First Amendment Commons^™

Secrecy On Steroids: How Overzealous State Confidentiality Laws Expose Leakers And Whistleblowers To Retaliatory Prosecution, Frank D. Lomonte, Anne Marie Tamburro

University of Miami Law Review

It is well-documented that the federal government has a secrecy problem. Thousands of times a year, inconsequential documents are needlessly stamped “classified,” which can mean prison for anyone who leaks them. But the addiction to secrecy doesn’t stop with the Pentagon. State public-records statutes are riddled with their own local version of “classified information” that puts people at risk of prosecution even for well-intentioned whistleblowing.

The problem is particularly acute in Florida, where one of the state’s highest-ranking elected officials spent almost two years as the target of a criminal investigation for releasing records about an unresolved sexual harassment complaint …

Obtaining Trademark Registration For Marks Containing Political Commentary: A Look Into Vidal V. Elster, Annick Runyon

University of Miami Law Review

For decades, courts have struggled with balancing trademark law with the First Amendment—specifically with cases challenging the denial of trademark registration of certain marks. Congress codified trademark registration through the Lanham Act, also known as the Trademark Act of 1946. This statute outlines the registration process and expands the rights of trademark owners. In recent years, a string of cases have ruled certain provisions of the Lanham Act that bar certain marks from registration unconstitutional.

Currently under review by the Supreme Court, the case Vidal v. Elster involves an applicant who was denied trademark registration for his mark “Trump Too …

Is Florida At War With The Mouse Or Free Speech: Understanding The Dissolution Of Disney’S Reedy Creek And The Threat To Corporate First Amendment Rights, Julia Gibson

University of Miami Business Law Review

On April 22, 2022, Florida Governor Ron DeSantis signed Florida Senate Bill 4C, which stripped Walt Disney World of its status as an “independent special district,” with its Reedy Creek Improvement District. The legislation was passed in response to the corporation’s public criticism of the Parental Rights in Education Act. After months of speculation regarding the solution to the grave tax and debt consequences of the bill, the Governor signed Florida House Bill 9B to reinstate the district under a State elected board and under a new name—the Central Florida Tourism Oversight District.

This Comment delves into the longstanding history …

The Right To Refuse To Deal, The Essential Facilities Doctrine, And The Digital Economy, George Sakkopoulos

St. Mary's Law Journal

Various commentators, as well as the 2020 report on competition in digital markets by the majority staff of the House Judiciary Committee, have advocated for the revival of the essential facilities doctrine, especially in the context of the digital economy. This Article examines the three phases in the development of the essential facilities doctrine and the right to refuse to deal—the foundations in the early twentieth century, the contraction of the right to refuse to deal and the expansion of the essential facilities doctrine in the mid-twentieth century, and the revival of the right to refuse to deal and the …

Parental Rights Or Political Ploys? Unraveling The Deceptive Threads Of Modern “Parental Rights” Legislation, Cecilia Giles

University of Cincinnati Law Review

No abstract provided.

Constitutional Rights And Retrenchment: The Elusive Promise Of Equal Citizenship, Deborah L. Brake

University of Cincinnati Law Review

No abstract provided.

The Social Experiment: How The First Amendment Influences Private Social Media Companies, Collyn J. Kim

Helms School of Government Undergraduate Law Review

Social media has become one of the biggest mediums by which people communicate, socialize, and interact with each other. People follow political figures, cultural icons, and news outlets, among others, to gain knowledge on current events or the hot topic of the day. Many users, regardless of the platform, use their medium of choice to speak their own opinions and comment on the world’s issues. From prime ministers to popular memes, social media is a never-ending timeline of speech. With the constant speech and expression exhibited on social media, two important questions must be asked. First, does the First Amendment …

Rage Rhetoric And The Revival Of American Sedition, Jonathan Turley

William & Mary Law Review

We are living in what Professor Jonathan Turley calls an age of rage. However, it is not the first such period. Professor Turley explores how the United States was formed (and the Constitution was written) in precisely such a period. Throughout that history, sedition has been used as the vehicle for criminalizing political speech. This Article explores how seditious libel has evolved as a crime and how it is experiencing a type of American revival. The crime of sedition can be traced back to the infamous trials of the Star Chamber and the flawed view of free speech articulated by …

I Hope This Email Finds You Well: The Eleventh Circuit Addresses The Standard Of Review For Incarcerated Persons’ Outgoing Emails, Olivia Greenblatt

Mercer Law Review

An unfortunate and inevitable aspect of incarceration is separation from the outside world. The various constraints on communication exemplify one of the many ways through which incarceration creates this divide. Maintaining the connections that incarcerated people have with their loved ones and communities is essential for fostering a vital support system, facilitating the exchange of information, aiding in successful reintegration, and reducing recidivism upon release. Unfortunately, instead of encouraging and safeguarding this communication, prisons often curtail it through restrictive methods: visitation is limited, phone calls are costly, physical mail involves a time-consuming and intrusive process, and now, email is being …

Creative Jurisprudence: The Paradox Of Free Speech Absolutism, R. George Wright, Chris Rowley

University of Colorado Law Review Forum

Governments often seek to restrict speech on the basis of its content, navigating the ever-complex terrain between constitutional freedoms and regulatory interests. While the United States judiciary has historically endeavored to balance competing constitutional questions and government interests when scrutinizing content-based speech regulations, recent trends signify a troubling shift. The judiciary has recently embraced what this Article refers to as free speech absolutism, whereby it sidesteps the longstanding, intricate process of balancing constitutional values and public interests, in favor of an unequivocal endorsement of speech rights. This simplified judicial strategy proceeds first with an acknowledgment of the paramount importance of …

Public Accommodations And The Right To Refrain From Expressing Oneself, Mark Strasser

Cleveland State Law Review

The United States Supreme Court has been unable to articulate a coherent position when addressing the right of individuals to refrain from expressing themselves. The Court has applied various tests inconsistently—emphasizing principles in some cases, ignoring them in subsequent cases, and then emphasizing them again in later cases as if those principles had always been applied. The Court’s approach is incoherent, offering little guidance to lower courts except to suggest that public accommodations laws may soon be found inconsistent with First Amendment guarantees.

