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#I U: Considering The Context Of Online Threats, Lyrissa Lidsky
#I U: Considering The Context Of Online Threats, Lyrissa Lidsky
Faculty Publications
The United States Supreme Court has failed to grapple with the unique interpretive difficulties presented by social media threats cases. Social media make hateful and threatening speech more common but also magnify the potential for a speaker's innocent words to be misunderstood People speak differently on different social media platforms, and architecturalf eatures ofplatforms, such as character limits, affect the meaning of speech. The same is true of other contextual clues unique to social media, such as gifs, hashtags, and emojis. Only by understanding social media contexts can legal decision-makers avoid overcriminalization of speech protected by the First Amendment. This …
Free Speech Hypocrisy: Campus Free Speech Conflicts And The Sub-Legal First Amendment, Christina E. Wells
Free Speech Hypocrisy: Campus Free Speech Conflicts And The Sub-Legal First Amendment, Christina E. Wells
Faculty Publications
This Article is modest in scope. It seeks primarily to illuminate the role of free speech conflicts, especially those involving contentious speech, within the Court's jurisprudence, and to illustrate how arguments characterizing the protestors' speech as censorship misperceive the important role such conflicts play. Using both the Court's doctrinal framework and conflict resolution literature, this article attempts to bring deeper understanding to the purposes for the Court's approach, the context underlying the current conflicts, and the flaws underlying the argument that the protestors' actions are censorial. Part I briefly reviews three illustrative free speech conflicts at the University of Missouri, …
Collective Corporate Knowledge, The Federal False Claims Act, And The Future Of Federal Health Programs, Sam F. Halabi
Collective Corporate Knowledge, The Federal False Claims Act, And The Future Of Federal Health Programs, Sam F. Halabi
Faculty Publications
While recent U.S. Supreme Court decisions have drawn focus to whether what corporations “say” is protected by the First Amendment or what they “believe” is protected by the federal Religious Freedom Restoration Act, the more relevant inquiry for a wide range of statutory and regulatory regimes is what corporations “know.” At the core of that question is what guides information relevant for legal compliance (including product safety, employee welfare, and material risks considered by investors) from its source to any given point in the firm, including decision-makers. This Article analyzes the federal False Claims Act as an underexploited resource in …
Unwanted Exposure To Religious Expression By Government: Standing And The Establishment Clause, Carl H. Esbeck
Unwanted Exposure To Religious Expression By Government: Standing And The Establishment Clause, Carl H. Esbeck
Faculty Publications
For nearly half a century the Supreme Court has relaxed traditional standards of justiciability and permitted taxpayer standing when a claimant has invoked the Establishment Clause in a lawsuit to prohibit government funding of religion. The Court has recently cutback, however, permitting taxpayer standing only when a tax is extracted from the claimant and money is appropriated by a legislature to fund a statutory program that directs the use of public aid for religion.
Contextualizing Disclosure's Effects: Wikileaks, Balancing And The First Amendment, Christina E. Wells
Contextualizing Disclosure's Effects: Wikileaks, Balancing And The First Amendment, Christina E. Wells
Faculty Publications
This essay responds to Professor Fenster’s article in the Iowa Law Review, Disclosure’s Effects: WikiLeaks and Transparency, assessing the effects of the recent WikiLeaks disclosures. The essay agrees with many of Professor Fenster’s conclusions regarding the promise and peril of those disclosures, especially his concern regarding the problematic balancing approaches used to assess the likely impact when confidential information is revealed. It specifically elaborates on courts’ current application of the Espionage Act, a criminal law likely to be applied to the WikiLeaks disclosures, and the implications of that deferential application for WikiLeaks, Julian Assange and journalists in general.
