Law Commons^™

Press Benefits And The Public Imagination, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

In an era when the press faces unprecedented challenges, those who believe in the importance of a free press find themselves playing defense. Press advocates have been forced to articulate, with renewed clarity and urgency, why the press is not merely important but vital to an effective democracy and why it needs to be saved from a “death spiral” and an “extinction-level event.” These arguments often focus on the crucial role the press plays—the “press function,” as lawyers call it—in informing the public, holding power to account, and facilitating democratic discourse.

Scholars and commentators generally discuss the press function through …

The Discipline Of Rudy Giuliani And The Real Fraud Of The 2020 Election, George M. Cohen

Catholic University Law Review

In Matter of Giuliani, the New York Appellate Division held that Rudy Giuliani’s knowingly false statements of fact during the period after the 2020 presidential election violated the Rules of Professional Conduct and warranted interim suspension of his license. This paper argues that the court reached the right result but did not use the best rule and the best rationale. Instead of focusing on Giuliani’s conduct as a series of false statements in support of a “narrative,” the better approach would have been to call it what it was: fraud. Although the fraud was not “transactional,” fraud, Giuliani’s false …

Coin Center V. Yellen Prompts Reconsideration Of The Vast Deference Afforded To The Department Of The Treasury, Emily Arterbury

Catholic University Law Review

This Comment examines the legal implications of the sanctions issued by the Department of the Treasury’s Office of Foreign Asset Control against Tornado Cash, an application that enables user privacy protection in transactions on the Ethereum blockchain. With the rapid expansion of the digital asset revolution, policymakers remained puzzled as to how to best establish a regulatory scheme that protects consumers without chilling innovation and investment in the digital asset market. The Office of Foreign Assets Control’s issuance of sanctions against Tornado Cash was an attempt to regulate an extremely volatile and unpredictable market. These sanctions prohibited all licit activity …

Obtaining Trademark Registration For Marks Containing Political Commentary: A Look Into Vidal V. Elster, Annick Runyon

University of Miami Law Review

For decades, courts have struggled with balancing trademark law with the First Amendment—specifically with cases challenging the denial of trademark registration of certain marks. Congress codified trademark registration through the Lanham Act, also known as the Trademark Act of 1946. This statute outlines the registration process and expands the rights of trademark owners. In recent years, a string of cases have ruled certain provisions of the Lanham Act that bar certain marks from registration unconstitutional.

Currently under review by the Supreme Court, the case Vidal v. Elster involves an applicant who was denied trademark registration for his mark “Trump Too …

Is Florida At War With The Mouse Or Free Speech: Understanding The Dissolution Of Disney’S Reedy Creek And The Threat To Corporate First Amendment Rights, Julia Gibson

University of Miami Business Law Review

On April 22, 2022, Florida Governor Ron DeSantis signed Florida Senate Bill 4C, which stripped Walt Disney World of its status as an “independent special district,” with its Reedy Creek Improvement District. The legislation was passed in response to the corporation’s public criticism of the Parental Rights in Education Act. After months of speculation regarding the solution to the grave tax and debt consequences of the bill, the Governor signed Florida House Bill 9B to reinstate the district under a State elected board and under a new name—the Central Florida Tourism Oversight District.

This Comment delves into the longstanding history …

Secrecy On Steroids: How Overzealous State Confidentiality Laws Expose Leakers And Whistleblowers To Retaliatory Prosecution, Frank D. Lomonte, Anne Marie Tamburro

University of Miami Law Review

It is well-documented that the federal government has a secrecy problem. Thousands of times a year, inconsequential documents are needlessly stamped “classified,” which can mean prison for anyone who leaks them. But the addiction to secrecy doesn’t stop with the Pentagon. State public-records statutes are riddled with their own local version of “classified information” that puts people at risk of prosecution even for well-intentioned whistleblowing.

The problem is particularly acute in Florida, where one of the state’s highest-ranking elected officials spent almost two years as the target of a criminal investigation for releasing records about an unresolved sexual harassment complaint …

Constitutional Rights And Retrenchment: The Elusive Promise Of Equal Citizenship, Deborah L. Brake

University of Cincinnati Law Review

No abstract provided.

