Law Commons^™

Indoctrination By Elimination: Why Banning Critical Race Theory In Public Schools Is Unconstitutional, Emma Postel

William & Mary Bill of Rights Journal

This Note argues that Texas public school students’ First Amendment Rights have been violated by the passage of Senate Bill 3 (SB 3), which bans the teaching of Critical Race Theory (CRT) in K–12 public schools. The First Amendment is violated here because (1) students have a First Amendment right to speech, and this law bans protected speech; (2) students have a right to receive information, and this ban prevents them from receiving information; and (3) schools are meant to be the marketplace of ideas for students and banning CRT amounts to unconstitutional viewpoint discrimination. This Note does not suggest …

Seditious Conspiracy Charge Against Oath Keepers Founder And Others In Jan. 6 Riot Faces First Amendment Hurdle, Timothy Zick

Popular Media

No abstract provided.

The Second Amendment Has Become A Threat To The First, Diana Palmer, Timothy Zick

Popular Media

No abstract provided.

Marriage Mandates: Compelled Disclosures Of Race, Sex, And Gender Data In Marriage Licensing Schemes, Mikaela A. Phillips

William & Mary Journal of Race, Gender, and Social Justice

This Note argues that mandatory disclosures of personal information—specifically race, sex, and gender—on a marriage license application constitute compelled speech under the First Amendment and should be subject to heightened scrutiny. Disclosing one’s race, sex, or gender on a marriage license application is an affirmative act, and individuals may wish to have their identity remain anonymous. These mandatory disclosures send a message that this information is still relevant to marriage regulation. Neither race nor gender is based in science; rather they are historical and social constructs created to uphold a system of white supremacy and heteronormativity. Thus, such statements are …

Deepfakes: A New Content Category For A Digital Age, Anna Pesetski

William & Mary Bill of Rights Journal

Technology has advanced rapidly in recent years, greatly benefitting society. One such benefit is people’s ability to have quick and easy access to information through news and social media. A recent concern, however, is that manipulated media, otherwise known as “deepfakes,” are being released and passed off as truth. These videos are crafted with technology that allows the creator to carefully change details of the video’s subject to make him appear to do or say things that he never did. Deepfakes are often depictions of political candidates or leaders and have the potential to influence voter choice, thereby altering the …

The Pure-Hearted Abrams Case, Andres Yoder

William & Mary Bill of Rights Journal

One hundred years ago, Justice Oliver Wendell Holmes changed his mind about the right to free speech and wound up splitting the history of free speech law into two. In his dissent in Abrams v. United States, he called for the end of the old order—in which courts often ignored or rejected free speech claims—and set the stage for the current order—in which the right to free speech is of central constitutional importance. However, a century on, scholars have been unable to identify a specific reason for Holmes’s Abrams transformation, and have instead pointed to more diffuse influences. By …

The Costs Of Dissent: Protest And Civil Liabilities, Timothy Zick

Faculty Publications

This Article examines the civil costs and liabilities that apply to individuals who organize, participate in, and support protest activities. Costs ranging from permit fees to punitive damages significantly affect First Amendment speech, assembly, and petition rights. A variety of common law and statutory civil claims also apply to protest activities. Plaintiffs have recently filed a number of new civil actions negatively affecting protest, including "negligent protest," "aiding and abetting defamation," "riot boosting," "conspiracy to protest," and "tortious petitioning." The labels are suggestive of the threats these suits pose to First Amendment rights. All of these costs and liabilities add …

Protesting In America, Timothy Zick

Popular Media

No abstract provided.

Free Speech, Rational Deliberation, And Some Truths About Lies, Alan K. Chen

William & Mary Law Review

Could “fake news” have First Amendment value? This claim would seem to be almost frivolous given the potential for fake news to undermine two core functions of the freedom of speech—promoting democracy and facilitating the search for “truth,” as well as the corollary that to be valuable, speech must promote rational deliberation. Some would therefore claim that fake news should be classified as “no value” speech falling outside of the First Amendment’s reach. This Article argues somewhat counterintuitively that fake news has value because speech doctrine should not be focused exclusively on the promotion of rational deliberation, but should also …

Janus And The Future Of Collective Bargaining: Rhetorically Predicting A First Amendment Right To Negotiation, Thomas J. Freeman, Aaron Mckain, Destynie J.L. Sewell

William & Mary Business Law Review

The importance of the U.S. Supreme Court ruling in Janus v. American Federation of State, County, and Municipal Employees has been widely recognized for its effect on reducing the power and influence of public unions. A close reading of the majority opinion provides a clue that compulsory collective bargaining itself may be settling into the court’s crosshairs. Collective bargaining is an important tool, by which labor can reduce the often-inherent power imbalance it has with ownership and management. Yet as this Article outlines, the interests of individual workers can often be at odds with those other workers workers, particularly those …

Information Gathering Or Speech Creation: How To Think About A First Amendment Right To Record, Jared Mullen

William & Mary Bill of Rights Journal

No abstract provided.

