Law Commons^™

State Constitutional Duty And Public Employee Speech, Scott R. Bauries

Georgia Law Review

Public employees do not sacrifice their constitutional rights by accepting public employment, but the doctrines surrounding public employee constitutional rights present a unique amalgam of rights and duties. Nowhere is this amalgam clearer than in the doctrine of public employee free speech. Under the federal Constitution’s First Amendment, public employees, notwithstanding their government roles, may speak out as citizens on matters of public concern, and any restrictions a government employer places on that speech must be justified by compelling workplace concerns that outweigh the speech interests of the employee and the interests of the public in access to relevant information. …

White Christian Nationalism & Antisemitism: A True Threat, Doron Kalir

FIU Law Review

The ideology of Jewish hatred, also known as antisemitism, has deep roots. In the United States, antisemitism has known a long and complicated history; in the early 1940s, it reached peak levels. Now, more than 80 years later, antisemitism again rears its ugly head, aiming to end the Golden Age of American Jewry. The exclusionary ideology aiming to obliterate the wall separating Church and state, and to institutionalize Christian identity and values into the public square, also known as White Christian Nationalism, has deep roots. In the United States, it had a long and complicated history; by the mid 1920s, …

Free Movement Rights And The American City, Ryan Stoa

FIU Law Review

American cities are facing an inflection point. Widespread dissatisfaction with urban planning outcomes is making land use and transportation policies (such as congestion pricing) a mainstream topic of debate. Suburban sprawl and housing shortages are moving urban populations into the periphery, commuting times (and associated mental health problems) are increasing, and pedestrian and cyclist deaths caused by vehicles are at all-time highs. American cities that were largely planned and built in the twentieth century based on assumptions that we now know are flawed are not meeting the needs of their residents, and urban planners are making changes to reshape urban …

The Ten Commandments In Louisiana Public Schools: A Study In The Survival Of Establishment Clause Norms, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

In June 2024, Louisiana enacted legislation requiring the prominent posting of the Ten Commandments on the wall of every public-school classroom. In Roake v. Brumley, a federal district court decided that the requirement violated the Establishment Clause. Judge DeGravelles’s lengthy opinion followed the Supreme Court’s 1980 decision in Stone v. Graham, which invalidated a highly similar Kentucky law. In late June 2025, in an opinion by Judge Ramirez, the U.S. Court of Appeals for the Fifth Circuit affirmed the district court in every significant respect. Texas recently enacted similar legislation, now under the cloud of Roake v. Brumley.

In this …

The Supreme Court Should Overrule Red Lion, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In this essay Professor Pierce uses the Jimmy Kimbell incident as the point of entry for his argument that the Supreme Court’s 1969 opinion in Red Lion v. FCC is inconsistent with today’s reality and dangerous. He urges the Court to overrule it.

Mahmoud V. Taylor: Cause Or Effect Of Disruptions In The Public Schools?, Richard Katskee, Ira C. Lupu

GW Law Faculty Publications & Other Works

Mahmoud v. Taylor represents an extraordinary departure from long-standing constitutional norms about the rights of parents of children in public schools. In Mahmoud, the Supreme Court upheld a Free Exercise Clause claim by parents in Montgomery County, Maryland, who sought to have their children (grades K–5) excused from readings that contain LGBTQ characters and themes. The majority opinion by Justice Alito rests on a highly controversial reading of Wisconsin v. Yoder.

Part I of the paper provides the doctrinal and historical backdrop to Mahmoud, which reflects the acute tension between a once-narrow understanding of Yoder and the post-Obergefell backlash against …

Money, Money, Money: Universities, Government Funding, And Academic Freedom, Mary-Rose Papandrea

GW Law Faculty Publications & Other Works

Since the federal government began its large-scale funding of research at the start of World War II, the United States and American universities have been in a mutually beneficial relationship. The federal government has reaped the benefits of countless scientific, social science, and technological discoveries that have promoted national security and served the general welfare. In return, American universities have developed extraordinary research enterprises that are regarded as among the best in the world.

From the outset of this relationship, however, scientists and university administrators expressed concern that federal funding would interfere with institutional autonomy and academic freedom. President Trump’s …

The Eu Versus The Platforms And The First Amendment: Regulating Online Hate Speech, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

What speech should be allowed on social media platforms—and what speech should be prohibited—is a pressing and timely question. Given the recent changes in major social media platforms’ moderation of harmful speech—with the tacit blessing of a 2024 Supreme Court decision and the Trump Administration—and the European Union’s increased regulation of hateful speech and platform content moderation, a clash of these titans is inevitable.

