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Articles 1 - 30 of 327
Full-Text Articles in Law
Indoctrination By Elimination: Why Banning Critical Race Theory In Public Schools Is Unconstitutional, Emma Postel
Indoctrination By Elimination: Why Banning Critical Race Theory In Public Schools Is Unconstitutional, Emma Postel
William & Mary Bill of Rights Journal
This Note argues that Texas public school students’ First Amendment Rights have been violated by the passage of Senate Bill 3 (SB 3), which bans the teaching of Critical Race Theory (CRT) in K–12 public schools. The First Amendment is violated here because (1) students have a First Amendment right to speech, and this law bans protected speech; (2) students have a right to receive information, and this ban prevents them from receiving information; and (3) schools are meant to be the marketplace of ideas for students and banning CRT amounts to unconstitutional viewpoint discrimination. This Note does not suggest …
Seditious Conspiracy Charge Against Oath Keepers Founder And Others In Jan. 6 Riot Faces First Amendment Hurdle, Timothy Zick
Seditious Conspiracy Charge Against Oath Keepers Founder And Others In Jan. 6 Riot Faces First Amendment Hurdle, Timothy Zick
Popular Media
No abstract provided.
The Second Amendment Has Become A Threat To The First, Diana Palmer, Timothy Zick
The Second Amendment Has Become A Threat To The First, Diana Palmer, Timothy Zick
Popular Media
No abstract provided.
Marriage Mandates: Compelled Disclosures Of Race, Sex, And Gender Data In Marriage Licensing Schemes, Mikaela A. Phillips
Marriage Mandates: Compelled Disclosures Of Race, Sex, And Gender Data In Marriage Licensing Schemes, Mikaela A. Phillips
William & Mary Journal of Race, Gender, and Social Justice
This Note argues that mandatory disclosures of personal information—specifically race, sex, and gender—on a marriage license application constitute compelled speech under the First Amendment and should be subject to heightened scrutiny. Disclosing one’s race, sex, or gender on a marriage license application is an affirmative act, and individuals may wish to have their identity remain anonymous. These mandatory disclosures send a message that this information is still relevant to marriage regulation. Neither race nor gender is based in science; rather they are historical and social constructs created to uphold a system of white supremacy and heteronormativity. Thus, such statements are …
First Amendment Knowledge And Competence In United States Residents, Cynthia J. Najdowski, Kimberly M. Bernstein
First Amendment Knowledge And Competence In United States Residents, Cynthia J. Najdowski, Kimberly M. Bernstein
Psychology Faculty Scholarship
Lacking adequate knowledge about one's rights could inhibit the likelihood of exercising one's rights or lead one to unwittingly violate laws that place legitimate limits on these rights. Thus, the present research examines First Amendment knowledge as well as competence to apply this knowledge in relevant circumstances. Results revealed that one-quarter of participants failed a test of objective knowledge on First Amendment rights. Furthermore, participants' belief in their ability varied depending on their level of knowledge, in line with the Dunning–Kruger effect. Participants also failed to transfer their limited objective knowledge to “real-world” situations, exhibiting impaired First Amendment competence. These …
Deepfakes: A New Content Category For A Digital Age, Anna Pesetski
Deepfakes: A New Content Category For A Digital Age, Anna Pesetski
William & Mary Bill of Rights Journal
Technology has advanced rapidly in recent years, greatly benefitting society. One such benefit is people’s ability to have quick and easy access to information through news and social media. A recent concern, however, is that manipulated media, otherwise known as “deepfakes,” are being released and passed off as truth. These videos are crafted with technology that allows the creator to carefully change details of the video’s subject to make him appear to do or say things that he never did. Deepfakes are often depictions of political candidates or leaders and have the potential to influence voter choice, thereby altering the …
The Pure-Hearted Abrams Case, Andres Yoder
The Pure-Hearted Abrams Case, Andres Yoder
William & Mary Bill of Rights Journal
One hundred years ago, Justice Oliver Wendell Holmes changed his mind about the right to free speech and wound up splitting the history of free speech law into two. In his dissent in Abrams v. United States, he called for the end of the old order—in which courts often ignored or rejected free speech claims—and set the stage for the current order—in which the right to free speech is of central constitutional importance. However, a century on, scholars have been unable to identify a specific reason for Holmes’s Abrams transformation, and have instead pointed to more diffuse influences. By …
Nebraska Press Association V. Stuart: A Synopsis And Archive For A First Amendment Landmark, Sydney Brun-Ozuna
Nebraska Press Association V. Stuart: A Synopsis And Archive For A First Amendment Landmark, Sydney Brun-Ozuna
Honors Theses
