Law Commons^™

Citing Baker’S “Win,” Arizona Court Rejects Stationary Store’S Opt-Out Claim, Arthur S. Leonard

Other Publications

No abstract provided.

The Off-Label Use Of Pom Wonderful: Using Section 43(A) To Eliminate Misleading Off-Label Drug Promotion, Christopher A. Hurley

Washington and Lee Law Review

No abstract provided.

Free Speech And Generally Applicable Laws: A New Doctrinal Synthesis, Dan T. Coenen

Scholarly Works

A longstanding mystery of constitutional law concerns how the Free Speech Clause interacts with “generally applicable” legal restrictions. This Article develops a new conceptual framework for working through this puzzle. It does so by extracting from prior Supreme Court rulings an approach that divides these restrictions into three separate categories, each of which (at least presumptively) brings into play a different level of judicial scrutiny. An example of the first and most closely scrutinized category of generally applicable laws—that is, laws that place a “direct in effect” burden on speech—is provided by breach-of-the-peace statutes. These laws are generally applicable because …

Judicial Review Of Disproportionate (Or Retaliatory) Deportation, Jason A. Cade

Scholarly Works

This Article focuses attention on two recent and notable federal court opinions considering challenges to Trump administration deportation decisions. While finding no statutory bar to the noncitizens’ detention and deportation in these cases, the court in each instance paused to highlight the injustice of the removal decisions. This Article places the opinions in the context of emerging immigration enforcement trends, which reflect a growing indifference to disproportionate treatment as well as enforcement actions founded on retaliation for the exercise of constitutional rights. Judicial decisions like the ones considered here serve vital functions in the cause of immigration law reform even …

When Should The First Amendment Protect Judges From Their Unethical Speech?, Lynne H. Rambo

Faculty Scholarship

Judges harm the judicial institution when they engage in inflammatory or overtly political extrajudicial speech. The judiciary can be effective only when it has the trust of the citizenry, and judicial statements of that sort render it impossible for citizens to see judges as neutral and contemplative arbiters. This lack of confidence would seem especially dangerous in times like these, when the citizenry is as polarized as it has ever been.

Ethical codes across the country (based on the Model Code of Judicial Conduct) prohibit judges from making these partisan, prejudicial or otherwise improper remarks. Any discipline can be undone, …

What Did The First Amendment Originally Mean?, Jud Campbell

Law Faculty Publications

The First Amendment says that “Congress shall make no law … abridging the freedom of speech, or of the press.” For Americans, this language is familiar. But what exactly does it mean? How far do the speech and press clauses restrict governmental power? The founders, as we will see, answered these questions very differently than we typically do today. And the reasons why highlight fundamental shifts in American constitutional thought.

Forward Into The Past: Speech Intermediaries In Television And Internet Ages Symposium: Falsehoods, Fake News, And The First Amendment: Panel 3: The Brave New World Of Free Speech, Gregory P. Magarian

Scholarship@WashULaw

Communication constructs society. By speaking to, with, and among one another, people and groups build relationships that allow us all to live more fully, understand the world better, and govern ourselves collectively. As societies grow, expression and engagement become more challenging. The presence of more ideas, larger and more diverse potential audiences, and more powerful and remote institutions threatens to reduce communication to a futile exercise. Whatever normative goals different people and groups may want public discourse to serve, pursuing those goals gets harder.

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 …

Robotic Speakers And Human Listeners, Helen Norton

Publications

In their new book, Robotica, Ron Collins and David Skover assert that we protect speech not so much because of its value to speakers but instead because of its affirmative value to listeners. If we assume that the First Amendment is largely, if not entirely, about serving listeners’ interests—in other words, that it’s listeners all the way down—what would a listener-centered approach to robotic speech require? This short symposium essay briefly discusses the complicated and sometimes even dark side of robotic speech from a listener-centered perspective.

Panel 1: Robotic Speech And The First Amendment, Bruce E. H. Johnson, Helen Norton, David Skover

Publications

Moderator: Professor Gregory Silverman.

Book discussed: Ronald L. Collins & David M. Skover, Robotica: Speech Rights and Artificial Intelligence (Cambridge Univ. Press 2018).

No First Amendment Shield For Homophobic Prof, Arthur S. Leonard

Other Publications

No abstract provided.

The Right Of Publicity: Privacy Reimagined For New York?, Jennifer E. Rothman

All Faculty Scholarship

This essay is based on a featured lecture that I gave as part of the Cardozo Arts & Entertainment Law Journal’s 2 symposium on a proposed right of publicity law in New York. The essay draws from my recent book, The Right of Publicity: Privacy Reimagined for a Public World, published by Harvard University Press. Insights from the book suggest that New York should not upend more than one hundred years of established privacy law in the state, nor jeopardize its citizens’ ownership over their own names, likenesses, and voices by replacing these privacy laws with a new and independent …

Fearless Speech, Mary Anne Franks

Articles

The American conception of free speech is primarily defined as the freedom to say whatever one wants, with little regard for the quality, context, or impact of the speech. Thus, American free speech doctrine is often characterized as neutral with regard to the speaker and the content of speech; in practice, however, it consistently privileges powerful over vulnerable speakers and harmful over critical speech.

From Philadelphia to Skokie to Charlottesville, the First Amendment has been interpreted to protect speech by white men that silences and endangers women and minorities. As free speech doctrine and practice become increasingly concerned with private …

Masterpieces Or Simply Wedding Cakes? Exploring The Boundaries Of Freedom Of Speech Through United States Supreme Court Case Masterpiece Cakeshop V. Colorado Civil Rights Commission, Margaret Mclean Quick

Honors Theses and Capstones

No abstract provided.