This Article will examine the underlying forces that brought about these conflicts—including First Amendment, CDA Section 230, international, and EU law governing free expression, hate speech, and platforms’ rights and duties regarding content moderation. It will …

The Impossibility Of Religious Equality, Zalman Rothschild

Articles

The Supreme Court has recently adopted a new rule of religious equality: Laws unconstitutionally discriminate against religion when they deny religious exemptions but provide secular exemptions that undermine the law’s interests to the same degree as would a religious exemption. All the Justices and a cadre of scholars have agreed in principle with this approach to religious equality. This Essay argues that this new rule of religious equality is inherently unworkable, in part because it turns on treating that which is religious the same as its secular “comparators.” But religion is not comparable to anything neither in terms of its …

Facial Recognition Technology And The First Amendment, Joseph A. Tomain

Articles by Maurer Faculty

The growing ubiquity of facial recognition technology (FRT) is a problem. While much has been written on harmful government use of FRT, little has been written regarding harmful private actor use. This Article helps fill a gap in the literature by providing a detailed analysis of the First Amendment interests at stake when private actors use FRT. Specifically, this Article analyzes whether laws that limit the use of publicly available photographs to create faceprints for inclusion in FRT databases violate the First Amendment rights of private actors.

In May 2025, a multidistrict litigation against Clearview AI, an FRT company, offered …

For Whose Benefit Is The Freedom Of Speech?, Vincent A. Blasi

Faculty Scholarship

In United States v. Alvarez, the US Supreme Court ruled that an official of a water district who introduced himself to his constituents by falsely stating in a public meeting that he had earned the Congressional Medal of Honor had a First Amendment right to make that demonstrably untrue claim. Audience members misled by the statement might well be considered to have a First Amendment interest in not being directly and knowingly lied to in that way. Other members of the community might be thought to have a First Amendment interest in public officials such as Xavier Alvarez telling …

New York Times V. Sullivan: A Civil Rights Story, Samantha Barbas

Texas A&M Law Review

The 1964 Supreme Court decision in New York Times v. Sullivan established the “actual malice” rule in libel law, requiring that in order to win a libel suit, a public official must show that a defamatory statement was false and that the speaker made the statement knowing that it was false or “with reckless disregard of whether it was false or not.”

Sullivan involved a libel suit brought by segregationist Alabama officials against the New York Times (“Times”) and leaders of the civil rights movement. Sullivan arose from sectional battles over civil rights and integration in the 1960s. An all-white …

Title Vii & The First Amendment: Perpetuating The Lack Of Asian American Representation In The Entertainment Industry, Mandri Randeniya

Loyola of Los Angeles Entertainment Law Review

No abstract provided.

In The Name Of Tradition: A Comparative Study On Nonestablishment, Sungmin Cho

Washington Law Review

The Establishment Clause of the First Amendment to the United States Constitution prohibits the government from establishing a state religion. The U.S. Supreme Court has developed different tests to determine whether a government action complies with this principle. Over the past few decades, the Court gradually turned to whether the challenged practice is consistent with the history and tradition of the nation.

Meanwhile, the separation of church and state is not a notion unique to the United States. After centuries of Confucian monarchy, Korea drafted a modern constitution with a similar provision. Nevertheless, the Constitutional Court of Korea has upheld …

Brief Of First Amendment And Internet Law Professors As Amici Curiae In Support Of Petitioners, Tiktok Inc. V. Garland, No. 24-656 (U.S. 2025)., Shubhangi Agarwalla, Enrique Armijo, Kevin Bankston, Susan Benesch, Ashutosh Bhagwat, Stuart N. Brotman, Ryan Calo, Anupam Chander, Erwin Chemerinsky, Alan K. Chen, David Craig, Eric Goldman, Gregory Gondwe, James Grimmelmann, Nikolas Guggenberger, G.S. Hans, Robert A. Heverly, Thomas E. Kadri, David Kaye, Heidi Kitrosser, Vivek Krishnamurthy, Edward Lee, Mark A. Lemley, David S. Levine, Yvette Joy Liebesman, Gregory P. Magarian, Jess Miers, Sean O’Brien, Mary-Rose Papandrea, Kermit Roosevelt, Jennifer Safstrom, Pamela Samuelson, Madhavi Sunder, Christopher Jon Sprigman, Jordi Weinstock

Con Law Center Amicus Briefs

“Without freedom of thought, there can be no such thing as wisdom, and no such thing as public liberty, without freedom of speech.” Benjamin Franklin, Silence Dogwood, No. 8 (July 9, 1722). For this reason, the U.S. Constitution makes clear that the Government cannot abridge free speech based on its content or viewpoint absent compelling and narrowly tailored grounds. Indeed, the protection of all speech is foundational to American democracy. See United States v. Schwimmer, 279 U.S. 644, 654–55 (1929) (Holmes, J., dissenting) (“[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other …

