Law Commons^™

Why Do The Poor Not Have A Constitutional Right To File Civil Claims In Court Under Their First Amendment Right To Petition The Government For A Redress Of Grievances?, Henry Rose

Faculty Publications & Other Works

Since 1963, the United States Supreme Court has recognized the constitutional right of entities and persons to pursue civil legal claims in American courts under the First Amendment right to petition government for redress of grievances. However, in a series of three cases decided by the Supreme Court in the early 1970’s - Boddie v. Connecticut, United States v. Kras and Ortwein v. Schwab - the Court inexplicably declined to address the appellants’ claims that they have a constitutional right to access the courts to seek resolution of their civil legal claims. In each of these three cases, the indigent …

Equality, Animus, And Expressive And Religious Freedom Under The American Constitution: Masterpiece Cakeshop And Beyond, Daniel O. Conkle

Books & Book Chapters by Maurer Faculty

Professor Conkle's contribution to this volume, pre-print attached, is the chapter "Equality, Animus, and Expressive and Religious Freedom Under the American Constitution: Masterpiece Cakeshop and Beyond."

CHAPTER ABSTRACT: Does the First Amendment protect religious wedding vendors from anti-discrimination laws that require them to provide goods or services for same-sex weddings? The fundamental question is whether equality or religious freedom should prevail in this setting, but the complexities of American free speech and free exercise law—exacerbated by the Supreme Court’s decision in Masterpiece Cakeshop—have obscured the debate with dubious distinctions and highly contentious rationales and arguments. In this Essay, I present …

Free Speech And Democracy: A Primer For Twenty-First Century Reformers, Toni M. Massaro, Helen Norton

Publications

Left unfettered, the twenty-first-century speech environment threatens to undermine critical pieces of the democratic project. Speech operates today in ways unimaginable not only to the First Amendment’s eighteenth-century writers but also to its twentieth-century champions. Key among these changes is that speech is cheaper and more abundant than ever before, and can be exploited — by both government and powerful private actors alike — as a tool for controlling others’ speech and frustrating meaningful public discourse and democratic outcomes.

The Court’s longstanding First Amendment doctrine rests on a model of how speech works that is no longer accurate. This invites …

How The Supreme Court Talks About The Press (And Why We Should Care), Helen Norton

Publications

No abstract provided.

Fields V. Speaker Of Pennsylvania House Of Representatives, Heidi Moore

NYLS Law Review

No abstract provided.

What Is Caesar's, What Is God's: Fundamental Public Policy For Churches, Lloyd Histoshi Mayer, Zachary B. Pohlman

Journal Articles

Bob Jones University v. United States is both a highly debated Supreme Court decision and a rarely applied one. Its recognition of a contrary to fundamental public policy doctrine that could cause an otherwise tax-exempt organization to lose its favorable federal tax status remains highly controversial, although the Court has shown no inclination to revisit the case and Congress has shown no desire to change the underlying statutes to alter the case’s result. That lack of action may be in part because the IRS applies the decision in relatively rare and narrow circumstances.
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Rethinking Protections For Indigenous Sacred Sites, Stephanie H. Barclay, Michalyn Steele

Journal Articles

Meaningful access to sacred sites is among the most important principles to the religious exercise of Indigenous peoples, yet tribes have been repeatedly thwarted by the federal government in their efforts to vindicate this practice of their religion. The colonial, state, and federal governments of this Nation have been desecrating and destroying Native American sacred sites since before the Republic was formed. Unfortunately, the callous destruction of Indigenous sacred sites is not just a troubling relic of the past. Rather, the threat to sacred sites and cultural resources continues today in the form of spoliation from development, as well as …

The Fourth Amendment’S Forgotten Free-Speech Dimensions, Aya Gruber

Publications

No abstract provided.

Transparency In Plea Bargaining, Jenia I. Turner

Faculty Journal Articles and Book Chapters

lea bargaining is the dominant method by which our criminal justice system resolves cases. More than 95% of state and federal convictions today are the product of guilty pleas. Yet the practice continues to draw widespread criticism. Critics charge that it is too coercive and leads innocent defendants to plead guilty, that it obscures the true facts in criminal cases and produces overly lenient sentences, and that it enables disparate treatment of similarly situated defendants.

