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Articles 1 - 30 of 90
Full-Text Articles in Law
Constitutional Rights And Retrenchment: The Elusive Promise Of Equal Citizenship, Deborah L. Brake
Constitutional Rights And Retrenchment: The Elusive Promise Of Equal Citizenship, Deborah L. Brake
University of Cincinnati Law Review
No abstract provided.
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 …
The First Religious Charter School: A Viable Option For School Choice Or Prohibited Under The State Action Doctrine And Religion Clauses?, Julia Clementi
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 …
The Antidote Of Free Speech: Censorship During The Pandemic, Christopher Keleher
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 …
Navigating The First Amendment In School Choice: The Case For The Constitutionality Of Washington’S Charter School Act, Stephanie Smith
Navigating The First Amendment In School Choice: The Case For The Constitutionality Of Washington’S Charter School Act, Stephanie Smith
Washington Journal of Social & Environmental Justice
No abstract provided.
The News Media Engagement Principle: Why Social Media Has Not Actually Overrun The Limited Purpose Public Figure Category, Zachary R. Cormier
The News Media Engagement Principle: Why Social Media Has Not Actually Overrun The Limited Purpose Public Figure Category, Zachary R. Cormier
University of Miami Law Review
Has the rise of social media ruined the limited purpose public figure category of the First Amendment’s actual malice privilege? Justice Gorsuch believes so—and he has recently invited courts to get rid of it. He argues that the category now includes vast numbers of otherwise private citizens that have “become ‘public figures’ on social media overnight.” With so many people qualifying as limited purpose public figures (and having to overcome the actual malice standard to prevail on a defamation claim), he claims that the category has evolved to provide an unjustified shield for the masses of misinformation-peddlers on social media. …
For Freedom Or Full Of It? State Attempts To Silence Social Media, Grace Slicklen
For Freedom Or Full Of It? State Attempts To Silence Social Media, Grace Slicklen
University of Miami Law Review
Freedom of speech is, unsurprisingly, foundational to the “land of the free.” However, the “land of the free” has undergone some changes since the First Amendment’s ratification. Unprecedented technological evolution has ushered in a digital forum in which the volume, speed, and reach of words transcend the Framers’ visions of the First Amendment’s aims. Social media platforms have become central spaces for public discourse, where opportunities to create—and repress—speech are endless. From enabling individuals to freely express their views, to allowing state actors to limit open exchanges, it is about time that the Supreme Court tackles this complex issue of …
Inactive Exercise & Unequal Protection: Espinoza & Carson Under The Equal Protection Clause, Griffith B. Bludworth
Inactive Exercise & Unequal Protection: Espinoza & Carson Under The Equal Protection Clause, Griffith B. Bludworth
University of Cincinnati Law Review
No abstract provided.
Education, The First Amendment, And The Constitution, Erwin Chemerinsky
Education, The First Amendment, And The Constitution, Erwin Chemerinsky
University of Cincinnati Law Review
No abstract provided.
School Matters, Ronna Greff Schneider
School Matters, Ronna Greff Schneider
University of Cincinnati Law Review
No abstract provided.
Using Bruen To Overturn New York Times V. Sullivan, Michael L. Smith, Alexander S. Hiland
Using Bruen To Overturn New York Times V. Sullivan, Michael L. Smith, Alexander S. Hiland
Pepperdine Law Review
While New York Times Co. v. Sullivan is a foundational, well-regarded First Amendment case, Justice Clarence Thomas has repeatedly called on the Court to revisit it. Sullivan, Thomas claims, is policy masquerading as constitutional law, and it makes almost no effort to ground itself in the original meaning of the First and Fourteenth Amendments. Thomas argues that at the time of the founding, libelous statements were routinely subject to criminal prosecution—including libel of public figures and public officials. This Essay connects Justice Thomas’s calls to revisit Sullivan to his recent opinion for the Court in New York State Rifle & …
The ‘Weaponized’ First Amendment At The Marble Palace And The Firing Line: Reaction And Progressive Advocacy Before The Roberts Court And Lower Federal Courts, Seth F. Kreimer
Emory Law Journal
It once seemed that the First Amendment doctrine developed by the Supreme Court stood as a bulwark protecting grassroots struggles for social change. In the twenty-first century, however, particularly since the appointments of Chief Justice Roberts and Justice Alito in 2005, a number of observers have begun to view the Supreme Court’s First Amendment work as a “weaponized” redoubt of reaction.
