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Articles 1 - 30 of 139
Full-Text Articles in Law
The Violence Of Free Speech And Press Metaphors, Erin C. Carroll
The Violence Of Free Speech And Press Metaphors, Erin C. Carroll
Washington and Lee Law Review
Today, our free speech marketplace is often overwhelming, confusing, and even dangerous. Threats, misdirection, and lies abound. Online firestorms lead to offline violence. This Article argues that the way we conceptualize free speech and the free press are partly to blame: our metaphors are hurting us.
The primary metaphor courts have used for a century to describe free speech—the marketplace of ideas—has been linked to violence since its inception. Originating in a case about espionage and revolution, in a dissent written by Oliver Wendell Holmes, a thrice-injured Civil War veteran, the marketplace has been described as a space where competition …
Stay Out Of My Head: Neurodata, Privacy, And The First Amendment, Wayne Unger
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 …
Religious Ministers And The Scope Of Their Rights To Non-Discrimination In Employment, R. George Wright
Religious Ministers And The Scope Of Their Rights To Non-Discrimination In Employment, R. George Wright
Washington and Lee Journal of Civil Rights and Social Justice
The First Amendment is currently thought to bar ministerial employees from any recourse against their religious employer under a wide variety of non-discrimination statutes and other forms of legal protection. The typical critique of this state of affairs seeks to narrow the class of persons who count as ministerial employees. This paper focuses instead on an important, and peculiar, aspect of the ministerial exception doctrine. At present, the law generally prohibits any recovery by ministerial employees for employment discrimination by their religious employer even where the employer’s reasons for the discrimination have nothing to do with any religious doctrine, belief, …
Silencing Students: How Courts Have Failed To Protect Professional Students’ First Amendment Speech Rights, Shanelle Doher
Silencing Students: How Courts Have Failed To Protect Professional Students’ First Amendment Speech Rights, Shanelle Doher
Washington and Lee Law Review Online
Over the past two decades, social media has dramatically changed the way people communicate. With the increased popularity of virtual communication, online speech has, in many ways, blurred the boundaries for where and when speech begins and ends. The distinction between on campus and off campus student speech has become particularly murky given the normalization of virtual learning environments as a result of the COVID 19 pandemic. In Tinker v. Des Moines Independent Community School District, the Supreme Court clarified that students retain their First Amendment rights on campus but that schools may sanction speech that materially and substantially …
Disciplining Doctors: A Call For Caution When Responding To Physicians' Counter-Consensus Speech In The Time Of Covid-19, Timothy Macdonnell
Disciplining Doctors: A Call For Caution When Responding To Physicians' Counter-Consensus Speech In The Time Of Covid-19, Timothy Macdonnell
Scholarly Articles
The COVID-19 pandemic affected nearly every aspect of life in the United States, including most notably, work-life, home-life, and community-life. During the pandemic, the government took extraordinary steps to try and reduce the spread of the disease by closing businesses, mandating the wearing of masks, and requiring vaccines. Government officials repeatedly justified their actions by stating that they were "following the science." However not all members of the scientific/medical community agreed with these actions. Some of these counter-consensus opinions were labeled mis/dis/mal/information.
As the COVID-19 pandemic dragged on, calls to punish doctors for COVID-19 misinformation increased. Some doctors who claimed …
Gag With Malice, Shaakirrah R. Sanders
Gag With Malice, Shaakirrah R. Sanders
Washington and Lee Law Review
This Article brings agriculture privacy and other commercial gagging laws into the ongoing debate on the First Amendment actual malice rule announced in New York Times v. Sullivan. Despite a resurgence in contemporary jurisprudence, Justices Clarence Thomas and Neil Gorsuch have recently questioned the wisdom and viability of Sullivan, which originally applied actual malice to state law defamation claims brought by public officials. The Court later extended the actual malice rule to public figures, to claims for infliction of emotional distress, and—as discussed in this Article—to claims for invasion of privacy and to issues of public importance or concern.
