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Full-Text Articles in First Amendment

Counterspeech, Cosby, And Libel Law: Some Lessons About “Pure Opinion” & Resuscitating The Self-Defense Privilege, Clay Calvert Feb 2018

Counterspeech, Cosby, And Libel Law: Some Lessons About “Pure Opinion” & Resuscitating The Self-Defense Privilege, Clay Calvert

Florida Law Review

Using the recent federal district court opinions in Hill v. Cosby and Green v. Cosby as analytical springboards, this timely Article explores problems with the concept of pure opinion in libel law. Specifically, Hill and Green pivoted on the same allegedly defamatory statement attorney Martin Singer made on behalf of comedian Bill Cosby, yet the judges involved reached opposite conclusions regarding whether it was protected as pure opinion. Furthermore, this Article analyzes notions of counterspeech and the conditional self-defense privilege in libel law in arguing for shielding Singer’s statement from liability. Although the self- defense privilege was flatly rejected ...


Who Watches This Stuff?: Videos Depicting Actual Murder And The Need For A Federal Criminal Murder-Video Statute, Musa K. Farmand Jr. Feb 2018

Who Watches This Stuff?: Videos Depicting Actual Murder And The Need For A Federal Criminal Murder-Video Statute, Musa K. Farmand Jr.

Florida Law Review

Murder videos are video recordings that depict the intentional, unlawful killing of one human being by another. Generally, due to their obscene nature, murder videos are absent from mainstream media. However, in the wake of Vester Lee Flanagan II's filmed murders of reporter Allison Parker and cameraman Adam Ward on live television, it is perhaps only a matter of time before murder videos become an acceptable form of entertainment. Further, Americans should be wary of potential "copycat" perpetrators and their thirst for infamy via immortalization on the Internet, as the free dissemination of murder videos provide extra incentive to ...


Who Watches This Stuff?: Videos Depicting Actual Murder And The Need For A Federal Criminal Murder-Video Statute, Musa K. Farmand Jr. Feb 2018

Who Watches This Stuff?: Videos Depicting Actual Murder And The Need For A Federal Criminal Murder-Video Statute, Musa K. Farmand Jr.

Florida Law Review

Murder videos are video recordings that depict the intentional, unlawful killing of one human being by another. Generally, due to their obscene nature, murder videos are absent from mainstream media. However, in the wake of Vester Lee Flanagan II's filmed murders of reporter Allison Parker and cameraman Adam Ward on live television, it is perhaps only a matter of time before murder videos become an acceptable form of entertainment. Further, Americans should be wary of potential "copycat" perpetrators and their thirst for infamy via immortalization on the Internet, as the free dissemination of murder videos provide extra incentive to ...


Never On Sunday: Workplace Religious Freedom In The New Millennium, Marianne C. Delpo Feb 2018

Never On Sunday: Workplace Religious Freedom In The New Millennium, Marianne C. Delpo

Maine Law Review

Imagine being fired for refusing to sing Happy Birthday. Now imagine collecting $53,000 for that firing--from a waitressing job. Science fiction? Not exactly. Try religious discrimination in the workplace--1990s style. Title VII of the Civil Rights Act of 1964 has long proscribed such treatment, but lawsuits claiming this type of workplace discrimination were relatively rare for many years. Now claims are on the rise, up 18% over the past five years, and the substance of religious discrimination claims is changing to include some unprecedented fact patterns. This new activity in employment discrimination law, as well as the growing likelihood ...


When Should Rights "Trump"? An Examination Of Speech And Property, Laura S. Underkuffler Feb 2018

When Should Rights "Trump"? An Examination Of Speech And Property, Laura S. Underkuffler

Maine Law Review

In his well-known article, Property, Speech, and the Politics of Distrust, Professor Richard Epstein—a leading contemporary voice in the fields of property theory and constitutional law—makes a simple but compelling argument. There has been, he argues, a mistake in “the dominant mode of thinking about property rights during the past fifty years [that] has been ... of constitutional dimensions.” This mistake, in Professor Epstein's view, is the refusal of the federal courts to accord to individual property rights the same kind of protection from government regulation that is accorded to other constitutional rights. Using free speech as his ...


