First Amendment Commons

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Recent Articles in First Amendment

Algorithms And Speech, Stuart M. Benjamin Duke Law

Algorithms And Speech, Stuart M. Benjamin

Faculty Scholarship

One of the central questions in free speech jurisprudence is what activities the First Amendment encompasses. This Article considers that question in the context of an area of increasing importance – algorithm-based decisions. I begin by looking to broadly accepted legal sources, which for the First Amendment means primarily Supreme Court jurisprudence. That jurisprudence provides for very broad First Amendment coverage, and the Court has reinforced that breadth in recent cases. Under the Court’s jurisprudence the First Amendment (and the heightened scrutiny it entails) would apply to many algorithm-based decisions, specifically those entailing substantive communications. We could of course adopt ...


Class Actions, Heightened Commonality, And Declining Access To Justice, A. Benjamin Spencer Washington & Lee University School of Law

Class Actions, Heightened Commonality, And Declining Access To Justice, A. Benjamin Spencer

Faculty Scholarship

A prerequisite to being certified as a class under Rule 23 of the Federal Rules of Civil Procedure is that there are "questions of law or fact common to the class." Although this “commonality” requirement had heretofore been regarded as something that was easily satisfied, in Wal-Mart Stores, Inc. v. Dukes the Supreme Court gave it new vitality by reading into it an obligation to identify among the class a common injury and common questions that are "central" to the dispute. Not only is such a reading of Rule 23’s commonality requirement unsupported by the text of the rule ...


Affirmative Action And Academic Freedom: Why The Supreme Court Should Continue Deferring To Faculty Judgments About The Value Of Educational Diversity, Steve Sanders Maurer School of Law: Indiana University

Affirmative Action And Academic Freedom: Why The Supreme Court Should Continue Deferring To Faculty Judgments About The Value Of Educational Diversity, Steve Sanders

Indiana Journal of Law and Social Equality

No abstract provided.


The New American Privacy, Richard J. Peltz-Steele University of Massachusetts School of Law

The New American Privacy, Richard J. Peltz-Steele

Faculty Publications

Conventional wisdom paints U.S. and European approaches to privacy at irreconcilable odds. But that portrayal overlooks a more nuanced reality of privacy in American law. The free speech imperative of U.S. constitutional law since the civil rights movement shows signs of tarnish. And in areas of law that have escaped constitutionalization, such as fair-use copyright and the freedom of information, developing personality norms resemble European-style balancing. Recent academic and political initiatives on privacy in the United States emphasize subject control and contextual analysis, reflecting popular thinking not so different after all from that which animates Europe’s 1995 ...


Prisoners Of Fame: How An Expanded Use Of Intrusion Upon Psychological Seclusion Can Protect The Privacy Of Former Public Figures, David Libardoni Boston College Law School

Prisoners Of Fame: How An Expanded Use Of Intrusion Upon Psychological Seclusion Can Protect The Privacy Of Former Public Figures, David Libardoni

Boston College Law Review

Public figures who no longer receive attention in the public sphere have had enormous difficulty regaining the privacy rights they once had. When it comes to limiting the discussion of their personal affairs, both the First Amendment and the common law invasion of privacy torts make no distinctions between former public figures and those currently involved in public affairs. This Note proposes an expanded use of the invasion of privacy tort for unreasonable intrusion upon seclusion to protect the privacy of these “prisoners of fame.” Although the tort is primarily understood to protect individuals from intrusions into physical spaces, this ...


Crawford V. Marion County Election Board: A Picture Is Worth A Thousand Words And Exactly One Vote, Brian C. Crook University of Maryland Francis King Carey School of Law

Crawford V. Marion County Election Board: A Picture Is Worth A Thousand Words And Exactly One Vote, Brian C. Crook

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.


Jewish Women Under Siege: The Fight For Survival On The Front Lines Of Love And The Law, Adam H. Koblenz University of Maryland Francis King Carey School of Law

Jewish Women Under Siege: The Fight For Survival On The Front Lines Of Love And The Law, Adam H. Koblenz

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.