Reynolds Revisited: The Original Meaning Of Reynolds V. United States And Free Exercise After Fulton, Clark B. Lombardi

Articles

This Article calls for a profound reevaluation of the stories that are being told today about the Supreme Court’s free exercise jurisprudence starting with the Court’s seminal 1879 decision in Reynolds v. United States and proceeding up to the present day. Scholars and judges today agree that the Supreme Court in Reynolds interpreted the Free Exercise Clause of the First Amendment to protect only religious belief and not religiously motivated action. All casebooks today embrace this interpretation of the case, and the Supreme Court has regularly endorsed it over the past twenty years, most recently in 2022. However, this Article …

Anti-Antisemitism Now, Lili Levi

University of Miami Law Review

On May 25, 2023, the Biden Administration released The U.S. National Strategy to Counter Antisemitism—America’s first national strategy of this kind. In early November 2023, the White House announced the establishment of the first-ever U.S. National Strategy to Counter Islamophobia. These historic commitments respond to increases in identity-based bias incidents and expression against Jews and Muslims. Antisemitic incidents, which were already rising even before the pandemic, increased by almost 400% since the start of the Israel-Hamas war. The war also triggered a sharp upturn in Islamophobic incidents in the U.S., including the shooting of three college students and …

The Impossibility Of Corporate Political Ideology: Upholding Sec Climate Disclosures Against Compelled Commercial Speech Challenges, Erin Murphy

Northwestern University Law Review

To address the increasingly dire climate crisis, the SEC will require public companies to reveal their business’s environmental impact to the market through climate disclosures. Businesses and states challenged the required disclosures as compelled, politically motivated speech that risks putting First Amendment doctrine into further jeopardy. In the past five years, the U.S. Supreme Court has demonstrated an increased propensity to hear compelled speech cases and rule in favor of litigants claiming First Amendment protection from disclosing information that they disagree with or believe to be a politically charged topic. Dissenting liberal Justices have decried these practices as “weaponizing the …

Quiet Encroachments On School Prayer Jurisprudence, Amanda Harmony Cooley

West Virginia Law Review

No abstract provided.

The First Religious Charter School: A Viable Option For School Choice Or Prohibited Under The State Action Doctrine And Religion Clauses?, Julia Clementi

Fordham Law Review

After the First Amendment’s Religion Clauses were ratified, church and state became increasingly divorced from one another, as practicing religion became a private activity on which the government could not encroach. This separation, however, was slow, and much credit is owed to the U.S. Supreme Court for its efforts to disentangle the two. One particular area in which the Supreme Court exercised its influence was the U.S. education system; the Court invoked the Religion Clauses and neutrality principles to rid public schools of religious influences and ensure that private religious schools could partake in government programs that were available to …

Free Speech For Me But Not For Airbnb”: Restricting Hate-Group Activity In Public Accommodations, Sabrina Apple -- J.D. Candidate, 2024

Vanderbilt Law Review

As digital services grow increasingly indispensable to modern life, courts grow inundated with novel claims of entitlement against these platforms. As narrow, formalistic interpretations of Title II permit industry leaders to sidestep equal access obligations, misinformed interpretations of First Amendment protections allow violent speech and conduct to parade uninhibited. Within the mistreatment of these two established doctrines lies a critical distinction: the former is in desperate need of modernization to fulfill its original intent, and the latter is in desperate need of restoration for the same ends. This climate creates conditions ripe for doctrinal upheaval. This Note considers how the …

Trick Or Treat?: Mississippi County Doesn't Clown Around With Halloween Costumes, Austin Vining

Mississippi College Law Review

In a poll conducted by Vox and Morning Consult, forty-two percent of Amreicans admitted to fearing clowns. That's a higher percentage than those who fear a terrorist attack (forty-one percent), a family member dying (thirty-eight percent), or an economic collapse (thirty-seven percent). Further, this is significantly more than those with "classic" fears such as heights (twenty-four percent), needles (seventeen percent), or ghosts (nine percent). The survey also revealed that two-thirds of Americans wanted law enforcement officials or government agencies to stop clowns.

Across the country, government officials reacted to concerned constituents' fears by banning clown costumes in certain situations. The …

The Antidote Of Free Speech: Censorship During The Pandemic, Christopher Keleher

Catholic University Law Review

Free speech in America stands at a precipice. The nation must decide if the First Amendment protects controversial, unconventional, and unpopular speech, or only that which is mainstream, fashionable, and government-approved. This debate is one of many legal battles brought to the fore during Covid-19. But the fallout of the free speech question will transcend Covid-19.