This sense of the rightward tilt of Supreme Court decisions is rooted in reality. Examining 104 Supreme Court First Amendment cases decided during the 2005–2020 Terms, it turns out that successful litigants are four times as likely to come …
Awakening The Law: Unmasking Free Exercise Exceptionalism, Berta Esperanza Hernández-Truyol
Awakening The Law: Unmasking Free Exercise Exceptionalism, Berta Esperanza Hernández-Truyol
Emory Law Journal
The U.S. Constitution protects myriad, often intertwined, individual rights. Sometimes, protected fundamental rights collide, yet the Constitution lacks a methodology to resolve such clashes. Indeed, an internal tension exists even within the rights included in the First Amendment, as whenever the government acts to protect Free Exercise it advances religion. Rather than adopt a methodology that respects and considers all constitutional rights at issue in instances when constitutional rights are in collision, the Court has embraced Free Exercise Exceptionalism (“FEE”), a doctrine pursuant to which the Court elevates Free Exercise above all rights, including the prohibition expressed in the Establishment …
The Disappearing Freedom Of The Press, Ronnell Andersen Jones, Sonja R. West
The Disappearing Freedom Of The Press, Ronnell Andersen Jones, Sonja R. West
Washington and Lee Law Review
At this moment of unprecedented decline of local news and amplified attacks on the American press, scholars are increasingly turning their attention to the Constitution’s role in protecting journalism and the journalistic function. Recent calls by some U.S. Supreme Court Justices to reconsider the core press-protecting precedent from New York Times Co. v. Sullivan have intensified these conversations. This scholarly dialogue, however, appears to be taking place against a mistaken foundational assumption that the U.S. Supreme Court continues to articulate and embrace at least some notion of freedom of the press. Yet despite the First Amendment text specifically referencing it …
Tort Law Implications Of Compelled Physician Speech, Nadia N. Sawicki
Tort Law Implications Of Compelled Physician Speech, Nadia N. Sawicki
Indiana Law Journal
Abortion-specific informed consent laws in many states compel physicians to communicate state-mandated information that is arguably inaccurate, immaterial, and inconsistent with their professional obligations. These laws face ongoing First Amendment challenges as violations of the constitutional right against compelled speech. This Article argues that laws compelling physician speech also pose significant problems that should concern scholars of tort law.
State laws that impose tort liability on physicians who refuse to communicate a state-mandated message often do so by deviating from foundational principles of tort law. Not only do they change the substantive disclosure duties of physicians under informed consent law, …
The Pledge Of Allegiance And Compelled Speech Revisited: Requiring Parental Consent, Caroline Mala Corbin
The Pledge Of Allegiance And Compelled Speech Revisited: Requiring Parental Consent, Caroline Mala Corbin
Indiana Law Journal
Since the Supreme Court decided West Virginia State Board of Education v. Barnette in 1943, free speech law has been clear: public schools may not force students to recite the Pledge of Allegiance. Nevertheless, in two states—Texas and Florida— students may decline to participate only with parental permission. The Eleventh Circuit Court of Appeals upheld the law on the grounds that the parental requirement furthered parents’ substantive due process right to control the upbringing of their children.
The Eleventh Circuit decision is flawed both in its understanding of the First Amendment right to be free of compelled speech and the …
Nifla And The Construction Of Compelled Speech Doctrine, Robert Post
Nifla And The Construction Of Compelled Speech Doctrine, Robert Post
Indiana Law Journal
Virginia State Board of Education v. Barnette. There are good and convincing explanations for the Court’s decision in Barnette, but the Court’s recent expansion of the doctrine, culminating in National Institute of Family & Life Advocates (NIFLA) v. Becerra, holds that compelled speech is in most instances “content-based” regulation requiring heightened judicial scrutiny.