Wide Right: Why The Ncaa’S Policy On The American Indian Mascot Issue Misses The Mark, andre douglas pond cummings, Seth E. Harper University of Maryland Francis King Carey School of Law

Wide Right: Why The Ncaa’S Policy On The American Indian Mascot Issue Misses The Mark, Andre Douglas Pond Cummings, Seth E. Harper

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.


Strings Attached: An Analysis Of The Eruv Under The Religion Clauses Of The First Amendment And The Religious Land Use And Institutionalized Persons Act, Alexandra Lang Susman University of Maryland Francis King Carey School of Law

Strings Attached: An Analysis Of The Eruv Under The Religion Clauses Of The First Amendment And The Religious Land Use And Institutionalized Persons Act, Alexandra Lang Susman

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.


A Cross To Bear: The Need To Weigh Context In Determining The Constitutionality Of Religious Symbols On Public Land, Catherine Ansello University of Maryland Francis King Carey School of Law

A Cross To Bear: The Need To Weigh Context In Determining The Constitutionality Of Religious Symbols On Public Land, Catherine Ansello

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.


Tough Pill To Swallow: Whether Catholic Institutions Are Obligated Under Title Vii To Cover Their Employees’ Prescription Contraceptives, Craig W. Mandell University of Maryland Francis King Carey School of Law

Tough Pill To Swallow: Whether Catholic Institutions Are Obligated Under Title Vii To Cover Their Employees’ Prescription Contraceptives, Craig W. Mandell

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.


Offensive Political Speech From The 1970s To 2008: A Broadcaster’S Moral Choice, LaVonda N. Reed-Huff University of Maryland Francis King Carey School of Law

Offensive Political Speech From The 1970s To 2008: A Broadcaster’S Moral Choice, Lavonda N. Reed-Huff

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.


Shifting Toward Balance, Not Conservatism: The Court's Interpretation Of The Lemon Test's Legislative Intent Prong And Reaction From The Electorate, Kedrick N. Whitmore University of Maryland Francis King Carey School of Law

Shifting Toward Balance, Not Conservatism: The Court's Interpretation Of The Lemon Test's Legislative Intent Prong And Reaction From The Electorate, Kedrick N. Whitmore

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.


Twentieth Century Approaches To Defining Religion: Clifford Geertz And The First Amendment, Barbara Barnett University of Maryland Francis King Carey School of Law

Twentieth Century Approaches To Defining Religion: Clifford Geertz And The First Amendment, Barbara Barnett

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.


Legal Affairs: Dreyfus, Guantánamo, And The Foundation Of The Rule Of Law, David Cole Touro College Jacob D. Fuchsberg Law Center

Thou Shalt Not?, Mark Strasser University of Maryland Francis King Carey School of Law

Thou Shalt Not?, Mark Strasser

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.


Emerging Technologies And Dwindling Speech, Jorge R. Roig Charleston School of Law

Emerging Technologies And Dwindling Speech, Jorge R. Roig

Jorge R Roig

Inspired in part by the recent holding in Bland v. Roberts that the use of the “Like” feature in Facebook is not covered by the Free Speech Clause, this article makes a brief foray into the approach that courts have taken in the recent past towards questions of First Amendment coverage in the context of emerging technologies. Specifically, this article will take a closer look at how courts have dealt with the issue of functionality in the context of First Amendment coverage of computer source code. The analysis of this and other recent experiences, when put in a larger context ...


Does Cutter V. Wilkinson Change The Analysis Of Mandated Dui Treatment Programs?: A Critical Response, Eric L. Sherbine University of Maryland Francis King Carey School of Law

Does Cutter V. Wilkinson Change The Analysis Of Mandated Dui Treatment Programs?: A Critical Response, Eric L. Sherbine

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.


Accommodating Religion And Law In The Twenty-First Century, Andrew J. King University of Maryland Francis King Carey School of Law

Accommodating Religion And Law In The Twenty-First Century, Andrew J. King

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.


Dui Treatment Programs And Religious Freedom: Does Cutter V. Wilkinson Change The Analysis?, Morris Jenkins, Brandene Moore, Eric Lambert, Alan Clarke University of Maryland Francis King Carey School of Law

Dui Treatment Programs And Religious Freedom: Does Cutter V. Wilkinson Change The Analysis?, Morris Jenkins, Brandene Moore, Eric Lambert, Alan Clarke

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.