Saving The Marketplace From Market Failure: Reorienting Marketplace Theory In The Era Of Ai Communicators, Jared Schroeder

William & Mary Bill of Rights Journal

Artificially Intelligent (AI) communicators represent a new type of actor within public discourse. These entities have played influential roles in recent elections in the U.S. and Europe. This Article examines expression rights for AI actors through the lenses provided by the foundational assumptions of the marketplace of ideas theory and existing free-expression-related rationales regarding non-human actors in the U.S. and European legal systems. The Article contends that the fundamental assumptions of the marketplace model must be revised to focus on the flow of information, the development of truth, rather than the more Enlightenment-oriented competition of ideas that leads to the …

The Bad News Of Good News Club: Obliterating The Wall Between Church & State, Kevin W. Connell

William & Mary Bill of Rights Journal

No abstract provided.

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

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.

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 …

Who Tells Your Story: The Legality Of And Shift In Racial Preferences Within Casting Practices, Nicole Ligon

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

The Effects Of Rejecting Mind-Body Dualism On U.S. Law, Matthew W. Lawrence

William & Mary Journal of Race, Gender, and Social Justice

While neuroscience continues to make it clearer that mental processes, effects, disorders, and states can be described through physical observation, the metaphysical notion of mind-body dualism still pervades the U.S. legal system. In this Article, I discuss many areas where mind-body dualism holds fast, and others where mind-body dualism has already been explicitly or impliedly rejected. I argue that in most areas, the dualist distinction would have little to no impact on the values the law already describes. However, I argue that rejecting dualism would have an impact on fundamental rights analyses. First Amendment free speech rights, fundamental rights, and …

Free-Speech Formalism And Social Injustice, Stephen M. Feldman

William & Mary Journal of Race, Gender, and Social Justice

The Roberts Court has shifted constitutional law in a formalist direction. This Essay explains the Court’s formalism and its causes and consequences in First Amendment free-expression cases. The thesis is that the current conservative justices’ reliance on formalism intertwines with their attitudes toward public and private spheres of activity. Their attitudes toward the public-private dichotomy are, in turn, shaped by their political ideologies as well as by the contemporary practices of democratic government, which have shifted significantly over American history. Formalism contains an inherent political tilt favoring those who already wield power in the private sphere. Formalism favors the wealthy …

Stripped: Speech, Sex, Race, And Secondary Effects, Lisa Crooms-Robinson

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Introduction, Dania Matos

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

First Amendment Lochnerism & The Origins Of The Incorporation Doctrine, James Y. Stern

Faculty Publications

The 20th century emergence of the incorporation doctrine is regarded as a critical development in constitutional law, but while issues related to the doctrine's justification have been studied and debated for more than fifty years, the causes and mechanics of its advent have received relatively little academic attention. This Essay, part of a symposium on Judge Jeffrey Sutton's recent book about state constitutional law, examines the doctrinal origins of incorporation, in an effort to help uncover why the incorporation doctrine emerged when it did and the way it did. It concludes that, for these purposes, incorporation is best understood as …

Free Speech Idealism, Timothy Zick

Faculty Publications

No abstract provided.

Trust And Retaliation: The First Amendment And Trump’S Taxes, Timothy Zick

Popular Media

No abstract provided.

The President’S Utterly Un-American Response To Dissent, Timothy Zick

Popular Media

No abstract provided.

Broken Platforms, Broken Communities? Free Speech On Campus, Stephen M. Feldman

William & Mary Bill of Rights Journal

Free speech disputes have broken out on numerous college and university campuses. In several incidents, protesters have attempted to block the presentations of well-known and controversial speakers who threaten the communal status of societal outsiders. These events have sparked not only widespread media coverage but also the publication of multiple scholarly books and articles. None of this scholarship, however, has recognized that the interrelated histories of free expression and democracy can shed considerable light on these matters. This Article takes on that challenge. Specifically, this Article explores the ramifications of the historical interrelationship between free expression and democracy for campus …

Merging Offensive-Speech Cases With Viewpoint-Discrimination Principles: The Immediate Impact Of Matal V. Tam On Two Strands Of First Amendment Jurisprudence, Clay Calvert

William & Mary Bill of Rights Journal

This Article examines flaws with the U.S. Supreme Court’s 2017 decision in Matal v. Tam that equated giving offense with viewpoint discrimination. Already, the Court’s language in Tam that “giving offense is a viewpoint” is being cited by multiple lower courts. This Article argues, however, that giving offense is not synonymous with viewpoint discrimination. This Article contends that the Court in Tam conflated two distinct strands of First Amendment jurisprudence—namely, its offensive-speech cases with principles against viewpoint discrimination. The Article proposes two possible paths forward to help courts better clarify when a case such as Tam should be analyzed as …

Antitrust As Speech Control, Hillary Greene, Dennis A. Yao

William & Mary Law Review

Antitrust law, at times, dictates who, when, and about what people can and cannot speak. It would seem then that the First Amendment might have something to say about those constraints. And it does, though perhaps less directly and to a lesser degree than one might expect. This Article examines the interface between those regimes while recasting antitrust thinking in terms of speech control.

Our review of the antitrust-First Amendment legal landscape focuses on the role of speech control. It reveals that while First Amendment issues are explicitly addressed relatively infrequently within antitrust decisions that is, in part, because certain …