Law Commons^™

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 …

First Amendment Protections For "Good Trouble", Dawn C. Nunziato

Emory Law Journal

In the classical era of the Civil Rights Movement in the 1950s, 1960s, and 1970s, activists and protestors sought to march, demonstrate, stage sit-ins, speak up, and denounce the system of racial oppression in our country. This was met not just by counterspeech—the preferred response within our constitutional framework—but also by efforts by the dominant power structure to censor and shut down those forms of public rebuke of our nation’s racist practices. Fast forward seventy years, and the tactics of the dominant power structure have essentially remained the same in response to today’s civil rights activists who seek to protest …

Militant Democracy Comes To The Metaverse?, Aziz Z. Huq

Emory Law Journal

Social media platforms such as Facebook, Twitter, Instagram, and Parlor are an increasingly central part of the democratic public sphere in the United States. But the prevailing view of this ensuing platform-based public sphere has lately become increasingly sour and pessimistic. What were once seen as technologies of liberation have come to be viewed with skepticism. They are now perceived as channels and amplifiers of “antisystemic” forces, damaging the quality and feasibility of democracies. If it is justified, this skepticism yields a difficult tension: How can the state protect its democratic character against unravelling pressure from actors who are usually …

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 …

A Peace Treaty For The Bar Wars: An Updated Framework To Determine Permissibility Of Mandatory Bar Association Activity, Everett Stanley

Emory Law Journal

First Amendment challenges against the constitutionality of mandatory bar associations have frequented federal appellate courts. However, only two Supreme Court cases are directly applicable to these claims, neither of which provides a clear framework to adjudicate all of the issues involved. As a result, appellate courts have taken divergent routes to determine the constitutionality of whether (1) mandatory membership to the bar generally violates the freedom of association, and (2) certain activities undertaken by mandatory bar associations violate the freedom of speech and, in some circuit courts, association. The first issue has resulted in a rift between circuits. The Sixth …