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Articles 31 - 60 of 260
Full-Text Articles in First Amendment
The First Amendment And Algorithms, Stuart M. Benjamin
The First Amendment And Algorithms, Stuart M. Benjamin
Faculty Scholarship
No abstract provided.
First Amendment (Un)Exceptionalism: A Comparative Taxonomy Of Campaign Finance Reform Proposals In The United States And United Kingdom, Lori A. Ringhand
First Amendment (Un)Exceptionalism: A Comparative Taxonomy Of Campaign Finance Reform Proposals In The United States And United Kingdom, Lori A. Ringhand
Scholarly Works
There is an urgent conversation happening among the world’s democracies about how to respond to the combined threat of online electioneering and foreign interference in domestic elections. Despite the shadow such activities cast over the 2016 presidential election in the United States, the US has been largely absent from comparative discussions about how to tackle the problem. This is not just because of a recalcitrant president. The assumption that America’s “First Amendment Exceptionalism” – the idea that American freedom of expression law is simply too much of an outlier to warrant useful comparative consideration – is strong on both sides …
Constitutional Moral Hazard And Campus Speech, Jamal Greene
Constitutional Moral Hazard And Campus Speech, Jamal Greene
William & Mary Law Review
One underappreciated cost of constitutional rights enforcement is moral hazard. In economics, moral hazard refers to the increased propensity of insured individuals to engage in costly behavior. This Essay concerns what I call “constitutional moral hazard,” defined as the use of constitutional rights (or their conspicuous absence) to shield potentially destructive behavior from moral or pragmatic assessment. What I have in mind here is not simply the risk that people will make poor decisions when they have a right to do so, but that people may, at times, make poor decisions because they have a right. Moral hazard is not …
Establishment Of Religion Supreme Court Appellate Division Third Department
Establishment Of Religion Supreme Court Appellate Division Third Department
Touro Law Review
No abstract provided.
Facebook V. Sullivan: Public Figures And Newsworthiness In Online Speech, Thomas E. Kadri, Kate Klonick
Facebook V. Sullivan: Public Figures And Newsworthiness In Online Speech, Thomas E. Kadri, Kate Klonick
Scholarly Works
In the United States, there are now two systems to adjudicate disputes about harmful speech. The first is older and more established: the legal system in which judges apply constitutional law to limit tort claims alleging injuries caused by speech. The second is newer and less familiar: the content-moderation system in which platforms like Facebook implement the rules that govern online speech. These platforms are not bound by the First Amendment. But, as it turns out, they rely on many of the tools used by courts to resolve tensions between regulating harmful speech and preserving free expression—particularly the entangled concepts …
Considerations Of History And Purpose In Constitutional Borrowing, Robert Tsai
Considerations Of History And Purpose In Constitutional Borrowing, Robert Tsai
Articles in Law Reviews & Other Academic Journals
This essay is part of a symposium issue dedicated to "Constitutional Rights: Intersections, Synergies, and Conflicts" at William and Mary School of Law. I make four points. First, perfect harmony among rights might not always be normatively desirable. In fact, in some instances, such as when First Amendment and Second Amendment rights clash, we might wish to have expressive rights consistently trump gun rights. Second, we can't resolve clashes between rights in the abstract but instead must consult history in a broadly relevant rather than a narrowly "originalist" fashion. When we do so, we learn that armed expression and white …
The Lessons Of 1919, Lackland H. Bloom
The Lessons Of 1919, Lackland H. Bloom
SMU Law Review
One hundred years ago, the Supreme Court embarked on its first serious consideration of the First Amendment’s guarantee of freedom of speech. In 1919, the Court upheld four federal criminal convictions over First Amendment defenses. Three of the majority opinions were written by Justice Holmes. In the fourth, he offered a classic dissent. Two of the cases, Frohwerk v. United States and Debs v. United States, are of middling significance. The other two, Schenck v. United States and Abrams v. United States, are iconic. From these cases have sprung an expansive and complex jurisprudence of free speech. The …
Free Speech And Justified True Belief, Joseph Blocher
Free Speech And Justified True Belief, Joseph Blocher
Faculty Scholarship
Law often prioritizes justified true beliefs. Evidence, even if probative and correct, must have a proper foundation. Expert witness testimony must be the product of reliable principles and methods. Prosecutors are not permitted to trick juries into convicting a defendant, even if that defendant is truly guilty. Judges’ reasons, and not just the correctness of their holdings, are the engines of precedent. Lawyers are, in short, familiar with the notion that one must be right for the right reasons.
