Law Commons^™

Platforms As Blackacres, Thomas E. Kadri

Scholarly Works

While writing this Article, I interviewed a journalist who writes stories about harmful technologies. To do this work, he gathers information from websites to reveal trends that online platforms would prefer to hide. His team has exposed how Facebook threatens people’s privacy and safety, how Amazon hides cheaper deals from consumers, and how Google diverts political speech from our inboxes. You’d think the journalist might want credit for telling these important stories, but he instead insisted on anonymity when we talked because his lawyer was worried he’d be confessing to breaking the law—to committing the crime and tort of cyber-trespass. …

Essay: A Continuing Constitutional Trend Of Using The First To Interpret The Second, David L. Hudson Jr.

Law Faculty Scholarship

This Essay examines the continuing constitutional trend of using First Amendment principles to interpret and develop Second Amendment doctrine. Beginning with District of Columbia v. Heller, in which the Supreme Court drew multiple analogies between the two amendments, the article traces how lower courts have relied on First Amendment jurisprudence to structure Second Amendment analysis. Courts have borrowed concepts such as the non-absolute nature of constitutional rights, the role of history and tradition, categorical exclusions, tiered standards of scrutiny, adequate alternatives, evidentiary requirements, and doctrines relating to fees, underinclusivity, and geographic limitations. At the same time, courts have rejected …

Regulatory Constitutional Law: Protecting Immigrant Free Speech Without Relying On The First Amendment, Michael Kagan

Georgia Law Review

The Supreme Court has long deprived immigrants of the full protection of substantive constitutional rights, including the right to free speech, leaving undocumented immigrants exposed to detention and deportation if they earn the government’s ire through political speech. The best remedy for this would be for the Supreme Court to reconsider its approach. This Essay offers an interim alternative borrowed from an analogous problem that arises under the Fourth Amendment. Under the Constitution, the Supreme Court has indicated that illegally obtained evidence may be suppressed in a removal proceeding only if the Fourth Amendment violation was “egregious.” Yet, some circuit …

Toxic Therapy: Examining The Constitutionality Of Conversion Therapy Bans In Light Of Otto, Kathleen Stoughton

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Covid-19, Churches, And Culture Wars, John D. Inazu

Scholarship@WashULaw

The First Amendment’s Free Exercise Clause often requires courts to balance competing interests of the highest order. On the one hand, the Constitution recognizes the free exercise of religion as a fundamental right. On the other hand, the government sometimes has compelling reasons for limiting free exercise, especially in situations involving dangers to health and safety. The shutdown and social distancing orders issued during the early phases of the COVID-19 pandemic not only restricted free exercise but also limited what many people consider to be the core of that exercise: religious worship. But the orders did so in order to …

Coase And Accommodation: A Reply, Frederick Mark Gedicks

Faculty Scholarship

Written for a Festschrift in honor of Michael Perry, this essay responds to the argument that the Coase theorem refutes the third-party harm doctrine, which holds that the Establishment Clause prohibits any religious accommodation imposing material burdens (“harms”) on those who derive no benefit from the accommodation because they do not engage in the exempted practice (“third parties”). In economic terms, the third-party harm doctrine prohibits negative externalities created by religious accommodations which shift material costs of practicing the accommodated religion to a relatively small number of third parties who practice a different religion or none at all.

Enter Coase, …

“A Force Created”: The U.S. Chamber Of Commerce And The Politics Of Corporate Immunity, Myriam E. Gilles

Articles

Upon its founding in 1912, the U.S. Chamber of Commerce was conceived as a “force created” to exert “a beneficent influence upon our national life” by integrating the views of the business community into governmental policies and regulations. That a force was created is beyond question. Beneficence is a separate issue.

Obstruction Of Journalism, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

Identifying oneself as press used to be a near-grant of immunity. It meant safer passage through all manner of dangerous terrain. But today, being recognizable as a journalist may be more likely to make one a target.

Physical attacks against journalists in the United States increased nearly 1,300 percent in 2020. The rate of online violence against journalists is also soaring. This violence is aimed almost entirely at women, people of color, non-Christians, and non-straight journalists. It silences voices already relegated to the edges. Rather than letting our national conversation branch, the violence attempts to shear it to a white, …

Protecting Free Speech And Due Process Values On Dominant Social Media Platforms, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

In recent years, dominant social media platforms like Facebook and Twitter have been increasingly perceived as engaging in discrimination against conservative and right-wing viewpoints – especially by conservatives themselves. Such concerns were exacerbated by Twitter and Facebook’s deplatforming of then-President Trump in response to the president’s tweets and posts leading up to and during the January 6 th insurrection. Trump’s deplatforming, coupled with the recent actions taken by the platforms in removing Covid- and election-related misinformation, led to cries of censorship by conservative and increased calls for regulation of the platforms. Supreme Court Justice Thomas took up this charge (in …

