Law Commons^™

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.

Doctrinal Dynamism, Borrowing, And The Relationship Between Rules And Rights, Joseph Blocher, Luke Morgan

William & Mary Bill of Rights Journal

The study of “Rights Dynamism,” exemplified in Timothy Zick’s new book on the First Amendment’s relationship with the rest of the Bill of Rights, can enrich our understanding of constitutional rights. It also opens a door to another potentially fruitful arena: what we call “Doctrinal Dynamism.” Constitutional rights often interact and generate new meanings and applications by way of importing and exporting one another’s doctrinal rules, even when the rights themselves do not intersect directly in the context of a single case. Focusing on these doctrinal exchanges can illuminate the strengths and weaknesses of various rules, the specific interests underlying …

The Conscience Of The Baker: Religion And Compelled Speech, Ashutosh Bhagwat

William & Mary Bill of Rights Journal

No abstract provided.

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 …

A Call Of Duty To Counterstrike: Cyberharassment And The Toxic Gaming Culture Plaguing Female Gamers And Developers, Natasha N. Phidd

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

The frequency with which female gamers and game developers experience sexual harassment and threats of violence online is significant enough to warrant concern about a section of our society— female gamers and game developers—having their sexuality and gender identity used against them, both as weapons and as barriers blocking them from access to a lucrative economic venture. An examination of the 2014 Gamergate controversy and various other instances of cyberharassment against female gamers and developers, as well as a look into the realm of eSports and an analysis of cyberharassment and the concept of true threats, indicate that this particular …

#Metoo Meets The Ministerial Exception: Sexual Harassment Claims By Clergy And The First Amendment's Religion Clauses, Ira C. Lupu, Robert W. Tuttle

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

No abstract provided.

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 …

Religious Freedom Through Market Freedom: The Sherman Act And The Marketplace For Religion, Barak D. Richman

William & Mary Law Review

In prior work, I examined certain restraints by private religious organizations and concluded that the First Amendment did not immunize these organizations from antitrust liability. In short, the First Amendment did not preempt enforcing the Sherman Act against certain religious monopolies or cartels.

This Article offers a stronger argument: First Amendment values demand antitrust enforcement. Because American religious freedoms, enshrined in the Constitution and reflected in American history, are quintessentially exercised when decentralized communities create their own religious expression, the First Amendment’s religion clauses are best exemplified by a proverbial marketplace for religions. Any effort to stifle a market organization …

The (Limited) Constitutional Right To Compete In An Occupation, Rebecca Haw Allensworth

William & Mary Law Review

Is there a constitutional right to compete in an occupation? The “right to earn a living” movement, gaining steam in policy circles and winning some battles in the lower courts, says so. Advocates for this right say that the right to compete in an occupation stands on equal footing with our most sacred constitutional rights such as the right to be free from racial discrimination. This Article takes a different view, arguing that while there is a limited constitutional right to compete in an occupation, it is—and should be—weaker than these advocates claim. Some state licensing laws run afoul of …

The Esquire Case: A Lost Free Speech Landmark, Samantha Barbas

William & Mary Bill of Rights Journal

No abstract provided.

Silencing State Courts, Jeffrey Steven Gordon

William & Mary Bill of Rights Journal

In state courts across the Nation, an absolutist conception of the First Amendment is preempting common law speech torts. From intentional infliction of emotional distress and intrusion upon seclusion, to intentional interference with contractual relations and negligent infliction of emotional distress, state courts are dismissing speech tort claims on the pleadings because of the broad First Amendment defense recognized by Snyder v. Phelps in 2011. This Article argues, contrary to the scholarly consensus, that Snyder was a categorical departure from the methodology adopted by New York Times Co. v. Sullivan, the landmark 1964 case that first applied the First …

Beyond Headlines & Holdings: Exploring Some Less Obvious Ramifications Of The Supreme Court’S 2017 Free-Speech Rulings, Clay Calvert

William & Mary Bill of Rights Journal

Digging behind the holdings, this Article analyzes less conspicuous, yet highly consequential aspects of the United States Supreme Court’s First Amendment rulings during the opening half of 2017. The four facets of the opinions addressed here—items both within individual cases and cutting across them—hold vast significance for future free-speech battles. Nuances of the justices’ splintering in Matal v. Tam, Packingham v. North Carolina, and Expressions Hair Design v. Schneiderman are examined, as is the immediate impact of Justice Anthony Kennedy’s Packingham dicta regarding online social networks. Furthermore, Justice Sonia Sotomayor’s solo concurrence in the threats case of Perez …

A Tale Of Two Clauses: Search And Seizure, Establishment Of Religion, And Constitutional Reason, Perry Dane

William & Mary Bill of Rights Journal

This Article dissects two developments in widely separate areas of American constitutional law—the “reasonable expectation of privacy” test for the Fourth Amendment’s Search and Seizure Clause and the “endorsement” test for the First Amendment’s Establishment Clause. These two stories might seem worlds apart, and they have not previously been systematically examined together. Nevertheless, the Article argues that they have in common at least three important symptoms of our legal culture’s deep malaise. These three phenomena occur in other contexts, too, but they appear with special clarity and a stark cumulative force in the two stories on which this Article focuses. …

Not Today, Satan: Re-Examining Viewpoint Discrimination In The Limited Public Forum, Daniel Cutler

William & Mary Bill of Rights Journal

No abstract provided.

