Open Access. Powered by Scholars. Published by Universities.®

First Amendment Commons™

Open Access. Powered by Scholars. Published by Universities.®

Brooklyn Law School

Discipline
Keyword
Publication Year
Publication
Publication Type

Articles 1 - 30 of 116

Full-Text Articles in First Amendment

Trademark Infringement: The Likelihood Of Confusion Of Nfts In The Us And Eu, Sara Sachs Dec 2023

Trademark Infringement: The Likelihood Of Confusion Of Nfts In The Us And Eu, Sara Sachs

Brooklyn Journal of International Law

The immutability of non-fungible tokens has made it an invaluable tool for asset ownership and authentication across a variety of industries. With the proliferation of NFTs comes the need to protect trademarks and prevent consumer confusion in the digital age. This Note explores the existing legal framework for trademark law in the United States and European Union. This Note argues for a new trademark standard that reflects the interconnected nature of a global digital society.

Go to article

First Amendment Scrutiny: Realigning First Amendment Doctrine Around Government Interests, John Inazu Dec 2023

First Amendment Scrutiny: Realigning First Amendment Doctrine Around Government Interests, John Inazu

Brooklyn Law Review

This article proposes a simpler way to frame judicial analysis of First Amendment claims: a government restriction on First Amendment expression or action must advance a compelling interest through narrowly tailored means and must not excessively burden the expression or action relative to the interest advanced. The test thus has three prongs: (1) compelling interest; (2) narrow tailoring; and (3) proportionality. Part I explores how current First Amendment doctrine too often minimizes or ignores a meaningful assessment of the government’s purported interest in limiting First Amendment liberties. Part II shows how First Amendment inquiry is further confused by threshold inquiries …

Go to article

Identity Crisis: First Amendment Implications Of State Identification Card And Driver’S License Branding For Registered Sex Offenders, Marina D. Barron Dec 2023

Identity Crisis: First Amendment Implications Of State Identification Card And Driver’S License Branding For Registered Sex Offenders, Marina D. Barron

Brooklyn Law Review

The Sex Offender Registration and Notification Act has been criticized since its inception as excessively punitive, a poor means of preventing sex crimes, and an invasion of basic privacy rights. There are currently eight states that require registered sex offenders to carry branded identification cards (IDs) that mark their registrant status. These markings range anywhere from a letter or symbol on the face of the card, to the words “SEXUAL OFFENDER” or “SEXUAL PREDATOR” in bright red or orange letters. Registrants are forced to share this private and harmful information to the unknowing and presumably uninterested public, including pharmacists, hotel …

Go to article

Transcript – Civil Liberties: The Next 100 Years, Susan Herman, Erwin Chemerinsky, Ellis Cose, Anthony Romero, Nadine Strossen Dec 2023

Transcript – Civil Liberties: The Next 100 Years, Susan Herman, Erwin Chemerinsky, Ellis Cose, Anthony Romero, Nadine Strossen

Journal of Law and Policy

In honor of Professor Susan Herman’s distinguished academic career and tenure as the ACLU’s president, a panel was held on Friday, October 13, 2023 at Brooklyn Law School and on Zoom to discuss the current state of civil liberties in the United States. The participants also discussed Professor Herman’s new book, Advanced Introduction to US Civil Liberties. The transcription below captures the discussion among Susan Herman, Erwin Chemerinsky, Ellis Cose, Anthony Romero,and Nadine Strossen. All panelists have approved of the overall substantive accuracy of this transcription. Any remaining errors in this transcript should be attributed to the Journal of Law …

Go to article

Deep Dive Into Deepfakes—Safeguarding Our Digital Identity, Yi Yan Aug 2023

Deep Dive Into Deepfakes—Safeguarding Our Digital Identity, Yi Yan

Brooklyn Journal of International Law

Deepfake technology is becoming increasingly sophisticated, and with it, the potential to pose a significant threat to the digital community, democratic institutions, and private individuals. With the creation of highly convincing but entirely fabricated audio, video, and images, there is a pressing need for the international community to address the vulnerabilities posed by deepfake technology in the current legal landscape through unambiguous legislation. This Note explores the ethical, legal, and social implications of deepfakes, including issues of privacy, identity theft, and political manipulation. It also reviews existing international legal frameworks, i.e., the Convention on Cybercrime (“Budapest Convention”) and proposes a …

Go to article

The Right Of Publicity: A New Framework For Regulating Facial Recognition, Jason M. Schultz May 2023

The Right Of Publicity: A New Framework For Regulating Facial Recognition, Jason M. Schultz

