First Amendment Commons^™

Cancelling Dr. Seuss, Cathay Y.N. Smith

Vanderbilt Journal of Entertainment & Technology Law

Dr. Seuss Enterprises announced in March 2021 that it would no longer license or publish six of its children’s books because those books portrayed people in racist or culturally stereotypical ways. Since then, the public has learned through news reports and social media that other publishers have similarly reviewed and altered their catalogues of classic children’s works, including withdrawing them from the public, editing them to remove problematic content, or adding disclaimers to warn the public about racially insensitive or outdated content. The public reaction to Dr. Seuss’s decision and these other actions has been largely divided. Some criticized these …

Deplatforming, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

Deplatforming in the technology sector is hotly debated, and at times may even seem unprecedented. In recent years, scholars, commentators, jurists, and lawmakers have focused on the possibility of treating social-media platforms as common carriers or public utilities, implying that the imposition of a duty to serve the public would restrict them from deplatforming individuals and content.

But, in American law, the duty to serve all comers was never absolute. In fact, the question of whether and how to deplatform-—to exclude content, individuals, or businesses from critical services—- has been commonly and regularly debated throughout American history. In the common …

To Mint Or Not To Mint: Non-Fungible Tokens And The Right Of Publicity, Hannah Bobek

Fordham Law Review

Non-fungible tokens (NFTs) allow for authentication and ownership of digital assets, which are notable features in the virtual world given the infiniteness of internet content. The emergence of this novel technology, however, has raised challenges, especially regarding enforcement of the right of publicity. This Note addresses how litigators have approached right of publicity violations arising from NFTs and how courts might respond to future violations that this technology is capable of facilitating. Legal scholars and commentators argue that certain features of NFTs pose pronounced threats to the right of publicity, namely the technology’s novelty, democratized nature, anonymization of creators, transferability …

Police Officers, Policy, And Personnel Files: Prosecutorial Disclosure Obligations Above And Beyond Brady, Lauren Giles

Fordham Law Review

Police officers play a significant role in the criminal trial process and are unlike any other witness who will take the stand. They are trained to testify, and jurors find them more credible than other witnesses, even though officers may have more incentive to lie than the ordinary witness. Despite the role of police officers in criminal proceedings, state statutes say virtually nothing about evidence used to impeach police officers, often contained in the officer’s personnel file. Worse still, the standard for disclosing information in an officer’s personnel file varies among and within states, resulting in inconsistent Brady disclosures. This …

The News Media Engagement Principle: Why Social Media Has Not Actually Overrun The Limited Purpose Public Figure Category, Zachary R. Cormier

University of Miami Law Review

Has the rise of social media ruined the limited purpose public figure category of the First Amendment’s actual malice privilege? Justice Gorsuch believes so—and he has recently invited courts to get rid of it. He argues that the category now includes vast numbers of otherwise private citizens that have “become ‘public figures’ on social media overnight.” With so many people qualifying as limited purpose public figures (and having to overcome the actual malice standard to prevail on a defamation claim), he claims that the category has evolved to provide an unjustified shield for the masses of misinformation-peddlers on social media. …

For Freedom Or Full Of It? State Attempts To Silence Social Media, Grace Slicklen

University of Miami Law Review

Freedom of speech is, unsurprisingly, foundational to the “land of the free.” However, the “land of the free” has undergone some changes since the First Amendment’s ratification. Unprecedented technological evolution has ushered in a digital forum in which the volume, speed, and reach of words transcend the Framers’ visions of the First Amendment’s aims. Social media platforms have become central spaces for public discourse, where opportunities to create—and repress—speech are endless. From enabling individuals to freely express their views, to allowing state actors to limit open exchanges, it is about time that the Supreme Court tackles this complex issue of …

Americans For Prosperity Foundation V. Bonta: Protecting Free Speech And Its Implications For Campaign Finance Disclosures, Sara Lindsay Neier

Fordham Law Voting Rights and Democracy Forum

In 2021, the United States Supreme Court in Americans for Prosperity Foundation v. Bonta considered the anonymous speech rights of charitable donors against the California Attorney General’s interest in preventing wrongdoing by charitable organizations. The Court applied exacting scrutiny, a standard traditionally applied to campaign finance disclosure laws, determining that California’s requirement was facially invalid as a violation of associational rights. Bonta did not concern campaign finance, making this application of exacting scrutiny novel. This Article considers the open questions raised by Bonta regarding how exacting scrutiny should be applied and what it means for the future of campaign finance …