An Overview Of Privacy Law In 2022, Daniel J. Solove, Paul M. Schwartz

GW Law Faculty Publications & Other Works

Chapter 1 of PRIVACY LAW FUNDAMENTALS (6th edition, IAPP 2022) provides an overview of information privacy law circa 2022. The chapter summarizes the common themes in privacy laws and discusses the various types of laws (federal, constitutional, state, international). It contains a list and brief summary of the most significant U.S. federal privacy laws. The heart of the chapter is an historical timeline of major developments in the law of privacy and data security, including key cases, enactments of laws, major regulatory developments, influential publications, and other significant events. The chapter also contains a curated list of important treatises and …

Gordon College And The Future Of The Ministerial Exception, Peter J. Smith, Robert W. Tuttle

GW Law Faculty Publications & Other Works

In Gordon College v. DeWeese-Boyd, a social work professor at a religious college sued after she was denied promotion. The college asserted the “ministerial exception,” a judicially crafted and constitutionally grounded exception to the ordinary rules of liability arising out of the employment relationship between religious institutions and their ministers. Although the plaintiff had no distinctively religious duties, the college expected her (and all other faculty) to integrate the faith into her teaching and scholarship. The Massachusetts Supreme Judicial Court (SJC) held that this obligation, standing alone, was insufficient to qualify the plaintiff as a minister within the meaning of …

Obergefell, Masterpiece Cakeshop, Fulton, And Public-Private Partnerships: Unleashing V. Harnessing "Armies Of Compassion" 2.0?, Linda C. Mcclain

Faculty Scholarship

Fulton v. City of Philadelphia presented a by-now familiar constitutional claim: recognizing civil marriage equality—the right of persons to marry regardless of gender—inevitably and sharply conflicts with the religious liberty of persons and religious institutions who sincerely believe that marriage is the union of one man and one woman. While the Supreme Court’s 9-0 unanimous judgment in favor of Catholic Social Services (CSS) surprised Court-watchers, Chief Justice Roberts’s opinion did not signal consensus on the Court over how best to resolve the evident conflicts raised by the contract between CSS and the City of Philadelphia. This article argues that it …

Developments In The Laws Affecting Electronic Payments And Financial Services, Sarah Jane Hughes, Stephen T. Middlebrook, Tom Kierner

Articles by Maurer Faculty

The past year proved to be a busy period for the regulation of electronic payments and financial services. In this year’s survey, we discuss rulemakings, enforcement actions, and other litigation that has significantly impacted the law governing payments and financial services. Part II addresses the ongoing fight between federal and state authorities over which should properly regulate Fin- Tech entities and describes some new steps the Office of the Comptroller of the Currency (“OCC”) has taken to assert its authority in this area. Part III details an enforcement action that California regulators took against a FinTech company they determined had …

The Long Shadow Of United States V. Rosenberg: A Biographical Perspective On The Hon. Irving Robert Kaufman, Rodger D. Citron

Scholarly Works

No abstract provided.

Lawyers And The Lies They Tell, Bruce Green, Rebecca Roiphe

Articles & Chapters

Noting that the First Amendment protects lies about the government made in the public square, this article explores whether lawyers’ free speech rights ought to be different from that of other speakers. The law holds lawyers to a more demanding standard of conduct than others when it comes to aspects of lawyers’ fiduciary relationships with courts and clients. But how much more demanding can the law be when it comes to lawyers’ speech — in this case, false political speech? Applying the current First Amendment framework, we question the bar’s assumption that lawyers’ speech outside of these contexts can be …

Lawyers And The Lies They Tell, Bruce A. Green, Rebecca Roiphe

Faculty Scholarship

The law holds lawyers to a more demanding standard of conduct than others when it comes to aspects of their fiduciary relationships with courts and clients. For instance, states can sanction lawyers for some speech inside a courtroom that would be protected if uttered by a non-lawyer. This Article explores whether lawyers’ free speech rights should also be different from those of other speakers when lawyers, acting on their own behalf, participate in political discourse. Applying the current First Amendment framework, the authors question the bar’s assumption that, simply because lawyers are subject to rules of professional conduct, courts can …

Remarks On My Mentor, Robert Cover, Hon. Guido Calabresi

Touro Law Review

No abstract provided.

In The Name Of Diversity: Why Mandatory Diversity Statements Violate The First Amendment And Reduce Intellectual Diversity In Academia, Daniel M. Ortner

Catholic University Law Review

In the 1950s and 1960s in many parts of the country, a professor could be fired or never hired if he refused to denounce communism or declare loyalty to the United States Constitution. The University of California system took the lead in enforcing these loyalty oaths. These loyalty oaths were challenged all the way up to the United States Supreme Court and were soundly rejected, establishing the centrality of academic freedom and open inquiry on the university campus. So why are loyalty oaths making their resurgence in the form of mandatory diversity statements? Universities have begun requiring faculty members to …

Trouble With Names: Commercial Speech And A New Approach To Food Product Label Regulation, William Cusack

Duke Journal of Constitutional Law & Public Policy Sidebar

The Supreme Court has recognized First Amendment protection for “commercial speech” since 1975. Commercial speech doctrine seeks to balance advertiser interest in speech, consumer interest in information, and society’s interest that “economic decisions in the aggregate be intelligent and well-informed.” Regulations and compulsory disclosures of commercial speech play a part in ensuring consumers are well-informed. Yet, there continues to be consumer confusion surrounding the commercial speech doctrine’s application to food labeling. Lawmakers continue to pass regulations that are unnecessary or nonsensical. Regulators continue to enforce these regulations, even if the state interest in doing so is minimal or non-existent. There …

Revitalizing The Ban On Conversion Therapy: An Affirmation Of The Constitutionality Of Conversion Therapy Bans, Logan Kline

University of Cincinnati Law Review

No abstract provided.

