Law Commons^™

The Fossil Fuel Industry’S Push To Target Climate Protesters In The U.S., Grace Nosek

Pace Environmental Law Review

At the very moment when the United Nations has called for profound shifts in social and economic systems to avert climate catastrophe, state and non-state actors in the United States (U.S.) are using a series of tactics to target and stifle climate protesters. Although the move to stifle climate protesters is often framed as a government effort, this Article argues it is critical to draw out the role of the fossil fuel industry in initiating, amplifying, and supporting such tactics.

This Article highlights the role the fossil fuel industry has played in supporting the targeting and restricting of climate protesters …

On Fosta And The Failures Of Punitive Speech Restrictions, Emily Morgan

Northwestern University Law Review

The Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) has provoked criticism from free-speech advocates, people involved in the commercial sex trade, everyday internet users, and scholars who deem the Act dangerous and ineffective. This Note helps to explain how such a controversial law came to be. Indeed, FOSTA is part of a legacy of failed attempts at reforming laws to comport with feminist goals—in this case, ending online sex trafficking and providing relief for sex-trafficking survivors, a group that consists largely of women and other marginalized people. But FOSTA, like its predecessors, fails to provide real …

Weapons Of Mass Distortion: Applying The Principles Of The Fcc’S News Distortion Doctrine To Undisclosed Financial Conflicts Of Interest In Corporate News Media’S Military Coverage, Charles L. Bonani

Washington and Lee Journal of Civil Rights and Social Justice

This Note offers a new conception of news distortion in mass media. It explores the intentions behind the FCC’s News Distortion Doctrine and analyzes its primarily dormant status throughout its existence. This Note then examines televised media coverage of U.S. military actions and identifies undisclosed financial conflicts of interests throughout this coverage. In examining these undisclosed conflicts and the reasons behind them, this Note explains why they constitute news distortion under the FCC’s definition, and why the principles behind the Doctrine are implicated. This Note then proposes the FCC promulgate a disclosure rule to remedy the undisclosed financial conflicts of …

Hot Off The Press: An Argument For A Federal Shield Law Affording A Qualified Evidentiary Privilege To Journalists In Light Of Renewed Concerns About Freedom Of The Press And National Security, Nicole N. Wentworth

Loyola of Los Angeles Law Review

No abstract provided.

Absolute Freedom Of Opinion And Sentiment On All Subjects: John Stuart Mill’S Enduring (And Ever-Growing) Influence On The Supreme Court’S First Amendment Free Speech Jurisprudence, Eric T. Kasper, Troy A. Kozma

University of Massachusetts Law Review

A majority of Justices on the contemporary U.S. Supreme Court have increasingly adopted a largely libertarian view of the constitutional right to the freedom of expression. Indeed, on issues ranging from campaign finance to offensive speech to symbolic speech to commercial speech to online expression, the Court has struck down many laws on free speech grounds. Much of the reasoning in these cases mirrors John Stuart Mill’s arguments in On Liberty. This is not new, as Mill’s position on free speech has been advocated by some members of the Court for a century. However, the advocacy of Mill’s position …

Ministries Of Truth: Free Speech And The Tech Giants, Clayton Calvin

The Journal of Business, Entrepreneurship & the Law

As the tech giants’ influence has grown, they have increasingly become arbiters of truth. This comment explores three methods for lessening their authority over digital speech. Antitrust, adjustment of the companies’ “neutral platform” status, and even creative use of First Amendment could each serve its role. At the same time, the First Amendment rights of the companies themselves pose a barrier, justifiably, to each method. To remain true to its founding ideals, America must lessen this private grip on civic discourse without expanding the government’s dominion over it.

Dialectics Of The Right To Freedom Of Religion Or Belief, Peter G. Danchin

Faculty Scholarship

No abstract provided.

The Law Of The Eruv, Michael Lewyn

Scholarly Works

Describes case law governing municipal regulation of the eruv (an artificial enclosure designed to allow observant Jews to carry on the Jewish Sabbath). The article focuses on First Amendment case law, and concludes that a municipality may prohibit eruvin only pursuant to a regulation that is enforced against comparable secular signs.