Another feature of plea bargaining — its lack of transparency — has received less attention, but is also concerning. In contrast to the trials it …

No Exit: Ten Years Of "Privacy Vs. Speech" Post-Sorrell, G. S. Hans

Vanderbilt Law School Faculty Publications

A decade has passed since the U.S. Supreme Court held in Sorrell vs. IMS Health that a Vermont privacy law violated the First Amendment. Somewhat surprisingly, the debate about the intersection between privacy laws and free speech protections has not progressed much in the intervening years. If anything, the concerns that some privacy advocates had following Sorrell-that the First Amendment could be used as a tool to overturn privacy regulations-have extended to other areas of economic regulation. As a public interest attorney working on technology law and policy, I entered into practice not long after Sorrell was decided, when it …

Agonistic Privacy & Equitable Democracy, Scott Skinner-Thompson

Publications

This Essay argues that legal privacy protections—which enable individuals to control their visibility within public space—play a vital role in disrupting the subordinating, antidemocratic impacts of surveillance and should be at the forefront of efforts to reform the operation of both digital and physical public space. Robust privacy protections are a touchstone for empowering members of different marginalized groups with the ability to safely participate in both the physical and digital public squares, while also preserving space for vibrant subaltern counterpublics. By increasing heterogeneity within the public sphere, privacy can also help decrease polarization by breaking down echo chambers and …

The Small-Er Screen: Youtube Vlogging And The Unequipped Child Entertainment Labor Laws, Amanda G. Riggio

Seattle University Law Review

Family vloggers are among the millions of content creators on YouTube. In general, vloggers frequently upload recorded videos of their daily lives. Family vloggers are unique because they focus their content around their familial relationships and the lives of their children. One set of family vloggers, the Ace Family, has recorded their children’s lives from the day they were born and continue to upload videos of each milestone, including “Elle Cries on Her First Rollercoaster Ride” and “Elle and Alaïa Get Caught Doing What!! **Hidden Camera**.” Another vlogging couple, Cole and Savannah LaBrant, post similar content, including videos titled “Baby …

Why Do The Poor Not Have A Constitutional Right To File Civil Claims In Court Under Their First Amendment Right To Petition The Government For A Redress Of Grievances?, Henry Rose

Seattle University Law Review

Since 1963, the United States Supreme Court has recognized a constitutional right for American groups, organizations, and persons to pursue civil litigation under the First Amendment right to petition the government for redress of grievances. However, in three cases involving poor plaintiffs decided by the Supreme Court in the early 1970s—Boddie v. Connecticut,2 United States v. Kras,3 and Ortwein v. Schwab4—the Supreme Court rejected arguments that all persons have a constitutional right to access courts to pursue their civil legal claims.5 In the latter two cases, Kras and Ortwein, the Supreme Court concluded that poor persons were properly barred from …

How Journalists Think About The First Amendment Vis-À-Vis Their Coverage Of Hate Groups, Gregory Perreault, Jonathan Peters, Brett Johnson, Leslie Klein

Scholarly Works

This study, based on in-depth interviews with U.S.-based journalists (n = 18), explores the increasingly fraught circumstances of reporting on hate groups. We examine how journalists think about the First Amendment vis-à-vis their coverage of such groups. Through the lens of media ecology and First Amendment principles and theories, we argue ultimately that journalists who cover hate groups use the First Amendment to identify their place in the journalistic environment.

Mahanoy Area School District V. B.L.: The Court Protects Student Social Media But Leaves Unanswered Questions, David L. Hudson Jr.

Law Faculty Scholarship

In Mahanoy Area School District v. B.L.: The Court Protects Student Social Media but Leaves Unanswered Questions, published in the Cato Supreme Court Review, David L. Hudson Jr. analyzes the U.S. Supreme Court’s landmark decision addressing the scope of public schools’ authority over off-campus student speech on social media. Situating Mahanoy within the Court’s broader K–12 student speech jurisprudence—from Barnette and Tinker to Fraser, Hazelwood, and Morse—the Article explains how the Court declined to adopt a categorical rule excluding off-campus speech from regulation while nevertheless ruling in favor of the student. The majority recognized diminished school …

Kent State And The Failure Of First Amendment Law, Gregory P. Magarian

Scholarship@WashULaw

Since the U.S. Supreme Court decided its first free speech case 100 years ago, two very different eras have defined First Amendment law. For a half century, before 1970, the Supreme Court focused on protecting the expressive freedom of political dissidents and social reformers. In 1970, amid protests against the Vietnam War, the Ohio National Guard senselessly gunned down four students at Kent State University. The Kent State massacre exposed the fragility in our country of political protest, free speech, and democracy itself. That atrocity should have inspired First Amendment law to affirm and enhance its protection of dissenters and …