Regulating Social Media Through Family Law, Katharine B. Silbaugh, Adi Caplan-Bricker

Faculty Scholarship

Social media afflicts minors with depression, anxiety, sleeplessness, addiction, suicidality, and eating disorders. States are legislating at a breakneck pace to protect children. Courts strike down every attempt to intervene on First Amendment grounds. This Article clears a path through this stalemate by leveraging two underappreciated frameworks: the latent regulatory power of parental authority arising out of family law, and a hidden family law within First Amendment jurisprudence. These two projects yield novel insights. First, the recent cases offer a dangerous understanding of the First Amendment, one that should not survive the family law reasoning we provide. First Amendment jurisprudence …

The Equal Right To Exclude: Religious Speech And The Road To 303 Creative Llc V. Elenis, Kate Redburn

Faculty Scholarship

This Article explains how speech became the constitutional vehicle for the right to discriminate on religious grounds in places of public accommodation. It argues that cause lawyers for the New Christian Right cobbled together a right to exclude from a surprising doctrinal source: the egalitarian tendencies within the First Amendment. Using extensive original archival research, case materials, and little-known accounts of key figures, I reconstruct the New Christian Right’s legal strategy to obtain speech coverage for service denial. By strategically co-opting the progressive free speech legacy, innovative lawyers in the religious wing of the conservative legal movement convinced liberal jurists …

School Choice & Religious Discrimination: A Story Of The Illusory "Wall Of Separation," Sour "Lemon Tests," And Overgrown "Baby Blaines", Keren Kendil

Touro Law Review

The significance of elementary school education in shaping a child's future, and the success of society, is immeasurable. The free public school system is built on the premise that every child deserves to have the equal opportunity to learn and succeed. However, this system overlooks the millions of children attending private schools due to their religious and moral convictions. This note delves into the imperative of ensuring universal access to quality elementary education for every child, irrespective of their family's religious affiliations or preferences for private schooling, highlighting the constitutional imperatives of ensuring that every child has the opportunity to …

Livin' On A Legislative Prayer: How Prayer At A School Board Meeting Survives Under An Exception To The Establishment Clause, Brian Muff

Touro Law Review

This Note discusses the circuit split between the Ninth Circuit and the Fifth Circuit on whether prayer should be permitted to open up a school board meeting. First introducing the topic and explaining the history of legislative prayer in America, the Note then discusses governing Supreme Court precedent concerning school prayer and legislative prayer. After analyzing the cases that are the subject of the circuit split, the Note concludes with a recommendation that the Supreme Court permit the recitation of prayer to begin a school board meeting, citing the commonalities between a school board and a legislature and making three …

Breaching The Walls Of The Inviolable Citadel: The Supreme Court's Treatment Of The Lemon Test And Its Progeny, Christopher C. Spinosa Jr.

Touro Law Review

The Supreme Court in Kennedy v. Bremerton finally laid the three-pronged Lemon test to rest. Instead of Lemon and its progeny, Establishment Clause cases are now to be decided based upon the historical practices and understandings of our Founding Fathers. Subsequently, the Eleventh Circuit instructed the Middle District of Florida to its analysis in Rojas v. City of Ocala. In Rojas, a prayer vigil occurred in the City's public square and featured uniformed police chaplains singing and engaging in Christian prayers. After this Note was written and submitted for publication, the district court issued its decision in Rojas …

The Necessary Opportunism Of The Common Law First Amendment, Chris Stangl

Tennessee Journal of Law and Policy

The First Amendment historically has been interpreted to provide greater and greater protection to more and more forms of expression. The notion of an originalist First Amendment has never commanded a majority of the Supreme Court and is unlikely to do so. Instead the development of the First Amendment has followed a common law trajectory. As the reach of its protections expands, so to do its attractiveness for arguments that may be more accurately located elsewhere in the Constitution's text. Such opportunism is a predictable, even necessary consequence of the First Amendment's common law development, and the Supreme Court tacitly …

Brief Of Amici Curiae Manhattan Institute And Notre Dame Education Law Project In Support Of Plaintiffs-Appellants And Reversal, Nicole Stelle Garnett, Ilya Shapiro, Tim Rosenberger

Court Briefs

CASE NO. 24-4291
John Woolard v. John Thurmond

On Appeal from the United States District Court for the Eastern District of California
Case No. 2:23-CV-02305-JAM-JDP

From the Summary of Argument

As part of California’s diverse array of education options, homeschooling parents may choose to enroll their children in independent-study charter schools, which work with parents to develop custom curriculum for their children’s unique educational needs. The plaintiffs did just that here and enrolled their children in Blue Ridge Academy and Visions in Education, both independent-study charter schools. Unfortunately, not all parents are able to avail themselves of this opportunity because …

Infringing Uses, Not Works, Timothy J. Mcfarlin

South Carolina Law Review

No abstract provided.

