Law Commons^™

The ‘Weaponized’ First Amendment At The Marble Palace And The Firing Line: Reaction And Progressive Advocacy Before The Roberts Court And Lower Federal Courts, Seth F. Kreimer

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It once seemed that the First Amendment doctrine developed by the Supreme Court stood as a bulwark protecting grassroots struggles for social change. In the twenty-first century, however, particularly since the appointments of Chief Justice Roberts and Justice Alito in 2005, a number of observers have begun to view the Supreme Court’s First Amendment work as a “weaponized” redoubt of reaction.

This sense of the rightward tilt of Supreme Court decisions is rooted in reality. Examining 104 Supreme Court First Amendment cases decided during the 2005–2020 Terms, it turns out that successful litigants are four times as likely to come …

The First Amendment, Common Carriers, And Public Accommodations: Net Neutrality, Digital Platforms, And Privacy, Christopher S. Yoo

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Recent prominent judicial opinions have assumed that common carriers have few to no First Amendment rights and that calling an actor a common carrier or public accommodation could justify limiting its right to exclude and mandating that it provide nondiscriminatory access. A review of the history reveals that the underlying law is richer than these simple statements would suggest. The principles for determining what constitutes a common carrier or a public accommodation and the level of First Amendment protection both turn on whether the actor holds itself out as serving all members of the public or whether it asserts editorial …

Applying Strict Scrutiny: An Empirical Analysis Of Free Exercise Cases, Caleb C. Wolanek, Heidi H. Liu

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Strict scrutiny and the free exercise of religion have had an uneasy relationship in American jurisprudence. In this Article, we trace the history of strict scrutiny in free exercise cases and outline how it applies today. Then, using a unique dataset of cases from a 25-year period, we detail the characteristics of these cases. Finally, we discuss the implications for future cases. Our research indicates that even though claimants currently win a large percentage of cases, those victories might not be durable.

Commercial Speech, Commercial Use, And The Intellectual Property Quagmire, Jennifer E. Rothman

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The commercial speech doctrine in First Amendment jurisprudence has frequently been criticized and is recognized as a highly contested, problematic and shifting landscape. Despite the compelling critique within constitutional law scholarship more broadly, Intellectual Property (“IP”) law has not only embraced the differential treatment of commercial speech, but has done so in ways that disfavor a much broader swath of speech than traditional commercial speech doctrine allows. One of the challenges for courts, litigants, and scholars alike is that the term “commercial” is used to mean multiple things, even within the same body of IP law. In this Article, I …

Sacred Cows, Holy Wars: Exploring The Limits Of Law In The Regulation Of Raw Milk And Kosher Meat, Kenneth Lasson

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In a free society law and religion seldom coincide comfortably, tending instead to reflect the inherent tension that often resides between the two. This is nowhere more apparent than in America, where the underlying principle upon which the first freedom enunciated by the Constitution's Bill of Rights is based ‒ the separation of church and state – is conceptually at odds with the pragmatic compromises that may be reached. But our adherence to the primacy of individual rights and civil liberties ‒ that any activity must be permitted if it is not imposed upon others without their consent, and if …

The Structural Constitutional Principle Of Republican Legitimacy, Mark D. Rosen

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Representative democracy does not spontaneously occur by citizens gathering to choose laws. Instead, republicanism takes place within an extensive legal framework that determines who gets to vote, how campaigns are conducted, what conditions must be met for representatives to make valid law, and many other things. Many of the “rules-of-the-road” that operationalize republicanism have been subject to constitutional challenges in recent decades. For example, lawsuits have been brought against “partisan gerrymandering” (which has led to most congressional districts not being party-competitive, but instead being safely Republican or Democratic) and against onerous voter identification requirements (which reduce the voting rates of …

Book Review: The Free Press Crisis Of 1800: Thomas Cooper's Trial For Seditious Libel, Eric Easton

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This article was an invited book review of a book of the same title by Peter Charles Hoffer. Hoffer, Distinguished Research Professor of History at the University of Georgia, has published this accessible case history as part of the University Press of Kansas’s Landmark Law Cases & American Society series, which he co-edits.

The book discusses one of the cases arising as a result of the Alien & Sedition Act under the presidency of John Adams, mostly targeting Republicans who editorialized against the Adams administration.

Liberating Copyright: Thinking Beyond Free Speech, Jennifer E. Rothman

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Scholars have often turned to the First Amendment to limit the scope of ever-expanding copyright law. This approach has mostly failed to convince courts that independent review is merited and has offered little to individuals engaged in personal rather than political or cultural expression. In this Article, I consider the value of an alternative paradigm using the lens of substantive due process and liberty to evaluate users’ rights. A liberty-based approach uses this other developed body of constitutional law to demarcate justifiable personal, identity-based uses of copyrighted works. Uses that are essential for mental integrity, intimacy promotion, communication, or religious …

The Possibility Of A Secular First Amendment, Chad Flanders

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In a series of articles and now in their new book, Religious Freedom and the Constitution, Lawrence Sager and Christopher Eisgruber (E&S) defend an interpretation of the religion clauses of the First Amendment which, they write, "denies that religion is a constitutional anomaly, a category of human experience that demands special benefits and/or necessitates special restrictions." While not a book review in the traditional sense, my essay takes E&S's defense of a secular First Amendment as a starting point and asks, how did we get to the point where an interpretation of the First Amendment which denies that religion is …

Architectural Censorship And The Fcc, Christopher S. Yoo

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Most First Amendment analyses of U.S. media policy have focused predominantly on “behavioral” regulation, which either prohibits the transmission of disfavored content (such as indecent programming) or mandates the dissemination of preferred content (such as children’s educational programming and political speech). In so doing, commentators have largely overlooked how program content is also affected by “structural” regulation, which focuses primarily on increasing the economic competitiveness of media industries. In this Article, Professor Christopher Yoo employs economic analysis to demonstrate how structural regulation can constitute a form of “architectural censorship” that has the unintended consequence of reducing the quantity, quality, and …

The Constitutionality Of Enjoining Criminal Street Gangs As Public Nuisances, Christopher S. Yoo

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California jurisdictions have increasingly used injunctions to combat the growth criminal street gangs. The use of civil sanctions to redress criminal activity raises difficult constitutional questions, potentially creating personal criminal codes that may infringe upon defendants’ substantive constitutional rights. In addition, employing civil remedies may deprive defendants of constitutional procedural protections that would have been provided if the jurisdiction had elected to deter the same behavior with available criminal sanctions. Although the use of injunctions places pressure on a number of substantive constitutional rights, including the freedom of association, freedom of expression, right to travel, the injunction terms will likely …