Recognizing The Public Schools' Authority To Discipline Students' Off-Campus Cyberbullying Of Classmates, Douglas E. Abrams
Recognizing The Public Schools' Authority To Discipline Students' Off-Campus Cyberbullying Of Classmates, Douglas E. Abrams
Faculty Publications
The American Medical Association, the National Institute of Child Health and Human Development, and the U.S. Centers for Disease Control and Prevention have identified bullying in the public elementary and secondary schools as a "public health problem". This article explains the schools' comprehensive authority, consistent with the First Amendment, to impose discipline on cyberbullies, by suspension or expulsion if necessary. Ever since Tinker v. Des Moines Independent Community School District (1969), the Supreme Court's First Amendment decisions have granted the schools authority to discipline student speech that causes, or reasonably threatens, (1) "substantial disruption of or material interference with school …
Panel Discussion At "Signs Of The Times: The First Amendment And Religious Symbolism", Carl H. Esbeck
Panel Discussion At "Signs Of The Times: The First Amendment And Religious Symbolism", Carl H. Esbeck
Faculty Publications
No abstract provided.
Regulating Offensiveness: Snyder V. Phelps, Emotion, And The First Amendment, Christina E. Wells
Regulating Offensiveness: Snyder V. Phelps, Emotion, And The First Amendment, Christina E. Wells
Faculty Publications
In its upcoming term, the Court will decide in Snyder v. Phelps whether Albert Snyder can sue the Reverend Fred Phelps and other members of the Westboro Baptist Church for invasion of privacy and intentional infliction of emotional distress for protesting near his son’s funeral. Those arguing in favor of tort liability claim that the Phelps’ speech during a time of mourning and vulnerability is especially outrageous and injurious and that the First Amendment allows such regulation. Their arguments, however, effectively rely on the offensiveness of the Phelps’ message rather than on any external indicia of harm, such as noisy …
Privacy And Funeral Protests, Christina E. Wells
Privacy And Funeral Protests, Christina E. Wells
Faculty Publications
This article examines the free speech implications of funeral protest statutes. Enacted in response to the Westboro Baptist Church, whose members protest at funerals to spread their antigay message, such statutes restrict a broad array of peaceful expressive activity. This Article focuses on the states’ interest underlying these statutes - protecting mourners’ right to be free from unwanted intrusions while at funeral services. Few would argue against protecting funeral services from intrusive protests. These statutes, however, go far beyond that notion and protect mourners from offensive, rather than intrusive, protests. As such, they do not conceive of privacy as protection …
When Accommodations For Religion Violate The Establishment Clause: Regularizing The Supreme Court's Analysis, Carl H. Esbeck
When Accommodations For Religion Violate The Establishment Clause: Regularizing The Supreme Court's Analysis, Carl H. Esbeck
Faculty Publications
This article sets forth five rules with respect to what government may do to accommodate religious practice and five rules with respect to what government may not do. As it turns out the Supreme Court has said that most religious accommodations are left to the broad discretion of legislators and public officials. So long as the object of the accommodation is to protect or expand religious freedom, as distinct from expanding religion, the accommodation will be permitted.
Authorship, Audiences, And Anonymous Speech, Thomas F. Cotter, Lyrissa Lidsky
Authorship, Audiences, And Anonymous Speech, Thomas F. Cotter, Lyrissa Lidsky
Faculty Publications
A series of United States Supreme Court decisions establishes that the First Amendment provides a qualified right to speak and publish anonymously, or under a pseudonym. But the Court has never clearly defined the scope of this right. As a result, lower courts have been left with little guidance when it comes to dealing both with the Internet-fueled growth of torts and crimes committed by anonymous speakers, and with the increasing number of lawsuits aimed at silencing legitimate anonymous speech. In this Article, we provide both positive and normative foundations for a comprehensive approach to anonymous speech. We first draw …
Discussing The First Amendment , Christina E. Wells
Discussing The First Amendment , Christina E. Wells
Faculty Publications
Despite its many good qualities, Eternally Vigilant nevertheless suffers from a flaw common to First Amendment scholarship--a tendency to give short shrift to study of the social, psychological, historical, and political factors that influence the Court's decision making and, thus, free speech doctrine. Discussion including these influences would facilitate an even greater understanding of free speech doctrine and the principles that underlie it.