United …
The Disappearing Freedom Of The Press, Ronnell Andersen Jones, Sonja R. West
The Disappearing Freedom Of The Press, Ronnell Andersen Jones, Sonja R. West
Washington and Lee Law Review
At this moment of unprecedented decline of local news and amplified attacks on the American press, scholars are increasingly turning their attention to the Constitution’s role in protecting journalism and the journalistic function. Recent calls by some U.S. Supreme Court Justices to reconsider the core press-protecting precedent from New York Times Co. v. Sullivan have intensified these conversations. This scholarly dialogue, however, appears to be taking place against a mistaken foundational assumption that the U.S. Supreme Court continues to articulate and embrace at least some notion of freedom of the press. Yet despite the First Amendment text specifically referencing it …
Using Waller To Uphold First And Sixth Amendment Rights Throughout The Covid-19 Pandemic, Maya Chaudhuri
Using Waller To Uphold First And Sixth Amendment Rights Throughout The Covid-19 Pandemic, Maya Chaudhuri
Washington and Lee Law Review Online
In The Right to a Public Trial in the Time of COVID-19, Professor Stephen Smith argued that the COVID-19 pandemic justified an almost categorical suspension of the right to a public trial. Judges have relied on Smith’s Article to justify closure decisions made without the constitutionally required specific findings. These are part of a larger pattern of improper closure determinations, many made without fully considering alternatives to closure, since the beginning of the pandemic that threatens the rights of individuals with criminal cases and the collective rights of the public. But the Constitution has no pandemic exception, and it …
Who Can Protect Black Protest?, Brandon Hasbrouck
Who Can Protect Black Protest?, Brandon Hasbrouck
Scholarly Articles
Police violence both as the cause of and response to the racial justice protests following George Floyd’s murder called fresh attention to the need for legal remedies to hold police officers accountable. In addition to the well-publicized issue of qualified immunity, the differential regimes for asserting civil rights claims against state and federal agents for constitutional rights violations create a further barrier to relief. Courts have only recognized damages as a remedy for such abuses in limited contexts against federal employees under the Bivens framework. The history of Black protest movements reveals the violent responses police have to such challenges …
John Stuart Mill’S Harm Principle And Free Speech: Expanding The Notion Of Harm, Melina Constantine Bell
John Stuart Mill’S Harm Principle And Free Speech: Expanding The Notion Of Harm, Melina Constantine Bell
Scholarly Articles
This article advocates employing John Stuart Mill’s harm principle to set the boundary for unregulated free speech, and his Greatest Happiness Principle to regulate speech outside that boundary because it threatens unconsented-to harm. Supplementing the harm principle with an offense principle is unnecessary and undesirable if our conception of harm integrates recent empirical evidence unavailable to Mill. For example, current research uncovers the tangible harms individuals suffer directly from bigoted speech, as well as the indirect harms generated by the systemic oppression and epistemic injustice that bigoted speech constructs and reinforces. Using Mill’s ethical framework with an updated notion of …
Public Health Originalism And The First Amendment, Claudia E. Haupt, Wendy E. Parmet
Public Health Originalism And The First Amendment, Claudia E. Haupt, Wendy E. Parmet
Washington and Lee Law Review
Current First Amendment doctrine has set public health regulation and protections for commercial speech on a collision course. This Article examines the permissibility of compelled public health and safety warnings after the Supreme Court’s decision in National Institute of Family & Life Advocates v. Becerra (NIFLA) through the lens of a concurrence to the Ninth Circuit’s en banc decision in American Beverage Ass’n v. City & County of San Francisco (American Beverage II) suggesting that only health and safety warnings dating back to 1791 are presumptively constitutional under the First Amendment.
