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Articles 1 - 25 of 25
Full-Text Articles in Law
Inactive Exercise & Unequal Protection: Espinoza & Carson Under The Equal Protection Clause, Griffith B. Bludworth
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
Education, The First Amendment, And The Constitution, Erwin Chemerinsky
University of Cincinnati Law Review
No abstract provided.
School Matters, Ronna Greff Schneider
School Matters, Ronna Greff Schneider
University of Cincinnati Law Review
No abstract provided.
The Presumption Of Constitutionality And The Demise Of Economic Liberties, James Huffman
The Presumption Of Constitutionality And The Demise Of Economic Liberties, James Huffman
Dickinson Law Review (2017-Present)
For over two centuries the United States Supreme Court has embraced a presumption of constitutionality that places the burden of proof on those challenging the constitutionality of governmental actions. Usually, the presumption is stated as a given, but when explained it is most often said to be founded in republicanism and due respect for the co-equal branches of government. Thus, the presumption constitutes a deference to the constitutional interpretations of the elected branches of government. This majoritarian view of the Constitution’s foundational principle is counter to the dominant view of the Constitution’s founders. They designed a government constituted of numerous …
Policing Protest: Speech, Space, Crime, And The Jury, Jenny E. Carroll
Policing Protest: Speech, Space, Crime, And The Jury, Jenny E. Carroll
Faculty Scholarship
Speech is more than just an individual right—it can serve as a catalyst for democratically driven revolution and reform, particularly for minority or marginalized positions. In the past decade, the nation has experienced a rise in mass protests. However, dissent and disobedience in the form of such protests is not without consequences. While the First Amendment promises broad rights of speech and assembly, these rights are not absolute. Criminal law regularly curtails such rights—either by directly regulating speech as speech or by imposing incidental burdens on speech as it seeks to promote other state interests. This Feature examines how criminal …
Constitutional Law—Filling The Gap: The Need For Legislative Action To Protect The Right To Record Police In The Age Of Citizen Journalism, Madalyn J. Goolsby
Constitutional Law—Filling The Gap: The Need For Legislative Action To Protect The Right To Record Police In The Age Of Citizen Journalism, Madalyn J. Goolsby
University of Arkansas at Little Rock Law Review
No abstract provided.
(E)Racing Speech In School, Francesca I. Procaccini
(E)Racing Speech In School, Francesca I. Procaccini
Vanderbilt Law School Faculty Publications
Speech on race and racism in our nation’s public schools is under attack for partisan gain. The Free Speech Clause of the First Amendment teaches a lot about the wisdom and legality of laws that chill such speech in the classroom. But more importantly, a First Amendment analysis of these laws reveals profound insights about the health and meaning of our free speech doctrine.
Through a First Amendment analysis of “anti-critical race theory” laws, this essay illuminates the first principles of free speech law. Specifically, it shows that the First Amendment offers little refuge to teachers or parents looking to …
Where To Place The “Nones” In The Church And State Debate? Empirical Evidence From Establishment Clause Cases In Federal Court, Gregory C. Sisk, Michael Heise
Where To Place The “Nones” In The Church And State Debate? Empirical Evidence From Establishment Clause Cases In Federal Court, Gregory C. Sisk, Michael Heise
St. John's Law Review
In this third iteration of our ongoing empirical examination of religious liberty decisions in the lower federal courts, we studied all digested Establishment Clause decisions by federal circuit and district court judges from 2006 through 2015. The first clause of the First Amendment to the United States Constitution directs that “Congress shall make no law respecting an establishment of religion.” That provision has generated decades of controversy regarding the appropriate role of religion in public life.
Holding key variables constant, we found that Catholic judges approved Establishment Clause claims at a 29.6% rate, compared with a 41.5% rate before non-Catholic …
Public Accommodations Originalism’S Inability To Solve The Problems Of Online Content Moderation, Vincent A. Marrazzo
Public Accommodations Originalism’S Inability To Solve The Problems Of Online Content Moderation, Vincent A. Marrazzo
St. Mary's Law Journal
In response to online platforms’ increasing ability to moderate content in what often seems to be an arbitrary way, Justice Clarence Thomas recently suggested that platforms should be regulated as public accommodations such that the government could prevent platforms from banning users or removing posts from their sites. Shortly thereafter, Florida passed the Transparency in Technology Act, which purported to regulate online platforms as public accommodations and restricted their ability to ban users, tailor content through algorithmic decision-making, and engage in their own speech. Texas followed suit by passing a similar law, and Arizona debated a bill purporting to regulate …
Public School Teachers Who Refuse To Use Preferred Names And Pronouns: A Brief Exploration Of The First Amendment Limitations In K-12 Classrooms, Suzanne Eckes
ConLawNOW
This article focuses on whether a teacher has a First Amendment right under both the free speech and free exercise clauses of the U.S. Constitution when refusing to use a student’s preferred name or pronoun in a public school classroom. The article begins by briefly summarizing a recent case from Kansas and then examines prior precedent involving teachers’ classroom speech and teachers’ rights to freely exercise their religious rights in public schools. It then briefly highlights how these issues have been addressed in previous pronoun cases and concludes with a discussion of related constitutional issues.
