Law Commons^™

“We Do No Such Thing”: 303 Creative V. Elenis And The Future Of First Amendment Challenges To Public Accommodations Laws, David Cole

Georgetown Law Faculty Publications and Other Works

In 303 Creative v. Elenis, the Supreme Court ruled that a business had a right to refuse to design a wedding website for a same-sex couple. But properly understood, the decision’s parameters are narrow, and the decision should have minimal effect on public accommodations laws.

Free Speech And Democracy: A Primer For Twenty-First Century Reformers, Toni M. Massaro, Helen Norton

Publications

Left unfettered, the twenty-first-century speech environment threatens to undermine critical pieces of the democratic project. Speech operates today in ways unimaginable not only to the First Amendment’s eighteenth-century writers but also to its twentieth-century champions. Key among these changes is that speech is cheaper and more abundant than ever before, and can be exploited — by both government and powerful private actors alike — as a tool for controlling others’ speech and frustrating meaningful public discourse and democratic outcomes.

The Court’s longstanding First Amendment doctrine rests on a model of how speech works that is no longer accurate. This invites …

Curing The First Amendment Scrutiny Muddle Through A Breyer-Based Blend Up? Toward A Less Categorical, More Values-Oriented Approach For Selecting Standards Of Judicial Review, Clay Calvert

UF Law Faculty Publications

This Article argues that the United States Supreme Court should significantly alter its current categorical approach for discerning standards of judicial review in free-speech cases. The present system should become nondeterminative and be augmented with a modified version of Justice Stephen Breyer’s long-preferred proportionality framework. Specifically, the Article’s proposed tack fuses facets of today’s policy, which largely pivots on distinguishing content-based laws from content-neutral laws and letting that categorization determine scrutiny, with a more nuanced, values-and-interests methodology. A values-and-interests formula would allow the Court to climb up or down the traditional ladder of scrutiny rungs – strict, intermediate or rational …

Supreme Court Precedent And The Politics Of Repudiation, Robert L. Tsai

Faculty Scholarship

This is an invited essay that will appear in a book titled "Law's Infamy," edited by Austin Sarat as part of the Amherst Series on Law, Jurisprudence, and Social Thought. Every legal order that aspires to be called just is held together by not only principles of justice but also archetypes of morally reprehensible outcomes, and villains as well as heroes. Chief Justice Roger Taney, who believed himself to be a hero solving the great moral question of slavery in the Dred Scott case, is today detested for trying to impose a racist, slaveholding vision of the Constitution upon America. …

Rescuing Our Democracy By Rethinking New York Times Co. V. Sullivan, David A. Logan

Law Faculty Scholarship

No abstract provided.

Discrimination, The Speech That Enables It, And The First Amendment, Helen Norton

Publications

Imagine that you’re interviewing for your dream job, only to be asked by the hiring committee whether you’re pregnant. Or HIV positive. Or Muslim. Does the First Amendment protect your interviewers’ inquiries from government regulation? This Article explores that question.

Antidiscrimination laws forbid employers, housing providers, insurers, lenders, and other gatekeepers from relying on certain characteristics in their decision-making. Many of these laws also regulate those actors’ speech by prohibiting them from inquiring about applicants’ protected class characteristics; these provisions seek to stop illegal discrimination before it occurs by preventing gatekeepers from eliciting information that would enable them to discriminate. …

Brief Amici Curiae Of Electronic Frontier Foundation, 1851 Center For Constitutional Law, And Profs. Jonathan Entin, David F. Forte, Andrew Geronimo, Raymond Ku, Stephen Lazarus, Kevin Francis O’Neill, Margaret Tarkington, Aaron H. Caplan, And Eugene Volokh In Support Of Respondent-Appellant, Joni Bey And Rebecca Rasawehr V. Jeffrey Rasawehr, Supreme Court Of Ohio (Case No. 2019-0295), David Forte, Stephen R. Lazarus, Kevin F. O'Neill, Jonathan L. Entin, Andrew Geronimo, Raymond Ku, Margaret Tarkington, Aaron H. Kaplan, Eugene Volokh

Law Faculty Briefs and Court Documents

The brief argues that the Third District Court of Appeals, in violation of the First Amendment, erred in upholding an injunction that barred defendant from any online postings regarding plaintiff, whether or not those postings were to plaintiff or to third parties.