Rejecting this form of “public health originalism,” this Article …
Facebook And Politicians’ Speech, Sarah C. Haan
Facebook And Politicians’ Speech, Sarah C. Haan
Scholarly Articles
In his Article Facebook’s Speech Code and Policies: How They Suppress Speech and Distort Democratic Deliberation, Professor Joseph Thai argues that Facebook skewed public debate with a policy that exempted politicians from its content-based rules. This Response updates the reader on Facebook’s retreat from this policy and identifies some preliminary lessons from it. Between May 2020 and January 2021, Facebook moved away from its “light touch” regulation of politicians’ speech by employing strategies like labeling and down-ranking—and, eventually, removal of content. After the January 6, 2021 insurrection at the U.S. Capitol, Facebook de-platformed President Trump altogether, putting a final …
Brief Of Amici Curiae Professors Katherine Mims Crocker And Brandon Hasbrouck In Support Of Neither Party With Respect To Defendant's Motion To Dismiss: Dyer V. Smith, Brandon Hasbrouck, Katherine Mims Crocker
Brief Of Amici Curiae Professors Katherine Mims Crocker And Brandon Hasbrouck In Support Of Neither Party With Respect To Defendant's Motion To Dismiss: Dyer V. Smith, Brandon Hasbrouck, Katherine Mims Crocker
Scholarly Articles
This case illustrates how the First Amendment functions as an essential backstop to Fourth Amendment freedoms—and vice versa. As revealed by the national response to the killing of George Floyd and so many similar injustices, the ability to record encounters with government representatives is critical to preserving civil rights, and especially the right to avoid excessive force. The public only “became aware of the circumstances surrounding George Floyd’s death because citizens standing on a sidewalk exercised their First Amendment rights and filmed a police officer kneeling on Floyd’s neck until he died.” Index Newspapers LLC v. U.S. Marshals Serv., …
Weapons Of Mass Distortion: Applying The Principles Of The Fcc’S News Distortion Doctrine To Undisclosed Financial Conflicts Of Interest In Corporate News Media’S Military Coverage, Charles L. Bonani
Washington and Lee Journal of Civil Rights and Social Justice
This Note offers a new conception of news distortion in mass media. It explores the intentions behind the FCC’s News Distortion Doctrine and analyzes its primarily dormant status throughout its existence. This Note then examines televised media coverage of U.S. military actions and identifies undisclosed financial conflicts of interests throughout this coverage. In examining these undisclosed conflicts and the reasons behind them, this Note explains why they constitute news distortion under the FCC’s definition, and why the principles behind the Doctrine are implicated. This Note then proposes the FCC promulgate a disclosure rule to remedy the undisclosed financial conflicts of …
“Opening The Door” To Presidential Press Conferences: A Framework For The Right Of Press Access, Alexandria R. Taylor
“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 question of when and …
Artificial Entities With Natural Rights: Pursuing Profits At The Expense Of Human Capital, Loren M. Findlay
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 the …
Supreme Court Journalism: From Law To Spectacle?, Barry Sullivan, Cristina Carmody Tilley
Supreme Court Journalism: From Law To Spectacle?, Barry Sullivan, Cristina Carmody Tilley
Washington and Lee Law Review
Few people outside certain specialized sectors of the press and the legal profession have any particular reason to read the increasingly voluminous opinions through which the Justices of the Supreme Court explain their interpretations of the Constitution and laws. Most of what the public knows about the Supreme Court necessarily comes from the press. That fact raises questions of considerable importance to the functioning of our constitutional democracy: How, for example, does the press describe the work of the Supreme Court? And has the way in which the press describes the work of the Court changed over the past several …
Bad Actors: Authenticity, Inauthenticity, Speech, And Capitalism, Sarah C. Haan
Bad Actors: Authenticity, Inauthenticity, Speech, And Capitalism, Sarah C. Haan
Scholarly Articles
“Authenticity” has evolved into an important value that guides social media companies’ regulation of online speech. It is enforced through rules and practices that include real-name policies, Terms of Service requiring users to present only accurate information about themselves, community guidelines that prohibit “coordinated inauthentic behavior,” verification practices, product features, and more.