The Maine Civil Rights Act: History, Enforcement, Application, And Analysis, J. Christopher Parr Feb 2018

The Maine Civil Rights Act: History, Enforcement, Application, And Analysis, J. Christopher Parr

Maine Law Review

Since the passage of the “Maine Civil Rights Act” (MCRA, Act) in 1989, the Maine Department of the Attorney General has made enforcement of that civil “hate crime” law one of its highest priorities. According to one statistic, “more than 125 people have been prosecuted in Maine's civil courts on hate crime charges since 1994,” and only two of those actions have been lost by the State. The Attorney General at the time of this writing, Andrew Ketterer, has stated that he takes the perpetration of hate crimes seriously, and that it has been important to him “that the ...


Where The Right Went Wrong In Southworth: Underestimating The Power Of The Marketplace, Clay Calvery Feb 2018

Where The Right Went Wrong In Southworth: Underestimating The Power Of The Marketplace, Clay Calvery

Maine Law Review

When the United States Supreme Court unanimously declared in March 2000 that mandatory student activity fees at public universities do not offend the First Amendment if distributed in viewpoint-neutral fashion, the decision dealt a severe blow to the conservative movement that had both supported the challenge to fee assessments and long railed against a perceived leftist/liberal bias in higher education. The New York Times, acknowledging the political implications of the case, hailed the Court's decision in Board of Regents v. Southworth as “a surprisingly broad and decisive victory for universities on an ideologically charged issue that has roiled ...


Life In No Trump: Property And Speech Under The Constitution, Richard A. Esptein Feb 2018

Life In No Trump: Property And Speech Under The Constitution, Richard A. Esptein

Maine Law Review

The editors of the Maine Law Review have been kind enough to offer me the opportunity to respond to Laura Underkuffler's criticism of my work in her recent Godfrey Lecture, “When Should Rights ‘Trump’? An Examination of Speech and Property,” which appears in the preceding issue. In my earlier writings on constitutional law, more specifically, in my paper, Property, Speech and the Politics of Distrust, I took the position that modern Supreme Court jurisprudence had taken a turn for the worse insofar as it used different standards of review in passing on the constitutionality of legislation. The current position ...


Hate Speech - The United States Versus The Rest Of The World?, Kevin Boyle Feb 2018

Hate Speech - The United States Versus The Rest Of The World?, Kevin Boyle

Maine Law Review

The search for a commonly agreed upon international legal understanding of the meaning of free speech or freedom of expression, as an individual human right, was a major international preoccupation from the 1940s to the 1980s. During the Cold War it was, of course, also a highly ideological debate. There were three positions, broadly speaking: the Soviet Union and its allies, who had little enthusiasm for the idea at all; the United States, which believed in it—many thought—too much; and the rest, the other Western democracies and developing countries, who tried to hold the middle ground. These contrasting ...


“Frankly Unthinkable”: The Constitutional Failings Of President Trump’S Proposed Muslim Registry, A. Reid Monroe-Sheridan Feb 2018

“Frankly Unthinkable”: The Constitutional Failings Of President Trump’S Proposed Muslim Registry, A. Reid Monroe-Sheridan

Maine Law Review

On several occasions during the 2016 presidential campaign, Donald Trump endorsed the creation of a mandatory government registry for Muslims in the United States— not just visitors from abroad, but American citizens as well. This astonishing proposal has received little attention in legal scholarship to date, even though Trump has refused to renounce the idea following his election to the presidency. In this Article, I attempt to address President Trump’ s proposal in several ways. First, I aim to provide a thorough analysis demonstrating unequivocally that such a “ Muslim registry,” with the characteristics President Trump has endorsed, would violate the ...


Religion Lessons From Europe: Intolerant Secularism, Pluralistic Neutrality, And The U.S. Supreme Court, Antony Barone Kolenc Feb 2018

Religion Lessons From Europe: Intolerant Secularism, Pluralistic Neutrality, And The U.S. Supreme Court, Antony Barone Kolenc

Pace International Law Review

Case law from the European Court of Human Rights demonstrates to the U.S. Supreme Court how a pluralistic neutrality principle can enrich the American society and harness the value of faith in the public sphere, while at the same time retaining the vigorous protection of individual religious rights. The unfortunate alternative to a jurisprudence built around pluralistic neutrality is the inevitability of intolerant secularism—an increasingly militant separation of religious ideals from the public life, leading ultimately to a repressive society that has no room in its government for religious citizens. The results of intolerant secularism are seen in ...


