Law Commons^™

Just Extracurriculars?, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

Extracurricular activities have been the battleground for a striking number of Supreme Court cases set at public schools, from cases involving speech to religion to drug testing. Indeed, the two most recent Supreme Court cases involving constitutional rights at public schools--Kennedy v. Bremerton School District (2022) and Mahanoy Area School District v. B.L. (2021)--both arose in the extracurricular context of school sports. Even so, the Supreme Court has never fully clarified the status of extracurricular activities themselves. Once a school offers an extracurricular activity, is participation merely a privilege? Does the fact that extracurricular activities are voluntary for students affect …

Intervenor St. Isidore Of Seville Catholic Virtual School's Brief In Response To Petitioner's Application And Petition, Michael H. Mcginley, Steven A. Engel, M. Scott Proctor, John A. Meiser, Michael R. Perri, Socorro Adams Dooley

Court Briefs

No. MA-121694
Gentner Drummond v. Oklahoma Statewide Virtual Charter School Board

From the Arguments and Authorities

The Petition fails on the merits. Nothing in the Oklahoma Constitution prohibits the State from contracting with a religious school to provide new educational opportunities. And any state law purporting to do so would violate ORFA and the First Amendment.

St. Isidore Of Seville Catholic Virtual School's Motion To Intervene, Michael H. Mcginley, Steven A. Engel, M. Scott Proctor, John A. Meiser, Michael R. Perri, Socorro Adams Dooley

Court Briefs

No. 121694
Gentner Drummond v. Oklahoma Statewide Virtual Charter School Board

From the Argument and Authority

This Motion to Intervene is both timely and amply supported. Courts assess the timeliness of a motion to intervene "in light of all the circumstances," including "the length of time since the movant knew of its interests in the case; prejudice to the existing parties; prejudice to the movant; and the existence of any unusual circumstances." Tulsa Indus. Auth. v. City of Tulsa, 2011 OK 57, ¶ 31, 270 P.3d 113, 128 (citation omitted) (looking to federal case law for guidance). Courts have …

Florida’S Stop Woke Act And Its Function As A Content-Based Restriction, Emily Kearns

GGU Law Review Blog

May 2023, Florida Governor Ron Desantis signed into law Florida Senate Bill 266 (SB 266) concerning changes to funding requirements for Florida State University System institutions.. Under SB 266, university undergraduate courses may not “distort significant historical events or include a curriculum that teaches identity politics…or is based on theories that systemic racism, sexism, oppression, and privilege are inherent in the institutions of the United States and were created to maintain social, political, and economic inequities”.

The bill is popularly known as the “Stop Woke Act” (hereafter “the Act”)—an attempt to curtail the apparent horrors of Critical Race …

Policing Protest: Speech, Space, Crime, And The Jury, Jenny E. Carroll

Faculty Scholarship

Speech is more than just an individual right—it can serve as a catalyst for democratically driven revolution and reform, particularly for minority or marginalized positions. In the past decade, the nation has experienced a rise in mass protests. However, dissent and disobedience in the form of such protests is not without consequences. While the First Amendment promises broad rights of speech and assembly, these rights are not absolute. Criminal law regularly curtails such rights—either by directly regulating speech as speech or by imposing incidental burdens on speech as it seeks to promote other state interests. This Feature examines how criminal …

(E)Racing Speech In School, Francesca I. Procaccini

Vanderbilt Law School Faculty Publications

Speech on race and racism in our nation’s public schools is under attack for partisan gain. The Free Speech Clause of the First Amendment teaches a lot about the wisdom and legality of laws that chill such speech in the classroom. But more importantly, a First Amendment analysis of these laws reveals profound insights about the health and meaning of our free speech doctrine.

