First Amendment Commons^™

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This Comment argues that the Policy should be repealed because it undermines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

Measuring Trademark Dilution By Tarnishment, Suneal Bedi, David Reibstein

Indiana Law Journal

The law of trademark tarnishment—a type of trademark dilution—is in disarray. The

basic definition is deceptively simple. Trademark tarnishment occurs when a junior

mark harms the reputation of a substantially similar existing senior trademark by

associating itself with something perverse or deviant. However, it turns out that

Congress and the courts disagree over the prima facie evidence necessary to prove

its existence. The problem is that federal law and related legal principles are simply

ill-equipped to adequately analyze this unique market-driven doctrine. To make

matters worse, legal scholars cannot even agree on whether trademark tarnishment

can empirically exist ...

Sharenting And The (Potential) Right To Be Forgotten, Keltie Haley

Indiana Law Journal

Part I of this Note serves as an evaluation of parental use of social media and

further seeks to draw attention to the social and developmental impact parental

oversharing can have on children. Part II examines the tension between parents’

constitutional rights to direct the upbringing of their children, as well as their First

Amendment interest in online expression, and their children’s interest in personal

data security and privacy. Part III provides an overview of the European Union’s

right to be forgotten framework in the sharenting context and considers the

plausibility of implementing such a framework in the ...

Artificial Entities With Natural Rights: Pursuing Profits At The Expense Of Human Capital, Loren M. Findlay

Washington and Lee Journal of Civil Rights and Social Justice

This Note explores the legal and constitutional rights granted to corporations and highlights how these corporate benefits are often at the expense of individuals. Over the past century, the corporation has evolved, taking on human-like characteristics. While many statutes and the Constitution use the word “person,” courts have inconsistently interpreted the definition of “person” in determining when it expands to corporations. In courts’ ad hoc analysis and interpretation, individuals get the metaphorical short-end of the stick.

The First Amendment of the Constitution was interpreted by the U.S. Supreme Court to afford the right of free speech to corporations in ...

Schrödinger's Corporation: The Paradox Of Religious Sincerity In Heterogeneous Corporations, Catherine A. Hardee

Boston College Law Review

Consider a corporation where one group of shareholders holds sincere religious beliefs and another group of shareholders does not share those beliefs but, for a price, will allow the religious shareholders to request a religious exemption to a neutrally applicable law on behalf of the corporation. The corporation is potentially both religiously sincere and insincere at the same time. A claim by the corporation for a religious accommodation requires the court to solve the paradox created by this duality and to declare the corporation, as a whole, either sincere or insincere in its beliefs. Although the Supreme Court and scholars ...

“Opening The Door” To Presidential Press Conferences: A Framework For The Right Of Press Access, Alexandria R. Taylor

Washington and Lee Journal of Civil Rights and Social Justice

Since President Donald Trump took office in 2017, there has been tension between the White House and the press. While this tension has been present in prior presidencies, its current manifestation raises important First Amendment issues. This Note discusses the limitations of the President to restrict the press’s right of First Amendment access to presidential press conferences. After delving into the Supreme Court’s development and recognition of the press’s right of access and how the lower courts have interpreted this right, this Note proposes a framework to analyze the press’s right of access and addresses the ...

Concerning Behavior: Do A Public Employee’S Free Association Claims Share The Public Concern Requirement Of Free Speech Claims?, Samuel Barrows

Boston College Law Review

On September 28, 2018, the Third Circuit Court of Appeals held, in Palardy v. Township of Millburn, that it would not apply the public concern test from Connick v. Myers to public employees’ First Amendment free association claims. The Circuits are split on whether to apply the public concern test: the Second, Fourth, Sixth, and Seventh Circuits apply the test; the Fifth and Eleventh Circuits do not apply it; and the Ninth and Tenth Circuits take hybrid approaches. This comment argues that the Third Circuit mischaracterized its holding, and its approach resembles the hybrid approach of the Tenth Circuit more ...

The Use Of Digital Millenium Copyright Act To Stifle Speech Through Non-Copyright Related Takedowns, Miller Freeman

Seattle Journal of Technology, Environmental & Innovation Law

In 1998, Congress passed the Digital Millennium Copyright Act. This law provided new methods of protecting copyright in online media. These protections shift the normal judicial process that would stop the publication of infringing materials to private actors: the online platforms. As a result, online platforms receive notices of infringement and issue takedowns of allegedly copyrighted works without the judicial process which normally considers the purpose of the original notice of infringement. In at least one case, discussed in detail below, this has resulted in a notice and takedown against an individual for reasons not related to the purpose of ...