Brooklyn Law Review

For over a century, the right of publicity (ROP) has protected individuals from unwanted commercial exploitation of their identities. Originating around the turn of the twentieth century in response to the newest image-appropriation technologies of the time, including portrait photography, mass-production packaging, and a ubiquitous printing press, the ROP has continued to evolve along with each new wave of technologies that enable companies to exploit peoples’ images and identities for commercial gain. Over time, the ROP has protected identities from misappropriation in photographs, films, advertisements, action figures, baseball cards, animatronic robots, video game avatars, and even digital resurrection in film …

Go to article

Social Media Vigilantism, Joanne Sweeny May 2023

Social Media Vigilantism, Joanne Sweeny

Brooklyn Law Review

One of the most well-reported consequences of the #MeToo movement is the ramifications it has had for powerful men accused of engaging in sexual assault or harassment. As part of telling their stories, women (and some men) named their abusers, leading, in some cases, to their alleged abusers suffering legal repercussions. But, much more commonly, legal repercussions never follow, often due to the expiration of the statute of limitations for the crimes committed by the abuser. Instead, social or employment consequences were the only negative impact felt by these abusers. Still, the backlash against #MeToo includes the complaint that these …

Go to article

False Speech And The First Amendment: The Problem With Free Speech In A Fake News Crisis, Eliza J. Estrella May 2023

False Speech And The First Amendment: The Problem With Free Speech In A Fake News Crisis, Eliza J. Estrella

Brooklyn Law Review

Social media platforms are used daily by millions of Americans to connect with friends and family, shop from home, and stay attuned to current events. But the increasing ease and speed of accessing information on social media leaves its users exposed to misinformation, disinformation, and fake news that is designed to deceive. Because natural cognitive biases make individualized truth-filtering mechanisms unreliable, it is often difficult for the public to distinguish between fact and fiction. Widespread belief in viral fake news stories have caused serious and dangerous consequences to public health, safety, and democracy. However, because false speech remains categorically protected …

Go to article

Frustrating Morals: Is There An Implied Reverse Morals Clause In Publishing Agreements?, Matthew L. Fulton May 2023

Frustrating Morals: Is There An Implied Reverse Morals Clause In Publishing Agreements?, Matthew L. Fulton

Brooklyn Journal of Corporate, Financial & Commercial Law

In response to the #MeToo movement and the widespread condemnation of public figures for misconduct, book publishers adopted a standard contract provision used in other entertainment industries called a morals clause. Morals clauses allow a publisher to terminate the agreement if the author is subject to public condemnation. Although these provisions provide robust protection for publishers, these one-sided clauses provide no such protection for authors if publishers are subject to similar condemnation. Although authors may not have the leverage to negotiate reciprocal morals clauses, some authors may have an implied reverse morals clause through the frustration of purpose defense to …

Go to article

Policing The Police: Establishing The Right To Record And Civilian Oversight Boards To Oversee America’S Police, Michael G. Brewster Apr 2023

Policing The Police: Establishing The Right To Record And Civilian Oversight Boards To Oversee America’S Police, Michael G. Brewster

Brooklyn Law Review

Police misconduct is a persistent issue in the United States that undermines public trust in law enforcement and the criminal justice system as a whole. The video of George Floyd’s arrest and murder played an irreplaceable role in bringing attention to the case and sparking nationwide discussions about the state of policing in America. The video, showing former Minneapolis police officer Derek Chauvin kneeling on Mr. Floyd’s neck for several minutes, also helped convict Mr. Chauvin of murder at trial. Recording police activity is an important means of holding officers accountable for their actions and protecting citizens from abuse of …

Go to article

Trump Really Is Too Small: The Right To Trademark Political Commentary, Samuel F. Ernst Apr 2023

Trump Really Is Too Small: The Right To Trademark Political Commentary, Samuel F. Ernst

Brooklyn Law Review

Can you register a famous person’s name as your trademark? The Lanham Act seems to say no, and the PTO interprets this to mean, no, never, no matter what. The Federal Circuit says, “yes, you can,” at least as applied to marks containing political commentary. 15 U.S.C. § 1052(c) provides, in pertinent part, that the PTO must deny federal registration to a trademark if it “[c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent….” Earlier this year the Federal Circuit declared this law unconstitutional in violation of the First Amendment, …

Go to article

Different Countries, Same Homophobia And Transphobia: A Cross-Cultural Survey Of So-Called Conversion Therapy Practices And The Move Toward Legislative Protections For The United States Lgbtq+ Community, Samantha J. Past Dec 2022

Different Countries, Same Homophobia And Transphobia: A Cross-Cultural Survey Of So-Called Conversion Therapy Practices And The Move Toward Legislative Protections For The United States Lgbtq+ Community, Samantha J. Past