Through a First Amendment analysis of “anti-critical race theory” laws, this essay illuminates the first principles of free speech law. Specifically, it shows that the First Amendment offers little refuge to teachers or parents looking to …

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

All Faculty Scholarship

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 …

Appellant's Opening Brief, Zack Greenamyre, W. Gerald Weber, John A. Meiser, Meredith Holland Kessler

Court Briefs

No. 23-10332
Rev. Stephen Jarrard v. Sheriff of Polk County

Appeal from the United States District Court for the Northern District of Georgia No. 4:20-cv-00002-MLB

From the Summary of the Argument

This is an unusual appeal. Sheriff Johnny Moats and Chief Jailer Al Sharp all but admitted that they retaliated against Jarrard and barred him from Polk County Jail’s volunteer ministry program because they disagree with his religious belief that baptism is required for salvation. Indeed, Moats told Jarrard in writing that Jarrard’s beliefs are “contrary to the teaching of the Bible” and that he would not be allowed to …

Brief Of Notre Dame Law School Religious Liberty Clinic As Amicus Curiae In Support Of Petitioner, John A. Meiser, Meredith Holland Kessler

Court Briefs

No. 22-741
Faith Bible Chapel International v. Gregory Tucker

On Petition for a Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit

From the Summary of Argument

The First Amendment demands that courts refrain from intruding into disputes over a religious organization’s selection of important leaders. The ministerial exception enforces that demand. And thus, nearly every court to consider the issue has agreed: the ministerial exception promises something akin to an immunity from suit, which must be resolved early in litigation to be effective.

Policies Regulating Gender In Schools: Companion To Identity By Committee (2022), Scott Skinner-Thompson

Research Data

This document, Policies Regulating Gender in Schools: Companion to Identity by Committee (2022), https://docs.google.com/spreadsheets/d/1K6iUkLnmDfaSVykyRaZ3Yqt7XNM9leGO-MQA6p2VbV4/edit?usp=Sharing, was published as an electronic supplement to the article, Scott Skinner-Thompson, Identity by Committee, 57 Harv. C.R.-C.L. L. Rev. 657 (2022), available at https://scholar.law.colorado.edu/faculty-articles/1586.

The Disembodied First Amendment, Nathan Cortez, William M. Sage

Faculty Scholarship

First Amendment doctrine is becoming disembodied—increasingly detached from human speakers and listeners. Corporations claim that their speech rights limit government regulation of everything from product labeling to marketing to ordinary business licensing. Courts extend protections to commercial speech that ordinarily extended only to core political and religious speech. And now, we are told, automated information generated for cryptocurrencies, robocalling, and social media bots are also protected speech under the Constitution. Where does it end? It begins, no doubt, with corporate and commercial speech. We show, however, that heightened protection for corporate and commercial speech is built on several “artifices” - …

Antimatters: The Curious Case Of Confederate Monuments, Jeremiah Chin

Articles

Confederate monuments sit at a crossroads of speech frameworks as contested government speech, as concrete edifices of hate speech, and as key protest sites. The interplay of state law and speech doctrines in states like Alabama and Florida has cemented monuments as physical representations of government speech that municipal governments cannot speak on. To understand the confounding ways that doctrinal principles take on inverse implications, this Article draws on the concept of antimatter in physics—matter that has the same mass and properties of ordinary matter but with the opposite charge—to analyze doctrinal intersections of constitutional law that are made to …

The New Fourth Era Of American Religious Freedom, John Witte Jr., Eric Wang

Faculty Articles

The U.S. Supreme Court has entered decisively into a new fourth era of American religious freedom. In the first era, from 1776 to 1940, the Court largely left governance of religious freedom to the individual states and did little to enforce the First Amendment Religion Clauses. In the second era, from 1940 to 1990, the Court “incorporated” the First Amendment into the Fourteenth Amendment Due Process Clause and applied both a strong Free Exercise Clause and a strong Establishment Clause against federal, state, and local governments alike. In the third era, from the mid-1980s to 2010, the Court softened the …

Surveillance Normalization, Christian Sundquist

Articles

Since the start of the COVID-19 pandemic, the government has expanded public surveillance measures in an attempt to combat the spread of the virus. As the pandemic wears on, racialized communities and other marginalized groups are disproportionately affected by this increased level of surveillance. This article argues that increases in public surveillance as a result of the COVID-19 pandemic give rise to the normalization of surveillance in day-to-day life, with serious consequences for racialized communities and other marginalized groups. This article explores the legal and regulatory effects of surveillance normalization, as well as how to protect civil rights and liberties …