Contracting Away The First Amendment?: When Courts Should Intervene In Nondisclosure Agreements, Abigail Stephens

William & Mary Bill of Rights Journal

No abstract provided.

Sex-Segregation, Economic Opportunity, And Roberts V. U.S. Jaycees, Elizabeth Sepper

William & Mary Bill of Rights Journal

No abstract provided.

Constitutional Conflict And Sensitive Places, Darrell A. H. Miller

William & Mary Bill of Rights Journal

No abstract provided.

Political And Non-Political Speech And Guns, Gregory P. Magarian

William & Mary Bill of Rights Journal

No abstract provided.

The Deliberative-Privacy Principle: Abortion, Free Speech, And Religious Freedom, B. Jessie Hill

William & Mary Bill of Rights Journal

No abstract provided.

Doctrinal Dynamism, Borrowing, And The Relationship Between Rules And Rights, Joseph Blocher, Luke Morgan

William & Mary Bill of Rights Journal

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 ...

The Conscience Of The Baker: Religion And Compelled Speech, Ashutosh Bhagwat

William & Mary Bill of Rights Journal

No abstract provided.

Gender-Stereotyping Theory, Freedom Of Expression, And Identity, Carlos A. Ball

William & Mary Bill of Rights Journal

This Article argues that the expressive components of gender-stereotyping theory serve to delink the equality protections afforded by that theory from fixed and predetermined identity categories in helpful and positive ways. Many have viewed American antidiscrimination law as being normatively grounded in the notion that there are certain identities that, because of their stable and immutable characteristics, deserve equality-based protections. Gender-stereotyping theory can help make the normative case for a more pluralistic understanding of equality, one that is grounded in the need to protect the fluid and multiple ways in which gender is performed or expressed rather than focusing, as ...

A More Perfect Pickering Test: Janus V. Afscme Council 31 And The Problem Of Public Employee Speech, Alexandra J. Gilewicz

University of Michigan Journal of Law Reform

In June 2018, the Supreme Court issued its long-awaited—and, for the American labor movement, long-feared—decision in Janus v. AFSCME Council 31. The decision is expected to have a major impact on public sector employee union membership, but could have further impact on public employees’ speech rights in the workplace. Writing for the majority, Justice Samuel Alito’s broad interpretation of whether work-related speech constitutes a “matter of public concern” may have opened the floodgates to substantially more litigation by employees asserting that their employers have violated their First Amendment rights. Claims that would have previously been unequivocally foreclosed ...

Criminalizing Immigrant Entrepreneurs (And Their Lawyers), Eric Franklin Amarante

Boston College Law Review

To escape the harsh conditions of work in agriculture or food processing plants, many undocumented immigrants turn to entrepreneurship for safer working conditions and better economic prospects. Transactional lawyers often help these entrepreneurs form limited liability companies or worker cooperatives. Unfortunately, this simple act might expose these lawyers to criminal liability. The Immigration Reform and Control Act of 1986 (IRCA) prohibits anyone from encouraging an undocumented person to reside in the United States. This prohibition has been construed to include everything from employing undocumented housekeepers to procuring falsified documents for citizenship applications, and some courts have even suggested that the ...

Straight Outta Scotus: Domestic Violence, True Threats, And Free Speech, Jessica Miles

University of Miami Law Review

Domestic violence intersects with constitutional, criminal, and civil law in ways that often present challenges for jurists seeking to reconcile conflicting interests in promoting victim safety and protecting the legal rights of those accused of abuse. One current issue presenting such tensions relates to “true threats” of violence which the U.S. Supreme Court considers to be among the categories of speech receiving only limited First Amendment protection. The Supreme Court has yet to indicate what level of intent would be constitutionally sufficient for conviction of a speaker of a true threat and the circuit courts have split on this ...

The Nfl Player, The Schoolchild, And The Entertainer: When The Term "Free Speech" Is Too Freely Spoken, Exactly "Who's On First?", Christian Ketter

Cleveland State Law Review

As America’s media and politicians continue to debate the free speech rights of NFL players, schoolchildren, and entertainers, the dialogue has confused many Americans as to what exactly the First Amendment protects. Chief Justice John G. Roberts ultimately assumes the role of an umpire in many of these issues, guiding the United States Supreme Court to incrementally “call balls and strikes.” In recent years, the Court has umpired employment rights and state action cases, and Roberts’s calls will likely further distance the Court that decided Morse v. Frederick from the one that decided Tinker v. Des Moines. Amid ...