Brooklyn Journal of International Law

So-called “conversion therapy” consists of dangerous practices that inflict detrimental, long-lasting effects on its victims. As a form of sexual orientation or gender identity or gender expression change efforts, conversion therapy is fostered by global homophobia and transphobia. Despite formal public rejection and scientific discreditation, conversion therapy providers across the world continue to target LGBTQ+ individuals, predominately under the guise of offering health care services or obeying religious practices. The following piece compares conversion therapy in three countries with recently introduced LGBTQ+ legislation––(1) Ghana; (2) Canada; and (3) the United States (U.S.)–––in order to identify factors furthering conversion therapy and …

Go to article

Domestic Terrorism Classification In The United States V. Canada And The United Kingdom, Michelle Hayek Dec 2022

Domestic Terrorism Classification In The United States V. Canada And The United Kingdom, Michelle Hayek

Brooklyn Journal of International Law

For the past two decades, discourse on terrorism (both global and domestic) has been commonplace throughout the international sphere. Following the attacks on September 11, 2001, many nations have followed suit in launching counterterrorism operations to identify and prevent attacks by both radical groups and lone actors. While the common narrative has focused on “why” terrorist actors commit heinous acts and “how” to best prevent future incidents from emerging, it is important to analyze the legal nuances between prosecuting domestic versus international terrorists. With the rise on “homegrown” domestic lone actors, nations have had to reevaluate and adapt counterterrorism statutes …

Go to article

If You Can’T Beat Them, Get Even: A Proposal To Level The Playing Field Between Social Media Platforms And Their Wrongfully Removed Users, Bernie Gabrielle Toledano Dec 2022

If You Can’T Beat Them, Get Even: A Proposal To Level The Playing Field Between Social Media Platforms And Their Wrongfully Removed Users, Bernie Gabrielle Toledano

Brooklyn Law Review

Millions of individuals in the United States maintain both personal and business accounts on social media platforms, a handful of which dominate the market for online content. However, if one of these platforms removes an account without cause, the affected user has little recourse because most platforms’ Terms of Service contain clauses allowing them to terminate user accounts for any reason. Nevertheless, as the power imbalance between platforms and users grows, scholars and judges are starting to believe that there is a need for greater regulation of these platforms. This note explores the ramifications of the social media regulatory gaps …

Go to article

Social Media And The Common Law, Leslie Y. Garfield Tenzer Dec 2022

Social Media And The Common Law, Leslie Y. Garfield Tenzer

Brooklyn Law Review

The framers of the United States Constitution and those who developed the early common law were no strangers to printed media. They could not, however, have anticipated the widespread ability of average people to communicate instantaneously with large audiences via platforms like Facebook, Instagram, and Twitter. Despite this new technology, courts have primarily relied on pre-social media precedent, rules of law, and the Constitution for guidance when confronted with civil and criminal social media misconduct. On the one hand, relying on existing law is a good thing; it reaffirms the judiciary's commitment to precedent and stare decisis. On the other …

Go to article

Hacking Copyright: Holding Cops Accountable For Abusing Youtube’S Copyright Filter System, Tyler Bloom Dec 2022

Hacking Copyright: Holding Cops Accountable For Abusing Youtube’S Copyright Filter System, Tyler Bloom

Journal of Law and Policy

This Note both explores the mechanisms and incentive structures that make “copyright hacking” possible and explains the legal system’s failure to provide recourse for victims of successful “copyright hacks” by police officers. Because the DMCA has failed to keep pace with the internet’s exponential growth, OSPs, such as YouTube, have developed filtering systems that can be exploited to “copyright hack” users and ultimately suppress their speech. A victim of “copyright hacking” by a police officer currently has no recourse; the doctrine of qualified immunity functionally precludes them from suing for violating their First Amendment rights. This Note proposes two possible …

Go to article

Introductory Remarks: The Roberts Court And The First Amendment: An Introduction, Geoffrey R. Stone Dec 2021

Introductory Remarks: The Roberts Court And The First Amendment: An Introduction, Geoffrey R. Stone

Brooklyn Law Review

On April 9, 2021, Geoffrey R. Stone delivered the following introductory remarks at The Roberts Court and Free Speech Symposium at Brooklyn Law School. An adaptation of Geoffrey R. Stone, Free Speech in the Twenty-First Century: Ten Lessons from the Twentieth Century Lead Article (2008), Dean Stone detailed the history of the pre-Roberts Court First Amendment jurisprudence and laid the foundation for the symposium’s scholarly discourse.

