democratic Socialists of America (YDSA) has invited Representative Alexandria Ocasio-Cortez to campus to lecture on the advantages of adopting socialism as America’s central financial policy. However, for the following week, Young America’s Foundation (YAF) has invited Donald Trump, Jr. to discuss how capitalism has made America a great nation. YDSA and YAF vigorously oppose the views that will be presented by the other organization’s speaker. YDSA believes that capitalism leads to gross income inequality and consolidation of power in the top 1%,2 …

Freedom Of The Press In Post-Truthism America, Ronnell Anderson Jones, Lisa Grow Sun

Utah Law Faculty Scholarship

Freedom of the press in America is at a critical crossroads in a number of ways, but one stands out as most fundamental: the stark impact of the current debate over “Post-Truthism.” Press freedom jurisprudence has long been structured around the concept of an audience member’s search for truth in a marketplace of ideas. But social science research increasingly suggests that individual information consumers are in fact often driven by emotion, affirmation of political identity, and the need for cognitive shortcuts, and that they may not possess the truth-seeking, rational processing, or information-updating capabilities that the Court assumes. Whether this …

Kansas V. Boettger: On Petition For A Writ Of Certiorari To The Supreme Court Of The State Of Kansas, Paul Cassell, John Ehrett, Allyson N. Ho, Bradley Hubbard, Matthew Scorcio, Philip Axt, Thomas Molloy

Utah Law Faculty Scholarship

This amicus brief in support of Kansas’ petition for certiorari in Kansas v. Boettger discusses the important issue of whether the First Amendment require proof of specific intent to criminally punish violent threats. The brief argues that the First Amendment does not contain any such requirement and that creating any such requirement would interfere with effective prosecution of domestic violence.

The Kansas Supreme Court’s decision over which review is being sought required the state to prove that an abuser had a specific intent to cause fear. If allowed to stand, the decision will make prosecuting and preventing domestic violence even …

Tailoring Election Regulation: The Platform Is The Frame, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

According to conventional wisdom, legislative efforts to limit platform-based electoral manipulation—including especially laws that go beyond simply mandating additional disclosure about advertising expenditures—are most likely doomed to swift judicial invalidation. In this Essay, I bracket questions about baseline First Amendment coverage and focus on the prediction of inevitable fatality following strict scrutiny. Legislation aimed at electoral manipulation rightly confronts serious concerns about censorship and chilling effects, but the ways that both legislators and courts approach such legislation will also be powerfully influenced by framing choices that inform assessment of whether challenged legislation is responsive to claimed harms and appropriately tailored …

Government Speech Doctrine—Legislator-Led Prayer's Saving Grace, Daniel M. Vitagliano

St. John's Law Review

(Excerpt)

This Note argues that Lund was decided incorrectly in part because the Fourth Circuit failed to analyze the type of speech at issue before assessing the constitutionality of the prayer practice. This Note is composed of four parts. Part I surveys the Supreme Court’s legislative prayer jurisprudence—Marsh and Town of Greece. Part II outlines Lund and Bormuth, and the Fourth and Sixth Circuits’ dissimilar applications of the Supreme Court’s precedent. Part III argues that courts must first classify legislative prayers as either government or private speech before assessing whether a prayer practice violates the Establishment Clause. It further argues …

The Press, National Security, And Civil Discourse: How A Federal Shield Law Could Reaffirm Media Credibility In An Era Of “Fake News”, Jenna Johnson

Texas A&M Law Review

The Constitution expressly provides protection for the freedom of the press. Yet there is one area in which the press is not so free: the freedom to refuse disclosing confidential sources when subpoenaed by the federal government. Currently, there is no federal reporter’s privilege. The Supreme Court has held the First Amendment provides no such protection, and repeated congressional attempts to codify a reporter’s privilege in a federal shield law have failed.

