Law Commons^™

Regulating Habit-Forming Technology, Kyle Langvardt

Fordham Law Review

Tech developers, like slot machine designers, strive to maximize the user’s “time on device.” They do so by designing habit-forming products— products that draw consciously on the same behavioral design strategies that the casino industry pioneered. The predictable result is that most tech users spend more time on device than they would like, about five hours of phone time a day, while a substantial minority develop life-changing behavioral problems similar to problem gambling. Other countries have begun to regulate habit-forming tech, and American jurisdictions may soon follow suit. Several state legislatures today are considering bills to regulate “loot boxes,” a …

Gender Equality And The First Amendment: Foreword, Jeanmarie Fenrich, Benjamin C. Zipursky, Danielle Keats Citron

Fordham Law Review

Gender equality demands equal opportunity to speak and be heard. Yet, in recent years, the clash between equality and free speech in the context of gender has intensified—in the media, the workplace, college campuses, and the political arena, both online and offline. The internet has given rise to novel First Amendment issues that particularly affect women, such as nonconsensual pornography, online harassment, and online privacy. On November 1–2, 2018, the Fordham Law Review brought together scholars and practicing lawyers from around the nation to address many of the pressing challenges facing feminists and free speech advocates today. The Symposium was …

When Law Frees Us To Speak, Danielle Keats Citron, Jonathon W. Penney

Fordham Law Review

A central aim of online abuse is to silence victims. That effort is as regrettable as it is successful. In the face of cyberharassment and sexualprivacy invasions, women and marginalized groups retreat from online engagement. These documented chilling effects, however, are not inevitable. Beyond its deterrent function, the law has an equally important expressive role. In this Article, we highlight law’s capacity to shape social norms and behavior through education. We focus on a neglected dimension of law’s expressive role: its capacity to empower victims to express their truths and engage with others. Our argument is theoretical and empirical. We …

Pregnancy And The First Amendment, Helen Norton

Fordham Law Review

Suppose that you are pregnant and seated in the waiting room of a Planned Parenthood clinic, or maybe in a facility that advertises “Pregnant? We Can Help You.” This Essay discusses the First Amendment rules that apply to the government’s control of what you are about to hear. This Essay considers what First Amendment law, as applied to speech to pregnant women, would look like if the Court attended to the First Amendment interests of pregnant women themselves.

Toxic Misogyny And The Limits Of Counterspeech, Lynne Tirrell

Fordham Law Review

Gender equality, across all the ways that we humans are engendered, is an unrealized ideal of many contemporary Americans. It is not enshrined in the U.S. Constitution, unless one interprets “men” to include women, which the Framers did not. Although passed by Congress in 1972, the Equal Rights Amendment (ERA) failed to gain the necessary thirty-eight state ratifications, and it has never become law. Thirty-five states initially ratified it between 1972 and 1977, then two more in 2017 and 2018. It remains one state short. These ratifications indicate significant social progress for women, but the progress is uneven, even within …

Free Speech And The Diverse University, Keith E. Whittington

Fordham Law Review

There are those who think that free speech and inclusivity on college campuses are inconsistent. The notion that the two values are in tension with one another has become a common framing for thinking about the modern campus. A Gallup-Knight Foundation poll of college students asked respondents not only whether they valued free speech or diversity but also to choose between them and indicate which was “more important for colleges.” When forced to choose, a substantial minority of students said they would prioritize inclusivity over the freedom to express “viewpoints that are offensive” on campus. Following the Gallup-Knight poll the …

Managing The Misinformation Marketplace: The First Amendment And The Fight Against Fake News, Daniela C. Manzi

Fordham Law Review

In recent years, fake news has overtaken the internet. Fake news publishers are able to disseminate false stories widely and cheaply on social media websites, amassing millions of likes, comments, and shares, with some fake news even “trending” on certain platforms. The ease with which a publisher can create and spread falsehoods has led to a marketplace of misinformation unprecedented in size and power. People’s vulnerability to fake news means that they are far less likely to receive accurate political information and are therefore unable to make informed decisions when voting. Because a democratic system relies on an informed populace …