Speech And Exercise By Private Individuals And Organizations, Kent Greenawalt

Faculty Scholarship

A central issue about redundancy concerns how far the exercise of religion is simply a form of speech that is, and should be, constitutionally protected only to the extent that reaches speech generally. Insofar as a constitutional analysis leaves flexibility, we have questions about wise legislative choices. To consider these issues carefully, we need to have a sense of what counts as relevant speech and the exercise of religion. That is the focus of this article.

It addresses the basic categorization of what counts as “speech” for freedom of speech and what counts as religious exercise when each is engaged …

The First Queer Right, Scott Skinner-Thompson

Publications

Current legal disputes may lead one to believe that the greatest threat to LGBTQ rights is the First Amendment’s protections for speech, association, and religion, which are currently being mustered to challenge LGBTQ anti-discrimination protections. But underappreciated today is the role of free speech and free association in advancing the well-being of LGBTQ individuals, as explained in Professor Carlos Ball’s important new book, The First Amendment and LGBT Equality: A Contentious History. In many ways the First Amendment’s protections for free expression and association operated as what I label “the first queer right.”

Decades before the Supreme Court would …

(At Least) Thirteen Ways Of Looking At Election Lies, Helen Norton

Publications

Lies take many forms. Because lies vary so greatly in their motivations and consequences (among many other qualities), philosophers have long sought to catalog them to help make sense of their diversity and complexity. Legal scholars too have classified lies in various ways to explain why we punish some and protect others. This symposium essay offers yet another taxonomy of lies, focusing specifically on election lies — that is, lies told during or about elections. We can divide and describe election lies in a wide variety of ways: by speaker, by motive, by subject matter, by audience, by means of …

Checking The Government’S Deception Through Public Employee Speech, Helen Norton

Publications

No abstract provided.

Contemplating Masterpiece Cakeshop, Terri R. Day

Faculty Scholarship

No abstract provided.

Speech-Facilitating Conduct, Jud Campbell

Law Faculty Publications

Free speech doctrine generally protects only expression, leaving regulations of nonexpressive conduct beyond the First Amendment’s scope. Yet the Supreme Court has recognized that abridgments of the freedom of speech “may operate at different points in the speech process.” This notion of protection for nonexpressive conduct that facilitates speech touches on many of the most contentious issues in First Amendment law— restrictions on photography and audiovisual recording, limits on campaign contributions, putative newsgathering privileges for journalists, compelled subsidization of speech, and associational rights, to name just a few. Scholars, however, have generally approached these topics in isolation, typically focusing on …

Reality’S Bite, Kerri Lynn Stone

Faculty Publications

The realities of the workplace have been captured by years of socio-scientific, industrial organizational, and other psychological research. Human behavior and thought, interpersonal dynamics, and organizational behavior, with all of their nuances and fine points, are now better understood than they have ever been before, but unless they are used to inform and buttress the rules of law and interpretations promulgated by courts, Title VII’s ability to successfully regulate the workplace to rid it of discrimination will be threatened. This article expands upon that premise, lamenting judges, and specifically justices having eschewed available research and other insights into workplace realities, …

Commentary: Exploiting Mixed Speech, Caroline Mala Corbin

Articles

The Supreme Court has been taking advantage of mixed speech—that is, speech that is both private and governmental—to characterize challenged speech in a way that ultimately permits the government to sponsor Christian speech. In Pleasant Grove City v. Summum, a free speech case where the government accepted a Christian Ten Commandments monument but rejected a Summum Seven Aphorisms monument, the Court held that privately donated monuments displayed in public parks were government speech as opposed to private speech and therefore not subject to free speech limits on viewpoint discrimination. In Town of Greece v. Galloway, an establishment case …

From Google To Tolstoy Bot: Should The First Amendment Protect Speech Generated By Algorithms?, Margot Kaminski

Publications

No abstract provided.

