Law Commons^™

Can A Politician Block You On Social Media?, Alan E. Garfield

Alan E Garfield

No abstract provided.

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.

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 …

The Big Chill: Are Public Participation Rights Being Slapp-Ed?, Rachel E. Deming

Pace Environmental Law Review

This article focuses on the Petition Clause of the First Amendment to the U.S. Constitution and addresses a confounding situation caused by Supreme Court precedents that give greater protection to persons who engage in illegal business practices than to citizens who petition their governments. This dichotomy is especially detrimental to environmental protection.

The crux of the conflict lies in which standard courts should use to determine whether the petitioning activity is protected: the subjective Free Speech standard grafted onto Petition Clause activities or the objective standard initially developed by the Supreme Court for petition activities in antitrust cases. The result …

Using Bruen To Overturn New York Times V. Sullivan, Michael L. Smith, Alexander S. Hiland

Pepperdine Law Review

While New York Times Co. v. Sullivan is a foundational, well-regarded First Amendment case, Justice Clarence Thomas has repeatedly called on the Court to revisit it. Sullivan, Thomas claims, is policy masquerading as constitutional law, and it makes almost no effort to ground itself in the original meaning of the First and Fourteenth Amendments. Thomas argues that at the time of the founding, libelous statements were routinely subject to criminal prosecution—including libel of public figures and public officials. This Essay connects Justice Thomas’s calls to revisit Sullivan to his recent opinion for the Court in New York State Rifle & …

The Common Law And First Amendment Qualified Right Of Public Access To Foreign Intelligence Law, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

For millennia, public access to the law has been the hallmark of rule of law. To be legally and morally binding, rules must be promulgated. Citizens’ knowledge of the law, in turn, serves as the lynchpin for democratic governance. In common law countries, it is more than just the statutory provisions and their execution that matters: how courts rule, and the reasoning behind their determination, proves central. Accordingly, in the United States, both common law and the right to petition incorporated in the First Amendment have long enshrined a presumed right of public right of access to Article III opinions …

Rectifying An Empty Gesture: Why Placement On Paid Administrative Leave Should Constitute "Adverse Employment Action" For The Purposes Of A First Amendment Retaliation Claim, Andrew White

University of Cincinnati Law Review

No abstract provided.

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 …

Beyond The Watchdog: Using Law To Build Trust In The Press, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

Declining trust in the American press has been longstanding and corrosive—both to our information environment and to democracy. It is tempting to think that if journalists could just repeatedly and brilliantly play their key role—that of watchdog—it might be redemptive. But doubling down on the watchdog function holds risks in our polarized climate. Research shows that some conservatives recoil from watchdog journalism, finding it too cynical and politicized.

This essay argues that a different journalistic function—one that has received far less attention and adulation from judges and legal scholars—should be encouraged and amplified. This is the press’s role as a …

The Censorship Constraint And Rulemaker State Action: Are Section 230'S Immunity Provisions Unconstitutional Content-Based Regulations?, Scot A. Reader

West Virginia Law Review

Even casual watchers of T.V. crime dramas understand the Fourth Amendment’s exclusionary rule. Under this rule, evidence obtained by the police in a search of a criminal suspect’s premises that exceeds the scope of a judicial warrant is almost always inadmissible in the suspect’s criminal trial. The rule is designed to deter unreasonable governmental intrusion into private affairs and applies without regard for the suspect’s guilt or innocence. This Article proposes that the First Amendment includes an analogous rule against governmental censorship. Under this rule, content-based speech regulations exceed the legislature’s speech rulemaking warrant and are almost always invalid. This …

First Amendment Speech Protections In A Post-Dobbs World: Providing Instruction On Instructional Speech, Samantha Mitchell

Fordham Law Review

In its June 2022 opinion, Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court overruled Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, thus revoking the constitutional right to abortion. As states continue to pass laws outlawing abortion to varying degrees, not only has Dobbs led to uncertainty for medical professionals and those who might want to seek an abortion, but it has also prompted questions for internet users across the world. May an organization or an individual post instructions on the internet regarding how to obtain an abortion if a resident of a …

