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Articles 1 - 30 of 58
Full-Text Articles in Law
Reply Brief. Crouse V. Caldwell, 138 S.Ct. 470 (2017) (No. 17-242), Eric Schnapper, Steven H. Goldblatt, Shon Hopwood, Marybeth Mullaney, Jennifer Munter Stark
Reply Brief. Crouse V. Caldwell, 138 S.Ct. 470 (2017) (No. 17-242), Eric Schnapper, Steven H. Goldblatt, Shon Hopwood, Marybeth Mullaney, Jennifer Munter Stark
Court Briefs
QUESTIONS PRESENTED (1) When disputes of fact arise regarding whether speech by a public employee is protected by the First Amendment, should those factual issues be resolved by a trier of fact (the rule in the Second, Third, Sixth, Eighth and Tenth Circuits), or by the court as a matter of constitutional law (the rule in the Fourth Circuit)? (2) When a government employee engages in speech on a subject of public concern, and a court applying Pickering balances the First Amendment interest against any contrary interests of the employer, should the extent of that First Amendment interest be “lessened” …
Memorandum, Masterpiece Cakeshop, Ltd. V. Colo. Civil Rights Comm., __ U.S. __ (2017): Legislative History Of Sb08-200, Matt Simonsen
Memorandum, Masterpiece Cakeshop, Ltd. V. Colo. Civil Rights Comm., __ U.S. __ (2017): Legislative History Of Sb08-200, Matt Simonsen
Research Data
This legal Memorandum on the legislative history of a 2008 amendment to the Colorado Anti-Discrimination Act (CADA) was researched and written by Matt Simonsen, J.D. Candidate 2019, University of Colorado Law School, and submitted to law professors Craig Konnoth and Melissa Hart. The Memorandum is cited in Brief of Amici Curiae Colorado Organizations and Individuals in Support of Respondents, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, __U.S.__ (2018) (No. 16-111).
4 p.
"The legislative history primarily identifies two issues that SB08-200 was designed to resolve: (1) the need for dignity and access to justice for LGBT people and …
Master File, Masterpiece Cakeshop, Ltd. V. Colo. Civil Rights Comm., __ U.S. __ (2017): Legislative History Of Sb08-200, Matt Simonsen
Master File, Masterpiece Cakeshop, Ltd. V. Colo. Civil Rights Comm., __ U.S. __ (2017): Legislative History Of Sb08-200, Matt Simonsen
Research Data
This Master File of the legislative history of a 2008 amendment to the Colorado Anti-Discrimination Act (CADA) was researched and compiled by Matt Simonsen, J.D. Candidate 2019, University of Colorado Law School, and submitted to law professors Craig Konnoth and Melissa Hart. The SB08-200 Master File is cited in Brief of Amici Curiae Colorado Organizations and Individuals in Support of Respondents, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, __U.S.__ (2018) (No. 16-111).
449 p.
Newsroom: Representing Private Manning 09-18-2017, Edward Fitzpatrick, Roger Williams University School Of Law
Newsroom: Representing Private Manning 09-18-2017, Edward Fitzpatrick, Roger Williams University School Of Law
Life of the Law School (1993- )
No abstract provided.
Newsroom: The Violence In Charlottesville 08-14-2017, Michael J. Yelnosky
Newsroom: The Violence In Charlottesville 08-14-2017, Michael J. Yelnosky
Life of the Law School (1993- )
No abstract provided.
Petition For A Writ Of Certiorari, Crouse V. Caldwell, 138 S.Ct. 470 (2017) (No. 17-242), Eric Schnapper, Steven H. Goldblatt, Shon Hopwood, Marybeth Mullaney, Jennifer Munter Stark
Petition For A Writ Of Certiorari, Crouse V. Caldwell, 138 S.Ct. 470 (2017) (No. 17-242), Eric Schnapper, Steven H. Goldblatt, Shon Hopwood, Marybeth Mullaney, Jennifer Munter Stark
Court Briefs
QUESTIONS PRESENTED (1) When disputes of fact arise regarding whether speech by a public employee is protected by the First Amendment, should those factual issues be resolved by a trier of fact (the rule in the Second, Third, Sixth, Eighth and Tenth Circuits), or by the court as a matter of constitutional law (the rule in the Fourth Circuit)? (2) When a government employee engages in speech on a subject of public concern, and a court applying Pickering balances the First Amendment interest against any contrary interests of the employer, should the extent of that First Amendment interest be “lessened” …
The Internet Will Not Break: Denying Bad Samaritans Section 230 Immunity, Danielle K. Citron, Benjamin Wittes
The Internet Will Not Break: Denying Bad Samaritans Section 230 Immunity, Danielle K. Citron, Benjamin Wittes
Faculty Scholarship
What do a revenge pornographer, gossip-site curator, and platform pairing predators with young people in one-on-one chats have in common? Blanket immunity from liability, thanks to lower courts’ interpretation of section 230 of the Communications Decency Act (CDA) beyond what the text, context, and purpose support. The CDA was part of a campaign — rather ironically in retrospect — to restrict access to sexually explicit material online. Lawmakers thought they were devising a safe harbor for online providers engaged in self-regulation. The CDA’s origins in the censorship of “offensive” material are inconsistent with outlandishly broad interpretations that have served to …
Newsroom: As Manning Released, Trial Attorney Coombs Looks Back On Case, Looks Forward To Teaching Again At Rwu Law 05-17-2017, Edward Fitzpatrick
Newsroom: As Manning Released, Trial Attorney Coombs Looks Back On Case, Looks Forward To Teaching Again At Rwu Law 05-17-2017, Edward Fitzpatrick
Life of the Law School (1993- )
No abstract provided.