Hate Speech In The Constitutional Law Of The United States, William B. Fisch
Hate Speech In The Constitutional Law Of The United States, William B. Fisch
Faculty Publications
Our general reporter, Professor Pizzorusso, has given us “incitement to hatred” - primarily against a group of persons defined in terms of race, ethnicity, national origin, gender, religion, sexual orientation, and the like--as the working definition of “hate speech”, and asks to what extent such speech is constitutionally protected in the reporting countries. The United States of America are known at least in recent times for providing exceptionally broad protection for otherwise objectionable speech and expression, and hate speech is understood to be one of the areas in which they have positioned themselves further out on the speech-protective end of …
The Establishment Clause As A Structural Restraint: Validations And Ramifications, Carl H. Esbeck
The Establishment Clause As A Structural Restraint: Validations And Ramifications, Carl H. Esbeck
Faculty Publications
The opening phrase of the First Amendment to the U.S. Constitution provides, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The free exercise clause functions as an individual right with its purpose being to forestall personal religious harm. Its underlying principle is that in religious matters a person ought to be free of coercion caused by the government and thereby not made to suffer for cause of conscience. The function of the establishment clause is altogether different, for its purpose is to restrain government from using its powers to act on matters …
Religion And The First Amendment: Some Causes Of The Recent Confusion, Carl H. Esbeck
Religion And The First Amendment: Some Causes Of The Recent Confusion, Carl H. Esbeck
Faculty Publications
The United States Supreme Court is surely guilty of making the matter of religion and the First Amendment harder than it ought to be. But it is others who have kept the debate over church/state relations either poisoned with culture-war rhetoric or so shrouded in mystery that seemingly only experts can untangle the juris-prudential snarls. By surrounding this venerable Amendment with a pseudocomplexity concerning the matter of religion these disinformation specialists create confusion, and confusion begets opportunities for further distortion and manipulation. Disagreements over the free exercise of religion and the no-establishment thereof are far simpler to resolve than these …
Introduction: The Difficult First Amendment, Christina E. Wells
Introduction: The Difficult First Amendment, Christina E. Wells
Faculty Publications
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for redress of grievances.
Beyond Campaign Finance: The First Amendment Implications Of Nixon V. Shrink Missouri Pac, Christina E. Wells
Beyond Campaign Finance: The First Amendment Implications Of Nixon V. Shrink Missouri Pac, Christina E. Wells
Faculty Publications
This essay, however, is less concerned with the campaign finance aspects of Shrink than with the decision's broader implications. In the course of its decision, the Shrink Court not only obfuscated the standard of scrutiny applicable to contribution regulations, it effectively ignored the government's lack of factual support for the law, instead accepting the state's assertions at face-value. Consequently, Shrink is far more than a simple application of Buckley. Rather, it reflects fundamental problems with the Court's standards of review in First Amendment cases generally. The more global nature of Shrink's problems suggest that, despite scholarly focus on the Buckley …
Bringing Structure To The Law Of Injunctions Against Expression, Christina E. Wells
Bringing Structure To The Law Of Injunctions Against Expression, Christina E. Wells
Faculty Publications
Part I of this Article reviews the Court's cases regarding injunctions against speech, focusing first on the increasing elevation of rhetoric (as opposed to analysis) in the Court's prior restraint decisions. Part I also reviews the Court's other decisions involving injunctions and demonstrates that they too contain little, if any, analysis concerning the appropriateness of injunctive relief against expression. Part II examines Madsen's interaction with the Court's previous decisions and discusses how Madsen furthers the incoherence of the Court's previous cases. Part III explains that content discrimination principles, although superficially attractive, are inappropriate with injunctive relief because the content-based/content-neutral distinction's …
Differentiating The Free Exercise And Establishment Clauses, Carl H. Esbeck
Differentiating The Free Exercise And Establishment Clauses, Carl H. Esbeck
Faculty Publications
The purpose of the Establishment Clause is not to safeguard individual religious rights. That is the role of the Free Exercise Clause, indeed its singular role. The purpose of the Establishment Clause, rather, is as a structural restraint on governmental power. Because of its structural character, the task of the Establishment Clause is to limit government from legislating or otherwise acting on any matter "respecting an establishment of religion." The powers that fall within the scope of the foregoing clause (denied to government, hence within the sole province of religion) and the powers outside this clause (hence, authority vested in …
Charitable Choice And The Critics, Carl H. Esbeck
Charitable Choice And The Critics, Carl H. Esbeck
Faculty Publications
First, the statute prohibits the government from discriminating with regard to religion when determining whether providers are eligible to deliver social services under these programs. Second, the statute imposes on government the duty not to intrude into the religious autonomy of faith-based providers. Third, the statute imposes on both government and participating FBOs the duty not to abridge certain rights of the ultimate beneficiaries of these programs. I will touch on these three principles below, and do so in reverse order.