Freedom Of Algorithmic Expression, Inyoung Cheong
Freedom Of Algorithmic Expression, Inyoung Cheong
University of Cincinnati Law Review
Can content moderation on social media be considered a form of speech? If so, would government regulation of content moderation violate the First Amendment? These are the main arguments of social media companies after Florida and Texas legislators attempted to restrict social media platforms’ authority to de-platform objectionable content.
This article examines whether social media companies’ arguments have valid legal grounds. To this end, the article proposes three elements to determine that algorithms classify as “speech:” (1) the algorithms are designed to communicate messages; (2) the relevant messages reflect cognitive or emotive ideas beyond mere operational matters; and (3) they …
Warren/Burger Courts Exalted “Free” Expression Over Other American Values, Louis W. Hensler Iii
Warren/Burger Courts Exalted “Free” Expression Over Other American Values, Louis W. Hensler Iii
Marquette Law Review
Anglo-American defamation law started with a simple condemnation of the sin of evil speaking. Eventually, this value condemning harmful speech was accommodated to the value of speaking the truth, even hurtful truth. A third value of fostering responsible self-government was injected into American defamation law at and around the time of the American Revolution. This value makes it especially important for citizens to freely speak even hurtful truth about their government.
The Disembodied First Amendment, Nathan Cortez, William M. Sage
The Disembodied First Amendment, Nathan Cortez, William M. Sage
Faculty Scholarship
First Amendment doctrine is becoming disembodied—increasingly detached from human speakers and listeners. Corporations claim that their speech rights limit government regulation of everything from product labeling to marketing to ordinary business licensing. Courts extend protections to commercial speech that ordinarily extended only to core political and religious speech. And now, we are told, automated information generated for cryptocurrencies, robocalling, and social media bots are also protected speech under the Constitution. Where does it end? It begins, no doubt, with corporate and commercial speech. We show, however, that heightened protection for corporate and commercial speech is built on several “artifices” - …
First Amendment Scrutiny: Realigning First Amendment Doctrine Around Government Interests, John D. Inazu
First Amendment Scrutiny: Realigning First Amendment Doctrine Around Government Interests, John D. Inazu
Scholarship@WashULaw
This Article proposes a simpler way to frame judicial analysis of First Amendment claims: a government restriction on First Amendment expression or action must advance a compelling interest through narrowly tailored means and must not excessively burden the expression or action relative to the interest advanced. The test thus has three prongs: (1) compelling interest; (2) narrow tailoring; and (3) proportionality.
Part I explores how current First Amendment doctrine too often minimizes or ignores a meaningful assessment of the government’s purported interest in limiting First Amendment liberties. Part II shows how First Amendment inquiry is further confused by threshold inquiries …
Separation Of Church And Law: The Ministerial Exception In Demkovich V. St. Andrew The Apostle Parish, Jonathan Murray
Separation Of Church And Law: The Ministerial Exception In Demkovich V. St. Andrew The Apostle Parish, Jonathan Murray
University of Colorado Law Review
Religious freedom is increasingly invoked to defeat liability for behavior that has long been regulated under accepted, neutral law, an argument to which many courts and judges appear receptive. One such area of law seeing this activity is the ministerial exception-a judicial principle recognized under the First Amendment. The ministerial exception guarantees religious organizations' discretion in how they select their "ministers,"or religious employees dedicated to the organization's religious mission. However, current law lacks clarity regarding the application of the exception to an organization's treatment of its ministers. Recently, the Seventh Circuit, sitting en banc, chose to categorically expand the application …
Reconsidering The Public Square, Helen L. Norton
Militant Democracy Comes To The Metaverse?, Aziz Z. Huq
Militant Democracy Comes To The Metaverse?, Aziz Z. Huq
Emory Law Journal
Social media platforms such as Facebook, Twitter, Instagram, and Parlor are an increasingly central part of the democratic public sphere in the United States. But the prevailing view of this ensuing platform-based public sphere has lately become increasingly sour and pessimistic. What were once seen as technologies of liberation have come to be viewed with skepticism. They are now perceived as channels and amplifiers of “antisystemic” forces, damaging the quality and feasibility of democracies. If it is justified, this skepticism yields a difficult tension: How can the state protect its democratic character against unravelling pressure from actors who are usually …
American Religious Liberty Without (Much) Theory: A Review Of Religion And The American Constitutional Experiment, 5th Edition, Nathan S. Chapman
American Religious Liberty Without (Much) Theory: A Review Of Religion And The American Constitutional Experiment, 5th Edition, Nathan S. Chapman
Scholarly Works
Book review of Religion and the American Constitutional Experiment, 5th ed. By John Witte Jr., Joel A. Nichols, and Richard W. Garnett. Oxford: Oxford University Press, 2022. Pp. 464. $150.00 (cloth); $39.95 (paper); $26.99 (digital). ISBN: 9780197587614.