Arguments against a shield law include national security concerns and the struggle to precisely define “journalist.” Such concerns were evident in the most recently proposed shield law, the …

Testing The First Amendment Validity Of Laws Banning Sexual Orientation Change Efforts On Minors: What Level Of Scrutiny Applies After Becerra And Does A Proportionality Approach Provide A Solution?, Clay Calvert

Pepperdine Law Review

This Article examines the standard of scrutiny courts should apply when testing the validity of laws banning speech-based sexual orientation change efforts (SOCE) against First Amendment challenges. Justice Clarence Thomas’s 2018 opinion for a five-justice conservative majority of the United States Supreme Court in National Institute of Family and Life Advocates v. Becerra casts considerable doubt on whether a level of inquiry less stringent than strict scrutiny applies. The article analyzes how lower courts after Becerra that have reviewed anti-SOCE laws disagree on the issue. And yet, as the Article explains, the Supreme Court refuses to clarify the muddle. First, …

News As Surveillance, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

As inhabitants of the Information Age, we are increasingly aware of the amount and kind of data that technology platforms collect on us. Far less publicized, however, is how much data news organizations collect on us as we read the news online and how they allow third parties to collect that personal data as well. A handful of studies by computer scientists reveal that, as a group, news websites are among the Internet’s worst offenders when it comes to tracking their visitors.

On the one hand, this surveillance is unsurprising. It is capitalism at work. The press’s business model has …

Promoting Journalism As Method, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

The marketplace of ideas has been a centerpiece of free speech jurisprudence for a century. According to the marketplace theory, the vigorous competition of ideas, free from government interference, is the surest path to truth. As our metaphorical marketplace has moved online, the competition has never been so heated. We should be drowning in truth. Yet, in reality, truth has perhaps never been more elusive.

As we struggle to promote democratic debate and surface truth in our chaotic networked public sphere, we are understandably drawn to familiar frames and tools. These include the source of the marketplace of ideas theory—the …

State Of The Unions: The Impact Of Janus On Public University Student Fees, Jonathan Kaufman

Georgia Law Review

In Janus v. American Federation of State, County,
and Municipal Employees, Council 31, the U.S.
Supreme Court overruled forty-one years of precedent
that had allowed public-sector unions to collect
agency-shop fees from nonmembers. The Court ruled this
mandatory fee collection unconstitutional as a violation
of nonmember First Amendment rights. This decision
may pose problems for other public entities, such as
public universities, who also collect mandatory fees that
support political speech.

Free Speech And Off-Label Rights, Amy J. Sepinwall

Georgia Law Review

When a litigant invokes a constitutional right to
protect interests different from the ones underpinning
the right, he engages in what this Article calls an
off-label rights exercise. The Free Speech Clause has
recently become an especially prominent, and troubling,
site of off-label rights exercises. Two of the most
prominent cases in the Supreme Court’s last term
involved litigants who invoked their constitutional
rights to free speech to protect interests unrelated to
speech or expression. In Janus v. American Federation
of State, County, & Municipal Employees, a state
employee argued that forcing him to pay for the union’s
bargaining activities …

Section 230 Immunity: How The Trump Era Has Exposed The Current Conflict Between The First Amendment And The Good Samaritan Clause In The Modern Public Square, Brandon Salter, Dhillon Ramkhelawn

University of Arkansas at Little Rock Law Review

No abstract provided.

Reconsidering Thornton V. Caldor, Christopher C. Lund

Law Faculty Research Publications

No abstract provided.

Religious Accommodation, The Establishment Clause, And Third-Party Harm, Mark Storslee

Journal Articles

In the wake of Burwell v. Hobby Lobby, religious accommodation has become increasingly controversial. That controversy has given rise to a new legal theory gaining popularity among academics and possibly a few Supreme Court justices: the idea that the First Amendment's Establishment Clause condemns accommodations whenever they generate anything beyond a minimal cost for third parties.

The third-party thesis is appealing. But this Article argues that there are good reasons to believe it falls short as an interpretation of the Establishment Clause. In its place, the Article offers a new theory for understanding the relationship between costly accommodations and the …

Church Taxes And The Original Understanding Of The Establishment Clause, Mark Storslee

Journal Articles

Since the Supreme Court’s decision in Everson v. Board of Education, it has been widely assumed that the Establishment Clause forbids government from 'aiding' or subsidizing religious activity, especially religious schools. This Article suggests that this reading of the Establishment Clause rests on a misunderstanding of Founding-era history, especially the history surrounding to church taxes. Contrary to popular belief, the decisive argument against those taxes was not an unqualified assertion that subsidizing religion was prohibited. Rather, the crucial argument was that church taxes were a coerced religious observance: a government-mandated sacrifice to God, a tithe. Understanding that argument helps …

Speech Inequality After Janus V. Afscme, Charlotte Garden

Indiana Law Journal

This Article explores the growing divide between the Roberts Court’s treatment of the free speech rights of wealthy individuals and corporations in campaign finance cases as compared to its treatment of the rights of public-sector labor unions and their members. First, it highlights some internal contradictions in the Janus Court’s analysis. Then, it discusses the growing—yet mostly ignored—divergence in the Court’s treatment of corporate and labor speakers with respect to the use of market influence to achieve political influence.

