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Articles 1 - 30 of 53
Full-Text Articles in Law
The Public’S Companies, Andrew K. Jennings
The Public’S Companies, Andrew K. Jennings
Fordham Journal of Corporate & Financial Law
This Essay uses a series of survey studies to consider how public understandings of public and private companies map into urgent debates over the role of the corporation in American society. Does a social-media company, for example, owe it to its users to follow the free-speech principles embodied in the First Amendment? May corporate managers pursue environmental, social, and governance (“ESG”) policies that could reduce short-term or long-term profits? How should companies respond to political pushback against their approaches to free expression or ESG?
The studies’ results are consistent with understandings that both public and private companies have greater public …
Just Extracurriculars?, Emily Gold Waldman
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 …
What Twenty-First-Century Free Speech Law Means For Securities Regulation, Helen Norton
What Twenty-First-Century Free Speech Law Means For Securities Regulation, Helen Norton
Notre Dame Law Review
Securities law has long regulated securities-related speech—and until recently, it did so with little, if any, First Amendment controversy. Yet the antiregulatory turn in the Supreme Court’s twenty-first-century Free Speech Clause doctrine has inspired corporate speakers’ increasingly successful efforts to resist regulation in a variety of settings, settings that now include securities law. This doctrinal turn empowers courts, if they so choose, to dismantle the securities regulation framework in place since the Great Depression. At stake are not only recent governmental proposals to require companies to disclose accurate information about their vulnerabilities to climate change and other emerging risks, but …
The End Of An Era: The Uncertain Future Of Section 230 Immunity For Social Media Platforms, Lillian H. Rucker
The End Of An Era: The Uncertain Future Of Section 230 Immunity For Social Media Platforms, Lillian H. Rucker
Vanderbilt Journal of Entertainment & Technology Law
Major social media platforms (SMPs), such as Facebook, Instagram, and TikTok, have become the primary means of communication for billions of people worldwide. They are the largest modern news distributors and the primary curators of online public discourse. However, the expanding influence of SMPs has led many to publicly scrutinize the content moderation decisions of such platforms, as SMPs regularly remove, block, censor, and ban user-generated content (UGC), including third-party written messages, photos, and videos, at their discretion. Because SMPs exercise immense power and are largely self-regulated, there has been growing public sentiment that SMP content moderation violates Users’ free …
For Freedom Or Full Of It? State Attempts To Silence Social Media, Grace Slicklen
For Freedom Or Full Of It? State Attempts To Silence Social Media, Grace Slicklen
University of Miami Law Review
Freedom of speech is, unsurprisingly, foundational to the “land of the free.” However, the “land of the free” has undergone some changes since the First Amendment’s ratification. Unprecedented technological evolution has ushered in a digital forum in which the volume, speed, and reach of words transcend the Framers’ visions of the First Amendment’s aims. Social media platforms have become central spaces for public discourse, where opportunities to create—and repress—speech are endless. From enabling individuals to freely express their views, to allowing state actors to limit open exchanges, it is about time that the Supreme Court tackles this complex issue of …
The News Media Engagement Principle: Why Social Media Has Not Actually Overrun The Limited Purpose Public Figure Category, Zachary R. Cormier
The News Media Engagement Principle: Why Social Media Has Not Actually Overrun The Limited Purpose Public Figure Category, Zachary R. Cormier
University of Miami Law Review
Has the rise of social media ruined the limited purpose public figure category of the First Amendment’s actual malice privilege? Justice Gorsuch believes so—and he has recently invited courts to get rid of it. He argues that the category now includes vast numbers of otherwise private citizens that have “become ‘public figures’ on social media overnight.” With so many people qualifying as limited purpose public figures (and having to overcome the actual malice standard to prevail on a defamation claim), he claims that the category has evolved to provide an unjustified shield for the masses of misinformation-peddlers on social media. …
A Vicious Cycle: United States’ Failure To Protect Immigrant Women’S Reproductive Rights At The Irwin County Detention Center, Lizet Palomera Torres
A Vicious Cycle: United States’ Failure To Protect Immigrant Women’S Reproductive Rights At The Irwin County Detention Center, Lizet Palomera Torres
Golden Gate University Law Review
The United States Immigration and Customs Enforcement agency (ICE) detained Jane Doe #15, an immigrant woman, at the Irwin County Detention Center (ICDC) in Georgia. During Jane’s time at ICDC, Doctor Mahendra Amin hastily examined her because she was experiencing severe pain in her pelvic area. Abandoning established professional and legal protocols for diagnosis and treatment, the medical staff scheduled Jane for surgery. Jane did not know what to expect from the surgery or what the medical personnel would do. After the surgery, the staff at ICDC neglected Jane’s care. She could not get out of bed on her own; …
Inactive Exercise & Unequal Protection: Espinoza & Carson Under The Equal Protection Clause, Griffith B. Bludworth
Inactive Exercise & Unequal Protection: Espinoza & Carson Under The Equal Protection Clause, Griffith B. Bludworth
University of Cincinnati Law Review
No abstract provided.
