Law Commons^™

The Terrorist's Veto: Why The First Amendment Must Protect Provocative Portrayals Of The Prophet Muhammad, Daniel Ortner

Northwestern Journal of Law & Social Policy

No abstract provided.

Fighting Back Against Revenge Porn: A Legislative Solution, Alex Jacobs

Northwestern Journal of Law & Social Policy

No abstract provided.

When Religious Belief Becomes Scientific Opinion: Burwell V. Hobby Lobby And The Unraveling Of Federal Rule 702, Meredith Rachel Mandell

Northwestern Journal of Law & Social Policy

No abstract provided.

Foreword, Cassandra Myers

Northwestern University Law Review

No abstract provided.

Multifactoral Free Speech, Alexander Tsesis

Northwestern University Law Review

This Article presents a multifactoral approach to free speech analysis. Difficult cases present a variety of challenges that require judges to weigh concerns for the protection of robust dialogue, especially about public issues, against concerns that sound in common law (such as reputation), statutory law (such as repose against harassment), and in constitutional law (such as copyright). Even when speech is implicated, the Court should aim to resolve other relevant individual and social issues arising from litigation. Focusing only on free speech categories is likely to discount substantial, and sometimes compelling, social concerns warranting reflection, analysis, and application. Examining the …

The Democratic First Amendment, Ashutosh Bhagwat

Northwestern University Law Review

Over the past several decades, the Supreme Court and most First Amendment scholars have taken the position that the primary reason why the First Amendment protects freedom of speech is to advance democratic self-governance. In this Article, I will argue that this position, while surely correct insofar as it goes, is also radically incomplete. The fundamental problem is that the Court and, until recently, scholars have focused exclusively on the Religion Clauses and the Free Speech Clause. The rest of the First Amendment—the Press, Assembly, and Petition Clauses—might as well not exist. The topic of this Article is the five …

The Government Brand, Mary-Rose Papandrea

Northwestern University Law Review

In Walker v. Texas Division, Sons of Confederate Veterans, Inc., the U.S. Supreme Court held that Texas could deny the Sons of Confederate Veterans a specialty license plate because the public found the group’s Confederate flag logo offensive. The Court did not reach this conclusion because it deemed the Confederate flag to fall within a category of unprotected speech, such as true threats, incitement, or fighting words; because it revisited its determination in R.A.V. v. City of St. Paul that restrictions on hate speech are unconstitutional; because travelers who see the license plates are a “captive audience”; or because …

Cultural Democracy And The First Amendment, Jack M. Balkin

Northwestern University Law Review

Freedom of speech secures cultural democracy as well as political democracy. Just as it is important to make state power accountable to citizens, it is also important to give people a say over the development of forms of cultural power that transcend the state. In a free society, people should have the right to participate in the forms of meaning-making that shape who they are and that help constitute them as individuals.

The digital age shows the advantages of a cultural theory over purely democracy-based theories. First, the cultural account offers a more convincing explanation of why expression that seems …

A Free Speech Response To The Gay Rights/Religious Liberty Conflict, Andrew Koppelman

Northwestern University Law Review

The most sensible reconciliation of the tension between religious liberty and public accommodations law, in the recent cases involving merchants with religious objections to same-sex marriage, would permit business owners to present their views to the world, but forbid them either to threaten to discriminate or to treat any individual customer worse than others. Even if such businesses have no statutory right to refuse to facilitate ceremonies they regard as immoral, they are unlikely to be asked to participate in those ceremonies. This solution may, however, be forbidden by the law of hostile environment harassment. That raises a severe free …

Siri-Ously? Free Speech Rights And Artificial Intelligence, Toni M. Massaro, Helen Norton

Northwestern University Law Review

Computers with communicative artificial intelligence (AI) are pushing First Amendment theory and doctrine in profound and novel ways. They are becoming increasingly self-directed and corporal in ways that may one day make it difficult to call the communication ours versus theirs. This, in turn, invites questions about whether the First Amendment ever will (or ever should) cover AI speech or speakers even absent a locatable and accountable human creator. In this Article, we explain why current free speech theory and doctrine pose surprisingly few barriers to this counterintuitive result; their elasticity suggests that speaker humanness no longer may be …

Prosecuting Online Threats After Elonis, Michael Pierce

Northwestern University Law Review

In Elonis v. United States, decided last term, the Supreme Court vacated a conviction for online threats on the ground that the lower court erred in its instructions to the jury regarding mens rea. In doing so, however, the Court declined to articulate which mens rea standard would have sustained a conviction. It is thus currently uncertain which mens rea the government must prove when prosecuting online threats under 18 U.S.C. § 875(c). The Elonis Court discussed three potential mens rea standards; as universal standards for online threats, each leaves something to be desired. Fortunately, federal courts need not …