And yet the standard epistemic theory of the First Amendment—that the marketplace of ideas is the “best test of truth”—has generally …
Doctrinal Dynamism, Borrowing, And The Relationship Between Rules And Rights, Joseph Blocher, Luke Morgan
Doctrinal Dynamism, Borrowing, And The Relationship Between Rules And Rights, Joseph Blocher, Luke Morgan
Faculty Scholarship
The study of "Rights Dynamism," exemplified in Timothy Zick' s new book on the First Amendment's relationship with the rest of the Bill of Rights, can enrich our understanding of constitutional rights. It also opens a door to another potentially fruitful arena: what we call "Doctrinal Dynamism." Constitutional rights often interact and generate new meanings and applications by way of importing and exporting one another's doctrinal rules, even when the rights themselves do not intersect directly in the context of a single case. Focusing on these doctrinal exchanges can illuminate the strengths and weaknesses of various rules, the specific interests …
The Meaning Of Wrongdoing - A Crime Of Disrespecting The Flag: Grounds For Preserving National Unity, Mohammed Saif-Alden Wattad
The Meaning Of Wrongdoing - A Crime Of Disrespecting The Flag: Grounds For Preserving National Unity, Mohammed Saif-Alden Wattad
San Diego International Law Journal
To conclude on this issue, the rights of others, as individuals and as a whole, are formulated as the social protected interest that criminal law seeks to protect through criminal means, and it is with these rights that criminal law theory should be concerned in the first level of scrutiny. However, in the second level of scrutiny, an additional set of rights are brought into play; these are the rights of the individual, namely the actor, to exercise their constitutional rights e.g., free speech, liberty, free exercise of religion. The second level of scrutiny requires balancing those rights with the …
The Resilient Foundation Of Democracy: The Legal Deconstruction Of The Washington Posts's Condemnation Of Edward Snowden, Hanna Kim
Indiana Law Journal
On September 17, 2016, The Washington Post (“the Post”) made history by being the first paper to ever call for the criminal prosecution of its own source —Edward Snowden. Yet, two years prior to this editorial, the Post accepted the 2014 Pulitzer Prize in Public Service for its “revelation of widespread secret surveillance by the National Security Agency”—an honor which would not have been bestowed had Snowden not leaked the documents through this news outlet. The other three major media outlets that received and published Snowden’s documents and findings—The Guardian, The New York Times, and The Intercept—all have taken the …
Rfra As Legislative Entrenchment, Branden Lewiston
Rfra As Legislative Entrenchment, Branden Lewiston
Pepperdine Law Review
When there is a conflict between two federal statutes, the more recent statute overrides the past statute. However, courts have used the Religious Freedom Restoration Act (RFRA) to preempt federal laws passed after it. Normally that is the role of constitutional provisions, not statutes. RFRA has been subject to much constitutional criticism, but its attempt to control subsequent federal law has drawn little attention. Courts use RFRA to trump subsequent federal statutes without second thought. This Essay draws on legislative entrenchment doctrine to argue that this feature of RFRA is unconstitutional. RFRA should be used to strike down prior laws …
Life In No Trump: Property And Speech Under The Constitution, Richard A. Esptein
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, roughly …
Favoring The Press, Sonja R. West
Favoring The Press, Sonja R. West
Scholarly Works
In the 2010 case of Citizens United v. Federal Election Commission, the United States Supreme Court caught the nation’s attention by declaring that corporations have a First Amendment right to independently spend unlimited amounts of money in political campaigns. The Court rested its 5-4 decision in large part on a concept of speaker-based discrimination. In the Court’s words, “the Government may commit a constitutional wrong when by law it identifies certain preferred speakers.”