Go to article

The Roberts Court—Its First Amendment Free Expression Jurisprudence: 2005­–2021, Ronald K.L. Collins, David L. Hudson Jr. Dec 2021

The Roberts Court—Its First Amendment Free Expression Jurisprudence: 2005­–2021, Ronald K.L. Collins, David L. Hudson Jr.

Brooklyn Law Review

The decisional law of the First Amendment is an area of law formulated, for the most part, by the high court of the land. At the same time, the study of free speech is equally a study in political philosophy and law. Supreme Court justices have left their mark on the First Amendment free speech doctrine and have made names for themselves in the process. This study explores the impact of Chief Justice John Roberts and the Roberts Court on the free speech doctrine. By examining the case law in this area and the justices and lawyers who craft it, …

Go to article

The Anti-Free Speech Movement, Robert Corn-Revere Dec 2021

The Anti-Free Speech Movement, Robert Corn-Revere

Brooklyn Law Review

What does it mean for the Supreme Court, under Chief Justice John Roberts, to be “good” when it comes to the First Amendment? First Amendment lawyer Robert Corn-Revere tackles this question, by looking at the history of censorship in the United States. Through a historical lens, Mr. Corn-Revere examines the arguments for regulating “bad” speech in order to promote “good” speech, and analogizes this approach to the work of early American censors like Anthony Comstock. This article examines how the history of censorship has shaped First Amendment law, and ultimately through his analysis, Mr. Corn-Revere identifies several examples of what …

Go to article

Free Speech Still Matters, Joel M. Gora Dec 2021

Free Speech Still Matters, Joel M. Gora

Brooklyn Law Review

In its first ten years, the Roberts Court proved to be the most speech protective Court in a generation, if not in our history; however, in the intervening five years, the Court has faced intense pressures, ranging from heightened criticism of its First Amendment jurisprudence to seismic changes in the makeup of the Court to very real proposals for court “packing.” Despite these powerful forces, the Roberts Court has surprisingly stayed true to its commitment to—and guardianship of—the First Amendment. Nevertheless, in the face of modern political correctness and cancel culture, free speech has rarely been in a more precarious …

Go to article

Foreword: The Free Speech Record Of The Roberts Court, William D. Araiza Dec 2021

Foreword: The Free Speech Record Of The Roberts Court, William D. Araiza

Brooklyn Law Review

On April 9, 2021, scholars gathered at Brooklyn Law School to consider the free speech themes highlighted by a catalogue of the Roberts Court’s free speech jurisprudence. The speakers provided incisive and timely insight on these themes—insight that is reflected in the catalogue and accompanying papers published in this symposium issue of the Brooklyn Law Review. This introduction provides an overview of this symposium issue and the questions presented by each article and essay.

Go to article

The Law Of License Plates And Other Inevitabilities Of Free Speech Context Sensitivity, William D. Araiza Dec 2021

The Law Of License Plates And Other Inevitabilities Of Free Speech Context Sensitivity, William D. Araiza

Brooklyn Law Review

This article, written for a symposium on Ronald Collins’s and Professor David Hudson’s catalogue of the Roberts Court’s First Amendment free speech jurisprudence, reconsiders the longstanding tension between rigid free speech rules and more contextual standards. It examines that debate by considering a set of relatively recent free speech cases in which the Court ostensibly adopted rigid rules, but in doing so arguably cloaked its reliance on more contextual factors by manipulating those rules. In cases dealing with national security and judicial electoral speech, the Court manipulated the strict scrutiny the Court insists applies to nearly every content-based speech restriction …

Go to article

Transcript: The Roberts Court And Free Speech Symposium, Michael T. Cahill, Joel M. Gora, Geoffrey R. Stone, Ronald K.L. Collins, David L. Hudson Jr., Floyd Abrams, Ellis Cose, Robert Corn-Revere, Genevieve Lakier, William D. Araiza, Helen Norton, Nadine Strossen, Erwin Chemerinsky Dec 2021

Transcript: The Roberts Court And Free Speech Symposium, Michael T. Cahill, Joel M. Gora, Geoffrey R. Stone, Ronald K.L. Collins, David L. Hudson Jr., Floyd Abrams, Ellis Cose, Robert Corn-Revere, Genevieve Lakier, William D. Araiza, Helen Norton, Nadine Strossen, Erwin Chemerinsky

Brooklyn Law Review

On April 9, 2021, the Brooklyn Law Review gathered a panel of First Amendment scholars for a symposium on the Roberts Court's free speech jurisprudence. This transcript captures the panelists' diverse perspectives on the free speech themes highlighted by the Roberts Court's free speech jurisprudence.