This project explores in depth the background, arguments, precedents, and impact of the First Amendment Supreme Court case, Nebraska Press Association v. Stuart. This project utilizes newspaper coverage of the trial that informed the case and the case’s journey to the United States Supreme Court, as well as files obtained from the chambers of multiple former U.S. Supreme Court justices, publicly available oral arguments made before the court, and the ultimate decision from the Supreme Court, to create a holistic image of this case. Given the importance of this case in securing the right of the press to report on …
The Costs Of Dissent: Protest And Civil Liabilities, Timothy Zick
The Costs Of Dissent: Protest And Civil Liabilities, Timothy Zick
Faculty Publications
This Article examines the civil costs and liabilities that apply to individuals who organize, participate in, and support protest activities. Costs ranging from permit fees to punitive damages significantly affect First Amendment speech, assembly, and petition rights. A variety of common law and statutory civil claims also apply to protest activities. Plaintiffs have recently filed a number of new civil actions negatively affecting protest, including "negligent protest," "aiding and abetting defamation," "riot boosting," "conspiracy to protest," and "tortious petitioning." The labels are suggestive of the threats these suits pose to First Amendment rights. All of these costs and liabilities add …
Protesting In America, Timothy Zick
First Amendment Freedoms Diluted: The Impact Of Disclosure Requirements On Nonprofit Charities, Bailie Mittman
First Amendment Freedoms Diluted: The Impact Of Disclosure Requirements On Nonprofit Charities, Bailie Mittman
Indiana Law Journal
Since the birth of the Bill of Rights in 1791, the freedoms protected by the First Amendment have been cherished by all members of this nation. The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” Over time, courts have acknowledged that the freedom to speak freely means very little if the guarantee is not protected by an additional right: the freedom to associate. Thus, the freedom of expressive association stands as an essential component of an individual’s free speech rights and state infringement on associative rights has the power of potentially …
Free Speech, Rational Deliberation, And Some Truths About Lies, Alan K. Chen
Free Speech, Rational Deliberation, And Some Truths About Lies, Alan K. Chen
William & Mary Law Review
Could “fake news” have First Amendment value? This claim would seem to be almost frivolous given the potential for fake news to undermine two core functions of the freedom of speech—promoting democracy and facilitating the search for “truth,” as well as the corollary that to be valuable, speech must promote rational deliberation. Some would therefore claim that fake news should be classified as “no value” speech falling outside of the First Amendment’s reach. This Article argues somewhat counterintuitively that fake news has value because speech doctrine should not be focused exclusively on the promotion of rational deliberation, but should also …
Janus And The Future Of Collective Bargaining: Rhetorically Predicting A First Amendment Right To Negotiation, Thomas J. Freeman, Aaron Mckain, Destynie J.L. Sewell
Janus And The Future Of Collective Bargaining: Rhetorically Predicting A First Amendment Right To Negotiation, Thomas J. Freeman, Aaron Mckain, Destynie J.L. Sewell
William & Mary Business Law Review
The importance of the U.S. Supreme Court ruling in Janus v. American Federation of State, County, and Municipal Employees has been widely recognized for its effect on reducing the power and influence of public unions. A close reading of the majority opinion provides a clue that compulsory collective bargaining itself may be settling into the court’s crosshairs. Collective bargaining is an important tool, by which labor can reduce the often-inherent power imbalance it has with ownership and management. Yet as this Article outlines, the interests of individual workers can often be at odds with those other workers workers, particularly those …
Information Gathering Or Speech Creation: How To Think About A First Amendment Right To Record, Jared Mullen
Information Gathering Or Speech Creation: How To Think About A First Amendment Right To Record, Jared Mullen
William & Mary Bill of Rights Journal
No abstract provided.
Saving The Marketplace From Market Failure: Reorienting Marketplace Theory In The Era Of Ai Communicators, Jared Schroeder
Saving The Marketplace From Market Failure: Reorienting Marketplace Theory In The Era Of Ai Communicators, Jared Schroeder
William & Mary Bill of Rights Journal
Artificially Intelligent (AI) communicators represent a new type of actor within public discourse. These entities have played influential roles in recent elections in the U.S. and Europe. This Article examines expression rights for AI actors through the lenses provided by the foundational assumptions of the marketplace of ideas theory and existing free-expression-related rationales regarding non-human actors in the U.S. and European legal systems. The Article contends that the fundamental assumptions of the marketplace model must be revised to focus on the flow of information, the development of truth, rather than the more Enlightenment-oriented competition of ideas that leads to the …
The Bad News Of Good News Club: Obliterating The Wall Between Church & State, Kevin W. Connell
The Bad News Of Good News Club: Obliterating The Wall Between Church & State, Kevin W. Connell
William & Mary Bill of Rights Journal
No abstract provided.