During the pandemic, the federal government took unprecedented steps to pressure private entities to push messages it approved and squelch those it did not. The Supreme Court will soon grapple with the issue of censorship during the pandemic. This article examines this litigation, along …

The Great "White" Way: Reconsidering Comprehensive Color-Conscious Casting Plans Through Affirmative Action, Commercial Speech, And Statutory Amendment, Jacob Franklin Greene

Belmont Law Review

This Note discusses the theatrical casting process from publishing a breakdown through audition day type outs and how this process exposes productions, theater companies, and Actor’s Equity Association (“AEA”) to potential liability. Part I provides a background on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and 42 U.S.C. § 1981, as these are the federal antidiscrimination laws under which a lawsuit is most likely to arise. Part II explores the language of breakdowns, defines the concept of theatrical typing, and discusses the two predominant methods the theater industry frequently utilizes in casting shows. Likewise, …

Regulating Social Media Through Family Law, Katharine B. Silbaugh, Adi Caplan-Bricker

Faculty Scholarship

Social media afflicts minors with depression, anxiety, sleeplessness, addiction, suicidality, and eating disorders. States are legislating at a breakneck pace to protect children. Courts strike down every attempt to intervene on First Amendment grounds. This Article clears a path through this stalemate by leveraging two underappreciated frameworks: the latent regulatory power of parental authority arising out of family law, and a hidden family law within First Amendment jurisprudence. These two projects yield novel insights. First, the recent cases offer a dangerous understanding of the First Amendment, one that should not survive the family law reasoning we provide. First Amendment jurisprudence …

Who Let The Ghouls Out? The History And Tradition Test’S Embrace Of Neutrality And Pluralism In Establishment Cases, Jake S. Neill

Pepperdine Law Review

In June of 2022, the Supreme Court decided in Kennedy v. Bremerton School District that an Establishment Clause inquiry “focused on original meaning and history” would replace Lemon’s endorsement test. But after announcing the test, the Court neglected to describe or apply it. This Comment attempts to fill that void. After analyzing the Court’s Establishment Clause jurisprudence, this Comment proposes tenets of the history and tradition test and applies those tenets to Allegheny County v. ACLU, a case decided under Lemon. Finally, this Comment concludes by arguing that the history and tradition inquiry supports pluralism, humility, tolerance, and a healthy …

The Red Pill: Critical Race Theory, Ostrich Law, And The 14th Amendment Right To Free And Equal Thought And Dignity, Kindaka J. Sanders

St. Mary's Law Journal

No abstract provided.

First Amendment Fetishism, John M. Kang

Faculty Scholarship

The Supreme Court, starting in 1971, has lit upon a reckless path of protecting speech that is, by any reasonable measure, appallingly vulgar, emotionally hurtful, and dangerous. Against the wishes of the community, the Court has protected a roster of extremely offensive speech:

• a rageful repetition of the F-word uttered by a teacher before children in a school auditorium

• a White skinhead’s cross burning on the front lawn of a Black family’s house

• the public burning of the American flag by an avowed Communist who hated the United States and who cared nothing for the emotional pain …

The Worst Choice For School Choice: Tuition Tax Credits Are A Bad Idea And Direct Funding Is Wiser, Michael J. Broyde, Anna G. Gabianelli

Faculty Articles

School choice is on the rise, and states use various mechanisms to implement it. One prevalent mechanism is also a uniquely problematic one: the tax credit. Tax credits are deficient at equitably distributing a benefit like school choice; they are costly, and they invite fraud. Instead of using tax credits, states opting for school choice programs should use direct funding. Direct funding will more efficiently achieve the goals of school choice because it can be regulated like any other government benefit, even if it ends up subsidizing religious private schools.