This Article critically examines authenticity regulation by the social media industry, including companies’ claims that authenticity is a moral virtue, an expressive value, and a pragmatic necessity for online communication. It explains how authenticity regulation provides economic value to companies engaged in “information capitalism,” “data capitalism,” and “surveillance …
Left With No Name: How Government Action In Intra-Church Trademark Disputes Violates The Free Exercise Clause Of The First Amendment, Mary Kate Nicholson
Left With No Name: How Government Action In Intra-Church Trademark Disputes Violates The Free Exercise Clause Of The First Amendment, Mary Kate Nicholson
Washington and Lee Law Review
The United States was founded in part on the principle of freedom of religion, where citizens were free to practice any religion. The founding fathers felt so strongly about this principle that it was incorporated into the First Amendment. The Free Exercise Clause states that “Congress shall make no law . . . prohibiting the free exercise thereof . . . .” The Supreme Court later adopted the neutral principles approach to avoid Free Exercise violations resulting from courts deciding real property disputes. Without the application of the same neutral principles to intellectual property disputes between churches, however, there is …
The Future Of Physicians’ First Amendment Freedom: Professional Speech In An Era Of Radically Expanded Prenatal Genetic Testing, Wynter K. Miller, Benjamin E. Berkman
The Future Of Physicians’ First Amendment Freedom: Professional Speech In An Era Of Radically Expanded Prenatal Genetic Testing, Wynter K. Miller, Benjamin E. Berkman
Washington and Lee Law Review
This Article explores the First Amendment questions prenatal whole genome sequencing (PWGS) is likely to raise. It argues that most of the foreseeable options for state intervention in conversations between physicians and prospective parents about genetic sequencing should trigger at least heightened scrutiny. Part I provides an overview of the most recent advances in genetic testing. It assesses the ongoing impact of non-invasive prenatal testing (NIPT) for providers and patients and charts the course from NIPT to PWGS. Part II establishes a foundational background for evaluating First Amendment claims. Part II.A describes the development of First Amendment jurisprudence, focusing on …
Masterpiece Of Misdirection?, Mark Strasser
Masterpiece Of Misdirection?, Mark Strasser
Washington and Lee Law Review
In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the United States Supreme Court overruled a finding that a religious baker had violated a state antidiscrimination law when refusing to create a wedding cake for a same-sex couple. The decision might seem to have been a masterful resolution of an extremely difficult case because the Court issued a narrow opinion that seemed to affirm free exercise rights while at the same time affirming the right of same-sex couples to marry. Yet, the opinion, along with the accompanying concurrences and dissent, may well destabilize various settled areas of constitutional law …
Christian Legislative Prayers And Christian Nationalism, Caroline Mala Corbin
Christian Legislative Prayers And Christian Nationalism, Caroline Mala Corbin
Washington and Lee Law Review
This Response to Mary Nobles Hancock's Note explains Christian nationalism, and argues that government sponsored Christian prayers reflect and exacerbate Christian nationalism. It further contends that to help curb Christian nationalism and its ill effects, legislative prayers ought to cease entirely. Such a result is most in keeping with the Establishment Clause goal of avoiding a caste system based on religious belief.
God Save The United States And This Honorable County Board Of Commissioners: Lund, Bormuth, And The Fight Over Legislative Prayer, Mary Nobles Hancock
God Save The United States And This Honorable County Board Of Commissioners: Lund, Bormuth, And The Fight Over Legislative Prayer, Mary Nobles Hancock
Washington and Lee Law Review
This Note addresses whether, and to what extent, the four factors proposed by the Fourth Circuit, and subsequently rejected by the Sixth Circuit, are an appropriate test of the constitutionality of a legislative prayer practice under United States Supreme Court jurisprudence. Part II explores the background of the Establishment Clause and legislative prayer. The Supreme Court has placed significant emphasis on the history of legislative prayer in evaluating modern prayer practices, as seen in its two cases Marsh v. Chambers and Town of Greece v. Galloway. Part III examines the first two circuit court decisions to consider challenges to local …
Inappropriate For Establishment Clause Scrutiny: Reflections On Mary Nobles Hancock’S, God Save The United States And This Honorable County Board Of Commissioners: Lund, Bormuth, And The Fight Over Legislative Prayer, Samuel W. Calhoun
Washington and Lee Law Review
This Response to Mary Nobles Hancock’s Note, after noting the complexity of the issues she presents, briefly comments on Ms. Hancock’s analysis, which focuses on how current Supreme Court doctrine should be applied to legislative prayer. Part III ranges more broadly. The author's basic position is that the Supreme Court has long misconstrued the Establishment Clause. This misinterpretation in turn has led the Court mistakenly to interpose itself into the realm of legislative prayer, an incursion the Founders never intended.
