First Amendment | Open Access Articles | Digital Commons Network™

Respeaking The Bill Of Rights: A New Doctrine Of Incorporation, Kurt Lash Oct 2022

Respeaking The Bill Of Rights: A New Doctrine Of Incorporation, Kurt Lash

Indiana Law Journal

The incorporation of the Bill of Rights against the states by way of the Fourteenth Amendment raises a host of textual, historical, and doctrinal difficulties. This is true even if (especially if) we accept the Fourteenth Amendment as having made the original Bill of Rights binding against the states. Does this mean we have two Bills of Rights, one applicable against the federal government with a “1791” meaning and a second applicable against the state governments with an “1868” meaning? Do 1791 understandings carry forward into the 1868 amendment? Or do 1868 understandings of the Bill of Rights carry backward …

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Regulating Charitable Crowdfunding, Lloyd H. Mayer Oct 2022

Regulating Charitable Crowdfunding, Lloyd H. Mayer

Indiana Law Journal

Charitable crowdfunding is a global and rapidly growing new method for raising money to benefit charities and individuals in need. While mass fundraising has existed for hundreds of years, crowdfunding is distinguishable from those earlier efforts because of its low cost, speed of implementation, and broad reach. Reflecting these advantages, it now accounts annually for billions of dollars raised from tens of millions of donors through hundreds of internet platforms, including Charidy, Facebook, GoFundMe, and GlobalGiving. Although most charitable crowdfunding campaigns raise only modest amounts, on occasion a campaign attracts tens of millions of dollars in donations. However, charitable crowdfunding …

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Platforms: The First Amendment Misfits, Jane R. Bambauer, James Rollins, Vincent Yesue Jul 2022

Platforms: The First Amendment Misfits, Jane R. Bambauer, James Rollins, Vincent Yesue

Indiana Law Journal

This Essay explains why previous First Amendment precedents that allowed government to require a private entity to host the speech of others have limited applicability to online platforms like Twitter and Facebook. Moreover, the backdrop of an open internet makes platforms sufficiently vulnerable to competition and responsive to “listener” preferences that the dominance of some firms like Facebook and Google is not really a chokepoint: aggressive changes to content curation will lead to user dissatisfaction and defection, whether those changes are made by the government or the companies themselves. As a result, there are no close analogies in First Amendment …

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Policing The Wombs Of The World's Women: The Mexico City Policy, Samantha Lalisan Jul 2020

Policing The Wombs Of The World's Women: The Mexico City Policy, Samantha Lalisan

Indiana Law Journal

This Comment argues that the Policy should be repealed because it undermines

firmly held First Amendment values and would be considered unconstitutional if

applied to domestic nongovernmental organizations (DNGOs). It proceeds in four

parts. Part I describes the inception of the Policy and contextualizes it among other

antiabortion policies that resulted as a backlash to the U.S. Supreme Court’s

landmark decision in Roe v. Wade. Part II explains the Policy’s actual effect on

FNGOs, particularly focusing on organizations based in Nepal and Peru, and argues

that the Policy undermines democratic processes abroad and fails to achieve its stated

objective: reducing …

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First Amendment “Harms”, Stephanie H. Barclay Apr 2020

First Amendment “Harms”, Stephanie H. Barclay

Indiana Law Journal

What role should harm to third parties play in the government’s ability to protect religious rights? The intuitively appealing “harm” principle has animated new theories advanced by scholars who argue that religious exemptions are indefensible whenever they result in cognizable harm to third parties. This third-party harm theory is gaining traction in some circles, particularly in light of the Supreme Court’s pending cases in Little Sisters of the Poor and Fulton v. City of Philadelphia. While focusing on harm appears at first to provide an appealing, simple, and neutral principle for avoiding other difficult moral questions, the definition of harm …

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Speech Inequality After Janus V. Afscme, Charlotte Garden Jan 2020

Speech Inequality After Janus V. Afscme, Charlotte Garden

Indiana Law Journal

This Article explores the growing divide between the Roberts Court’s treatment of the free speech rights of wealthy individuals and corporations in campaign finance cases as compared to its treatment of the rights of public-sector labor unions and their members. First, it highlights some internal contradictions in the Janus Court’s analysis. Then, it discusses the growing—yet mostly ignored—divergence in the Court’s treatment of corporate and labor speakers with respect to the use of market influence to achieve political influence.

The Article has two Parts. In Part I, I explain how the Court reached its decision in Janus before critiquing the …

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The Policeman's Right To Free Speech: Muller V. Conlisk, Richard L. Halpert Jul 1971