Go to article

Section 230 And The Problem Of Social Cost, Stanley M. Besen, Philip L. Verveer Dec 2021

Section 230 And The Problem Of Social Cost, Stanley M. Besen, Philip L. Verveer

Journal of Law and Policy

This Article employs, with certain modifications, the framework developed in Ronald Coase’s classic article, “The Problem of Social Cost,” to analyze the current debate over Section 230 of the Communications Decency Act. This provision absolves interactive computer services, also known as platforms, from liability when they disseminate materials that cause “harm” to third parties, “harm” that can take the form of compensable damage of a sort found in ordinary tort cases but also can include broader injuries to social order and cohesion in the form of such things as hate speech and misinformation. The Article begins by pointing out that, …

Go to article

The Roberts Court, State Courts, And State Constitutions: Judicial Role Shopping, Ariel L. Bendor, Joshua Segev Dec 2021

The Roberts Court, State Courts, And State Constitutions: Judicial Role Shopping, Ariel L. Bendor, Joshua Segev

Journal of Law and Policy

In this Article we reveal a dual dilemma, both material and institutional, that the Supreme Court in its current composition faces when reviewing liberal state court decisions based on the state constitution. The Article further describes substantive and procedural tactics that the Court adopts to address this dilemma, and illustrates the arguments by analyzing a number of recent Supreme Court decisions. The two dilemmas, the combination of which serve as a “power multiplier,” of sorts, have arisen following the last three appointments to the Supreme Court, which resulted in a solid majority of conservative Justices nominated by Republican presidents. One …

Go to article

On The Outer Reaches Of The Marketplace Of Ideas: The Weaponization Of Title Vi Against Palestinian College Activists, Gavriella Fried Dec 2021

On The Outer Reaches Of The Marketplace Of Ideas: The Weaponization Of Title Vi Against Palestinian College Activists, Gavriella Fried

Journal of Law and Policy

On U.S. college campuses, Palestinian rights activists who are critical of Israel risk legal consequences. Title VI of the Civil Rights Act prohibits discrimination on the basis of race, color, or national origin in any program receiving federal funds. Over the past two decades, at least eighteen Title VI complaints have been filed against U.S. colleges and universities, alleging that Palestinian rights activists’ political expression is a form of anti-Semitism. In December 2019, President Trump promulgated Executive Order 13,899, which formally extended Title VI protections to Jews and directed enforcement agencies to investigate allegations of anti-Semitism using guidance that includes …

Go to article

The Good, The Bad, And The Historically Anti-Semitic: An Analytical Comparison Of Anti-Hate Laws In Germany And The United States, Jamie Rauch Dec 2021

The Good, The Bad, And The Historically Anti-Semitic: An Analytical Comparison Of Anti-Hate Laws In Germany And The United States, Jamie Rauch

Brooklyn Journal of International Law

Confronted every day with drastically increasing accounts of hate crimes and hate speech, nations’ legislators have routinely tried and subsequently failed to implement effective legislation capable of curbing the hatred epidemic currently sweeping the globe. This failure is due in large part to the lack of a universal stance on hate crime regulation and criminalization. Two countries in particular, the United States and Germany, embody two diametrically opposing approaches taken by nations in the present-day war on hate speech. This Note explores the dramatic dichotomy between the legislative framework surrounding the regulation of hate speech in these two countries. This …

Go to article

Copystrikes And Meme Bans: Social Media And Copyright Protections In The Digital Age, Angelina Sanchez Dec 2021

Copystrikes And Meme Bans: Social Media And Copyright Protections In The Digital Age, Angelina Sanchez

Brooklyn Journal of International Law

Social media is a pervasive and ever-present aspect of many peoples’ lives. Its use permeates nearly every aspect of our existence – there truly is an app for everything. Most notably, social media operates internationally both in scope and usage allowing for the creation of an astounding global society that shares cultures and perspectives in a way unprecedented in human history. Never before have societies been as interconnected as they are now. Unfortunately, such interconnectedness comes with the issue of globalizing enforcement of copyright laws. Infringement runs rampant online and forces creators to struggle against a seemingly faceless foe in …

Go to article

Mad About The First Amendment, Our Beacon For Liberty, Equality And Democracy, Nicholas Allard Oct 2021

Mad About The First Amendment, Our Beacon For Liberty, Equality And Democracy, Nicholas Allard

Faculty Scholarship

No abstract provided.

Go to article

The Law Of License Plates And Other Inevitabilities Of Free Speech Context Sensitivity, William D. Araiza Oct 2021

The Law Of License Plates And Other Inevitabilities Of Free Speech Context Sensitivity, William D. Araiza

Faculty Scholarship

No abstract provided.

Go to article

Next Last