Solving Slapp Slop, Nicole J. Ligon

University of Richmond Law Review

In a substantial minority of states, wealthy and powerful individuals can, without much consequence, bring defamation lawsuits against the press and concerned citizens to silence and intimidate them. These lawsuits, known as “strategic lawsuits against public participation” (“SLAPP”s), are brought not to compensate a wrongfully injured person, but rather to discourage the defendants from exercising their First Amendment rights. In other words, when well resourced individuals feel disrespected by public criticism, they sometimes sue the media or concerned citizens, forcing these speakers to defend themselves in exorbitantly expensive defamation actions. In states without anti-SLAPP statutes—statutes aimed at protecting speakers from …

The Limits Of Church Autonomy, Lael Weinberger

Notre Dame Law Review

American courts apply “church autonomy doctrine” to protect the self-governance of religious institutions, based on both of the First Amendment’s religion clauses. Church autonomy’s defenders have sometimes described the doctrine as establishing distinct spheres of sovereignty for church and state. But critics have argued that church autonomy puts religious institutions above the law. They contend that church autonomy doctrine lacks limiting principles and worry that the “sphere sovereignty” theory of church and state leaves no room for accountability for wrongdoing in religious institutions. The courts, for their part, have recognized that church autonomy must have limits but have struggled to …

Battlegrounds For Banned Books: The First Amendment And Public School Libraries, Jensen Rehn

Notre Dame Law Review

Embedded in each conversation about banning books are arguments that use legal terminology. A brief conversation about banned books with a librarian will likely lead to a discussion of the “Library Bill of Rights” published by the ALA. No one is bound by the ALA’s Bill of Rights, which lacks a method of enforcement. Thus, the question remains: what is the legal landscape of banning books? Unfortunately, the Supreme Court has not provided a clear precedent about banning books from public school libraries. In fact, the Supreme Court has only taken cases about libraries on three occasions, each of which …

A 180 On Section 230: State Efforts To Erode Social Media Immunity, Leslie Y. Garfield Tenzer, Hayley Margulis

Pepperdine Law Review

The turmoil of the 2020 presidential election renewed controversy surrounding 47 U.S.C § 230. The law, adopted as part of the 1996 Communications Decency Act (CDA), shields Interactive Computer Services (ICS) from civil liability for third-party material posted on their Platforms—no matter how heinous and regardless of whether the material enjoys constitutional protection. Consequently, any ICS, which is broadly defined to include Internet service providers (ISPs) and social media platforms (Platforms), can police its own postings but remains free from government intervention or retribution. In 2022, members of the Texas and Florida legislatures passed laws aiming to limit the scope …

Freedom In Serving Others: Arguments And Sources For Religious Institutional Freedom, Thomas C. Berg

University of St. Thomas Law Journal

No abstract provided.

Two There Are That Rule The World: Private Power And Political Authority, Dr. Charles J. Reid Jr.

University of St. Thomas Law Journal

No abstract provided.

The Evolution Of Chapter 11: How Corporate Restructuring Has Evolved And Its Important Role In The Recovery Of A Struggling Economy, Eduardo Cervantes

DePaul Business & Commercial Law Journal

No abstract provided.

Covid-19 Vs. Constitution; Limited Government's Unlimited Response, John A. Losurdo

DePaul Business & Commercial Law Journal

No abstract provided.

The "No License, No Chips" Policy: When A Refusal To Deal Becomes Reasonable, Sheng Tong

DePaul Business & Commercial Law Journal

No abstract provided.

The Dark Triad: Private Benefits Of Control, Voting Caps And The Mandatory Takeover Rule, Jorge Brito Pereira

DePaul Business & Commercial Law Journal

No abstract provided.

