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Articles 1 - 30 of 81
Full-Text Articles in Law
On Traditionalism In Free Speech Law, R. George Wright
On Traditionalism In Free Speech Law, R. George Wright
Journal of Legislation
No abstract provided.
Advancing America’S Emblematic Right: Doctrinal Bases For The Fundamental Constitutional Right To Vote Per Se, Susan H. Bitensky
Advancing America’S Emblematic Right: Doctrinal Bases For The Fundamental Constitutional Right To Vote Per Se, Susan H. Bitensky
University of Miami Law Review
This Article identifies and examines the Supreme Court’s longstanding unintelligibility with respect to recognition of a fundamental right to vote per se under the Constitution. In a host of equal protection cases, the Court’s refusal to “say what the law is” in this regard has produced a chaotic jurisprudence on the status of the right. Because ours is a constitutional schema consisting of multiple types of rights to vote, the refusal manifests as judicial reliance on and acclamation of some unspecified right to vote. It is refusal by lack of clarity. The unsorted right has led some scholars to conclude …
Public School Teachers Who Refuse To Use Preferred Names And Pronouns: A Brief Exploration Of The First Amendment Limitations In K-12 Classrooms, Suzanne Eckes
ConLawNOW
This article focuses on whether a teacher has a First Amendment right under both the free speech and free exercise clauses of the U.S. Constitution when refusing to use a student’s preferred name or pronoun in a public school classroom. The article begins by briefly summarizing a recent case from Kansas and then examines prior precedent involving teachers’ classroom speech and teachers’ rights to freely exercise their religious rights in public schools. It then briefly highlights how these issues have been addressed in previous pronoun cases and concludes with a discussion of related constitutional issues.
Using Bruen To Overturn New York Times V. Sullivan, Michael L. Smith, Alexander S. Hiland
Using Bruen To Overturn New York Times V. Sullivan, Michael L. Smith, Alexander S. Hiland
Pepperdine Law Review
While New York Times Co. v. Sullivan is a foundational, well-regarded First Amendment case, Justice Clarence Thomas has repeatedly called on the Court to revisit it. Sullivan, Thomas claims, is policy masquerading as constitutional law, and it makes almost no effort to ground itself in the original meaning of the First and Fourteenth Amendments. Thomas argues that at the time of the founding, libelous statements were routinely subject to criminal prosecution—including libel of public figures and public officials. This Essay connects Justice Thomas’s calls to revisit Sullivan to his recent opinion for the Court in New York State Rifle & …
Indoctrination By Elimination: Why Banning Critical Race Theory In Public Schools Is Unconstitutional, Emma Postel
Indoctrination By Elimination: Why Banning Critical Race Theory In Public Schools Is Unconstitutional, Emma Postel
William & Mary Bill of Rights Journal
This Note argues that Texas public school students’ First Amendment Rights have been violated by the passage of Senate Bill 3 (SB 3), which bans the teaching of Critical Race Theory (CRT) in K–12 public schools. The First Amendment is violated here because (1) students have a First Amendment right to speech, and this law bans protected speech; (2) students have a right to receive information, and this ban prevents them from receiving information; and (3) schools are meant to be the marketplace of ideas for students and banning CRT amounts to unconstitutional viewpoint discrimination. This Note does not suggest …
Freedom To Morph? An Analysis Of Morphed Imagery, Child Pornography, And The First Amendment, Katie H. Jung
Freedom To Morph? An Analysis Of Morphed Imagery, Child Pornography, And The First Amendment, Katie H. Jung
Catholic University Journal of Law and Technology
This article examines the current law related to child pornography and how it leaves a gap for morphed imagery to flourish. The jurisprudence in this area is insufficient to keep up with the changing technology which allows children to be portrayed in morphed imagery and argues that this should not fall within First Amendment protection. The Supreme Court has made it clear that protecting children is an exceedingly important interest and that traditional child pornography falls outside of what was traditionally considered to be protected First Amendment speech. This article argues that the Circuit Split, should the Supreme Court take …
The Stubborn Survival Of The Central Hudson Test For Commercial Speech, Nat Stern
The Stubborn Survival Of The Central Hudson Test For Commercial Speech, Nat Stern
Seattle University Law Review
This Article examines the persistence of the Central Hudson standard in the face of multiple challenges as well as larger implications of its survival. Part I provides a brief overview of the Court’s commercial speech doctrine and the spectrum of criticism of Central Hudson for its allegedly excessive or inadequate protection of expression. Part II surveys a series of developments, especially in the last decade, that threaten to supersede Central Hudson’s “intermediate” standard of scrutiny for commercial speech restrictions. In response, Part III explains how none of these phenomena have resulted in the abandonment of the Central Hudson regime. …
Breathing Room For The Right Of Assembly, Tabatha Abu El-Haj
Breathing Room For The Right Of Assembly, Tabatha Abu El-Haj
William & Mary Journal of Race, Gender, and Social Justice
This Article explores the legal and political fault lines that the wave of protests highlighting police violence and systemic racism in the summer of 2020 reveal. It focuses in depth on Detroit, Michigan, as a window into the ways that the First Amendment, as currently construed, under-protects those seeking political change and racial reckoning by demonstrating in the streets.