Fertile Ground For Violent Extremists: A New Framework To Protect Military Servicemembers And Their Civil Liberties, Sarah Armstrong

Fordham Law Voting Rights and Democracy Forum

Veterans and active-duty members of the armed forces are popular and vulnerable targets for recruitment by alt-right and violent white extremist (“VWE”) groups. As the United States government attempts to deal with an influx of violent hate groups throughout the country, both in the civilian and military context, it must respect the civil liberties of those investigated. This is critical because prosecutors often sweep with a broad brush when investigating resistance movements, and protestors of color and from marginalized backgrounds are disproportionately targeted. Further, on a constitutional level, every American has fundamental rights that cannot be abridged. Therefore, when dealing …

A Vicious Cycle: United States’ Failure To Protect Immigrant Women’S Reproductive Rights At The Irwin County Detention Center, Lizet Palomera Torres

Golden Gate University Law Review

The United States Immigration and Customs Enforcement agency (ICE) detained Jane Doe #15, an immigrant woman, at the Irwin County Detention Center (ICDC) in Georgia. During Jane’s time at ICDC, Doctor Mahendra Amin hastily examined her because she was experiencing severe pain in her pelvic area. Abandoning established professional and legal protocols for diagnosis and treatment, the medical staff scheduled Jane for surgery. Jane did not know what to expect from the surgery or what the medical personnel would do. After the surgery, the staff at ICDC neglected Jane’s care. She could not get out of bed on her own; …

Turn Up The Volume: The Connick Pickering Test As A Remedy For Quiet Quitting And The Covid-19 Pandemic’S Impact On Critical Private Employment Issues, Megan E. Bowling

University of Cincinnati Law Review

No abstract provided.

Inactive Exercise & Unequal Protection: Espinoza & Carson Under The Equal Protection Clause, Griffith B. Bludworth

University of Cincinnati Law Review

No abstract provided.

Education, The First Amendment, And The Constitution, Erwin Chemerinsky

University of Cincinnati Law Review

No abstract provided.

School Matters, Ronna Greff Schneider

University of Cincinnati Law Review

No abstract provided.

Florida’S Stop Woke Act And Its Function As A Content-Based Restriction, Emily Kearns

GGU Law Review Blog

May 2023, Florida Governor Ron Desantis signed into law Florida Senate Bill 266 (SB 266) concerning changes to funding requirements for Florida State University System institutions.. Under SB 266, university undergraduate courses may not “distort significant historical events or include a curriculum that teaches identity politics…or is based on theories that systemic racism, sexism, oppression, and privilege are inherent in the institutions of the United States and were created to maintain social, political, and economic inequities”.

The bill is popularly known as the “Stop Woke Act” (hereafter “the Act”)—an attempt to curtail the apparent horrors of Critical Race …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Anti-Woke Capitalism, The First Amendment, And The Decline Of Libertarianism, Amanda Shanor, Sarah E. Light

Northwestern University Law Review

Firms across the globe, including financial institutions like banks, asset managers, and pension fund managers, are adopting strategies to account for the risks they face from climate change. These strategies include declining to invest in certain emissions-intensive projects or advising firms in their portfolios to report or reduce climate impacts and risks. These forms of private environmental governance can be characterized as one aspect of the “E” within a broader management strategy of “ESG,” or the management of environmental, social, and governance factors. Regulators in the United States and other countries are beginning to mandate that firms take some of …

Misunderstanding Meriwether, Brian Soucek, Ryan Chen

Fordham Law Review

Meriwether v. Hartop is widely seen as one of the most important academic freedom and transgender rights cases of recent years. Whether praising it as a victory for free speech or condemning it as a threat to educational equality, commentators across the political spectrum have agreed on one thing: the U.S. Court of Appeals for the Sixth Circuit did something big when it held that professors at public universities have a First Amendment right to misgender their students in class. But contrary to popular belief, Meriwether held no such thing. In fact, the Sixth Circuit could not have held what …

Anything But Prideful: Free Speech And Conversion Therapy Bans, State-Federal Action Plans, And Rooting Out Medical Fraud, Jordan Hutt