Campbell V. Reisch: The Dangers Of The Campaign Loophole In Social Media Blocking Litigation, Clare R. Norins, Mark Bailey

Scholarly Works

Since 2016, social media blocking by government officials has been a lively battleground for First Amendment rights of free speech and petition. Government officials increasingly rely on social media to communicate with the public while ever greater numbers of private individuals are voicing their opinions and petitioning for change on government officials' interactive social media accounts. Perhaps not surprisingly, this has prompted many government officials to block those users whose comments they deem to be critical or offensive. But such speech regulation by a government actor introduces viewpoint discrimination—a cardinal sin under the First Amendment.

In 2019, three United States …

Addressing Personal Data Collection As Unfair Methods Of Competition, Maurice E. Stucke

Scholarly Works

Enforcers, policymakers, scholars, and the public are concerned about Google, Apple, Facebook, Amazon, and recently Microsoft and their influence. That influence comes in part from personal data. These companies are “data-opolies,” in that they are powerful firms that control our data. The data comes from their vital ecosystems of interlocking online platforms and services, which attract users; sellers; advertisers; website publishers; and software, app, and accessory developers.

The public sentiment is that a few companies, in possessing so much data, possess too much power. Something is amiss. Cutting across political lines, many Americans think Big Tech’s economic power is a …

First Amendment Scrutiny: Realigning First Amendment Doctrine Around Government Interests, John D. Inazu

Scholarship@WashULaw

This Article proposes a simpler way to frame judicial analysis of First Amendment claims: a government restriction on First Amendment expression or action must advance a compelling interest through narrowly tailored means and must not excessively burden the expression or action relative to the interest advanced. The test thus has three prongs: (1) compelling interest; (2) narrow tailoring; and (3) proportionality.

Part I explores how current First Amendment doctrine too often minimizes or ignores a meaningful assessment of the government’s purported interest in limiting First Amendment liberties. Part II shows how First Amendment inquiry is further confused by threshold inquiries …

Reconsidering The Public Square, Helen L. Norton

Publications

No abstract provided.

American Religious Liberty Without (Much) Theory: A Review Of Religion And The American Constitutional Experiment, 5th Edition, Nathan S. Chapman

Scholarly Works

Book review of Religion and the American Constitutional Experiment, 5th ed. By John Witte Jr., Joel A. Nichols, and Richard W. Garnett. Oxford: Oxford University Press, 2022. Pp. 464. $150.00 (cloth); $39.95 (paper); $26.99 (digital). ISBN: 9780197587614.

Speech Regulation And Tobacco Harm Reduction, Jonathan Adler, Jacob James Rich

Faculty Publications

Regulation of commercial speech is a major component of federal regulation of tobacco products. Since adoption of federal tobacco legislation, the Food and Drug Administration has asserted regulatory authority over ENDS and other vaping products as “tobacco products,” subjecting them to the same regulatory regime as traditional tobacco products even though such projects appear to pose less of a threat to public health. Such regulation, and the restriction on truthful speech in particular, may be having negative consequences for public health. Barring producers from informing consumers about the relative risks of vaping products and their potential to reduce smoking eliminates …

History's Speech Acts, Jessie Hill

Faculty Publications

This Essay considers the historic relationship between symbolic public expressions of racial and religious identity—in particular, Confederate symbols and Christian religious displays. These displays sometimes comprise shared symbology, and the adoption of this symbology overlaps at distinct moments in U.S. history in which Confederate and Christian symbolism converged to express messages of combined religious and racial superiority. This Essay argues that these forms of expression can best be understood as “speech acts” that seek to construct a particular social reality, often in defiance of political and social fact. They thus not only express but also enact social hierarchies. It further …