Plausible Retaliation: Using Modern Pleading Standards As A Blueprint For First Amendment Retaliation Claims, Amy L. Moore

Law Faculty Scholarship

This Article examines the Supreme Court’s evolving doctrine governing First Amendment retaliatory arrest claims, focusing on the Court’s decision in Nieves v. Bartlett and its imposition of a lack-of-probable-cause requirement as a threshold element. Tracing the doctrinal development from Mt. Healthy City School District Board of Education v. Doyle through Hartman v. Moore, Reichle v. Howards, Lozman v. City of Riviera Beach, and Nieves, the Article argues that the Court improperly imported retaliatory prosecution logic into the arrest context without adequately accounting for modern pleading standards under Twombly and Iqbal. The Article contends that requiring …

The Powerful Problem Of Prayer At Public School Board Meetings, Amanda Harmon Cooley

Cardozo Law Review

No abstract provided.

Muzzling Anti-Vaxxer Fear Speech: Overcoming Free Speech Obstacles With Compelled Speech, Barbara Pfeffer Billauer

University of Miami Law Review

As the anti-vax industry continues to stoke fear and incite vaccine resistance, some means must be found to detoxify their false messages. Counterspeech, the preferred mode to deal with unfortunate rhetoric, is both ineffective and counter-effective when addressing factual “scientific speech” addressing health, I show here that many instances of the most potent anti-vax speech arise in the context of arguably commercial speech. I therefore investigate other free speech protections available to shield factually false anti-vax speech used in this context, concluding that while complete First Amendment protection may exist in the context of political speech (without proof of fraud), …

Brief Of Amicus Curiae Notre Dame Law School Religious Liberty Initiative In Support Of Petitioners, Nicole Stelle Garnett, Richard W. Garnett Iv, John A. Meiser, Steven A. Engel, Michael H. Mcginley, Eric D. Hageman, Justin M. Romeo, Lincoln Davis Wilson

Court Briefs

No. 20-1800
Harold Shurtleff v. City of Boston

On Writ of Certiorari to the United States Court of Appeals for the First Circuit

From the Summary of Argument

Invoking the specious rationale of “government speech,” the City of Boston unconstitutionally singled out religious expression for hostile treatment. By lumping speech based on “religion” together with speech deemed “inappropriate,” “offensive,” “discrimin[atory],” or “prejudice[d],” Pet.App.20, the City adopted the increasingly common view that promoting our Nation’s vibrant pluralism requires the exclusion of religious perspectives from the public square. But that view is antithetical to the Founders’ conception of religion as central—not peripheral—to …

The Thirteenth Amendment And One Hundred And Fifty Years Of Struggle To Criminalize Slavery: A First Amendment Challenge To The Forced Labor Act (18 U.S.C. § 1589), Niles Stefan Illich

St. Mary's Law Journal

Abstract forthcoming.

Justifying The Supreme Court’S Standards Of Review, R. Randall Kelso

St. Mary's Law Journal

Abstract forthcoming.

Absolute Publishing Power And Bulletproof Immunity: How Section 230 Shields Internet Service Providers From Liability And Makes It Impossible To Protect Your Reputation Online, Victoria Anderson

Seattle University Law Review Online

No abstract provided.

When Free Speech And Privacy Collide: Why Strict Scrutiny Is A Poor Fit For Nonconsensual Pornography Laws, Leah S. Murphy

Cardozo Law Review

No abstract provided.

Taking Exception To Assessments Of American Exceptionalism: Why The United States Isn’T Such An Outlier On Free Speech, Evelyn Mary Aswad

Dickinson Law Review (2017-Present)

One of the most significant challenges to human freedom in the digital age involves the sheer power of private companies over speech and the fact that power is untethered to existing free speech principles. Heated debates are ongoing about what standards social media companies should adopt to regulate speech on their platforms. Some have argued that global social media companies, such as Facebook and Twitter, should align their speech codes with the international human rights law standards of the United Nations (“U.N.”). Others have countered that U.S.-based companies should apply First Amendment standards. Much of this debate is premised on …

The Roberts Court Its First Amendment Free Expression Jurisprudence: 2005-2021, David L. Hudson Jr.

Law Faculty Scholarship

This Article, Fundamental First Amendment Principles, distills the complexity of First Amendment jurisprudence into ten core principles designed to guide students, lawyers, and scholars through what is often described as a labyrinthine body of law. Recognizing that free-speech doctrine lacks a single unifying framework, the authors identify foundational commitments that structure constitutional analysis, including the protection of criticism of government, the strong prohibition against viewpoint discrimination, the safeguarding of symbolic and offensive expression, and the recognition that not all speech is protected. The Article also emphasizes doctrines protecting the right not to speak, freedom of association, and the contextual …