Using examples ranging from professional malpractice to compulsory tax returns, this Article argues that the doctrinal rule of NIFLA is demonstrably incorrect. It suggests that the doctrinal category of “compelled speech” may itself be confused insofar as it imagines that all legal obligations to communicate are equally …
Compelled Speech And The Regulatory State, Alan K. Chen
Compelled Speech And The Regulatory State, Alan K. Chen
Indiana Law Journal
Since the Supreme Court’s 1943 decision in West Virginia Board of Education v. Barnette, it has been axiomatic that the First Amendment prohibits the government not only from censoring speech, but also from compelling it. The central holding of Barnette itself is largely uncontroversial—it seems obvious that the First Amendment’s free speech clause means that no government may require people to espouse or reproduce an ideological statement against their will. But the Court has extended the compelled speech doctrine to stop the government from forcing people to make even truthful, factual statements. These claims have resulted in some of the …
Compelled Speech And Doctrinal Fluidity, David Han
Compelled Speech And Doctrinal Fluidity, David Han
Indiana Law Journal
Even within the messy and complicated confines of First Amendment jurisprudence, compelled speech doctrine stands out in its complexity and conceptual murkiness— a state of affairs that has only been exacerbated by the Supreme Court’s decisions in NIFLA v. Becerra and Janus v. American Federation of State, County, and Municipal Employees. This Essay observes that as the Court’s compelled speech jurisprudence has grown increasingly complex, it has also manifested a troubling degree of fluidity, where the doctrinal framework has grown so incoherent, imprecise, and unstable that it can be readily shaped by courts to plausibly justify a wide range of …
Platforms: The First Amendment Misfits, Jane R. Bambauer, James Rollins, Vincent Yesue
Platforms: The First Amendment Misfits, Jane R. Bambauer, James Rollins, Vincent Yesue
Indiana Law Journal
This Essay explains why previous First Amendment precedents that allowed government to require a private entity to host the speech of others have limited applicability to online platforms like Twitter and Facebook. Moreover, the backdrop of an open internet makes platforms sufficiently vulnerable to competition and responsive to “listener” preferences that the dominance of some firms like Facebook and Google is not really a chokepoint: aggressive changes to content curation will lead to user dissatisfaction and defection, whether those changes are made by the government or the companies themselves. As a result, there are no close analogies in First Amendment …
Compelled Disclosure And The Workplace Rights It Enables, Catherine Fisk
Compelled Disclosure And The Workplace Rights It Enables, Catherine Fisk
Indiana Law Journal
Worker and consumer protection laws often rely on the regulated entity to notify workers or consumers of their legal rights because it is effective and efficient to provide information at the time and place where it is most likely to be useful. Until the Supreme Court ruled in NIFLA v. Becerra in 2018 that a California law regulating crisis pregnancy centers was an unconstitutional speaker-based, contentdiscriminatory regulation of speech, mandatory disclosure laws were constitutionally uncontroversial economic regulation. Yet, the day after striking down a disclosure law in NIFLA, the Court in Janus v. AFSCME Council 31 expanded the right of …
Outside Tinker’S Reach: An Examination Of Mahanoy Area School District V. B. L. And Its Implications, Michelle Hunt
Outside Tinker’S Reach: An Examination Of Mahanoy Area School District V. B. L. And Its Implications, Michelle Hunt
Northwestern Journal of Law & Social Policy
In the 1969 landmark case Tinker v. Des Moines Independent Community School District, the Supreme Court reassured students that they do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Ever since then, the exact scope of students’ free speech rights has been unclear, but the high court has used Tinker’s substantial disruption test to clarify its scope in successive legal challenges. In 2017, B. L., a Mahanoy Area School District student, was suspended from her cheerleading team after using vulgar language off-campus that made its way back to her coaches. She …
Queer And Convincing: Reviewing Freedom Of Religion And Lgbtq+ Protections Post-Fulton V. City Of Philadelphia, Arianna Nord
Queer And Convincing: Reviewing Freedom Of Religion And Lgbtq+ Protections Post-Fulton V. City Of Philadelphia, Arianna Nord
Washington Law Review
