First Amendment Commons^™

Appellate Division, First Department - Parkhouse V. Stringer, Alyssa Dunn

Touro Law Review

No abstract provided.

Talking Chalk: Talking Chalk: Defacing The First Amendment In The Public Forum, Marie A. Failinger

Marie A. Failinger

Over the past few years, protesters have been arrested for chalking messages on public forum sidewalks. This article discusses why such arrests are discriminatory and violate the jurisprudence of, and values behind, the Speech Clause

Constitutional Law—First Amendment And Freedom Of Speech—The Constitutionality Of Arkansas’S Prohibition On Political Robocalls, Caleb J. Norris

University of Arkansas at Little Rock Law Review

The note first discusses the pros and cons of robocalls, concluding that certain restrictions on robocalls are desirable. Next, the note examines current constitutional case law governing the issue. Thereafter, the note illustrates how Arkansas's regulation on political robocalls would fail a First Amendment challenge as currently written. Accordingly, the note proposes a revision to the robocall statute that would most likely allow it to pass constitutional review.

The note concludes that the burdens resulting from robocalls are placed upon robocall recipients, opposing political campaigns (especially those that determine not to use them under current law), and unrelated third parties. …

First Amendment Protection For Union Appeals To Consumers, Michael C. Harper

Faculty Scholarship

This article explains why decisions of the National Labor Relations Board under President Obama holding non-picketing secondary appeals to consumers not to be illegal under the National Labor Relations Act were necessary under a 1988 decision of the Supreme Court, Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council. The article also explains why both the Supreme Court decision and the Board’s recent decisions were compelled by the first amendment and could not be based on the language of § 8(b)(4)(ii)(B) of the National Labor Relations Act as interpreted by the Court in other cases. The …

New Technologies And Constitutional Law, Thomas Fetzer, Christopher S. Yoo

All Faculty Scholarship

No abstract provided.

Of Speech And Sanctions: Toward A Penalty-Sensitive Approach To The First Amendment, Michael Coenen

Journal Articles

Courts confronting First Amendment claims do not often scrutinize the severity of a speaker’s punishment. Embracing a “penalty-neutral” understanding of the free-speech right, these courts tend to treat an individual’s expression as either protected, in which case the government may not punish it at all, or unprotected, in which case the government may punish it to a very great degree. There is, however, a small but important body of “penalty-sensitive” case law that runs counter to the penalty-neutral norm. Within this case law, the severity of a speaker’s punishment affects the merits of her First Amendment claim, thus giving rise …

Dueling Values: The Clash Of Cyber Suicide Speech And The First Amendment, Thea E. Potanos

Chicago-Kent Law Review

On March 15, 2011, William Melchert-Dinkel, a Minnesota nurse, was convicted of two counts of assisted suicide, based solely on things he said in emails and online chat rooms. This note examines whether cyber speech encouraging suicide, such as Melchert-Dinkel's, should be protected by the First Amendment. States have compelling interests in preserving life, preventing suicide, and protecting vulnerable persons from abuse, and the majority of them have assisted suicide statutes that could be applied to cyber-suicide speech. However, because cyber- suicide speech does not fit neatly into recognized categories of "low-value" or unprotected speech, punishment may be foreclosed by …

Dropping F-Bombs At The Supreme Court, Alan E. Garfield

Alan E Garfield

No abstract provided.

Categories, Tiers Of Review, And The Roiling Sea Of Free Speech Doctrine And Principle: A Methodological Critique Of United States V. Alvarez, Rodney A. Smolla

Scholarly Articles

None available.

Will Free Speech Get A License To Drive In Florida?: A Proposal For Distinguishing Free Speech From Government Speech In Florida Specialty Plate Cases, Christopher Robert Dillingham Ii

Florida A & M University Law Review

Specialty license plates for automobiles, which publish individual and special interest Free Speech, present a quagmire for the courts when analyzed through the lens of the First Amendment's Free Speech Clause. While citizens and groups can obtain personalized license plates that publish both symbolic and written speech, state governments often exercise strict editorial control over their license plates. This regulatory scenario raises the dual questions of who is speaking - the government or the private party - and how much constitutional power the government has to engage in viewpoint restriction in regulating that speech in this traditional government forum. The …

Second Things First: What Free Speech Can And Can’T Say About Guns, Joseph Blocher

Faculty Scholarship

Professor Blocher responds to Gregory Magarian’s article on the implications of the First Amendment for the Second.

Too Narrow Of A Holding? How—And Perhaps Why—Chief Justice John Roberts Turned Snyder V. Phelps Into An Easy Case, Clay Calvert

Oklahoma Law Review

This article analyzes the United States Supreme Court’s March 2011 decision in Snyder v. Phelps. Specifically, it demonstrates the narrow nature of the holding, and argues that while narrow framing, in the tradition of judicial minimalism, may have been a strategic move by Chief Justice John Roberts to obtain a decisive eight-justice majority, the resulting opinion failed to advance First Amendment jurisprudence significantly. Instead, the outcome simply—even predictably—fell in line with an established order of decisions. This article examines four tactics employed by the Chief Justice to narrow the case in such a way that its outcome was essentially …

Sorrell V. Ims Health And The End Of The Constitutional Double Standard, Ernest A. Young

Faculty Scholarship

No abstract provided.

The First Amendment’S Borders: The Place Of Holder V. Humanitarian Law Project In First Amendment Doctrine, David Cole

Georgetown Law Faculty Publications and Other Works

In Holder v. Humanitarian Law Project, the Supreme Court’s first decision pitting First Amendment rights against national security interests since the terrorist attacks of September 11, 2001, the Court appears to have radically departed from some of the First Amendment’s most basic principles, including the maxims that speech may not be penalized because of its viewpoint, that even speech advocating crime deserves protection until it constitutes incitement, and that political association is constitutionally protected absent specific intent to further a group’s illegal ends. These principles lie at the core of our political and democratic freedoms, yet Humanitarian Law Project …

Government May Not Speak Out-Of-Turn, Steven H. Goldberg

Elisabeth Haub School of Law Faculty Publications

Johanns v. Livestock Marketing Association5 was about whether government could compel individual beef producers to pay for general beef advertising credited to "America's Beef Producers;" even if they disagreed with the message and wanted to spend their advertising money to distinguish their certified Angus or Hereford beef. That "compelled subsidy" case became the unlikely authority for a doctrine invented in Pleasant Grove City, Utah v. Summum6 that government could discriminate, based on viewpoint, on a subject for which it had no power to act. Each case has been criticized in its own right, but the attempt to make Johanns precedent …