Law Commons^™

Social Media Accountability For Terrorist Propaganda, Alexander Tsesis

Faculty Publications & Other Works

Terrorist organizations have found social media websites to be invaluable for disseminating ideology, recruiting terrorists, and planning operations. National and international leaders have repeatedly pointed out the dangers terrorists pose to ordinary people and state institutions. In the United States, the federal Communications Decency Act's § 230 provides social networking websites with immunity against civil law suits. Litigants have therefore been unsuccessful in obtaining redress against internet companies who host or disseminate third-party terrorist content. This Article demonstrates that § 230 does not bar private parties from recovery if they can prove that a social media company had received complaints …

Process Without Procedure: National Security Letters And First Amendment Rights, Hannah Bloch-Wehba

Faculty Scholarship

Each year, the FBI uses tens of thousands of NSLs to obtain “transactional records” related to telephone calls, emails, text messages, online forums, and other communicative activity. NSLs are usually accompanied by nondisclosure orders that prevent recipients from speaking about or acknowledging the requests. Although over 100,000 NSLs have been issued since 2001, there have been fewer than 10 known judicial challenges.

I argue that the absence of procedural safeguards within the NSL authority has created a de facto regime of automatic compliance with the requests, endangering First Amendment rights in the process. NSLs are explicitly directed at uncovering the …

Gutting Public Sector Unions: Friedrichs V. California Teachers Association, Jake Wasserman

Duke Journal of Constitutional Law & Public Policy Sidebar

In Friedrichs v. California Teachers Association, public-sector unions face a constitutional challenge that could lead to their demise. In California, all public school employees are represented by a union--whether or not they are union members--and are required to pay an agency fee. This requirement seems to run contrary to the First Amendment, which generally prohibits the government from compelling citizens to support the speech and expressive activities of a private organization. This commentary argues that the Court should not overrule its decision in Abood v. Detroit Board of Education and uphold the validity of agency-shop agreements.

Newsroom: Goldstein On Fossil Fuel Fraud Liability 04-12-2016, Edward Fitzpatrick, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Privacy Petitions And Institutional Legitimacy, Lauren Henry Scholz

Scholarly Publications

This Article argues that a petitions process for privacy concerns arising from new technologies would substantially aid in gauging privacy social norms and legitimating regulation of new technologies. An accessible, transparent petitions process would empower individuals who have privacy concerns by making their proposals for change more visible. Moreover, data accumulated from such a petitions process would provide the requisite information to enable institutions to incorporate social norms into privacy policy development. Hearing and responding to privacy petitions would build trust with the public regarding the role of government and large companies in shaping the modern privacy technical infrastructure. This …

Sinclair's Nightmare: Slapp-Ing Down Ag-Gag Legislation As Content-Based Restrictions Chilling Protected Free Speech, Jeffrey Vizcaino

Student Works

Over a century after its publication, Upton Sinclair’s 1906 novel, The Jungle, remains one of the most impactful pieces of investigative literature ever published. During 1904, in an effort to expose the heinous working conditions of Chicago’s meat packing industry, Sinclair went under disguise as a factory worker for seven weeks. While Sinclair’s purpose for The Jungle was to propel federal reform against inhumane work conditions, it was the first-hand depiction of the callous slaughtering and unsanitary processing of meat products which led to national uproar. Gaining the attention of national political leaders, including President Theodore Roosevelt, The Jungle …

Expanding The Schoolhouse Gate: Public Schools (K-12) And The Regulation Of Cyberbullying, Philip Lee

Journal Articles

Cyberbullying has received increasing societal attention in the aftermath of the tragic suicides of some of its youngest and most vulnerable victims — 15-year-old Phoebe Prince from Massachusetts, 13-year-old Ryan Halligan from Vermont, 12-year-old Sarah Lynn Butler from Arkansas, 15-year-old Grace McComas from Maryland, and 12-year-old Rebecca Ann Sedwick from Florida.

In this Article, I hope to provide states and their schools better guidance on how to effectively regulate cyberbullying that originates off campus. Specifically, I aim to make four unique contributions to the conversation.

First and foremost, I argue that cyberbullying is so harmful in and of itself that …

Liberal, Conservative, And Political: The Supreme Court's Impact On The American Family In The Uber-Partisan Era, Marsha B. Freeman

Faculty Scholarship

No abstract provided.

Balancing Free Speech, Alexander Tsesis

Faculty Publications & Other Works

This article develops a theory for balancing free speech against other express and implied constitutional, statutory, and doctrinal values. It posits that free speech considerations should be connected to the underlying purpose of constitutional governance. When deciding difficult cases involving competing rights, judges should examine (1) whether unencumbered expression is likely to cause constitutional, statutory, or common law harms; (2) whether the restricted expression has been historically or traditionally protected; (3) whether a government policy designed to benefit the general welfare weighs in favor of the regulation; (4) the fit between the disputed speech regulation and the public end; and …

Multifactoral Free Speech, Alexander Tsesis

Faculty Publications & Other Works

This Article presents a multifactoral approach to free speech analysis. Difficult cases present a variety of challenges that require judges to weigh concerns for the protection of robust dialogue, especially about public issues, against concerns that sound in common law (such as reputation), statutory law (such as repose against harassment), and in constitutional law (such as copyright). Even when speech is implicated, the Court should aim to resolve other relevant individual and social issues arising from litigation. Focusing only on free speech categories is likely to discount substantial, and sometimes compelling, social concerns warranting reflection, analysis, and application. Examining the …

The Media Exemption Puzzle Of Campaign Finance Laws, Sonja R. West

Scholarly Works

In the 2010 case of Citizens United v. Federal Election Commission, the United States Supreme Court solidified the media exemption dilemma in campaign finance law. When attempting to address concerns about corporate campaign expenditures (i.e., corporate political speech), legislatures are now stuck between a rock and a hard place. Regulate media corporations, and they violate press freedoms. Exempt media corporations from the regulations, however, and they are accused of speaker discrimination.