Silencing John Doe: Defamation And Discourse In Cyberspace, Lyrissa Lidsky
Silencing John Doe: Defamation And Discourse In Cyberspace, Lyrissa Lidsky
Faculty Publications
John Doe has become a popular defamation defendant as corporations and their officers bring defamation suits for statements made about them in Internet discussion fora. These new suits are not even arguably about recovering money damages but instead are brought for symbolic reasons — some worthy, some not so worthy. If the only consequence of these suits were that Internet users were held accountable for their speech, the suits would be an unalloyed good. However, these suits threaten to suppress legitimate criticism along with intentional and reckless falsehoods, and existing First Amendment law doctrines are not responsive to the threat …
Reinvigorating Autonomy: Freedom And Responsibility In The Supreme Court's First Amendment Jurisprudence, Christina E. Wells
Reinvigorating Autonomy: Freedom And Responsibility In The Supreme Court's First Amendment Jurisprudence, Christina E. Wells
Faculty Publications
Part I of this Article explores the conception of autonomy that scholars have generally attributed to the Court and discusses problems with that conception. Part II sets forth an alternative, Kantian conception of autonomy and discusses its implications for a system of laws regulating free expression. Part III analyzes the Court's free speech jurisprudence and its autonomy rationale. It specifically examines both the Court's distinction between content-based and content-neutral regulations of speech and its approach to low-value speech, demonstrating that they reflect a Kantian notion of autonomy. Finally, Part IV discusses the implications of Kantian autonomy for hate speech regulation, …
A Restatement Of The Supreme Court's Law Of Religious Freedom: Coherence, Conflict Or Chaos?, Carl H. Esbeck
A Restatement Of The Supreme Court's Law Of Religious Freedom: Coherence, Conflict Or Chaos?, Carl H. Esbeck
Faculty Publications
Religious freedom as guaranteed in the First Amendment makes religious pluralism more likely, while pluralism makes the maintenance of religious freedom as a fundamental civil right more necessary. It seems there is a limit, however, to the expansion of America's religious pluralism that, when exceeded, shatters cultural consensus thus rendering impossible the political and civil discourse necessary to sustain democratic institutions.1 This follows because pluralism promises freedom but exacts a price in civic disunity and moral confusion. The question thereby resolves itself into just how a religiously diverse people are to live together, despite their deepest differences, while sharing in …
Antitrust And First Amendment Implications Of Professional Real Estate Investors, Gary Myers
Antitrust And First Amendment Implications Of Professional Real Estate Investors, Gary Myers
Faculty Publications
This article begins with a discussion of the development of Noerr-Pennington immunity as it applies to litigation behavior. Parts III and IV describe the litigation in Professional Real Estate Investors and then analyze the effect of this new decision on predatory litigation law. Part V discusses possible ramifications of the case for other areas of federal and state law in which subjective intent is the sole keystone for the imposition of liability on petitioning activity. Because Professional Real Estate Investors interprets the First Amendment to preclude antitrust liability in these cases, other laws that deter bad faith litigation may no …
Government Regulation Of Religiously Based Social Services: The First Amendment Considerations, Carl H. Esbeck
Government Regulation Of Religiously Based Social Services: The First Amendment Considerations, Carl H. Esbeck
Faculty Publications