Going To The Clerk’S Office And We’Re Not Going To Get Married, Alicia F. Blanchard Feb 2018

Going To The Clerk’S Office And We’Re Not Going To Get Married, Alicia F. Blanchard

University of Massachusetts Law Review

Same-sex marriage is a controversial topic subject to great debate. The Supreme Court in 2015 federally recognized the legality of same-sex marriages in Obergefell v. Hodges. Despite this ruling, some people looked for any reason to denounce the holding. Perhaps none were more vocal than those who rejected same-sex marriage on the basis of their religious tenets. Miller v. Davis provided people who were morally opposed to same-sex marriage a platform to support their concerns grounded in a First Amendment right to freedom of religion. The question is how far does one’s freedom of religion extend? Does freedom of ...


Brief Of Amici Curiae Corporate Law Professors In Masterpiece Cakeshop, Ltd. V. Colorado Civil Rights Commission, Harold Kent Greenfield, Daniel A. Rubens Feb 2018

Brief Of Amici Curiae Corporate Law Professors In Masterpiece Cakeshop, Ltd. V. Colorado Civil Rights Commission, Harold Kent Greenfield, Daniel A. Rubens

Kent Greenfield

Professor Greenfield was the principal author of an amicus brief on behalf of 33 corporate law professors in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, argued in December 2017. The brief argues that shareholders’ religious and political beliefs should not be projected onto a corporation for purposes of First Amendment accommodation.


Deference And Prisoner Accommodations Post-Holt: Moving Rluipa Toward "Strict In Theory, Strict In Fact", Barrick Bollman Feb 2018

Deference And Prisoner Accommodations Post-Holt: Moving Rluipa Toward "Strict In Theory, Strict In Fact", Barrick Bollman

Northwestern University Law Review

The Religious Land Use and Institutionalized Persons Act (RLUIPA) requires prisons to make accommodations to regulations that substantially burden a prisoner’s religious exercise, unless the prison can show that the regulation is the least restrictive means to meeting a compelling interest. This language suggests strict scrutiny, and yet in Cutter v. Wilkinson, the Supreme Court instead intimated in dicta that courts should give prison officials “due deference” when applying this test. The 2015 case of Holt v. Hobbs presented the Court with an opportunity to clarify how much deference is due under RLUIPA. Though Holt declared that there should ...


Reconciling Agency Fee Doctrine, The First Amendment, And The Modern Public Sector Union, Courtlyn G. Roser-Jones Feb 2018

Reconciling Agency Fee Doctrine, The First Amendment, And The Modern Public Sector Union, Courtlyn G. Roser-Jones

Northwestern University Law Review

Few institutions have done more to improve working conditions for the middle class than labor unions. Their efforts, of course, cost money. To fund union activities, thousands of collective bargaining agreements across the nation have long included provisions permitting employers to require employees to pay “fair share” or “agency” fees. In public unions—when the employer is the government—this arrangement creates tension between two important values: the First Amendment’s protection against compelled expression and the collective benefits of worker representation. When confronted with this tension forty years ago in Abood v. Detroit Board of Education, the Supreme Court ...


A Muslim Registry: The Precursor To Internment?, Sahar F. Aziz Jan 2018

A Muslim Registry: The Precursor To Internment?, Sahar F. Aziz

Sahar F. Aziz

Being political scapegoats in the indefinite ‘war on terror’ is the new normal for Muslims in America. With each federal election cycle or terrorist attack in a Western country comes a spike in Islamophobia. Candidates peddle tropes of Muslims as terrorists in campaign materials and political speeches to solicit votes. Government officials call for bold measures – extreme vetting, bans, and mass deportations – to regulate and exclude Muslim bodies from U.S. soil. The racial subtext is that Muslims in the United States are outsiders who do not belong to the political community. A case in point is the “Muslim Ban ...