Lies, Counter-Lies, And Disinformation In The Marketplace Of Ideas, Enrique Armijo

Indiana Law Journal

The First Amendment’s main theoretical account has been as consistent as it has been influential. As John Stuart Mill wrote in On Liberty in 1859, and as First Amendment theory and doctrine, following Mill, have maintained since, the truthfinding process requires that truth and falsity collide in an open marketplace of ideas. Because false speech clarifies truth, and government cannot be trusted to decide for knowledge-seekers what is true, counterspeech is the proper—indeed in most cases the only—remedy for correcting falsity. However, this account itself relies on several false premises. Participants in knowledge production environments are often not motivated by …

Press Benefits And The Public Imagination, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

In an era when the press faces unprecedented challenges, those who believe in the importance of a free press find themselves playing defense. Press advocates have been forced to articulate, with renewed clarity and urgency, why the press is not merely important but vital to an effective democracy and why it needs to be saved from a “death spiral” and an “extinction-level event.” These arguments often focus on the crucial role the press plays—the “press function,” as lawyers call it—in informing the public, holding power to account, and facilitating democratic discourse.

Scholars and commentators generally discuss the press function through …

The Discipline Of Rudy Giuliani And The Real Fraud Of The 2020 Election, George M. Cohen

Catholic University Law Review

In Matter of Giuliani, the New York Appellate Division held that Rudy Giuliani’s knowingly false statements of fact during the period after the 2020 presidential election violated the Rules of Professional Conduct and warranted interim suspension of his license. This paper argues that the court reached the right result but did not use the best rule and the best rationale. Instead of focusing on Giuliani’s conduct as a series of false statements in support of a “narrative,” the better approach would have been to call it what it was: fraud. Although the fraud was not “transactional,” fraud, Giuliani’s false …

Coin Center V. Yellen Prompts Reconsideration Of The Vast Deference Afforded To The Department Of The Treasury, Emily Arterbury

Catholic University Law Review

This Comment examines the legal implications of the sanctions issued by the Department of the Treasury’s Office of Foreign Asset Control against Tornado Cash, an application that enables user privacy protection in transactions on the Ethereum blockchain. With the rapid expansion of the digital asset revolution, policymakers remained puzzled as to how to best establish a regulatory scheme that protects consumers without chilling innovation and investment in the digital asset market. The Office of Foreign Assets Control’s issuance of sanctions against Tornado Cash was an attempt to regulate an extremely volatile and unpredictable market. These sanctions prohibited all licit activity …

Do Public Accommodations Laws Compel “What Shall Be Orthodox”?: The Role Of Barnette In 303 Creative Llc V. Eleni, Linda C. Mcclain

Faculty Scholarship

This article addresses the U.S. Supreme Court's embrace, in 303 Creative LLC v. Elenis, of a First Amendment objection to state public accommodations laws that the Court avoided in Masterpiece Cakeshop v. Colorado Civil Rights Commission: such laws compel governmental orthodoxy. These objections invoke West Virginia Board of Education v. Barnette 's celebrated language: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith …

Opening Dialogue, Lee C. Bollinger, Geoffrey R. Stone

Faculty Scholarship

To set the stage for the excellent essays that make up this volume on the future of free speech, let’s begin where we often do when thinking together about the First Amendment: with some basic facts and fundamental observations about the constitutional command that “Congress shall make no law ... abridging the freedom of speech, or of the press.”

Of course, in the United States, “free speech” is not only part of the constitutional Bill of Rights; it is also a cultural and social norm by which we choose to live. Several of the essays in this volume therefore take …

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

Court Briefs

No. CV-2023-1857
OKPLAC, Inc. v. Statewide Virtual Charter School Board

From the Introduction

Plaintiffs' opposition to the motions to dismiss distills their challenge to the State's approval of St. Isidore of Seville Catholic Virtual School to its essence: Plaintiffs believe that Oklahoma may never allow a religious organization to operate a charter school because (they contend) any faith-based school would violate the Charter Schools Act and the Oklahoma Constitution. Their other arguments-alleging technical errors in the State's decision to contract with St. Isidore and baseless speculation about how they predict the school might one day violate the law-grow from this …