Hate Speech On Social Media, Amos N. Guiora, Elizabeth Park
Hate Speech On Social Media, Amos N. Guiora, Elizabeth Park
Utah Law Faculty Scholarship
This essay expounds on Raphael Cohen-Almagor’s recent book, Confronting the Internet’s Dark Side, Moral and Social Responsibility on the Free Highway, and advocates placing narrow limitations on hate speech posted to social media websites. The Internet is a limitless platform for information and data sharing. It is, in addition, however, a low-cost, high-speed dissemination mechanism that facilitates the spreading of hate speech including violent and virtual threats. Indictment and prosecution for social media posts that transgress from opinion to inciteful hate speech are appropriate in limited circumstances. This article uses various real-world examples to explore when limitations on Internet-based hate …
The Tension Between Equal Protection And Religious Freedom, John M. Greabe
The Tension Between Equal Protection And Religious Freedom, John M. Greabe
Law Faculty Scholarship
[Excerpt] "The Constitution did not become our basic law at a single point in time. We ratified its first seven articles in 1788 but have since amended it 27 times. Many of these amendments memorialize fundamental shifts in values. Thus, it should come as no surprise to learn that the Constitution is not an internally consistent document."
…
"Other constitutional provisions -- even provisions that were simultaneously enacted -- protect freedoms that can come into conflict with one another. The First Amendment, for example, promises both freedom from governmental endorsement of religion and freedom from governmental interference with religious practice. …
Heffernan V. City Of Paterson: Watering Down The First Amendment Retaliation Doctrine To Create A Perception Of Protection For Public Employees, Peter J. Artese
Heffernan V. City Of Paterson: Watering Down The First Amendment Retaliation Doctrine To Create A Perception Of Protection For Public Employees, Peter J. Artese
Maryland Law Review Online
No abstract provided.
A First Amendment Deference Approach For Reforming Anti-Bullying Laws, Emily Suski
A First Amendment Deference Approach For Reforming Anti-Bullying Laws, Emily Suski
Faculty Publications
This Article examines the anti-bullying laws and their response to the problem of bullying in light of both the nature of the problem itself, the interventions the laws call for, and the laws’ First Amendment implications. Bullying has many varied, negative consequences, some tragic, and is widespread. Yet, the anti-bullying laws disproportionately focus schools’ responses to bullying on school exclusion, meaning suspending, expelling or otherwise excluding students who bully from school. This is so even though social science literature has found school exclusion ineffective and sometimes counterproductive as a method for addressing bullying. What is more, because much of bullying …
Don’T Expect The First Amendment To Protect The Media, Ronnell Anderson Jones, Sonja R. West
Don’T Expect The First Amendment To Protect The Media, Ronnell Anderson Jones, Sonja R. West
Popular Media
Op-ed in the New York Times about the limits on the protection of the press under the First Amendment.
Newroom: Yelnosky: Future Of Public Sector Union 'Dues' 01-14-2017, Roger Williams University School Of Law
Newroom: Yelnosky: Future Of Public Sector Union 'Dues' 01-14-2017, Roger Williams University School Of Law
Life of the Law School (1993- )
No abstract provided.
Newsroom: Logan On Trump And Libel Law 01-03-2017, Roger Williams University School Of Law
Newsroom: Logan On Trump And Libel Law 01-03-2017, Roger Williams University School Of Law
Life of the Law School (1993- )
No abstract provided.