Qualified Knowledge: The Case For Considering Actual Knowledge In Qualified Immunity Jurisprudence As It Relates To The First Amendment Right To Record, Carly Laforge

William & Mary Law Review

This Note argues that this particular finding of the Frasier court is both pragmatically and philosophically problematic. By design, the qualified immunity doctrine seeks to shield police officers from civil rights lawsuits. However, prioritizing assumed knowledge over actual knowledge in determining what qualifies as a clearly established constitutional right harms the citizens that law enforcement officers have sworn to protect and serve. While traditional delineations of clearly established rights have involved appeals to precedent, public policy concerns are also important considerations in the qualified immunity analysis. In this way, Frasier is especially concerning in that it prioritizes the total defense …

Protecting Islam's Garden From The Wilderness: Halal Fraud Statutes And The First Amendment, Elijah L. Milne

Journal of Food Law & Policy

Like all religions, Islam needs protection from governmental encroachment. As early as 1644, Roger Williams, the founder of Rhode Island, recognized that state involvement in religious matters defiles religion. "When they have opened a gap in the hedge or wall of separation between the garden of [religion] and the wilderness of the world," wrote Williams, "God hath ever broke down the wall itself, removed the candlestick, and made His garden a wilderness ... ." Although Williams was mostly concerned about the government's impact on Christianity, his oft-quoted metaphor applies equally to the government's influence on Islam. This Article will discuss …

“Alexa, Am I A Murderer?”: An Analysis Of Whether The First Amendment Protects Smart Speaker Communications, Josie A. Bates

Arkansas Law Review

State v. Bates poses interesting First Amendment questions that go far beyond the case itself, such as whether communications to and from smart speakers are protected under the First Amendment and, if so, whether the government must therefore meet a heightened standard before obtaining information from these devices. But currently, there are no definite answers. Thus, this analysis will attempt to answer these questions as well as offer general guidance for the future of First and Fourth Amendment law in the age of ever-changing technological advancements and never-ending criminal accusations.

Comrades Or Foes: Did The Chinese Break The Law Or New Ground Ground For The First Amendment, Artem M. Joukov

West Virginia Law Review

Prior to exiting the White House, President Trump placed a variety of restrictions on Chinese-owned social media applications, TikTok and WeChat, threatening to greatly curtail their influence in the United States. While couching his actions in the context of national security, the former president engaged in viewpoint discrimination in plain violation of the First Amendment to the United States Constitution. The court rulings in favor of TikTok and WeChat were encouraging and should stem the tide of future government regulations of social media platforms. This article discusses how the decisions fit into the greater context of First Amendment jurisprudence and …

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 …

Mitigating Misinformation On Social Media Platforms: Treating Section 230 Of The Communications Decency Act As A Quid Pro Quo Benefit, Meghan E. Mcdermott

Connecticut Law Review

The rise of misinformation on social media has prompted governments worldwide to enact legislation that may affect every person’s right to freedom of opinion and expression. In the United States, combatting misinformation shares surprising bipartisan support in an ever-divided political landscape. While several proposals have emerged that would strip social media companies of the twenty-fiveyear-old law that shields them from lawsuits over content, it is unlikely that they would survive the seemingly insurmountable First Amendment scrutiny. Thus, an alternative to combatting misinformation is needed.

In an attempt to provide an alternative, this Note presents a model for mitigating misinformation. By …

Sincerity, Subjectivity & Religion: The Evolution Of Rfra From A Constitutional Shield To A Political Sword, Emily Kathryn Tubb

Oklahoma Law Review

No abstract provided.

To Prohibit Free Exercise: A Proposal For Judging Substantial Burdens On Religion, Eric H. Wang

Emory Law Journal

In Employment Division v. Smith, the Supreme Court famously held that the First Amendment Free Exercise Clause permits neutral laws of general applicability to incidentally burden religion without offering religious exemptions. Today, many people—including Justice Alito in his concurrence in Fulton v. City of Philadelphia—are calling for Smith to be replaced by a jurisprudence that applies strict scrutiny to neutral, generally applicable laws that place a substantial burden on religion.

Yet, both before and after Smith, what exactly has constituted a “substantial burden” on religion has been far from clear. While some courts indicate that burdens on …

A Pleasure To Burn: How First Amendment Jurisprudence On Book Banning Bolsters White Supremacy, Amy Anderson

Mitchell Hamline Law Review

No abstract provided.