To drive home its point that speaker-based distinctions are inherently problematic, the Court focused on one type of speaker distinction — the treatment of news media corporations. …
Hate Speech At Home And Abroad, Sarah H. Cleveland
Hate Speech At Home And Abroad, Sarah H. Cleveland
Faculty Scholarship
The United States’ best-known constitutional protection internationally is surely the First Amendment. Around the world, the United States is perceived as protecting freedom of expression and the press first and foremost, among all rights. And whether admired for its purity and idealism or dismissed as naïve and sui generis, the United States’ approach to free speech is globally examined, critiqued, and debated. It is the United States’ most prominent constitutional export, informing the drafting of foreign constitutions, statutes, and judicial interpretations, and undergirding the protection for freedom of expression in the international and regional human rights systems.
This chapter …
Free Speech And Generally Applicable Laws: A New Doctrinal Synthesis, Dan T. Coenen
Free Speech And Generally Applicable Laws: A New Doctrinal Synthesis, Dan T. Coenen
Scholarly Works
A longstanding mystery of constitutional law concerns how the Free Speech Clause interacts with “generally applicable” legal restrictions. This Article develops a new conceptual framework for working through this puzzle. It does so by extracting from prior Supreme Court rulings an approach that divides these restrictions into three separate categories, each of which (at least presumptively) brings into play a different level of judicial scrutiny. An example of the first and most closely scrutinized category of generally applicable laws—that is, laws that place a “direct in effect” burden on speech—is provided by breach-of-the-peace statutes. These laws are generally applicable because …
Privacy's Double Standards, Scott Skinner-Thompson
Privacy's Double Standards, Scott Skinner-Thompson
Publications
Where the right to privacy exists, it should be available to all people. If not universally available, then privacy rights should be particularly accessible to marginalized individuals who are subject to greater surveillance and are less able to absorb the social costs of privacy violations. But in practice, there is evidence that people of privilege tend to fare better when they bring privacy tort claims than do non-privileged individuals. This disparity occurs despite doctrine suggesting that those who occupy prominent and public social positions are entitled to diminished privacy tort protections.
This Article unearths disparate outcomes in public disclosure tort …
Suing The President For First Amendment Violations, Sonja R. West
Suing The President For First Amendment Violations, Sonja R. West
Scholarly Works
On any given day, it seems, President Donald Trump can be found attacking, threatening, or punishing the press and other individuals whose speech he dislikes. His actions, moreover, inevitably raise the question: Do any of these individuals or organizations (or any future ones) have a viable claim against the President for violating their First Amendment rights?
One might think that the ability to sue the President for violation of the First Amendment would be relatively settled. The answer, however, is not quite that straightforward. Due to several unique qualities about the First Amendment and the presidency, it is not entirely …
Presidential Attacks On The Press, Sonja R. West
Presidential Attacks On The Press, Sonja R. West
Scholarly Works
President Donald Trump’s habit of hurling invectives at the press is disturbing. It undermines the work of the press and breaks long-standing norms that presidents show respect for the role of the Fourth Estate. But insults alone rarely raise First Amendment issues. Presidents have long used the bully pulpit to respond to or criticize news reports. Even Trump’s near daily verbal assaults on reporters and news organizations can be considered part of our country’s “uninhibited, robust, and wide-open” marketplace of ideas. Presidents have opinions too, and journalists should be able to handle his rants.