Fair Use And First Amendment: Without Fair Use, What Would You Freely Speak About?, Adam Blaier Jan 2018

Fair Use And First Amendment: Without Fair Use, What Would You Freely Speak About?, Adam Blaier

Pace Intellectual Property, Sports & Entertainment Law Forum

The question this paper tries to answer is: Without fair use, what would you freely speak about? This paper will seek to demonstrate that the Copyright Clause’s Fair Use doctrine, and the First Amendment are cousins who help each other, rather than enemies sworn to destroy each other as some believe. First I will give a brief overview and history of each doctrine. Next I will speak about three areas where I believe fair use and the First Amendment cross paths extensively. These areas are: (1) school/education; (2) social media and news; and (3) sports images/broadcasting. Finally ...


Fourth & Inches: Marking The Line Of Athletes’ Free Speech (A Colin Kaepernick Inspired Discussion), Ryan J. Mcginty Jan 2018

Fourth & Inches: Marking The Line Of Athletes’ Free Speech (A Colin Kaepernick Inspired Discussion), Ryan J. Mcginty

Pace Intellectual Property, Sports & Entertainment Law Forum

This note addresses the ongoing controversial stance that was ignited when Colin Kaepernick refused to stand for the playing of the national anthem in protest of what he deems are wrongdoings against African Americans and minorities in the United States. The scope of this note does not surround Kaepernick himself, but rather the professional NFL football player in general. Specifically, players are entitled to the full rights of free expression and free speech as human beings and public figures, up and until the line where that right is abused on the field or “on the job,” thereby threatening an increase ...


Contents Jan 2018

Contents

Catholic University Journal of Law and Technology

No abstract provided.


Say What You Want: How Unfettered Freedom Of Speech On The Internet Creates No Recourse For Those Victimized, Wes Gerrie Jan 2018

Say What You Want: How Unfettered Freedom Of Speech On The Internet Creates No Recourse For Those Victimized, Wes Gerrie

Catholic University Journal of Law and Technology

In today’s society, virtually everyone relies on online posts in order to make decisions—from what products to purchase to what restaurants to visit. The introduction and increase of online communication has made posting reviews online a simpler, easier, and more efficient process. However, the increase of online communication has threatened the delicate balance between free speech and harmful speech.

A tangled web of recent case law and federal law exists which aggressively protects the free speech of online reviewers. The law has carved out immunity for the website operators that host an online reviewer’s comments, which in ...


Masthead Jan 2018

Masthead

Catholic University Journal of Law and Technology

No abstract provided.


Rwu First Amendment Blog: Diana Hassel's Blog: How Will Supreme Court Slice Wedding Cake Case 01-11-2018, Diana Hassel Jan 2018

Rwu First Amendment Blog: Diana Hassel's Blog: How Will Supreme Court Slice Wedding Cake Case 01-11-2018, Diana Hassel

Law School Blogs

No abstract provided.


Michigan's Religious Exemption For Faith-Based Adoption Agencies: State-Sanctioned Discrimination Or Guardian Of Religious Liberty?, Allison L. Mcqueen Jan 2018

Michigan's Religious Exemption For Faith-Based Adoption Agencies: State-Sanctioned Discrimination Or Guardian Of Religious Liberty?, Allison L. Mcqueen

Notre Dame Law Review

Historically, most of the legal obstacles faced by gay couples hoping to expand their families through adoption stemmed from prohibitions on marriage. That was until Obergefell. Barriers to same-sex adoption have been steadily falling over the past decade, and, in the wake of the Supreme Court’s decision, married couples are now able to adopt in every state. However, there remains one pressing barrier to adoption for same-sex couples: “conscience clause” adoption laws enacted to allow faith-based adoption agencies to turn away prospective parents whose sexuality conflicts with their “sincerely held religious beliefs.” Though Ms. DeBoer and Ms. Rowse successfully ...


“And Yet It Moves”—The First Amendment And Certainty, Ronald K.L. Collins Jan 2018

“And Yet It Moves”—The First Amendment And Certainty, Ronald K.L. Collins

Articles

Surprisingly few, if any, works on the First Amendment have explored the relation between free speech and certainty. The same holds true for decisional law. While this relationship is inherent in much free speech theory and doctrine, its treatment has nonetheless been rather opaque. In what follows, the author teases out— philosophically, textually, and operationally—the significance of that relationship and what it means for our First Amendment jurisprudence. In the process, he examines how the First Amendment operates to counter claims of certainty and likewise how it is employed to demand a degree of certainty from those who wish ...