Fordham Law Review

At a time when conversion therapy might seem archaic to many people, this practice remains prevalent across the United States and finds legal support in the halls of federal courthouses. In 2020, the U.S. Court of Appeals for the Eleventh Circuit, in Otto v. City of Boca Raton, held that two ordinances banning conversion therapy in Boca Raton and Palm Beach violated First Amendment free speech rights. Specifically, Otto held that conversion therapy bans were content-based restrictions subject to strict scrutiny. Conversely, the U.S. Courts of Appeals for the Third and Ninth Circuits’ prior decisions upheld conversion therapy bans …

Playing The Unfair Game: Apostates, Abuse & Religious Arbitration, Thomas Floyd

William & Mary Law Review

This Note argues that the Bixler [v. Superior Court] approach should become the standard for evaluating the enforceability of religious arbitration against ex-members. Courts should not enforce agreements to religious arbitration against ex-members of a faith when the relevant conduct occurred after their religious affiliation ended. The First Amendment right of believers to leave their faith should prevail over the First Amendment right of churches to police their internal religious doctrine. Siding with the institutions on this issue allows them the power to exert control over apostates in perpetuity through an unintended synergy of the First Amendment and …

Stay Out Of My Head: Neurodata, Privacy, And The First Amendment, Wayne Unger

Washington and Lee Law Review

The once science-fictional idea of mind-reading is within reach as advancements in brain-computer interfaces, coupled with advanced artificial intelligence, produce neurodata—the collection of substantive thoughts as storable and processable data. But government access to individuals’ neurodata threatens personal autonomy and the right to privacy. While the Fourth Amendment is traditionally considered the source of privacy protections against government intrusion, the First Amendment provides more robust protections with respect to whether governments can access one’s substantive ideas, thoughts, and beliefs. However, many theorists assert that the concept of privacy conflicts with the First Amendment because privacy restricts the flow of information …

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 …

Federal Data Privacy Regulation: Do Not Expect An American Gdpr, Matt Buckley

DePaul Business & Commercial Law Journal

No abstract provided.

Legal Representation And The Metaverse: The Ethics Of Practicing In Multiple Realities, Madeline Brom

DePaul Business & Commercial Law Journal

No abstract provided.

Badges Of Honor: Professional Conduct, Consumer Protection, And Accolades In Lawyer Advertising, Kiren Dosanjh Zucker, Bruce Zucker

DePaul Business & Commercial Law Journal

No abstract provided.

Welcome Address, Lauren Mckenzie

DePaul Business & Commercial Law Journal

No abstract provided.

Front Matter

DePaul Business & Commercial Law Journal

No abstract provided.

Arresting Assembly: An Argument Against Expanding Criminally Punishable Protest, Allison M. Freedman

Villanova Law Review

No abstract provided.

Social Media And Free Speech: A Collision Course That Threatens Democracy, Ryan Michael Johnson

Ohio Northern University Law Review

No abstract provided.

Disrupting The Narrative: Diving Deeper Into Section 230 Political Discourse, Koustubh “K.J.” Bagchi, Elizabeth Banker, Ife Ogunleye

Pepperdine Law Review

Online spaces have undoubtedly played a significant role in facilitating discourse and the exchange of information. With this increased discourse, however, digital platforms have also seen a rise in harmful or problematic content shared online––including health misinformation, hate speech, and child sex abuse material, among others. Many commentators have put the blame for this trend on Section 230, arguing that Section 230 has enabled the spread of harmful content and suggesting that Section 230 ought to be amended or replaced. This Essay, by contrast, argues that the current narrative about Section 230 gets it wrong. In reality, Section 230 has …

Masking God In Resurrection School V. Hertel: One School’S Efforts To Exercise Religion During An Ongoing Pandemic, Sean Turnipseed

Mississippi College Law Review

SARS-CoV-2, colloquially termed “COVID-19,” dramatically altered the world in which we live. But no one would have guessed the virus would spark a flurry of litigation under the U.S. Constitution’s Free Exercise Clause. Shortly after the virus began to spread, former President Donald Trump advised a twoweek plan with hopes to “flatten the curve” of COVID-19’s impact. The plan encouraged individuals to avoid gatherings with ten or more people, work and attend school from home, eat at home rather than in restaurants, and avoid discretionary travel and shopping, to name a few. But the two-week plan did not effectively thwart …