Education, The First Amendment, And The Constitution, Erwin Chemerinsky
Education, The First Amendment, And The Constitution, Erwin Chemerinsky
University of Cincinnati Law Review
No abstract provided.
School Matters, Ronna Greff Schneider
School Matters, Ronna Greff Schneider
University of Cincinnati Law Review
No abstract provided.
Florida’S Stop Woke Act And Its Function As A Content-Based Restriction, Emily Kearns
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 …
The Presumption Of Constitutionality And The Demise Of Economic Liberties, James Huffman
The Presumption Of Constitutionality And The Demise Of Economic Liberties, James Huffman
Dickinson Law Review (2017-Present)
For over two centuries the United States Supreme Court has embraced a presumption of constitutionality that places the burden of proof on those challenging the constitutionality of governmental actions. Usually, the presumption is stated as a given, but when explained it is most often said to be founded in republicanism and due respect for the co-equal branches of government. Thus, the presumption constitutes a deference to the constitutional interpretations of the elected branches of government. This majoritarian view of the Constitution’s foundational principle is counter to the dominant view of the Constitution’s founders. They designed a government constituted of numerous …
The Paradox Of The Paradox Of Democracy, Raymond H. Brescia
The Paradox Of The Paradox Of Democracy, Raymond H. Brescia
Dickinson Law Review (2017-Present)
In The Paradox of Democracy: Free Speech, Open Media, and Perilous Persuasion, authors Zac Gershberg and Sean Illing argue that democracies contain the capacity for their own destruction because they promote open communication but such communication can be manipulated by authoritarian forces. They argue further that with contemporary communications technologies the descent into fascism is even more likely. The authors argue that in order to confront these threats, democratic nations must increase media literacy within the citizenry and strengthen local journalism. Given the grave nature of the threats the authors have exposed, these solutions do not appear up to …
(E)Racing Speech In School, Francesca I. Procaccini
(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 …
Fair Use Failing The First Amendment? How The Parody And Satire Dichotomy May Be Stunting Political Discourse, Megan L. Wheeler
Fair Use Failing The First Amendment? How The Parody And Satire Dichotomy May Be Stunting Political Discourse, Megan L. Wheeler
IP Theory
The First Amendment, in certain circumstances, is used as a defense to “protect[] satire and parody as a form of free speech and expression.”2 When it comes to jokes, “[q]uestions . . . have arisen in case law [pertaining to satire typically] concerning libel, emotional distress and copyright infringement.”3 Further, in a right of publicity claim, “[t]he First Amendment clearly protects all but the most intrusive coverage of news, or details of a person’s private life, such as are reported in the tabloid press or talk shows.”4 This demonstrates that humor and satire have a close relationship with the First …
Protecting Public Health Amidst Data Theft, Sludge, And Dark Patterns: Overcoming The Constitutional Barriers To Health Information Regulations, Jon M. Garon
Akron Law Review
Public health has grown to over $4.1 trillion in spending in the past year, yet for millions of people, their health care is ineffective and sometimes harmful. New technologies have improved health access and treatment, but they can expose an individual’s personal health information to theft and misuse. There is little or no regulation for the reuse of data once it has been lawfully collected for general purposes. Any observer can create a detailed personal diary of an individual or a population by building from a mosaic of inferential data—such as lawfully obtained zip code information, non-regulated health care application …
Where To Place The “Nones” In The Church And State Debate? Empirical Evidence From Establishment Clause Cases In Federal Court, Gregory C. Sisk, Michael Heise
Where To Place The “Nones” In The Church And State Debate? Empirical Evidence From Establishment Clause Cases In Federal Court, Gregory C. Sisk, Michael Heise
St. John's Law Review
In this third iteration of our ongoing empirical examination of religious liberty decisions in the lower federal courts, we studied all digested Establishment Clause decisions by federal circuit and district court judges from 2006 through 2015. The first clause of the First Amendment to the United States Constitution directs that “Congress shall make no law respecting an establishment of religion.” That provision has generated decades of controversy regarding the appropriate role of religion in public life.