Thus the question of how to treat the press in campaign finance law can no longer be ignored. Can legislatures, without running afoul of the First Amendment, ever regulate …

Holmes And Brennan, Howard Wasserman

Faculty Publications

This article jointly examines two legal biographies of two landmark First Amendment decisions and the justices who produced them. In The Great Dissent (Henry Holt and Co. 2013), Thomas Healy explores Oliver Wendell Holmes’s dissent in Abrams v. United States (1919), which arguably laid the cornerstone for modern American free speech jurisprudence. In The Progeny (ABA 2014), Stephen Wermiel and Lee Levine explore William J. Brennan’s majority opinion in New York Times v. Sullivan (1964) and the development and evolution of its progeny over Brennan’s remaining twenty-five years on the Court. The article then explores three ideas: 1) the connections …

In The Shadows Of Sunlight: The Effects Of Transparency On State Political Campaigns, Abby K. Wood, Douglas M. Spencer

Publications

In recent years, the courts have invalidated a variety of campaign finance laws while simultaneously upholding disclosure requirements. Courts view disclosure as a less-restrictive means to root out corruption while critics claim that disclosure chills speech and deters political participation. Using individual-level contribution data from state elections between 2000 and 2008, we find that the speech-chilling effects of disclosure are negligible. On average, less than one donor per candidate is likely to stop contributing when the public visibility of campaign contributions increases. Moreover, we do not observe heterogeneous effects for small donors or ideological outliers despite an assumption in First …

Truth And Lies In The Workplace: Employer Speech And The First Amendment, Helen Norton

Publications

Employers' lies, misrepresentations, and nondisclosures about workers' legal rights and other working conditions can skew and sometimes even coerce workers' important life decisions as well as frustrate key workplace protections. Federal, state, and local governments have long sought to address these substantial harms by prohibiting employers from misrepresenting workers' rights or other working conditions as well as by requiring employers to disclose truthful information about these matters.

These governmental efforts, however, are now increasingly vulnerable to constitutional attack in light of the recent antiregulatory turn in First Amendment law, in which corporate and other commercial entities seek -- with growing …

The Problem With Free Press Absolutism, Sonja R. West

Scholarly Works

In her important new book, The First Amendment Bubble, Professor Amy Gajda exposes the many dangers of this all-encompassing attitude about constitutional rights for the press. Sure, there may have been a time when the news media could demand- and the courts and public would grant near immunity for their work, making free press absolutism relatively costless. Yet Gajda provides example after example demonstrating that the courts no longer give the media a free pass. And as the public and the courts' opinions about the press change, Gajda warns, the news media's thinking about their legal protections must change as …

When Immigrants Speak: The Precarious Status Of Non-Citizen Speech Under The First Amendment, Michael Kagan

Scholarly Works

The legal protection of free speech for immigrants in the United States is surprisingly limited, and it may be under more threat than is commonly understood. Although many unauthorized immigrants have become politically active in campaigning for immigration reform, their ability to speak out publicly may depend more on political discretion than on the Constitutional protections that we normally take for granted. Potential threats to immigrant free speech may be seen in three areas of law. First, a broad claim has been made by the Department of Justice that immigrants who have not been legally admitted to the country have …

Lobbying And The Petition Clause, Maggie Blackhawk

All Faculty Scholarship

Contrary to popular opinion, the Supreme Court has not yet resolved whether lobbying is constitutionally protected. Belying this fact, courts, Congress, and scholars mistakenly assume that lobbying is protected under the Petition Clause. Because scholars have shared the mistaken assumption that the Petition Clause protects the practice of “lobbying”, no research to date has looked closely at the Petition Clause doctrine and the history of petitioning in relation to lobbying. In a recent opinion addressing petitioning in another context, the Supreme Court unearthed the long history behind the right to petition and argued for the importance of this history for …

Building Labor's Constitution, Kate Andrias

Articles

In the last few years, scholars have sought to revitalize a range of constitutional arguments against mounting economic inequality and in favor of labor rights. They urge contemporary worker movements to lay claim to the Constitution. But worker movements, for the most part, have not done so. This Essay takes seriously that choice. It examines reasons for the absence of constitutional argumentation by contemporary worker movements, particularly the role of courts and legal elites in our constitutional system, and it contends that labor’s ongoing statutory and regulatory reform efforts are essential prerequisites to the development of progressive constitutional labor rights. …

The Early Years Of First Amendment Lochnerism, Jeremy K. Kessler

Faculty Scholarship

From Citizens United to Hobby Lobby, civil libertarian challenges to the regulation of economic activity are increasingly prevalent. Critics of this trend invoke the specter of Lochner v. New York. They suggest that the First Amendment, the Religious Freedom Restoration Act, and other legislative "conscience clauses" are being used to resurrect the economically libertarian substantive due process jurisprudence of the early twentieth century. Yet the worry that aggressive judicial enforcement of the First Amendment might erode democratic regulation of the economy and enhance the economic power of private actors has a long history. As this Article demonstrates, anxieties …