Marriage Mandates: Compelled Disclosures Of Race, Sex, And Gender Data In Marriage Licensing Schemes, Mikaela A. Phillips
Marriage Mandates: Compelled Disclosures Of Race, Sex, And Gender Data In Marriage Licensing Schemes, Mikaela A. Phillips
William & Mary Journal of Race, Gender, and Social Justice
This Note argues that mandatory disclosures of personal information—specifically race, sex, and gender—on a marriage license application constitute compelled speech under the First Amendment and should be subject to heightened scrutiny. Disclosing one’s race, sex, or gender on a marriage license application is an affirmative act, and individuals may wish to have their identity remain anonymous. These mandatory disclosures send a message that this information is still relevant to marriage regulation. Neither race nor gender is based in science; rather they are historical and social constructs created to uphold a system of white supremacy and heteronormativity. Thus, such statements are …
Child Entertainers And Their Limited Protections: A Call For An Interstate Compact, Tabetha Bennett
Child Entertainers And Their Limited Protections: A Call For An Interstate Compact, Tabetha Bennett
Child and Family Law Journal
No abstract provided.
Deepfakes: A New Content Category For A Digital Age, Anna Pesetski
Deepfakes: A New Content Category For A Digital Age, Anna Pesetski
William & Mary Bill of Rights Journal
Technology has advanced rapidly in recent years, greatly benefitting society. One such benefit is people’s ability to have quick and easy access to information through news and social media. A recent concern, however, is that manipulated media, otherwise known as “deepfakes,” are being released and passed off as truth. These videos are crafted with technology that allows the creator to carefully change details of the video’s subject to make him appear to do or say things that he never did. Deepfakes are often depictions of political candidates or leaders and have the potential to influence voter choice, thereby altering the …
The Pure-Hearted Abrams Case, Andres Yoder
The Pure-Hearted Abrams Case, Andres Yoder
William & Mary Bill of Rights Journal
One hundred years ago, Justice Oliver Wendell Holmes changed his mind about the right to free speech and wound up splitting the history of free speech law into two. In his dissent in Abrams v. United States, he called for the end of the old order—in which courts often ignored or rejected free speech claims—and set the stage for the current order—in which the right to free speech is of central constitutional importance. However, a century on, scholars have been unable to identify a specific reason for Holmes’s Abrams transformation, and have instead pointed to more diffuse influences. By …
Why Liberalism Persists: The Neglected Life Of The Law In The Story Of Liberalism's Decline, Kenneth L. Townsend
Why Liberalism Persists: The Neglected Life Of The Law In The Story Of Liberalism's Decline, Kenneth L. Townsend
St. John's Law Review
(Excerpt)
Liberalism is in decline in the West. Past political divides that pitted classically liberal conservatives against moderate to progressive political liberals are giving way to a new landscape in which a liberal consensus simply cannot be assumed. From the left, socialist and identity-based critiques of liberalism have called into question core liberal assumptions regarding procedural justice, the division between public and private realms, and the rights of individuals. From the right, an increasingly vocal group of conservatives is questioning classical liberalism’s commitment to limited government, a free market, and individual rights in favor of a vision of political community …
Pandora's Cake, Mark R. Killenbeck
Pandora's Cake, Mark R. Killenbeck
Arkansas Law Review
Most of us are familiar with the spectre of Pandora's Box, the "present which seems valuable, but which in reality is a curse."' Robert Graves described Pandora as "the most beautiful [woman] ever created.",2 She was sent by Zeus as a gift to Epimetheus, who initially "respectfully" declined to marry her.3 But chastened by the fate of his brother Prometheus, he changed his mind and wed a women who was "as foolish, mischievous, and idle as she was beautiful.",4 She opened a jar that she and her husband had been "warned. .. to keep closed in which"5 Prometheus had "imprison[ed …
Information Gathering Or Speech Creation: How To Think About A First Amendment Right To Record, Jared Mullen
Information Gathering Or Speech Creation: How To Think About A First Amendment Right To Record, Jared Mullen
William & Mary Bill of Rights Journal
No abstract provided.