Political Advertising In Virtual Reality, Scott P. Bloomberg

Faculty Publications

This Article is about how biometric data collected through VR technologies will greatly exacerbate existing problems with political ad microtargeting. Commercially available VR devices can—and in some cases, must—be integrated with sensors that track users’ eyes, faces, hands, and bodies. Political campaigns will be able to leverage this data to target ads with extraordinary precision. Indeed, targeting ads with biometric data may well be the next step in the evolution of microtargeted political messaging—a practice that has contributed to a rise in disinformation, filter-bubbles, and privacy invasions. If this sounds like science fiction, it is closer than you may think. …

The Disembodied First Amendment, Nathan Cortez, William M. Sage

Faculty Journal Articles and Book Chapters

First Amendment doctrine is becoming disembodied—increasingly detached from human speakers and listeners. Corporations claim that their speech rights limit government regulation of everything from product labeling to marketing to ordinary business licensing. Courts extend protections to commercial speech that ordinarily extended only to core political and religious speech. And now, we are told, automated information generated for cryptocurrencies, robocalling, and social media bots are also protected speech under the Constitution. Where does it end? It begins, no doubt, with corporate and commercial speech. We show, however, that heightened protection for corporate and commercial speech is built on several “artifices” - …

Brief Of Amicus Curiae Francis Fukuyama In Support Of Respondents In No. 22-277 And Petitioners In No. 22-555, Margaret E. O'Grady

Law Faculty Scholarship

The brief, in support of NetChoice, argues that the Texas and Florida “must carry” statutes violate the First Amendment in part because interoperability is a less restrictive means of achieving the goal of allowing diverse voices in the “town square” of the Internet.

Presuming Trustworthiness, Ronnell Anderson Jones, Sonja R. West

Scholarly Works

A half-century ago, the U.S. Supreme Court often praised speakers performing the press function. While the Justices acknowledged that press reports are sometimes inaccurate and that media motivations are at times less than public-serving, their laudatory statements nonetheless embraced a baseline presumption of the value and trustworthiness of press speech in general. Speech in the exercise of the press function, they told us, is vitally important to public discourse in a democracy and therefore worthy of protection even when it falls short of the ideal in a given instance. Those days are over. Our study of every reference to the …

Response By Tax-Exempt Organization Scholars To Request For Information, Ellen P. Aprill, Roger Colinvaux, Brian D. Galle, Philip Hackney, Lloyd Hitoshi Mayer

Articles

A group of academics who study and write about tax-exempt organizations, including their politically related activities, has responded to an August 14, 2023 Request for Information (RFI) from the Ways and Means Committee regarding issues in connection with the advocacy activities of tax-exempt organizations. The submission describes aspects of current law and provides an appendix with a list of the authors’ relevant scholarly work. As a preliminary matter, the submission emphasizes the importance of the voice of tax-exempt organizations to a well-functioning civil society and democracy. The submission also notes that in no case do the laws applicable to tax-exempt …

Of Systems Thinking And Straw Men, Kate Klonick

Faculty Publications

(Excerpt)

In Content Moderation as Systems Thinking, Professor Evelyn Douek, as the title suggests, endorses an approach to the people, rules, and processes governing online speech as one not of anecdote and doctrine but of systems thinking. She constructs this concept as a novel and superior understanding of the problems of online-speech governance as compared to those existent in what she calls the “standard [scholarly] picture of content moderation.” This standard picture of content moderation — which is roughly five years old — is “outdated and incomplete,” she argues. It is preoccupied with anecdotal, high-profile adjudications in which platforms …

Mysterizing Religion, Marc O. Degirolami

Faculty Publications

(Excerpt)

A mystery of faith is a truth of religion that escapes human understanding. The mysteries of religion are not truths that human beings happen not to know, or truths that they could know with sufficient study and application, but instead truths that they cannot know in the nature of things. In the Letter to the Colossians, St. Paul writes that as a Christian apostle, his holy office is to “bring to completion for you the word of God, the mystery hidden from ages and from generations past.” Note that Paul does not say that his task is to make …

First Amendment Protections For “Good Trouble”, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

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 …