Will The Players Union Take An L Or Take A Knee?: The First Amendment Legal Issues Surrounding The Nfl National Anthem Controversy, Audriana Rodriguez

FIU Law Review

No abstract provided.

Monopolizing Free Speech, Greg Day

Scholarly Works

The First Amendment prevents the government from suppressing speech, though individuals can ban, chill, or abridge free expression without offending the Constitution. Hardly an unintended consequence, Justice Oliver Wendell Holmes famously likened free speech to a marketplace where the responsibility of rejecting dangerous, repugnant, or worthless speech lies with the people. This is supposed to maximize social welfare since the market is believed to promote good ideas and condemn bad ones better than the state. Nevertheless, anxiety is mounting that large technology corporations exercise unreasonable power in the marketplace of ideas.

Because the ability of “big tech” to abridge speech …

'Water Is Life!' (And Speech!): Death, Dissent, And Democracy In The Borderlands, Jason A. Cade

Scholarly Works

Decades of stringent immigration enforcement along the Southwest border have pushed migrants into perilous desert corridors. Thousands have died in border regions, out of the general public view, yet migrants continue to attempt the dangerous crossings. In response to what they see as a growing humanitarian crisis, activists from organizations such as No More Deaths seek to expand migrant access to water, to honor the human remains of those who did not survive the journey, and to influence public opinion about border enforcement policies. Government officials, however, have employed a range of tactics to repress this border-policy “dissent,” including blacklists, …

Cracking The Code: Computer Code As Pure Speech And Its First Amendment Implications On The 3d Printed Firearms Controversy, Brian E. Heckmann

FIU Law Review

No abstract provided.

Valuing The Freedom Of Speech And The Freedom To Compete In Defenses To Trademark And Related Claims In The United States, Jennifer E. Rothman

All Faculty Scholarship

This book chapter appears in the CAMBRIDGE HANDBOOK ON INTERNATIONAL AND COMPARATIVE TRADEMARK LAW, edited by Jane C. Ginsburg & Irene Calboli (Cambridge Univ. Press 2020). The Chapter provides an overview of the defenses to trademark infringement, dilution, and false endorsement claims that serve the goals of free expression and fair competition. In particular, the Chapter covers the defenses of genericism, functionality, descriptive and nominative fair use, the Rogers test, statutory exemptions to dilution claims, and the questions of whether and how an independent First Amendment defense applies in light of recent Supreme Court decisions.

In addition to providing a …

Brief Of Amici Curiae Legal Scholars In Support Of Equality In Support Of Respondents, Fulton V. City Of Philadelpha, Kyle Velte, David Cruz, Michael Higdon, Anthony Michael Kreis, Shirley Lin, Linda C. Mcclain

Faculty Scholarship

This Brief of Amici Curiae Legal Scholars in Support of Equality in Support of Respondents filed in Fulton v. City of Philadelphia addresses the propriety of an analogy to race discrimination in public accommodation cases involving sexual orientation discrimination. The race analogy in sexual orientation cases proceeds as follows: Advocates and judges widely agree that courts should, and would, reject a religious exemption claim by a public accommodation—such a foster care agency—seeking to turn away an African-American or interracial couple based on the public accommodation’s religious beliefs that Blacks are inferior to whites or that the races should not mix. …

Antitrust & Corruption: Overruling Noerr, Tim Wu

Faculty Scholarship

We live in a time when concerns about influence over the American political process by powerful private interests have reached an apogee, both on the left and the right. Among the laws originally intended to fight excessive private influence over republican institutions were the antitrust laws, whose sponsors were concerned not just with monopoly, but also its influence over legislatures and politicians. While no one would claim that the antitrust laws were meant to be comprehensive anti-corruption laws, there can be little question that they were passed with concerns about the political influence of powerful firms and industry cartels.

Since …