Law Commons^™

Understanding An American Paradox: An Overview Of The Racial Muslim: When Racism Quashes Religious Freedom, Spearit

Articles

In The Racial Muslim: When Racism Quashes Religious Freedom, Sahar Aziz unveils a mechanism that perpetuates the persecution of religion. While the book’s title suggests a problem that engulfs Muslims, it is not a new problem, but instead a recurring theme in American history. Aziz constructs a model that demonstrates how racialization of a religious group imposes racial characteristics on that group, imbuing it with racial stereotypes that effectively treat the group as a racial rather than religious group deserving of religious liberty.

In identifying a racialization process that effectively veils religious discrimination, Aziz’s book points to several important …

Democracy Harms And The First Amendment, Deborah Pearlstein

Articles

The First Amendment tolerates—has long tolerated—the regulation of certain kinds of false speech. Indeed, regulable lies are not limited to traditionally less-protected categories of speech like defamation and commercial deception. They include an array of other established speech regulations, administered by government institutions every day, from criminal laws barring perjury and other lies to government officials, to disciplinary measures by elected bodies sanctioning members for false or otherwise objectionable speech. Yet while it is easy to identify the kinds of lies that existing doctrinal categories make regulable for the personal, physical, or reputational harms they inflict on individuals¸ it has …

Freedom From Speech, Mary Anne Franks

Articles

The importance of freedom of speech in a democratic society is usually taken as a given, but freedom from speech is no less important in safeguarding the values of truth, autonomy, and democracy. Freedom from speech includes both the right of the individual to not be forced to speak and the freedom to avoid the speech of others. This essay attempts to highlight the significance of freedom from speech in order to clarify the importance of the First Amendment right against compelled speech; provide an explanation for when the right of free speech yields to other rights; and offer a …

Liberalism Triumphant? Ideology And The En Banc Process In The Ninth Circuit Court Of Appeals, Arthur D. Hellman

Articles

There are two things that everyone knows about the Ninth Circuit Court of Appeals: it is very large, and it is very liberal. But common knowledge is sometimes wrong. Is that the case here?

About the first point – the Ninth Circuit’s size – there can be no dispute. The Ninth Circuit Court of Appeals has 29 authorized judgeships, almost twice as many as the second-largest court. But what about the second point – the liberalism? Knowledgeable commentators, including Professor (now Dean) Erwin Chemerinsky, have disputed the characterization, calling it a “myth.”

Until now, no one has empirically tested whether …

Special Matters: Filtering Privileged Materials In Federal Prosecutions, Christina Frohock

Articles

This Article reviews the U.S. Department of Justice's toolbox for handling potentially privileged materials, with close attention to the evolution from filter teams to the Special Matters Unit in fraud prosecutions. Significant case opinions from the U.S. Courts of Appeals for the Fourth, Sixth, and Eleventh Circuits reveal the judiciary's diverse views on filter teams. The recent case of United States v. Esformes in the U.S. District Court for the Southern District of Florida, now on appeal to the Eleventh Circuit, illustrates how a filter team can fall short and draw unflattering attention to the Department of Justice. In the …

The Second Founding And The First Amendment, William M. Carter Jr.

Articles

Constitutional doctrine generally proceeds from the premise that the original intent and public understanding of pre-Civil War constitutional provisions carries forward unchanged from the colonial Founding era. This premise is flawed because it ignores the Nation’s Second Founding: i.e., the constitutional moment culminating in the Thirteenth, Fourteenth, and Fifteenth Amendments and the civil rights statutes enacted pursuant thereto. The Second Founding, in addition to providing specific new individual rights and federal powers, also represented a fundamental shift in our constitutional order. The Second Founding’s constitutional regime provided that the underlying systemic rules and norms of the First Founding’s Constitution …

Government Speech And First Amendment Capture, Caroline Mala Corbin

Articles

Alarm regarding government speech is not new. In earlier decades, scholars worried that the government's speech might monopolize a marketplace and drown out opposing viewpoints. But today, using a move I term "First Amendment capture," the government need not be the loudest speaker because it can become the only speaker. First Amendment capture has been made possible by the Supreme Court's developing government speech doctrine, which holds that government speech is not subject to the Free Speech Clause. Consequently, once speech is declared governmental, the government may censor viewpoints it does not like. First Amendment capture categorizing contested speech as …

The Corporate Privacy Proxy, Shaakirrah R. Sanders

Articles

This Article contributes to the First Amendment corporate privacy debate by identifying the relevance of agriculture security legislation, or ag-gag laws. Ag-gag laws restrict methods used to gather and disseminate information about commercial food cultivation, production, and distribution-potentially creating a "right" to control or privatize nonproprietary information about animal and agribusinesses. Yet, corporate privacy rights are unrecognized as a matter of U.S. constitutional law, which implicates the sufficiency of the justification for ag-gag laws. This Article ponders whether "security" acts as a proxy for an unrecognized right to corporate privacy in the ag-gag context. Part I of this Article surveys …

The Second Amendment's Safe Space, Or The Constitutionlization Of Fragility, Mary Anne Franks

Articles

No abstract provided.