Incitement To Riot In The Age Of Flash Mobs, Margot E. Kaminski

Publications

As people increasingly use social media to organize both protests and robberies, government will try to regulate these calls to action. With an eye to this intensifying dynamic, this Article reviews First Amendment jurisprudence on incitement and applies it to existing statutes on incitement to riot at a common law, state, and federal level. The article suggests that First Amendment jurisprudence has a particularly tortuous relationship with regulating speech directed to crowds. It examines current crowd psychology to suggest which crowd behavior, if any, should as a matter of policy be subject to regulation. It concludes that many existing incitement-to-riot …

Citizens United And The Corporate Form, Reuven S. Avi-Yonah

Articles

In Citizens United vs. FEC, the Supreme Court struck down a Federal statute banning direct corporate expenditures on political campaigns. The decision has been widely criticized and praised as a matter of First Amendment law. But it is also interesting as another step in the evolution of our legal views of the corporation. This article argues that by viewing Citizens United through the prism of theories about the corporate form, it is possible to see that the majority and the dissent departed from previous Supreme Court jurisprudence on the First Amendment rights of corporations. It is also possible to then …

Citizens United And The Corporate Form, Reuven S. Avi-Yonah

Articles

In Citizens United vs. FEC, the Supreme Court struck down a Federal statute banning direct corporate expenditures on political campaigns. The decision has been widely criticized and praised as a matter of First Amendment law. But it is also interesting as another step in the evolution of our legal views of the corporation. This Article argues that by viewing Citizens Unitedthrough the prism of theories about the corporate form, it is possible to see that the majority and the dissent departed from previous Supreme Court jurisprudence on the First Amendment rights of corporations. It is also possible to then predict …

Student Speech: The Enduring Greatness Of Tinker, Jamin B. Raskin

Articles in Law Reviews & Other Academic Journals

The Supreme Court's decision in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), did for the ideal of freedom in America's public schools what Brown v. Board of Education, 347 U.S. 483 (1954), did for the ideal of equality. It made a core value of the Bill of Rights spring to life for young people facing unjust policies and authoritarian treatment at the hands of adult officials in local school systems. In his remarkable opinion for the majority, Justice Abe Fortas upheld thirteen-year-old Mary Beth Tinker's First Amendment right to wear a black antiwar armband to …

The Other Sullivan Case, Garrett Epps, Garrett Epps

All Faculty Scholarship

The standard triumphalist narrative of NEW YORK TIMES V. SULLIVAN celebrates the Supreme Court's defense of free speech and press in the case's vindication of powerful journalistic institution. Ignored in this story is the story of the local defendants, civil rights leaders in Alabama who had their solvency threatened by the state courts' vindictive action against them. These defendants challenged the segregated proceedings used in court to affix liability to them—but the Supreme Court ignored their arguments and ignored the racial-equality and individual-rights aspects of the case. From their point of view, SULLIVAN might be so unalloyed a triumph.

Silence And The Word, Paul Campos

Publications

No abstract provided.

Justice Harlan And The Bill Of Rights: A Model For How A Classic Conservative Court Would Enforce The Bill Of Rights, Nadine Strossen

Articles & Chapters

No abstract provided.

How Useful Is Judicial Review In Free Speech Cases?, Robert F. Nagel

Publications

No abstract provided.

Unconstitutional Conditions Upon Public Employment: New Departures In The Protection Of First Amendment Rights, Harold H. Bruff

Publications

No abstract provided.