Recent increases in LGBTQ+ anti-discrimination laws have generated new conversations in the free exercise of religion debate. While federal courts have been wrestling with claims brought under the Free Exercise Clause of the First Amendment since the nineteenth century, city and state efforts to codify legal protections for LGBTQ+ individuals in the mid-twentieth century birthed novel challenges. Private individuals who do not condone intimate same-sex relationships and/or gender non-conforming behavior, on religious grounds seek greater legal protection for the ability to refuse to offer goods and services to LGBTQ+ persons. Federal and state courts must determine how to resolve these …
Executive Discretion And First Amendment Constraints On The Deportation State, Jennifer Lee Koh
Executive Discretion And First Amendment Constraints On The Deportation State, Jennifer Lee Koh
Georgia Law Review
Given the federal courts’ reluctance to provide clarity on the degree to which the First Amendment safeguards the free speech and association rights of immigrants, the immigration policy agenda of the President now appears to determine whether noncitizens engaging in speech, activism, and advocacy are protected from retaliation by federal immigration authorities. This Essay examines two themes: first, the discretion exercised by the Executive Branch in the immigration context; and second, the courts’ ambivalence when it comes to enforcing immigrants’ rights to be free from retaliation. To do so, this Essay explores the Supreme Court’s influential 1999 decision in Reno …
Reflections On Nomos: Paideic Communities And Same Sex Weddings, Marie A. Failinger
Reflections On Nomos: Paideic Communities And Same Sex Weddings, Marie A. Failinger
Touro Law Review
Robert Cover’s Nomos and Narrative is an instructive tale for the constitutional battle over whether religious wedding vendors must be required to serve same-sex couples. He helps us see how contending communities’ deep narratives of martyrdom and obedience to the values of their paideic communities can be silenced by the imperial community’s insistence on choosing one community’s story over another community’s in adjudication. The wedding vendor cases call for an alternative to jurispathic violence, for a constitutionally redemptive response that prizes a nomos of inclusion and respect for difference.
Keynote Address, Justin Hansford
Keynote Address, Justin Hansford
Seattle University Law Review
Keynote Address by Justin Hansford
The Stubborn Survival Of The Central Hudson Test For Commercial Speech, Nat Stern
The Stubborn Survival Of The Central Hudson Test For Commercial Speech, Nat Stern
Seattle University Law Review
This Article examines the persistence of the Central Hudson standard in the face of multiple challenges as well as larger implications of its survival. Part I provides a brief overview of the Court’s commercial speech doctrine and the spectrum of criticism of Central Hudson for its allegedly excessive or inadequate protection of expression. Part II surveys a series of developments, especially in the last decade, that threaten to supersede Central Hudson’s “intermediate” standard of scrutiny for commercial speech restrictions. In response, Part III explains how none of these phenomena have resulted in the abandonment of the Central Hudson regime. …
In The Name Of Diversity: Why Mandatory Diversity Statements Violate The First Amendment And Reduce Intellectual Diversity In Academia, Daniel M. Ortner
In The Name Of Diversity: Why Mandatory Diversity Statements Violate The First Amendment And Reduce Intellectual Diversity In Academia, Daniel M. Ortner
Catholic University Law Review
In the 1950s and 1960s in many parts of the country, a professor could be fired or never hired if he refused to denounce communism or declare loyalty to the United States Constitution. The University of California system took the lead in enforcing these loyalty oaths. These loyalty oaths were challenged all the way up to the United States Supreme Court and were soundly rejected, establishing the centrality of academic freedom and open inquiry on the university campus. So why are loyalty oaths making their resurgence in the form of mandatory diversity statements? Universities have begun requiring faculty members to …
Justifying The Supreme Court’S Standards Of Review, R. Randall Kelso
Justifying The Supreme Court’S Standards Of Review, R. Randall Kelso
St. Mary's Law Journal
Abstract forthcoming.
Changing Counterspeech, G.S. Hans
Changing Counterspeech, G.S. Hans
Cleveland State Law Review
A cornerstone of First Amendment doctrine is that counterspeech — speech that responds to speech, including disfavored, unpopular, or offensive speech — is preferable to government censorship or speech regulation. The counterspeech doctrine is often invoked to justify overturning or limiting legislation, regulation, or other government action. Counterspeech forms part of the rationale for the "marketplace of ideas" that the First Amendment is arguably designed to promote. Yet critics assert that counterspeech is hardly an effective remedy for the harms caused by "hate speech" and other offensive words that are expressed in American society, given the realities of how speech …