Natural Rights And The First Amendment, Jud Campbell
Natural Rights And The First Amendment, Jud Campbell
Law Faculty Publications
The Supreme Court often claims that the First Amendment reflects an original judgment about the proper scope of expressive freedom. After a century of academic debate, however, the meanings of speech and press freedoms at the Founding remain remarkably hazy. Many scholars, often pointing to Founding Era sedition prosecutions, emphasize the limited scope of these rights. Others focus on the libertarian ideas that helped shape opposition to the Sedition Act of 1798. Still more claim that speech and press freedoms lacked any commonly accepted meaning. The relationship between speech and press freedoms is contested, too. Most scholars view these freedoms …
Science As Speech, Natalie Ram
Science As Speech, Natalie Ram
All Faculty Scholarship
In April 2015, researchers in China reported the successful genetic editing of human embryos using a new technology that promised to make gene editing easier and more effective than ever before. In the United States, the announcement drew immediate calls to regulate or prohibit
outright any use of this technology to alter human embryos, even for purely research purposes. The fervent response to the Chinese announcement was, in one respect, unexceptional. Proposals to regulate or prohibit scientific research following a new breakthrough occur with substantial frequency. Innovations in cloning technology and embryonic stem cell research have prompted similar outcries, and …
With The Best Of Intentions: First Amendment Pitfalls For Government Regulation Of Signage And Noise, Kara Consalo
With The Best Of Intentions: First Amendment Pitfalls For Government Regulation Of Signage And Noise, Kara Consalo
Journal Publications
A basic tenant of American jurisprudence is the protection of speech under the First, Fifth, and Fourteenth Amendments to the United States Constitution, as well as sections 4 and 9 of Article I of the Florida Constitution. While the extent of free speech is not limitless, this Article demonstrates that government attempts to regulate speech through regulation of signage and noise has been significantly curtailed by both federal and state courts in recent years. Further, a constitutional challenge to a government regulation will often be reviewed de novo as a pure question of law and is therefore subject to a …
The One Fixed Star In Higher Education: What Standard Of Judicial Scrutiny Should Courts Apply To Compelled Curricular Speech In The Public University Classroom, Joseph J. Martins
The One Fixed Star In Higher Education: What Standard Of Judicial Scrutiny Should Courts Apply To Compelled Curricular Speech In The Public University Classroom, Joseph J. Martins
Faculty Publications and Presentations
Virtually three-quarters of a century ago, the Supreme Court in West Virginia State Board of Education v. Barnette recognized that the First Amendment protects citizens from being forced to speak. Often, new legal doctrines are announced cautiously and narrowly in anticipation of future judicial development. Not so with Barnette. The Court boldly proclaimed that the right to be free from state-compelled affirmation is so fundamental that it stands as the one “fixed star in our constitutional constellation” that cannot be moved. State assertions of power that seek to coerce citizens to affirm government-approved ideas will inevitably fail, except when narrowly …
'Illegal' Migration Is Speech, Daniel Morales
'Illegal' Migration Is Speech, Daniel Morales
College of Law Faculty
Non-citizens must comply with immigration laws just because citizens say so. The citizenry takes for granted its monopoly on immigration control, but the legitimacy of this arrangement has been called into question by cutting-edge political theorists. One prominent theorist argues, for example, that basic democratic principles require that non-citizens living outside the U.S. have a say in the formation of immigration law, since they must obey it. For the first time, this Article provides a legal response to these political theory developments, assimilating them, along with the facts on the ground, into an account of “illegal” migration as First Amendment …
Police Misconduct, Video Recording, And Procedural Barriers To Rights Enforcement, Howard M. Wasserman
Police Misconduct, Video Recording, And Procedural Barriers To Rights Enforcement, Howard M. Wasserman
Faculty Publications
The story of police reform and of "policing the police" has become the story of video and video evidence, and "record everything to know the truth" has become the singular mantra. Video, both police-created and citizen-created, has become the singular tool for ensuring police accountability, reforming law enforcement, and enforcing the rights of victims of police misconduct. This Article explores procedural problems surrounding the use of video recording and video evidence to counter police misconduct, hold individual officers and governments accountable, and reform departmental policies, regulations, and practices. It considers four issues: 1) the mistaken belief that video can "speak …
A Missed Opportunity To Clarify Students' First Amendment Rights In The Digital Age, Elizabeth Shaver
A Missed Opportunity To Clarify Students' First Amendment Rights In The Digital Age, Elizabeth Shaver
Akron Law Faculty Publications
In the last decade, the federal circuit courts have grappled with the issue whether, and to what extent, school officials constitutionally may discipline students for their off-campus electronic speech. Before 2015, three federal circuit courts had extended school authority to off-campus electronic speech by applying a vague test that allows school officials to reach far beyond the iconic “schoolhouse gate” referenced in the Supreme Court’s landmark decision in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) Two other federal circuits had avoided the issue altogether by deciding the cases before them on other grounds. In 2015, …
Checking The Government’S Deception Through Public Employee Speech, Helen Norton
Checking The Government’S Deception Through Public Employee Speech, Helen Norton
Publications
No abstract provided.
