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Full-Text Articles in Law
Free Speech, Rational Deliberation, And Some Truths About Lies, Alan K. Chen
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
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
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
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
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
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
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
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
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
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 …
The Liberty Impact Of Gender, Kingsly Alec Mcconnell
The Liberty Impact Of Gender, Kingsly Alec Mcconnell
Washington Law Review
Can the federal government unilaterally change your gender? In October of 2018, the New York Times revealed that the Trump Administration’s Department of Health and Human Services was considering a new federal definition of “gender.” The policy would redefine gender as a “biological, immutable condition determined by genitalia at birth.” This policy places transsex people at a substantial risk of deprivation of property and speech rights, as gender implicates both property and expression. It also impedes the exercise of substantive due process rights and privileges and immunities. For example, inaccurate gender designations can hinder a transsex parent’s ability to raise …
Who Tells Your Story: The Legality Of And Shift In Racial Preferences Within Casting Practices, Nicole Ligon
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
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
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
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
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
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