Constitutional Conflict And Sensitive Places, Darrell A. H. Miller
Constitutional Conflict And Sensitive Places, Darrell A. H. Miller
William & Mary Bill of Rights Journal
No abstract provided.
Political And Non-Political Speech And Guns, Gregory P. Magarian
Political And Non-Political Speech And Guns, Gregory P. Magarian
William & Mary Bill of Rights Journal
No abstract provided.
The Deliberative-Privacy Principle: Abortion, Free Speech, And Religious Freedom, B. Jessie Hill
The Deliberative-Privacy Principle: Abortion, Free Speech, And Religious Freedom, B. Jessie Hill
William & Mary Bill of Rights Journal
No abstract provided.
Doctrinal Dynamism, Borrowing, And The Relationship Between Rules And Rights, Joseph Blocher, Luke Morgan
Doctrinal Dynamism, Borrowing, And The Relationship Between Rules And Rights, Joseph Blocher, Luke Morgan
William & Mary Bill of Rights Journal
The study of “Rights Dynamism,” exemplified in Timothy Zick’s new book on the First Amendment’s relationship with the rest of the Bill of Rights, can enrich our understanding of constitutional rights. It also opens a door to another potentially fruitful arena: what we call “Doctrinal Dynamism.” Constitutional rights often interact and generate new meanings and applications by way of importing and exporting one another’s doctrinal rules, even when the rights themselves do not intersect directly in the context of a single case. Focusing on these doctrinal exchanges can illuminate the strengths and weaknesses of various rules, the specific interests underlying …
Free-Speech Formalism And Social Injustice, Stephen M. Feldman
Free-Speech Formalism And Social Injustice, Stephen M. Feldman
William & Mary Journal of Race, Gender, and Social Justice
The Roberts Court has shifted constitutional law in a formalist direction. This Essay explains the Court’s formalism and its causes and consequences in First Amendment free-expression cases. The thesis is that the current conservative justices’ reliance on formalism intertwines with their attitudes toward public and private spheres of activity. Their attitudes toward the public-private dichotomy are, in turn, shaped by their political ideologies as well as by the contemporary practices of democratic government, which have shifted significantly over American history. Formalism contains an inherent political tilt favoring those who already wield power in the private sphere. Formalism favors the wealthy …
Black Women And Girls And The Twenty-Sixth Amendment: Constitutional Connections, Activist Intersections, And The First Wave Youth Suffrage Movement, Mae C. Quinn
Seattle University Law Review
On this 100th anniversary of the Nineteenth Amendment—and on the cusp of the fiftieth anniversary of the Twenty-sixth Amendment—this article seeks to expand the voting rights canon. It complicates our understanding of voting rights history in the United States, adding layers to the history of federal constitutional enfranchisement and encouraging a more intersectional telling of our suffrage story in the days ahead.
Thus, this work not only seeks to acknowledge the Twenty-sixth Amendment as important constitutional content, as was the goal of the article I wrote with my law student colleagues for a conference held at the University of Akron …
The Post-Truth First Amendment, Sarah Haan
The Post-Truth First Amendment, Sarah Haan
Indiana Law Journal
Post-truthism is widely viewed as a political problem. This Article explores posttruthism as a constitutional law problem, and argues that, because post-truthism offers a normative framework for regulating information, we should take it seriously as a basis for law.