The Visibility Value Of The First Amendment, Brian C. Murchison

William & Mary Bill of Rights Journal

No abstract provided.

Gerrymandering And Association, Daniel P. Tokaji

William & Mary Law Review

No abstract provided.

The Bergdahl Block: How The Military Limits Public Access To Preliminary Hearings And What We Can Do About It, Eric R. Carpenter

William & Mary Bill of Rights Journal

Sergeant Bowe Bergdahl and Private First Class Bradley (now Chelsea) Manning have something in common. Military officials unlawfully closed all or portions of their preliminary hearings to the public. When doing so, military officials exploited two unusual features of the military justice system, thereby denying the accused and the media of their respective Sixth Amendment and First Amendment rights to a public hearing.

The first feature is that the military justice system does not include a standing trial-level court. If there is a problem at the preliminary hearing, the accused and media have nowhere to go for help. The accused …

Pornography And Gender Inequality—Using Copyright Law As A Step Forward, Kayla Louis

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

No abstract provided.

All Employers Must Wash Their Speech Before Returning To Work: The First Amendment & Compelled Use Of Employees’ Preferred Gender Pronouns, Tyler Sherman

William & Mary Bill of Rights Journal

No abstract provided.

The Government Speech Doctrine In Walker’S Wake: Early Rifts And Reverberations On Free Speech, Viewpoint Discrimination, And Offensive Expression, Clay Calvert

William & Mary Bill of Rights Journal

This Article examines the immediate effects on free expression of the U.S. Supreme Court’s 2015 ruling in Walker v. Texas Division, Sons of Confederate Veterans, Inc. involving the government speech doctrine. In Walker, a sharply—and largely partisanly—divided Court upheld, in the face of a First Amendment challenge, Texas’s decision denying a private organization’s application for a specialty license plate featuring Confederate battle flag imagery. This Article initially reviews the government speech doctrine and Walker. It then analyzes Walker’s impact on cases that, like it, involve specialty license plate programs. Next, this Article explores lower court efforts stretching …

The Commercial Difference, Felix T. Wu

William & Mary Law Review

When it comes to the First Amendment, commerciality does, and should, matter. This Article develops the view that the key distinguishing characteristic of corporate or commercial speech is that the interest at stake is “derivative,” in the sense that we care about the speech interest for reasons other than caring about the rights of the entity directly asserting a claim under the First Amendment. To say that the interest is derivative is not to say that it is unimportant, and one could find corporate and commercial speech interests to be both derivative and strong enough to apply heightened scrutiny to …

A Reverent Reflection Of The Splendid Scholarship Of Martin Redish—Does Reexamining Commercial Speech Shed Light On The Regrettable Reliance Upon Lie & Insult In Political Campaigns?, Douglas W. Kmiec

William & Mary Bill of Rights Journal

No abstract provided.

The Status Of The Hearer In Mr. Madison’S Neighborhood, Burt Neuborne

William & Mary Bill of Rights Journal

No abstract provided.

False Commercial Speech And The First Amendment: Understanding The Implications Of The Equivalency Principle, Martin H. Redish, Kyle Voils

William & Mary Bill of Rights Journal

No abstract provided.

No Regrets (Almost): After Virginia Board Of Pharmacy, Alan B. Morrison

William & Mary Bill of Rights Journal

No abstract provided.

Commercial Speech And The Perils Of Parity, Frederick Schauer

William & Mary Bill of Rights Journal

No abstract provided.

The Coverage/Protection Distinction In The Law Of Freedom Of Speech—An Essay On Meta-Doctrine In Constitutional Law, Mark Tushnet

William & Mary Bill of Rights Journal

No abstract provided.

Punishing Sexual Fantasy, Andrew Gilden

William & Mary Law Review

The Internet has created unprecedented opportunities for adults and teenagers to explore their sexual identities, but it has also created new ways for the law to monitor and punish a diverse range of taboo sexual communication. A young mother loses custody of her two children due to sexually explicit Facebook conversations. A teenager is prosecuted for child pornography crimes after sending a naked selfie to her teenage boyfriend. An NYPD officer is convicted for conspiracy to kidnap several women based on conversations he had on a “dark fetish” fantasy website. In each of these cases, online sexual exploration and fantasy …