When Judges Are Theologians: Adjudicating Religious Questions, Michael A. Helfand Dec 2017

When Judges Are Theologians: Adjudicating Religious Questions, Michael A. Helfand

Michael A Helfand

In this chapter, I explore how judges—and, more generally, U.S. courts—deal with legal disputes when they must consider not only laws and facts, but also religion, or maybe even more precisely, theology. Indeed, in a wide range of circumstances, judges are confronted with cases where the outcome in some way or another requires them to issue a decision that is predicated, to varying to degrees, on a theological question upon which there is some debate. While in American law the ostensibly simple answer to this question is simply that the Constitution prohibits courts from adjudicating religious questions ...


Helfand_Implied Consent.Pdf, Michael A. Helfand Dec 2017

Helfand_Implied Consent.Pdf, Michael A. Helfand

Michael A Helfand

One of the recent fault lines over religious liberty is the scope of protections afforded institutions and corporations that have religiously-motivated leadership. Courts and scholars all seem to agree that such religious institutions deserve some degree of protection. But the remains significant debate over the principles that should guide judicial decisions addressing in what circumstances religiously-motivated institutions should—and in what circumstances they should not—receive the law’s protection.

In this chapter, I argue for an “implied consent” framework to address religious institutional claims. Such a framework grounds the authority of religious institutions not in a degree of inherent ...


The Fragility Of The Free American Press, Ronnell Anderson Jones, Sonja R. West Dec 2017

The Fragility Of The Free American Press, Ronnell Anderson Jones, Sonja R. West

Northwestern University Law Review

President Donald Trump has faced criticism for attacking the press and for abandoning longstanding traditions of accommodating and respecting it. This Essay argues that the national discussion spurred by Trump’s treatment of the press has fallen short of capturing the true seriousness of the situation. Trump’s assault on the custom of press accommodation follows a generation-long collapse of other major press protections. In order to fully understand the critical juncture at which American press freedom now stands, we must expand the discussion beyond talk of a rogue president’s aberrant attacks on the press and consider the increasingly ...


Toward A Legal Harm Principle: Constructing And Applying A Legal Principle From John Stuart Mill's General Harm Principle, Kathryn Alice Zawisza Dec 2017

Toward A Legal Harm Principle: Constructing And Applying A Legal Principle From John Stuart Mill's General Harm Principle, Kathryn Alice Zawisza

Theses and Dissertations

My goal in this work is to outline a specifically legal harm principle that is derived from John Stuart Mill’s harm principle in On Liberty. I will do this by providing a close reading of On Liberty and comparing it to what he says in chapter V of Utilitarianism. I believe that these two works provide a foundation for a harm principle that defines the domain and limits of the law. While this goal is not new, I focus on Mill’s general harm principle and the two maxims that he believes make it up in order to construct ...


Conant V. Walters: A Misapplication Of Free Speech Rights In The Doctor-Patient Relationship, Katharine M. Mccarthy Nov 2017

Conant V. Walters: A Misapplication Of Free Speech Rights In The Doctor-Patient Relationship, Katharine M. Mccarthy

Maine Law Review

In Conant v. Walters, the United States Court of Appeals for the Ninth Circuit addressed the application of the First Amendment's right of free speech to a federal policy that prohibited the recommendation of medical marijuana by physicians. This class action suit, brought by physicians and severely ill patients, successfully enjoined the federal government from enforcing its policy revoking the federal prescriptive licenses of physicians who recommend or approve of marijuana use by patients suffering from certain severe illnesses. The federal government's policy, issued in 1996 through a statement of Barry McCaffrey, director of the Office of National ...


Creating The Public Forum, Samantha Barbas Nov 2017

Creating The Public Forum, Samantha Barbas

Samantha Barbas

This article describes the development of the public forum doctrine in the context of a larger story about the nation’s efforts in this period to come to terms with its first modern crisis of communication...The public forum is both a site for public debate and a means of communication for the less privileged. In the 1930s and 1940s, intellectuals and activists sought to enlist the state in the creation of “public forums” on the radio, in print journalism, and in public space. This article examines this public forum movement and its enduring impact on the free speech doctrine ...