Tax credits’ prevalence is not inexplicable, of course. It is …

Blocking Faith: How American Muslims Are Chilled Through The New Anti-Muslim Statutes And The Security Agencies’ Surveillance In The Era Of Digital Policing, Ahmed Al Rawi

Touro Law Review

This Article explores the legal repercussions resulting from the new wave of anti-Muslim statutes and the state monitoring operations on American Muslims’ First Amendment rights. This Article argues that the U.S. government security agencies’ surveillance operations (actions) that target American Muslims’ religious activities and the new anti-Muslim statutes (laws) established in various states are clear violations of Muslim Americans’ First Amendment rights.

The Violence Of Free Speech And Press Metaphors, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

Today, our free speech marketplace is often overwhelming, confusing, and even dangerous. Threats, misdirection, and lies abound. Online firestorms lead to offline violence. This Article argues that the way we conceptualize free speech and the free press are partly to blame: our metaphors are hurting us.

The primary metaphor courts have used for a century to describe free speech—the marketplace of ideas—has been linked to violence since its inception. Originating in a case about espionage and revolution, in a dissent written by Oliver Wendell Holmes, a thrice-injured Civil War veteran, the marketplace has been described as a space where competition …

Banned Books & Banned Identities: Maintaining Secularism And The Ability To Read In Public Education For The Well-Being Of America's Youth, Megan M. Tylenda

Indiana Journal of Law and Social Equality

Books containing LGBTQ+ themes and characters are being removed from public school libraries at a rapid rate across the United States. While a book challenge has made it to the Supreme Court once before, the resulting singular plurality opinion left courts without a clear test to apply, ultimately leaving students’ First Amendment rights in the air. Additionally, the increasingly relaxed view of courts towards religious influence in public schools indicates that if a modern case were to reach the Supreme Court, religious challenges may be accepted, which would leave LGBTQ+ students who seek to see themselves represented in literature without …

A License To Discriminate? 303 Creative V. Elenis And Where The Supreme Court May Go, Christopher J. Manettas

Touro Law Review

No abstract provided.

"Trans Talk" And The First Amendment, William M. Carter Jr.

Articles

The rights of transgender youth and their families have increasingly come under attack. In addition to barring transgender youth from participation in sports teams, from accessing bathrooms that match their gender identity, and from receiving gender-affirming healthcare, states are increasingly restricting speech and expression related to transgender issues. Courts and scholars have begun addressing the First Amendment implications of some of these restrictions, including the removal of books related to transgender issues; restrictions upon teachers' classroom speech regarding such issues; school discipline imposed upon students whose social transition includes forms of gender expression that differ from their assigned sex at …

Solidifying Students' Right To Gender Expression, Scott Skinner-Thompson

Publications

No abstract provided.

On The Legality Of Defrauding The Public, Wes Henricksen

Marquette Law Review

Speech used to intentionally mislead others to gain a tangible benefit while causing harm to the one deceived or to others is generally labeled “fraud.” This term is used in both legal and nonlegal contexts. Where speech used to defraud satisfies the elements of a tort or a crime, it becomes “actionable fraud.” Categories of actionable fraud include common law deceit, securities fraud, and wire fraud. But taken together, these laws address harmful dishonesty in an inconsistent manner. While they broadly prohibit deceiving individual victims, they often allow deceiving the public at large. As a result, it is often lawful …

Machine Manipulation: Why An Ai Editor Does Not Serve First Amendment Values, Alec Peters

University of Colorado Law Review

The past few years have seen increasing calls for regulation of large social media platforms, and several states have recently enacted laws regulating their content moderation, promotion, and recommendation practices. But if those platforms are exercising editorial discretion when carrying out these tasks, many of the regulations will run into constitutional concerns: the First Amendment protects the “exercise of editorial control and judgment” by publishers over their choice of content and how it is presented. However, the editorial operation of social media platforms differs significantly from traditional media, most importantly in the use of artificial intelligence (AI) for editorial decision-making. …

From Garcetti To Kennedy: Teachers, Coaches, And Free Speech At Public Schools, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

This Article analyzes Kennedy's implications for educators' free speech rights at school. It is important to note, at the outset, that the Kennedy majority's description of the actual facts at issue is highly debatable. Indeed, the majority presented a sanitized account of what actually occurred on the ground, minimizing the highly public nature of Kennedy's prayers and the football players' involvement in them. That said, if we take the facts as the majority presented them, and then move to the majority's assessment of those facts, we emerge with an interesting gloss on Garcetti. Synthesizing Garcetti and Kennedy points toward a …