Government Speech And The War On Terror, Helen Norton
Government Speech And The War On Terror, Helen Norton
Publications
The government is unique among speakers because of its coercive power, its substantial resources, its privileged access to national security and intelligence information, and its wide variety of expressive roles as commander-in-chief, policymaker, educator, employer, property owner, and more. Precisely because of this power, variety, and ubiquity, the government's speech can both provide great value and inflict great harm to the public. In wartime, more specifically, the government can affirmatively choose to use its voice to inform, inspire, heal, and unite -- or instead to deceive, divide, bully, and silence.
In this essay, I examine the U.S. government's role as …
Standing After Snowden: Lessons On Privacy Harm From National Security Surveillance Litigation, Margot E. Kaminski
Standing After Snowden: Lessons On Privacy Harm From National Security Surveillance Litigation, Margot E. Kaminski
Publications
Article III standing is difficult to achieve in the context of data security and data privacy claims. Injury in fact must be "concrete," "particularized," and "actual or imminent"--all characteristics that are challenging to meet with information harms. This Article suggests looking to an unusual source for clarification on privacy and standing: recent national security surveillance litigation. There we can find significant discussions of what rises to the level of Article III injury in fact. The answers may be surprising: the interception of sensitive information; the seizure of less sensitive information and housing of it in a database for analysis; and …
"Free Speech, First Amendment, And New Media For Cons And Festivals" From Pop Culture Business Handbook For Cons And Festivals, Jon Garon
Faculty Scholarship
This article is part of a series of book excerpts from The Pop Culture Business Handbook for Cons and Festivals, which provides the business, strategy, and legal reference guide for fan conventions, film festivals, musical festivals, and cultural events.Although most events are organized by private parties, the location of these events in public venues and the crowd management issues involving free speech make First Amendment and free speech issues a critical component of event management. This excerpt provides a framework for understanding the legal and security issues involving free speech at public events.
Authorship, Disrupted: Ai Authors In Copyright And First Amendment Law, Margot E. Kaminski
Authorship, Disrupted: Ai Authors In Copyright And First Amendment Law, Margot E. Kaminski
Publications
Technology is often characterized as an outside force, with essential qualities, acting on the law. But the law, through both doctrine and theory, constructs the meaning of the technology it encounters. A particular feature of a particular technology disrupts the law only because the law has been structured in a way that makes that feature relevant. The law, in other words, plays a significant role in shaping its own disruption. This Essay is a study of how a particular technology, artificial intelligence, is framed by both copyright law and the First Amendment. How the algorithmic author is framed by these …
Performative Privacy, Scott Skinner-Thompson
Performative Privacy, Scott Skinner-Thompson
Publications
Broadly speaking, privacy doctrine suggests that the right to privacy is non-existent once one enters the public realm. Although some scholars contend that privacy ought to exist in public, “public privacy” has been defended largely with reference to other, ancillary values privacy may serve. For instance, public privacy may be necessary to make the freedom of association meaningful in practice.
This Article identifies a new dimension of public privacy, supplementing extant justifications for the right, by arguing that many efforts to maintain privacy while in “public” are properly conceptualized as forms of performative, expressive resistance against an ever-pervasive surveillance society. …
Legislating The First Amendment: A Trio Of Recommendations For Lawmakers Targeting Free Expression, Clay Calvert
Legislating The First Amendment: A Trio Of Recommendations For Lawmakers Targeting Free Expression, Clay Calvert
UF Law Faculty Publications
This Article offers three recommendations for lawmakers attempting to restrict expression that is presumptively protected by the First Amendment. The proposals include: (1) embracing a ''prism of protection" through which all potential laws affecting expression are filtered prior to drafting; (2) mandating inclusion of sunset clauses in all statutes that may detrimentally impact free expression; and (3) adopting a comprehensive legislative oversight and review process for determining if an expired statute should be renewed, revised or abandoned. Although far from creating what Dean Roscoe Pound more than 100 years ago called a "science of legislation, " the proposals here nonetheless …
Campus Speech And Harassment, Alexander Tsesis
Campus Speech And Harassment, Alexander Tsesis
Faculty Publications & Other Works
No abstract provided.