Brief Of Amicus Curiae Francis Fukuyama In Support Of Respondents In No. 22-277 And Petitioners In No. 22-555, Margaret E. O'Grady
Brief Of Amicus Curiae Francis Fukuyama In Support Of Respondents In No. 22-277 And Petitioners In No. 22-555, Margaret E. O'Grady
Law Faculty Scholarship
The brief, in support of NetChoice, argues that the Texas and Florida “must carry” statutes violate the First Amendment in part because interoperability is a less restrictive means of achieving the goal of allowing diverse voices in the “town square” of the Internet.
Presuming Trustworthiness, Ronnell Anderson Jones, Sonja R. West
Presuming Trustworthiness, Ronnell Anderson Jones, Sonja R. West
Scholarly Works
A half-century ago, the U.S. Supreme Court often praised speakers performing the press function. While the Justices acknowledged that press reports are sometimes inaccurate and that media motivations are at times less than public-serving, their laudatory statements nonetheless embraced a baseline presumption of the value and trustworthiness of press speech in general. Speech in the exercise of the press function, they told us, is vitally important to public discourse in a democracy and therefore worthy of protection even when it falls short of the ideal in a given instance. Those days are over. Our study of every reference to the …
Sex Offenders And Internet Speech: First Amendment Protections For America's Most Reviled Outcasts, Gabriel Aderhold
Sex Offenders And Internet Speech: First Amendment Protections For America's Most Reviled Outcasts, Gabriel Aderhold
Mitchell Hamline Law Review
No abstract provided.
A Pleasure To Burn: How First Amendment Jurisprudence On Book Banning Bolsters White Supremacy, Amy Anderson
A Pleasure To Burn: How First Amendment Jurisprudence On Book Banning Bolsters White Supremacy, Amy Anderson
Mitchell Hamline Law Review
No abstract provided.
Mysterizing Religion, Marc O. Degirolami
Mysterizing Religion, Marc O. Degirolami
Faculty Publications
(Excerpt)
A mystery of faith is a truth of religion that escapes human understanding. The mysteries of religion are not truths that human beings happen not to know, or truths that they could know with sufficient study and application, but instead truths that they cannot know in the nature of things. In the Letter to the Colossians, St. Paul writes that as a Christian apostle, his holy office is to “bring to completion for you the word of God, the mystery hidden from ages and from generations past.” Note that Paul does not say that his task is to make …
First Amendment Protections For "Good Trouble", Dawn C. Nunziato
First Amendment Protections For "Good Trouble", Dawn C. Nunziato
Emory Law Journal
In the classical era of the Civil Rights Movement in the 1950s, 1960s, and 1970s, activists and protestors sought to march, demonstrate, stage sit-ins, speak up, and denounce the system of racial oppression in our country. This was met not just by counterspeech—the preferred response within our constitutional framework—but also by efforts by the dominant power structure to censor and shut down those forms of public rebuke of our nation’s racist practices. Fast forward seventy years, and the tactics of the dominant power structure have essentially remained the same in response to today’s civil rights activists who seek to protest …
Surveillance Normalization, Christian Sundquist
Surveillance Normalization, Christian Sundquist
Articles
Since the start of the COVID-19 pandemic, the government has expanded public surveillance measures in an attempt to combat the spread of the virus. As the pandemic wears on, racialized communities and other marginalized groups are disproportionately affected by this increased level of surveillance. This article argues that increases in public surveillance as a result of the COVID-19 pandemic give rise to the normalization of surveillance in day-to-day life, with serious consequences for racialized communities and other marginalized groups. This article explores the legal and regulatory effects of surveillance normalization, as well as how to protect civil rights and liberties …