Holding key variables constant, we found that Catholic judges approved Establishment Clause claims at a 29.6% rate, compared with a 41.5% rate before non-Catholic …
Disinformation And The First Amendment: Fraud On The Public, Wes Henricksen
Disinformation And The First Amendment: Fraud On The Public, Wes Henricksen
St. John's Law Review
(Excerpt)
Following the 2020 presidential election, the losing candidate, Donald Trump, along with most of the Republican Party, spread the false claim that the election had been stolen by Democrats. Joe Biden, so the claim went, had not been legitimately elected, and was therefore an illegitimate President and needed to be removed. This profitable falsehood6 became known as the “Big Lie.” It was not only baseless, but it was in fact made in spite of and in direct conflict with the overwhelming evidence debunking it. This did not stop people from believing it. Millions bought into the Big Lie, which …
Public Accommodations Originalism’S Inability To Solve The Problems Of Online Content Moderation, Vincent A. Marrazzo
Public Accommodations Originalism’S Inability To Solve The Problems Of Online Content Moderation, Vincent A. Marrazzo
St. Mary's Law Journal
In response to online platforms’ increasing ability to moderate content in what often seems to be an arbitrary way, Justice Clarence Thomas recently suggested that platforms should be regulated as public accommodations such that the government could prevent platforms from banning users or removing posts from their sites. Shortly thereafter, Florida passed the Transparency in Technology Act, which purported to regulate online platforms as public accommodations and restricted their ability to ban users, tailor content through algorithmic decision-making, and engage in their own speech. Texas followed suit by passing a similar law, and Arizona debated a bill purporting to regulate …
Establishing An End To Lemon In The Eleventh Circuit, Amanda Harmon Cooley
Establishing An End To Lemon In The Eleventh Circuit, Amanda Harmon Cooley
University of Miami Law Review
Over half a century ago, the Supreme Court decided Lemon v. Kurtzman, the most controversial Establishment Clause case in judicial history. And despite the Lemon test’s constant criticism, the Court has never expressly overruled the decision in its entirety. This continues to be the case even after Kennedy v. Bremerton School District, in which the Court noted Lemon’s abandonment rather than its complete abrogation. As a result, lower federal district courts have been left in limbo regarding whether Lemon is fair game for any of their Establishment Clause determinations and have been inconsistent in using it as …
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 …
Texas’ War On Social Media: Censorship Or False Flag, Leni Morales
Texas’ War On Social Media: Censorship Or False Flag, Leni Morales
DePaul Journal of Art, Technology & Intellectual Property Law
No abstract provided.
The Junk Food Problem: Why The Law Allows Advertising To Kids And How To Implement Change, Makenna Hardy, Madison Maloney
The Junk Food Problem: Why The Law Allows Advertising To Kids And How To Implement Change, Makenna Hardy, Madison Maloney
Brigham Young University Prelaw Review
Rapid technological advancements have increased the methods in which advertisers can reach the public, specifically children. As obesity rates increase among America’s youth, more stringent advertising laws barring junk food exposure have been advocated for. Since the Supreme Court has determined commercial free speech as deserving full First Amendment coverage, the rights of advertisers frequently inhibit productive methods of protecting children from junk food advertisements. This article examines the current standards safeguarding both children and advertisers and the feasibility of restricting advertising to kids within the limitations of commercial speech protections.