Balancing Religious Liberties And Antidiscrimination Interests In The Public Employment Context: The Impact Of Masterpiece Cakeshop And American Legion, Brenda Bauges

Articles

No abstract provided.

The Supreme Court’S Two Constitutions: A First Look At The “Reverse Polarity” Cases, Arthur D. Hellman

Articles

In the traditional approach to ideological classification, “liberal” judicial decisions are those that support civil liberties claims; “conservative” decisions are those that reject them. That view – particularly associated with the Warren Court era – is reflected in numerous academic writings and even an article by a prominent liberal judge. Today, however, there is mounting evidence that the traditional assumptions about the liberal-conservative divide are incorrect or at best incomplete. In at least some areas of constitutional law, the traditional characterizations have been reversed. Across a wide variety of constitutional issues, support for claims under the Bill of Rights or …

The Supreme Court's Facilitation Of White Christian Nationalism, Caroline Mala Corbin

Articles

Doug Jager, a band student of Native-American ancestry, complained about the Christian prayers at his Georgia public school’s football games. Rather than address his concerns, the school lectured him on Christianity and proposed an alternative that appeared neutral yet would result in the continuation of the Christian prayers. In striking down the school’s proposal, Judge Frank M. Johnson Jr. understood some of the ramifications of state-sponsored Christianity.

Despite Supreme Court rulings limiting Christian invocations at public-school events, government-sponsored Christian prayers and Christian symbols remain plentiful in the United States. This proliferation of government-sponsored Christianity around the country both reflects and …

Media Literacy Beyond The National Security Frame, Lili Levi

Articles

No abstract provided.

The Supreme Court’S Facilitation Of White Christian Nationalism, Caroline Mala Corbin

Articles

Doug Jager, a band student of Native-American ancestry, complained about the Christian prayers at his Georgia public school's football games. Rather than address his concerns, the school lectured him on Christianity and proposed an alternative that appeared neutral yet would result in the continuation of the Christian prayers. In striking down the school's proposal, Judge Frank M. Johnson Jr. understood some of the ramifications of state-sponsored Christianity.

Despite Supreme Court rulings limiting Christian invocations at pubic-school events, government-sponsored Christian prayers and Christian symbols remain plentiful, in the United States. This proliferation government-sponsored Christianity around the country both reflects and strengthens …

The Internet As A Speech Machine And Other Myths Confounding Section 230 Reform, Mary Anne Franks, Danielle Citron

Articles

No abstract provided.

How The Internet Unmakes Law, Mary Anne Franks

Articles

No abstract provided.

Janus's Two Faces, Kate Andrias

Articles

In ancient Roman religion and myth, Janus is the god of beginnings, transitions, and endings. He is often depicted as having two faces, one looking to the future and one to the past. The Supreme Court’s Janus v AFSCME case of last Term is fittingly named.1 Stunning in its disregard of principles of stare decisis, Janus overruled the forty-yearold precedent Abood v Detroit Board of Education. 2 The Janus decision marks the end of the post–New Deal compromise with respect to public sector unions and the FirstAmendment.Looking to the future, Janus lays the groundwork for further attack on labor rights—as …

Ag-Gag Free Nation, Shaakirrah R. Sanders

Articles

This Article identifies the threat that agriculture security legislation-or ag-gag laws-pose to unauthorized animal and agribusiness workers. This Article advocates full recognition of First Amendment speech rights to unauthorized workers, especially in the ag-ag context, to counter the threat of coercion. Part I of this Article profiles unauthorized workers in the U.S. animal and agriculture industry. Part II discusses nationwide First Amendment litigation on ag-gag laws and describes how the effects on unauthorized workers has been largely ignored in the ag-gag debate. Part III theorizes how the right that ag-gag laws seek to protect weighs against the First Amendment rights …

Christian Legislative Prayers And Christian Nationalism, Caroline Mala Corbin

Articles

No abstract provided.

Regulating Bot Speech, Madeline Lamo, Ryan Calo

Articles

We live in a world of artificial speakers with real impact. So-called “bots” foment political strife, skew online discourse, and manipulate the marketplace. Concerns over bot speech have led prominent figures in the world of technology to call for regulations in response to the unique threats bots pose. Recently, legislators have begun to heed these calls, drafting laws that would require online bots to clearly indicate that they are not human.