"'Male Chauvinism' Is Under Attack From All Sides At Present": Roberts V. United States Jaycees, Sex Discrimination, And The First Amendment, Linda C. Mcclain

Fordham Law Review

This Article considers the relationship between gender equality and freedom of association. Part I begins with the Supreme Court’s recognition of the freedom of association as first articulated in NAACP v. Alabama. It shows how, in the context of race discrimination, some key civil rights victories have enlisted claims of the freedom of association, while some other victories have prevailed against such claims. Those precedents set the foundation for the Court’s decision in Jaycees, which concerned gender discrimination. Part II focuses on the role of Jaycees in drawing an analogy between the harms of gender discrimination and sexual-orientation …

Fosta: A Hostile Law With A Human Cost, Lura Chamberlain

Fordham Law Review

The Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (“FOSTA”) rescinded legal immunity for websites that intentionally host user-generated advertisements for sex trafficking. However, Congress’s mechanism of choice to protect sex-trafficking victims has faced critique and backlash from advocates for those involved in commercial sex, who argue that FOSTA’s broad legislative language does far more to harm sex workers—a group distinct from sex-trafficking victims—than it does to end sex trafficking, chilling significant protected speech in the process. These critics posit that FOSTA’s results toward eradicating sex trafficking have been negligible and that its chief outcome has …

Don't Bring A Cad File To A Gun Fight: A Technological Solution To The Legal And Practical Challenges Of Enforcing Itar On The Internet, Catherine Tremble

Fordham Law Review Online

This Essay begins by outlining Cody Wilson’s motivation to found his organization, Defense Distributed, and the organization’s progress toward its goals. Then, Part II provides a brief overview of the protracted legal battle between Wilson and the State Department over the right to publish Computer-Aided Design (CAD) files on the internet that enable the 3D printing of guns and lower receivers. Part III.A takes a brief look at whether these CAD files are rightly considered speech at all and, if so, what level of protection they might receive. Part III.B then addresses the problem of even asking whether the files …

The "Uncontroversial" Controversy In Compelled Commercial Disclosures, Lauren Fowler

Fordham Law Review

Federal and state administrative agencies increasingly advance public health goals through the use of mandatory disclosures, like warning labels on cigarettes, that are intended to both inform and influence consumer decisions. However, the standard for determining whether these requirements violate a commercial speaker’s First Amendment rights is unsettled. In Zauderer v. Office of Disciplinary Counsel, the U.S. Supreme Court adopted a test that defers to the government’s determination that the compelled disclosure of “factual and uncontroversial information” is justified. Since Zauderer was decided, lower courts have disagreed about the meaning of “uncontroversial.” A recent Supreme Court case, National Institute …

The Trouble With Tinker: An Examination Of Student Free Speech Rights In The Digital Age, Allison N. Sweeney

Fordham Intellectual Property, Media and Entertainment Law Journal

The boundaries of the schoolyard were once clearly delineated by the physical grounds of the school. In those days, it was relatively easy to determine what sort of student behavior fell within an educator’s purview, and what lay beyond the school’s control. Technological developments have all but erased these confines and extended the boundaries of the school environment somewhat infinitely, as the internet and social media allow students to interact seemingly everywhere and at all times. As these physical boundaries of the schoolyard have disappeared, so too has the certainty with which an educator might supervise a student’s behavior.

Because …

How To Evaluate The Constitutional Legitimacy Of Regulating Speech Intermediaries: Lessons From A Century-Long Experience Of Media Regulation, Asaf Wiener

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article aims to supply policymakers and jurists with an ideologically-neutral framework for evaluating the legitimacy of imposing public interest duties on today’s dominant communicative technologies, such as Netflix, YouTube, or Facebook. In contrast to current literature, which often advocates for adopting either a libertarian or a distributive position about communication policies and free speech values, this Article suggests an ideologically-neutral, fact-based examination for evaluating the various sources of legitimacy with regard to both “old” and “new” media regulation.

The first Part of the Article begins by adopting a sociohistorical perspective to taxonomize consensual sources for legitimizing media regulation within …