A daunting welter of variables confronts anyone who sets out to systematize the First Amendment's effect on the government's role in regulating social services operated by religious organizations. The task is further complicated because the regulations in question often were promulgated as a consequence of the monitoring that inevitably accompanies government spending on private-sector welfare programs. The most suitable methodology should take into account: 1) the nature of the organizations that are the object of the government's regulation or program of aid; 2) the interrelationship between government and religious organizations that results from the regulation or aid; and 3) the …
Litigation As A Predatory Practice, Gary Myers
Litigation As A Predatory Practice, Gary Myers
Faculty Publications
This article reviews and evaluates the sham litigation case law, finding that many courts have allowed immunity too readily or on inappropriate grounds. It attempts to develop comprehensive standards for antitrust claims based on sham litigation.
The Lemon Test: Should It Be Retained, Reformulated Or Rejected?, Carl H. Esbeck
The Lemon Test: Should It Be Retained, Reformulated Or Rejected?, Carl H. Esbeck
Faculty Publications
This essay addresses the Supreme Court's three-part establishment clause test originally set down in Lemon v. Kurtzman. Part I concerns the manner in which the Lemon test has substantially evolved. Part II explores what the evolved test has to offer by way of solving the seemingly conflicting duties not to inhibit free speech and political rights, while at the same time refraining from passing laws "respecting an establishment of religion." Finally, Part III addresses some of the proposals to supplant Lemon altogether.
First Freedom: Religion And The Bill Of Rights, Carl H. Esbeck
First Freedom: Religion And The Bill Of Rights, Carl H. Esbeck
Faculty Publications
This volume is a collection of seven papers delivered at a symposium assembled in April 1989 upon the occasion, almost two hundred years hence, of the passage of the Bill of Rights by the First Congress. The unifying theme is stated to be the historical context of both Religion Clauses in the First Amendment, but the authors are driven primarily by Establishment Clause concerns. The Thrust of the essays deal with the originalism advanced during the years of Reagan Administration, and nonpreferentialism comes in for particular criticism, both pejoratively characterized as that "growing clamor".
The Establishment Clause As A Structural Restraint On Governmental Power, Carl H. Esbeck
The Establishment Clause As A Structural Restraint On Governmental Power, Carl H. Esbeck
Faculty Publications
This Article inquires into whether the singular purpose of the Establishment Clause is to secure individual rights, as is conventionally believed, or whether its role is more properly understood as a structural restraint on governmental power. If the Clause is indeed structural in nature, then its task is to negate from the purview of civil governance all matters “respecting an establishment of religion.” Conceptualizing the role of the Establishment Clause as either rights-securing or structural has profound consequences for the nation's constitutional settlement concerning the interrelationship of government and religion.
Mandatory Student Fees: First Amendment Concerns And University Discretion, Christina E. Wells
Mandatory Student Fees: First Amendment Concerns And University Discretion, Christina E. Wells
Faculty Publications
This Comment analyzes the constitutional issues raised by the use of mandatory student fees to fund speech at public universities. Part I examines the interests of students and universities with respect to the use of such fees. Part II examines court decisions in this area. Part III looks to the nature of student fees and demonstrates that they are permissible exercises of university discretion. Parts IV and V discuss whether the Constitution requires a university, if it funds student organizations by mandatory fees, to fund all organizations equally, without regard to other students' objections to those organizations' viewpoints.