Yet there are also times when …
The Search For An Egalitarian First Amendment, Jeremy K. Kessler, David E. Pozen
The Search For An Egalitarian First Amendment, Jeremy K. Kessler, David E. Pozen
Faculty Scholarship
Over the past decade, the Roberts Court has handed down a series of rulings that demonstrate the degree to which the First Amendment can be used to thwart economic and social welfare regulation – generating widespread accusations that the Court has created a "new Lochner." This introduction to the Columbia Law Review's Symposium on Free Expression in an Age of Inequality takes up three questions raised by these developments: Why has First Amendment law become such a prominent site for struggles over socioeconomic inequality? Does the First Amendment tradition contain egalitarian elements that could be recovered? And what might a …
Beyond The Bosses' Constitution: The First Amendment And Class Entrenchment, Jedediah S. Purdy
Beyond The Bosses' Constitution: The First Amendment And Class Entrenchment, Jedediah S. Purdy
Faculty Scholarship
The Supreme Court’s “weaponized” First Amendment has been its strongest antiregulatory tool in recent decades, slashing campaign-finance regulation, public-sector union financing, and pharmaceutical regulation, and threatening a broader remit. Along with others, I have previously criticized these developments as a “new Lochnerism.” In this Essay, part of a Columbia Law Review Symposium, I press beyond these criticisms to diagnose the ideological outlook of these opinions and to propose an alternative. The leading decisions of the antiregulatory First Amendment often associate free speech with a vision of market efficiency; but, I argue, closer to their heart is antistatist fear of entrenchment …
Hate Speech Debate Has Roots In Us History, Rodney A. Smolla
Hate Speech Debate Has Roots In Us History, Rodney A. Smolla
Rod Smolla
No abstract provided.
Hate Speech And The First Amendment, Alan E. Garfield
Hate Speech And The First Amendment, Alan E. Garfield
Alan E Garfield
No abstract provided.
Catholic Institutions In Court: The Religion Clauses And Political-Legal Compromise, Angela C. Carmella
Catholic Institutions In Court: The Religion Clauses And Political-Legal Compromise, Angela C. Carmella
West Virginia Law Review
No abstract provided.
This Is Why We Protect Hate Speech, Alan E. Garfield
This Is Why We Protect Hate Speech, Alan E. Garfield
Alan E Garfield
Constitutional Law—Why Amending The Consitution To Overrule Citizens United Is The Wrong Way To Fix Campaign Finance In The United States, Zachary Hale
University of Arkansas at Little Rock Law Review
No abstract provided.
Precedent And Speech, Randy J. Kozel
Precedent And Speech, Randy J. Kozel
Randy J Kozel
The U.S. Supreme Court has shown a notable willingness to reconsider its First Amendment precedents. In recent years the Court has departed from 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 changed its position on corporate electioneering and aggregate campaign contributions. In short, it has revised the ground rules of expressive freedom in ways both large and small.
The Court generally describes its past decisions as enjoying a presumption of validity through the doctrine of stare decisis. This Article contends that within the …
Precedent And Speech, Randy J. Kozel
Precedent And Speech, Randy J. Kozel
Journal Articles
The U.S. Supreme Court has shown a notable willingness to reconsider its First Amendment precedents. In recent years the Court has departed from 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 changed its position on corporate electioneering and aggregate campaign contributions. In short, it has revised the ground rules of expressive freedom in ways both large and small.
The Court generally describes its past decisions as enjoying a presumption of validity through the doctrine of stare decisis. This Article contends that within the …
The Supreme Court's Brain Teaser, Alan E. Garfield
The Supreme Court's Brain Teaser, Alan E. Garfield
Alan E Garfield
No abstract provided.
Applying Strict Scrutiny: An Empirical Analysis Of Free Exercise Cases, Caleb C. Wolanek, Heidi H. Liu
Applying Strict Scrutiny: An Empirical Analysis Of Free Exercise Cases, Caleb C. Wolanek, Heidi H. Liu
All Faculty Scholarship
Strict scrutiny and the free exercise of religion have had an uneasy relationship in American jurisprudence. In this Article, we trace the history of strict scrutiny in free exercise cases and outline how it applies today. Then, using a unique dataset of cases from a 25-year period, we detail the characteristics of these cases. Finally, we discuss the implications for future cases. Our research indicates that even though claimants currently win a large percentage of cases, those victories might not be durable.