Facebook's Alternative Facts, Sarah C. Haan
Facebook's Alternative Facts, Sarah C. Haan
Scholarly Articles
In this short essay, I argue that Facebook’s adoption of the alternative-facts frame potentially contributes to the divisiveness that has made social media misinformation a powerful digital tool. Facebook’s choice to present information as “facts” and “alternative facts” endorses a binary system in which all information can be divided between moral or tribal categories—“bad” versus “good” speech, as Sandberg put it in her testimony to Congress. As we will see, Facebook’s related-articles strategy adopts this binary construction, offering a both-sides News Feed that encourages users to view information as cleaving along natural moral or political divisions.
The Defamation Injunction Meets The Prior Restraint Doctrine, Doug Rendleman
The Defamation Injunction Meets The Prior Restraint Doctrine, Doug Rendleman
Scholarly Articles
In Near v. Minnesota, the Supreme Court added the injunction to executive licensing as a prior restraint. Although the Near court circumscribed the injunction as a prior restraint, it approved criminal sanctions and damages judgments. The prior restraint label resembles a death sentence. This article maintains that such massive retaliation is overkill.
A judge’s injunction that forbids the defendant’s tort of defamation tests Near and prior restraint doctrine because defamation isn’t protected by the First Amendment. Arguing that the anti-defamation injunction has outgrown outright bans under the prior restraint rule and the equitable Maxim that “Equity will not enjoin defamation” …
The Post-Truth First Amendment, Sarah C. Haan
The Post-Truth First Amendment, Sarah C. Haan
Scholarly Articles
Post-truthism is widely understood as a political problem. In this Article, I argue that post-truthism also presents a constitutional law problem—not a hypothetical concern, but a current influence on First Amendment law. Post-truthism, which teaches that evidence-based reasoning lacks value, offers a normative framework for regulating information. Although post-truthism has become a popular culture trope, I argue that we should take it seriously as a theory of decision making and information use, and as a basis for law.
This Article uses the example of compelled speech to explore how post-truth rhetoric and values are being integrated into law. When the …
Chilling: The Constitutional Implications Of Body-Worn Cameras And Facial Recognition Technology At Public Protests, Julian R. Murphy
Chilling: The Constitutional Implications Of Body-Worn Cameras And Facial Recognition Technology At Public Protests, Julian R. Murphy
Washington and Lee Law Review Online
In recent years body-worn cameras have been championed by community groups, scholars, and the courts as a potential check on police misconduct. Such has been the enthusiasm for body-worn cameras that, in a relatively short time, they have been rolled out to police departments across the country. Perhaps because of the optimism surrounding these devices there has been little consideration of the Fourth Amendment issues they pose, especially when they are coupled with facial recognition technology (FRT). There is one particular context in which police use of FRT equipped body-worn cameras is especially concerning: public protests. This Comment constitutes the …
The Formulary Fix Buries Fritz & Harvey: Drug Promotion Escapes Its Past Constraints, James T. O'Reilly
The Formulary Fix Buries Fritz & Harvey: Drug Promotion Escapes Its Past Constraints, James T. O'Reilly
Washington and Lee Law Review
No abstract provided.
Reconciling The Lanham Act And The Fdca: A Comment On Chris Hurley’S Note, Christopher B. Seaman
Reconciling The Lanham Act And The Fdca: A Comment On Chris Hurley’S Note, Christopher B. Seaman
Washington and Lee Law Review
No abstract provided.