In its exploration of the influence of post-truth ideas on law, the Article focuses on the compelled speech doctrine. When the State mandates disclosure, it pits the interests of unwilling speakers against the interests of listeners. In the twenty-first century, speakers who are targeted by mandatory disclosure laws are often organizational actors with informational advantages, such as corporations. Listeners who stand …
Panel 3: Free Speech And Freedom Of Religion
Panel 3: Free Speech And Freedom Of Religion
Georgia State University Law Review
Moderator: Eric Segall
Panelists: Mike Dorf and Eugene Volokh
Antitrust As Speech Control, Hillary Greene, Dennis A. Yao
Antitrust As Speech Control, Hillary Greene, Dennis A. Yao
William & Mary Law Review
Antitrust law, at times, dictates who, when, and about what people can and cannot speak. It would seem then that the First Amendment might have something to say about those constraints. And it does, though perhaps less directly and to a lesser degree than one might expect. This Article examines the interface between those regimes while recasting antitrust thinking in terms of speech control.
Our review of the antitrust-First Amendment legal landscape focuses on the role of speech control. It reveals that while First Amendment issues are explicitly addressed relatively infrequently within antitrust decisions that is, in part, because certain …
The (Limited) Constitutional Right To Compete In An Occupation, Rebecca Haw Allensworth
The (Limited) Constitutional Right To Compete In An Occupation, Rebecca Haw Allensworth
William & Mary Law Review
Is there a constitutional right to compete in an occupation? The “right to earn a living” movement, gaining steam in policy circles and winning some battles in the lower courts, says so. Advocates for this right say that the right to compete in an occupation stands on equal footing with our most sacred constitutional rights such as the right to be free from racial discrimination. This Article takes a different view, arguing that while there is a limited constitutional right to compete in an occupation, it is—and should be—weaker than these advocates claim. Some state licensing laws run afoul of …
Religious Freedom Through Market Freedom: The Sherman Act And The Marketplace For Religion, Barak D. Richman
Religious Freedom Through Market Freedom: The Sherman Act And The Marketplace For Religion, Barak D. Richman
William & Mary Law Review
In prior work, I examined certain restraints by private religious organizations and concluded that the First Amendment did not immunize these organizations from antitrust liability. In short, the First Amendment did not preempt enforcing the Sherman Act against certain religious monopolies or cartels.
This Article offers a stronger argument: First Amendment values demand antitrust enforcement. Because American religious freedoms, enshrined in the Constitution and reflected in American history, are quintessentially exercised when decentralized communities create their own religious expression, the First Amendment’s religion clauses are best exemplified by a proverbial marketplace for religions. Any effort to stifle a market organization …
Reasonable Action: Reproductive Rights, The Free Exercise Clause, And Religious Freedom In The United States And The Republic Of Ireland, Liam Ray
St. John's Law Review
(Excerpt)
This Note will argue that by denying certiorari in Stormans v. Wiesman, the Supreme Court missed an important opportunity to provide guidance to the states as to how the Free Exercise Clause applies to the kind of stocking and dispensing regulations adopted by the State of Washington. This Note will further argue from a policy perspective that the approach to these kinds of regulations adopted by the Republic of Ireland (“ROI”) presents the best approach for states to adopt because it provides a balance in terms of respecting the free exercise rights of pharmacists and pharmacy owners with …
Government Identity Speech Programs: Understanding And Applying The New Walker Test, Leslie Gielow Jacobs
Government Identity Speech Programs: Understanding And Applying The New Walker Test, Leslie Gielow Jacobs
Pepperdine Law Review
In Walker v. Texas Division, Sons of Confederate Veterans, Inc., the Court extended its previous holding in Pleasant Grove City, Utah v. Summum, that a city’s donated park monuments were government speech, to the privately proposed designs that Texas accepts and stamps onto its specialty license plates. The placement of the program into the new doctrinal category is significant because the selection criteria for government–private speech combinations that produce government speech are “exempt from First Amendment scrutiny.” By contrast, when the government selects private speakers to participate in a private speech forum, its criteria must be reasonable in light of …
God And State Preambles, Peter J. Smith, Robert W. Tuttle
God And State Preambles, Peter J. Smith, Robert W. Tuttle
Marquette Law Review
Those who question the permissibility of official acknowledgements of God might be surprised to learn that the preambles of forty-five of the fifty state constitutions expressly invoke God. The practice is common in both liberal and conservative states and is equally prevalent in all regions of the country. Virtually all of those preambles give thanks to God, and many also seek God's blessing n the state's endeavors. Yet there has been no detailed assessment of the preambles' history or significance. This paper seeks to remedy that gap.
The preambles complicate the claim that official acknowledgements of God are incompatible with …