The Dueling First Amendment Clauses: Are They In Tension, Or Do They Work Together?, James Black

Helm's School of Government Conference - American Revival: Citizenship & Virtue

The Establishment and Free exercise clauses of the First Amendment respectively state that Congress does not have the ability to pass a law that would either establish a national religion or prohibit the free exercise of any religion. While some legal scholars have given a more secular interpretation of the Establishment Clause, suggesting that there is no place for Christianity or any other religion in the public square or to influence American government, this is in conflict with interpretation by a substantial number of legal experts and constitutional scholars living both in and before the modern era, some of whom …

Covid-19: The Federal Government, Federalism, South Dakota, And American Indians, Jordan Janson

Helm's School of Government Conference - American Revival: Citizenship & Virtue

This essay assesses the roles of the federal government and its relationship with Tribal Regions and states alike. Additionally, how COVID-19 affected states and localities and how different Presidential Administrations handled and responded to the pandemic while being compared with the state of South Dakota. Assessing whether or not the federal government overstepped reveals the preparedness of states. Certain states handled COVID-19-related issues better than others, and this essay addresses how Tribal Regions in states provided Governors with extreme complexities. Finally, this essay delves into the rights and responsibilities of the federal government and the state pertaining to American Indian …

Anti-Press Bias: A Response To Andersen Jones And West's Presuming Trustworthiness, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

Professors RonNell Andersen Jones and Sonja R. West’s Presuming Trustworthiness is a deeply depressing read. That is what makes it so good. The article is a clear-eyed, data-driven approach to assessing just how endangered the legal status of the free press is. Given the universality of the agreement that a free press is central to democracy, Andersen Jones and West’s message is vital. Presuming Trustworthiness should raise alarms.

In response, I hope this essay can serve as a bullhorn. I want to amplify what Andersen Jones and West’s research and data bear out. Not only has the Supreme Court ceased …

Anti-Antisemitism Now, Lili Levi

University of Miami Law Review

On May 25, 2023, the Biden Administration released The U.S. National Strategy to Counter Antisemitism—America’s first national strategy of this kind. In early November 2023, the White House announced the establishment of the first-ever U.S. National Strategy to Counter Islamophobia. These historic commitments respond to increases in identity-based bias incidents and expression against Jews and Muslims. Antisemitic incidents, which were already rising even before the pandemic, increased by almost 400% since the start of the Israel-Hamas war. The war also triggered a sharp upturn in Islamophobic incidents in the U.S., including the shooting of three college students and …

Who Is A Minister? Originalist Deference Expands The Ministerial Exception, Jared C. Huber

Notre Dame Law Review

The ministerial exception is a doctrine born out of the Religion Clauses of the First Amendment that shields many religious institutions’ employment decisions from review. While the ministerial exception does not extend to all employment decisions by, or employees of, religious institutions, it does confer broad—and absolute—protection. While less controversy surrounds whether the Constitution shields religious institutions’ employment decisions to at least some extent, much more debate surrounds the exception’s scope, and perhaps most critically, which employees fall under it. In other words, who is a "minister" for purposes of the ministerial exception?

Reforming The Ministerial Exception, Paul E. Mcgreal

Villanova Law Review

No abstract provided.

The Impossibility Of Corporate Political Ideology: Upholding Sec Climate Disclosures Against Compelled Commercial Speech Challenges, Erin Murphy

Northwestern University Law Review

To address the increasingly dire climate crisis, the SEC will require public companies to reveal their business’s environmental impact to the market through climate disclosures. Businesses and states challenged the required disclosures as compelled, politically motivated speech that risks putting First Amendment doctrine into further jeopardy. In the past five years, the U.S. Supreme Court has demonstrated an increased propensity to hear compelled speech cases and rule in favor of litigants claiming First Amendment protection from disclosing information that they disagree with or believe to be a politically charged topic. Dissenting liberal Justices have decried these practices as “weaponizing the …

The First Religious Charter School: A Viable Option For School Choice Or Prohibited Under The State Action Doctrine And Religion Clauses?, Julia Clementi

Fordham Law Review

After the First Amendment’s Religion Clauses were ratified, church and state became increasingly divorced from one another, as practicing religion became a private activity on which the government could not encroach. This separation, however, was slow, and much credit is owed to the U.S. Supreme Court for its efforts to disentangle the two. One particular area in which the Supreme Court exercised its influence was the U.S. education system; the Court invoked the Religion Clauses and neutrality principles to rid public schools of religious influences and ensure that private religious schools could partake in government programs that were available to …

Quiet Encroachments On School Prayer Jurisprudence, Amanda Harmony Cooley

West Virginia Law Review

No abstract provided.