First Amendment Commons^™

Mccutcheon V. Federal Election Commission, Stephen M. Degenaro

Notre Dame Law Review Reflection

McCutcheon v. Federal Election Commission involved a challenge to limits imposed on the amount a donor may contribute during a single election cycle. In McCutcheon, the Court was presented with the question of whether the aggregate limits placed on contributions to candidate and noncandidate committees either lacked a cognizable constitutional interest or were unconstitutionally too low. In a five to four decision, the Supreme Court held that the aggregate limits on campaign contributions burden substantial First Amendment rights without furthering a permissible government interest.

Lane V. Franks, Katie Jo Baumgardner

Notre Dame Law Review Reflection

On June 19, 2014, the U.S. Supreme Court expanded the scope of public employee free speech with its decision in Lane v. Franks. The Court granted certiorari in order “to resolve discord among the Courts of Appeals as to whether public employees may be fired—or suffer other adverse employment consequences—for providing truthful subpoenaed testimony outside the course of their ordinary job responsibilities.” The unanimous Lane decision, which affirmed in part and reversed in part an opinion by the Eleventh Circuit, held that the First Amendment protects a public employee from retaliatory employer discipline where the employee testifies at trial, pursuant …

Online Terms Of Service: A Shield For First Amendment Scrutiny Of Government Action, Jacquelyn E. Fradette

Notre Dame Law Review

Part I of this Note will canvas popular opinions and perceptions about First Amendment rights on the Internet using examples of public outcry over recent instances of speech limitation. It will also discuss the state action doctrine generally and how the presence of this doctrine most likely renders certain popular public constitutional intuitions about the First Amendment erroneous.

Part II will provide an overview of how courts have taken an expansive and protective view of private ordering between online parties. It will discuss how courts have developed a robust freedom to contract jurisprudence in the Internet context. Because courts essentially …

Rehabilitating The Property Theory Of Copyright's First Amendment Exemption, Tun-Jen Chiang

Notre Dame Law Review

A continuing controversy in copyright law is the exemption of copyright from First Amendment scrutiny. The Supreme Court has justified the exemption based on history and the intentions of the Framers, but this explanation is unpersuasive on the historical facts.

There is an alternative explanation: copyright is property, and private property is generally exempt from scrutiny under standard First Amendment doctrine. Many scholars have noted this theory, but they have been harshly dismissive towards it. For example, Mark Lemley and Eugene Volokh view the property theory as so clearly wrong as to be a “non sequitur,” because it supposedly implies …

Protecting More Than The Front Page: Codifying A Reporter’S Privilege For Digital And Citizen Journalists, Kathryn A. Rosenbaum

Notre Dame Law Review

This Note will first explain, in Part I, why journalists need to be protected, and detail the history of reporters invoking a reporter’s privilege in court to protect themselves from revealing their sources or information. It will then discuss Branzburg v. Hayes in Section II.A. Section II.B briefly examines circuits’ receptivity to statutory or constitutional protections of reporters. The Supreme Court has stated that Congress could pass a law to protect reporters. However, while multiple federal shield laws have been proposed, none have been passed. The most recent proposal occurred in 2013, and as of December 2013, the Senate version …

Nonprofits, Speech, And Unconstitutional Conditions, Lloyd Hitoshi Mayer

Journal Articles

This Article proposes a new constitutional framework for approaching the issue of speech-related conditions on government funding received by nonprofits and demonstrates the application of this framework by applying it to the disputes that have reached the Supreme Court in this area. It argues that speech rights are generally inalienable as against the government under the First Amendment, and therefore any abridgement of such rights by the government – whether direct or indirect – is subject to strict scrutiny. As a result, the government is not permitted to buy an organization’s speech (or silence) absent a compelling governmental interest in …

Second Thoughts About The First Amendment, Randy J. Kozel

Journal Articles

The U.S. Supreme Court has shown a notable willingness to reconsider — and depart from — its First Amendment precedents. In recent years the Court has marginalized its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has rejected its past decisions on corporate electioneering and aggregate campaign contributions. And it has revised its earlier positions on union financing, abortion protesting, and commercial speech. Under the conventional view of constitutional adjudication, dubious precedents enjoy a presumption of validity through the doctrine of stare decisis. This Article …

Institutional Autonomy And Constitutional Structure, Randy J. Kozel

Journal Articles

This Review makes two claims. The first is that Paul Horwitz’s excellent book, "First Amendment Institutions," depicts the institutionalist movement in robust and provocative form. The second is that it would be a mistake to assume from its immersion in First Amendment jurisprudence (not to mention its title) that the book's implications are limited to the First Amendment. Professor Horwitz presents First Amendment institutionalism as a wide-ranging theory of constitutional structure whose focus is as much on constraining the authority of political government as it is on facilitating expression. These are the terms on which the book's argument — and, …