Contracting Away The First Amendment?: When Courts Should Intervene In Nondisclosure Agreements, Abigail Stephens
Contracting Away The First Amendment?: When Courts Should Intervene In Nondisclosure Agreements, Abigail Stephens
William & Mary Bill of Rights Journal
No abstract provided.
Political And Non-Political Speech And Guns, Gregory P. Magarian
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
The Deliberative-Privacy Principle: Abortion, Free Speech, And Religious Freedom, B. Jessie Hill
William & Mary Bill of Rights Journal
No abstract provided.
The Conscience Of The Baker: Religion And Compelled Speech, Ashutosh Bhagwat
The Conscience Of The Baker: Religion And Compelled Speech, Ashutosh Bhagwat
William & Mary Bill of Rights Journal
No abstract provided.
Gender-Stereotyping Theory, Freedom Of Expression, And Identity, Carlos A. Ball
Gender-Stereotyping Theory, Freedom Of Expression, And Identity, Carlos A. Ball
William & Mary Bill of Rights Journal
This Article argues that the expressive components of gender-stereotyping theory serve to delink the equality protections afforded by that theory from fixed and predetermined identity categories in helpful and positive ways. Many have viewed American antidiscrimination law as being normatively grounded in the notion that there are certain identities that, because of their stable and immutable characteristics, deserve equality-based protections. Gender-stereotyping theory can help make the normative case for a more pluralistic understanding of equality, one that is grounded in the need to protect the fluid and multiple ways in which gender is performed or expressed rather than focusing, as …
The Liberty Impact Of Gender, Kingsly Alec Mcconnell
The Liberty Impact Of Gender, Kingsly Alec Mcconnell
Washington Law Review
Can the federal government unilaterally change your gender? In October of 2018, the New York Times revealed that the Trump Administration’s Department of Health and Human Services was considering a new federal definition of “gender.” The policy would redefine gender as a “biological, immutable condition determined by genitalia at birth.” This policy places transsex people at a substantial risk of deprivation of property and speech rights, as gender implicates both property and expression. It also impedes the exercise of substantive due process rights and privileges and immunities. For example, inaccurate gender designations can hinder a transsex parent’s ability to raise …
Who Tells Your Story: The Legality Of And Shift In Racial Preferences Within Casting Practices, Nicole Ligon
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
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 …
Free-Speech Formalism And Social Injustice, Stephen M. Feldman
Free-Speech Formalism And Social Injustice, Stephen M. Feldman
William & Mary Journal of Race, Gender, and Social Justice
The Roberts Court has shifted constitutional law in a formalist direction. This Essay explains the Court’s formalism and its causes and consequences in First Amendment free-expression cases. The thesis is that the current conservative justices’ reliance on formalism intertwines with their attitudes toward public and private spheres of activity. Their attitudes toward the public-private dichotomy are, in turn, shaped by their political ideologies as well as by the contemporary practices of democratic government, which have shifted significantly over American history. Formalism contains an inherent political tilt favoring those who already wield power in the private sphere. Formalism favors the wealthy …
Stripped: Speech, Sex, Race, And Secondary Effects, Lisa Crooms-Robinson
Stripped: Speech, Sex, Race, And Secondary Effects, Lisa Crooms-Robinson
William & Mary Journal of Race, Gender, and Social Justice
No abstract provided.
Introduction, Dania Matos
Introduction, Dania Matos
William & Mary Journal of Race, Gender, and Social Justice
No abstract provided.
First Amendment Lochnerism & The Origins Of The Incorporation Doctrine, James Y. Stern
First Amendment Lochnerism & The Origins Of The Incorporation Doctrine, James Y. Stern
Faculty Publications
The 20th century emergence of the incorporation doctrine is regarded as a critical development in constitutional law, but while issues related to the doctrine's justification have been studied and debated for more than fifty years, the causes and mechanics of its advent have received relatively little academic attention. This Essay, part of a symposium on Judge Jeffrey Sutton's recent book about state constitutional law, examines the doctrinal origins of incorporation, in an effort to help uncover why the incorporation doctrine emerged when it did and the way it did. It concludes that, for these purposes, incorporation is best understood as …
Free Speech Idealism, Timothy Zick
The Trouble With Jaycees, Neal Devins