Public School Teachers Who Refuse To Use Preferred Names And Pronouns: A Brief Exploration Of The First Amendment Limitations In K-12 Classrooms, Suzanne Eckes
ConLawNOW
This article focuses on whether a teacher has a First Amendment right under both the free speech and free exercise clauses of the U.S. Constitution when refusing to use a student’s preferred name or pronoun in a public school classroom. The article begins by briefly summarizing a recent case from Kansas and then examines prior precedent involving teachers’ classroom speech and teachers’ rights to freely exercise their religious rights in public schools. It then briefly highlights how these issues have been addressed in previous pronoun cases and concludes with a discussion of related constitutional issues.
Using Bruen To Overturn New York Times V. Sullivan, Michael L. Smith, Alexander S. Hiland
Using Bruen To Overturn New York Times V. Sullivan, Michael L. Smith, Alexander S. Hiland
Pepperdine Law Review
While New York Times Co. v. Sullivan is a foundational, well-regarded First Amendment case, Justice Clarence Thomas has repeatedly called on the Court to revisit it. Sullivan, Thomas claims, is policy masquerading as constitutional law, and it makes almost no effort to ground itself in the original meaning of the First and Fourteenth Amendments. Thomas argues that at the time of the founding, libelous statements were routinely subject to criminal prosecution—including libel of public figures and public officials. This Essay connects Justice Thomas’s calls to revisit Sullivan to his recent opinion for the Court in New York State Rifle & …
Freedom Of Algorithmic Expression, Inyoung Cheong
Freedom Of Algorithmic Expression, Inyoung Cheong
University of Cincinnati Law Review
Can content moderation on social media be considered a form of speech? If so, would government regulation of content moderation violate the First Amendment? These are the main arguments of social media companies after Florida and Texas legislators attempted to restrict social media platforms’ authority to de-platform objectionable content.
This article examines whether social media companies’ arguments have valid legal grounds. To this end, the article proposes three elements to determine that algorithms classify as “speech:” (1) the algorithms are designed to communicate messages; (2) the relevant messages reflect cognitive or emotive ideas beyond mere operational matters; and (3) they …
Warren/Burger Courts Exalted “Free” Expression Over Other American Values, Louis W. Hensler Iii
Warren/Burger Courts Exalted “Free” Expression Over Other American Values, Louis W. Hensler Iii
Marquette Law Review
Anglo-American defamation law started with a simple condemnation of the sin of evil speaking. Eventually, this value condemning harmful speech was accommodated to the value of speaking the truth, even hurtful truth. A third value of fostering responsible self-government was injected into American defamation law at and around the time of the American Revolution. This value makes it especially important for citizens to freely speak even hurtful truth about their government.
A 180 On Section 230: State Efforts To Erode Social Media Immunity, Leslie Y. Garfield Tenzer, Hayley Margulis
A 180 On Section 230: State Efforts To Erode Social Media Immunity, Leslie Y. Garfield Tenzer, Hayley Margulis
Pepperdine Law Review
The turmoil of the 2020 presidential election renewed controversy surrounding 47 U.S.C § 230. The law, adopted as part of the 1996 Communications Decency Act (CDA), shields Interactive Computer Services (ICS) from civil liability for third-party material posted on their Platforms—no matter how heinous and regardless of whether the material enjoys constitutional protection. Consequently, any ICS, which is broadly defined to include Internet service providers (ISPs) and social media platforms (Platforms), can police its own postings but remains free from government intervention or retribution. In 2022, members of the Texas and Florida legislatures passed laws aiming to limit the scope …
Policies Regulating Gender In Schools: Companion To Identity By Committee (2022), Scott Skinner-Thompson
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
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” - …