The Article has two Parts. In Part I, I explain how the Court reached its decision in Janus before critiquing the …

Public Official, Figures, And Controversies In Minnesota Defamation Law, Michael K. Steenson

Faculty Scholarship

In Minnesota, the plaintiff in a common law defamation claim is entitled to recover presumed damages in libel and slander per se cases. Those rules change when the First Amendment is injected into defamation cases when the plaintiff is a public official or figure or is a private person involved in a public controversy. A plaintiff who is a public official or figure must prove not only the elements of the common law defamation claim, but also that the defamatory communication was a false statement of fact and prove by clear and convincing evidence that it was made with actual …

Some First Amendment Implications Of The Trademark Registration Decisions, Marc Rohr

Marquette Intellectual Property Law Review

No abstract provided.

Constitutional Law—The Erosion Of Political Anonymity And Its Chilling Effect On Freedom Of Association: Reconsidering The Constitutionality Of The Mandated Public Disclosure Of Individuals’ Political Donations, Scout Snowden

University of Arkansas at Little Rock Law Review

No abstract provided.

Gillis V. Miller, Anna Tichy

NYLS Law Review

No abstract provided.

Reconceptualizing Hybrid Rights, Dan T. Coenen

Scholarly Works

In landmark decisions on religious liberty and same-sex marriage, and many other cases as well, the Supreme Court has placed its imprimatur on so called “hybrid rights.” These rights spring from the interaction of two or more constitutional clauses, none of which alone suffices to give rise to the operative protection. Controversy surrounds hybrid rights in part because there exists no judicial account of their justifiability. To be sure, some scholarly treatments suggest that these rights emanate from the “structures” or “penumbras” of the Constitution. But critics respond that hybrid rights lack legitimacy for that very reason because structural and …

From The Legal Literature: Criminalizing Propaganda: J. Remy Green’S Argument To Digitize Brandenburg, Francesca Laguardia

Department of Justice Studies Faculty Scholarship and Creative Works

No abstract provided.

Selecting Scrutiny In Compelled-Speech Cases Involving Non-Commercial Expression: The Formulaic Landscape Of A Strict Scrutiny World After Becerra And Janus, And A First Amendment Interests-And-Values Alternative, Clay Calvert

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article examines how courts select the standard of scrutiny—strict, intermediate, or something akin to rational basis—in compelled-speech disputes following the United States Supreme Court’s 2018 rulings in National Institute of Family and Life Advocates v. Becerra and Janus v. American Federation of State, County, and Municipal Employees. The compelled-speech doctrine provides individuals and entities with a qualified First Amendment right not to be forced by the government to convey messages under certain circumstances. This principle sometimes is referred to as an unenumerated First Amendment right not to speak. The Article concentrates on compelled-speech mandates involving non-commercial expression in …

"Inciting A Riot": Silent Sentinels, Group Protests, And Prisoners' Petition And Associational Rights, Nicole B. Godfrey

Seattle University Law Review

This Article argues for increased legal protections for prisoners who choose to engage in group protest to shed light on the conditions of their incarceration. A companion piece to a similar article that focused on prisoner free speech rights, this Article uses the acts of protest utilized by the Silent Sentinels to examine why prisoners’ rights to petition and association should be strengthened. By strengthening these rights, the Article argues that we will advance the values enshrined by the First Amendment’s Petition Clause while simultaneously advancing the rights of the incarcerated millions with little to no political power.

The Article …

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

Maryland Law Review

No abstract provided.

The Pharma Perspective: The Double-Edged Sword Of Direct-To-Consumer Advertising, Ela H. Yalcin

Health Law Outlook

No abstract provided.