Petitioning And The Making Of The Administrative State, Maggie Blackhawk

All Faculty Scholarship

The administrative state is suffering from a crisis of legitimacy. Many have questioned the legality of the myriad commissions, boards, and agencies through which much of our modern governance occurs. Scholars such as Jerry Mashaw, Theda Skocpol, and Michele Dauber, among others, have provided compelling institutional histories, illustrating that administrative lawmaking has roots in the early American republic. Others have attempted to assuage concerns through interpretive theory, arguing that the Administrative Procedure Act of 1946 implicitly amended our Constitution. Solutions offered thus far, however, have yet to provide a deeper understanding of the meaning and function of the administrative state …

Gag Clauses And The Right To Gripe: The Consumer Review Fairness Act Of 2016 & State Efforts To Protect Online Reviews From Contractual Censorship, Clay Calvert

UF Law Faculty Publications

This article examines new legislation, including the federal Consumer Review Fairness Act, signed into law in December 2016, targeting non-disparagement clauses in consumer contracts. Such “gag clauses” typically prohibit or punish the posting of negative reviews of businesses on websites, such as Yelp and TripAdvisor. This article asserts that state and federal statutes provide the best means, from a pro-free-expression perspective, of attacking such clauses, given the disturbingly real possibility that the First Amendment has no bearing on contractual obligations between private parties.

Filtering Fake News Through A Lens Of Supreme Court Observations And Adages, Clay Calvert, Austin Vining

UF Law Faculty Publications

This Essay analyzes multiple issues affecting fake news. It does so through a prism of seven observations by the U.S. Supreme Court concerning the First Amendment, free speech, and other matters. The Court's wisdom in these quotations provides propitious points of entree for exploring how to address and remedy problems many fear fake news causes. The Essay concludes that because fake news will never be eradicated from the metaphorical marketplace of ideas, greater effort must be spent making real news - fake news's constructive flipside - more appetizing to the public.

Beyond Headlines & Holdings: Exploring Some Less Obvious Ramifications Of The Supreme Court's 2017 Free-Speech Rulings, Clay Calvert

UF Law Faculty Publications

Digging behind the holdings, this Article analyzes less conspicuous, yet highly consequential aspects of the United States Supreme Court’s First Amendment rulings during the opening half of 2017. The four facets of the opinions addressed here— items both within individual cases and cutting across them—hold vast significance for future free-speech battles. Nuances of the justices’ splintering in Matal v. Tam, Packingham v. North Carolina, and Expressions Hair Design v. Schneiderman are examined, as is the immediate impact of Justice Anthony Kennedy’s Packingham dicta regarding online social networks. Furthermore, Justice Sonia Sotomayor’s solo concurrence in the threats case of …

The First Amendment Implications Of Copyright's Double Standard, Raymond Shih Ray Ku

Faculty Publications

Beginning with a simple question, “What’s the big deal? It’s just entertainment,” this Article argues that copyright law restricts more than just entertainment - it restricts freedom of artistic expression. Despite copyright’s facial neutrality, courts have interpreted otherwise neutral rules to subject authors to a double standard for expression. Through a series of doctrinal contradictions and hypocrisies, copyright singles out “just entertainment,” imposing greater restrictions upon the freedom of those authors relative to all other authors. By discriminating against “entertainment,” the current doctrine violates its own fundamental tenet of non-discrimination. Moreover, by selectively restricting how authors may choose to engage …

Is It A Dragon? No, It's A Salamander. The Supreme Court's Effort To Slay The Partisan Gerrymander, Tim Harris

Honors Theses

The Supreme Court sits on the precipice of undertaking major action to limit the strength and scope of partisan gerrymandering. The Court has never struck down a partisan gerrymander. Although the Court appears to possess the authority to invalidate an unconstitutionally discriminatory districting plan, it has never decided on what indicates unconstitutional discrimination in districting. It has never settled on a workable standard to judge whether or not a specific partisan gerrymander is unconstitutional. In November 2016, a lower court in Wisconsin struck down a partisan gerrymander and put forward what it claims is a workable standard to judge the …

Remedies And The Government's Constitutionally Harmful Speech, Helen Norton

Publications

Although governments have engaged in expression from their inception, only recently have we begun to consider the ways in which the government’s speech sometimes threatens our constitutional rights. In my contribution to this symposium, I seek to show that although the search for constitutional remedies for the government’s harmful expression is challenging, it is far from futile. This search is also increasingly important at a time when the government’s expressive powers continue to grow—along with its willingness to use these powers for disturbing purposes and with troubling consequences.

More specifically, in certain circumstances, injunctive relief, declaratory relief, or damages can …

The Growing Gender/Religion Divide, Marcia L. Mccormick

Marquette Benefits and Social Welfare Law Review

No abstract provided.

Transparency's Ideological Drift, David E. Pozen

Faculty Scholarship

In the formative periods of American "open government" law, the idea of transparency was linked with progressive politics. Advocates of transparency understood themselves to be promoting values such as bureaucratic rationality, social justice, and trust in public institutions. Transparency was meant to make government stronger and more egalitarian. In the twenty-first century, transparency is doing different work. Although a wide range of actors appeal to transparency in a wide range of contexts, the dominant strain in the policy discourse emphasizes its capacity to check administrative abuse, enhance private choice, and reduce other forms of regulation. Transparency is meant to make …

When Judges Are Theologians: Adjudicating Religious Questions, Michael A. Helfand

Michael A Helfand

The Future Of Religious Arbitration In The United States: Looking Through A Pluralist Lens, Michael A. Helfand

Michael A Helfand

Implied Consent To Religious Institutions: A Primer And A Defense, Michael A. Helfand

Michael A Helfand