This work is the first to consider how efforts to regulate bots might run afoul of the First Amendment. At first blush, requiring a bot to self-disclose raises little …

Applying The First Amendment To The Internal Revenue Code: Minnesota Voters Alliance And The Tax Law’S Regulation Of Nonprofit Organizations’ Political Speech, Edward A. Zelinsky

Articles

On its face, Minnesota Voters Alliance v. Mansky is about which T-shirts, hats and buttons voters can wear at the polls. However, the U.S. Supreme Court’s First Amendment analysis in Minnesota Voters Alliance extends beyond apparel at polling places. That decision impacts the ongoing debate about the Johnson Amendment, the now controversial provision of the Internal Revenue Code which forbids Section 501(c)(3) organizations from intervening in political campaigns. Minnesota Voters Alliance also affects the proper construction of Section 501(c)(3)’s ban on lobbying by tax-exempt entities as well as other provisions of the tax law taxing and precluding campaign intervention by …

Opportunistic Originalism And The Establishment Clause, Caroline Mala Corbin

Articles

This Article argues that the Supreme Court's use of originalism is opportunistic because sometimes the Court relies on it, and sometimes it does not. This inconsistency is evident in two recent decisions with significant Establishment Clause consequences: Town of Greece v. Galloway (2014) and Trinity Lutheran Church v. Comer (2017). In Town of Greece, the Supreme Court applied an originalist analysis to uphold the government's policy of sponsoring predominantly Christian prayers before town meetings. In Trinity Lutheran Church, the Supreme Court failed to conduct an originalist analysis of direct government funding to churches before ordering a state to award a …

Sex, Lies, And Videotape: Deep Fakes And Free Speech Delusions, Mary Anne Franks, Ari Ezra Waldman

Articles

No abstract provided.

Equal Protection And The Male Gaze: An Approach To New Hampshire V. Lilley, Nicholas Mignanelli

Articles

This Article uses New Hampshire v. Lilley, a case recently decided by the New Hampshire Supreme Court, as a starting point for an equal protection analysis of indecent exposure laws that distinguish between women and men. After discussing contemporary equal protection jurisprudence and historicizing these laws, this Article uses the film theorist Laura Mulvey's concept of the "male gaze" to demonstrate how overbroad generalizations about sex and sexuality serve as the foundation for this legal distinction. This Article concludes by emphasizing that municipalities and states may continue to enact and enforce indecent exposure laws that reflect community standards, so …

Taking Data, Michael Pollack

Articles

Technological development has created new forms of information, altered expectations of privacy, and given law enforcement more tools to examine that information and intrude on that privacy. One crucial facet of these changes involves internet service providers (ISPs): as people expose more of their lives to their ISPs—all the websites they visit, people they communicate with, emails they send, files they store, and more—law enforcement efforts to access that data become more and more common. But scholars and policymakers alike recognize that the existing statutory frameworks governing those efforts are based on obsolete technology and strike balances that are difficult …

Fearless Speech, Mary Anne Franks

Articles

The American conception of free speech is primarily defined as the freedom to say whatever one wants, with little regard for the quality, context, or impact of the speech. Thus, American free speech doctrine is often characterized as neutral with regard to the speaker and the content of speech; in practice, however, it consistently privileges powerful over vulnerable speakers and harmful over critical speech.

From Philadelphia to Skokie to Charlottesville, the First Amendment has been interpreted to protect speech by white men that silences and endangers women and minorities. As free speech doctrine and practice become increasingly concerned with private …

Religious Healing Exemptions And The Jurisdictional Gap Between Substantive Due Process And Free Exercise Rights, Shaakirrah R. Sanders

Articles

Religious healing parents have vexed state courts for almost a century. Religious healing is the belief that "prayer" or "spiritual means," rather than modern medicine, can cure individuals. Adults and emancipated minors have the right to refuse medical treatment. Some states go further and grant religious healing parents a statutory exemption against criminal and civil actions for child endangerment, neglect, negligence, manslaughter, and even homicide. This Article identifies these types of exemptions as an issue of religious childrearing. Religious healing exemptions demonstrate the difficulty delineating the line between childrearing rights of parents and the state's duty to protect children. Professor …

Religious Healing Exemptions And The Jurisprudential Gap Between Substantive Due Process And Free Exercise Rights, Shaakirrah R. Sanders

Articles

Religious healing parents have vexed state courts for almost a century. Religious healing is the belief that "prayer" or "spiritual means," rather than modern medicine, can cure individuals. Adults and emancipated minors have the right to refuse medical treatment. Some states go further and grant religious healing parents a statutory exemption against criminal and civil actions for child endangerment, neglect, negligence, manslaughter, and even homicide. This Article identifies these types of exemptions as an issue of religious childrearing.

Religious healing exemptions demonstrate the difficulty delineating the line between childrearing rights of parents and the state's duty to protect children. Professor …

“And Yet It Moves”—The First Amendment And Certainty, Ronald K.L. Collins

Articles

Surprisingly few, if any, works on the First Amendment have explored the relation between free speech and certainty. The same holds true for decisional law. While this relationship is inherent in much free speech theory and doctrine, its treatment has nonetheless been rather opaque. In what follows, the author teases out— philosophically, textually, and operationally—the significance of that relationship and what it means for our First Amendment jurisprudence. In the process, he examines how the First Amendment operates to counter claims of certainty and likewise how it is employed to demand a degree of certainty from those who wish to …

Is There Any Silver Lining To Trinity Lutheran Church, Inc. V. Comer?, Caroline Mala Corbin

Articles

No abstract provided.