From After-School Detention To The Detention Center: How Unconstitutional School-Disruption Laws Place Children At Risk Of Prosecution For “Speech Crimes”, Frank Lomonte, Ann Marie Tamburro

Lewis & Clark Law Review

As unrest erupts across the country over issues of police violence and race, how and when police use their authority inside schools is receiving renewed scrutiny. Students of color are uniquely at risk of being subject to overzealous arrest as a result of a confluence of dangerous factors: Young people are constantly surveilled throughout the school day, constitutional search-and-seizure protections are diminished, and police have the benefit of not just the criminal laws that would apply in the “real world,” but a host of vague and subjective “speech crimes” for which they can justify detention, search, and arrest. This Article …

Stanley Fish, The First, And The Life Of The Law, Samuel A. Terilli, Jr.

FIU Law Review

No abstract provided.

Fish On First, Larry Alexander

FIU Law Review

No abstract provided.

Dehors The Record: A Correction Of A Final Jeopardy Question, Thomas E. Baker

FIU Law Review

No abstract provided.

Transparency And The First, Mark Fenster

FIU Law Review

No abstract provided.

Professor Fish—Why Are You Still Picking On Liberalism?, Micah Schwartzman

FIU Law Review

No abstract provided.

Is Free Speech An Academic Value? Is Academic Freedom A Constitutional Value?, Daniel Gordon

FIU Law Review

No abstract provided.

Business As Usual: Hobby Lobby And The Purpose Of Corporate Rights, Dalia Tsuk Mitchell

GW Law Faculty Publications & Other Works

This article explores the interdependence of the discourse of corporate rights and the law of corporate purpose. I argue that the history of corporate rights reflects changing reactions of the U.S. Supreme Court to social, political, and cultural concerns, each reaction offering a different purpose for corporations in our modern society. At the turn of the twentieth century, in response to fears about the advance of socialism, the Court used liberal assumptions to justify protecting the publicly held corporation’s property rights as derived from the rights of individual shareholders. In so doing, the Court helped turn the corporation, with its …

The Varieties Of Counterspeech And Censorship On Social Media, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

The year 2020 was without a doubt a remarkable and unprecedented one, on many accounts and for many reasons. Among other reasons, it was a year in which the major social media platforms extensively experimented with the adoption of a variety of new tools and practices to address grave problems resulting from harmful speech on their platforms — notably, the vast amounts of misinformation associated with the COVID-19 pandemic and with the 2020 presidential election and its aftermath. By and large — consistent with First Amendment values of combatting bad speech with good speech — the platforms sought to respond …

What Was The "Dartmouth College" Case Really About?, Charles R.T. O'Kelley

Vanderbilt Law Review

This Article is the first modern work of corporation law scholarship fully examining the Dartmouth College case as it was lived and understood at the time. Earlier scholars, the author of this Article included, have relied on the case to make doctrinal and theory-of-the firm arguments about Supreme Court precedents regarding the constitutional rights of corporations. Moreover, these earlier works have primarily focused on, and found talismanic meaning, in two sentences in Marshall’s opinion:

"A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties …

From Lex Informatica To The Control Revolution, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

Legal scholarship on the encounter between networked digital technologies and law has focused principally on how legal and policy processes should respond to new technological developments and has spent much less time considering what that encounter might signify for the shape of legal institutions themselves. This essay focuses on the latter question. Within fields like technology studies, labor history, and economic sociology, there is a well-developed tradition of studying the ways that new information technologies and the “control revolution” they enabled—in brief, a quantum leap in the capacity for highly granular oversight and management—have elicited long-term, enduring changes in the …

Debunking “De Minimis” Violations Of Prisoners’ Religious Rights: Further Problems With The Supreme Court’S “Hands Off” Approach, Samantha Sparacino

Touro Law Review

Circuits are split as there continues to be an inconsistent application of Supreme Court doctrine stemming from the notion of the separation of church and the state. Imprisonment does not strip a wrongdoer of his constitutionally guaranteed rights and protections. Some Circuits have held that a minor, or de minimis, interpretation of an inmate’s religious rights can constitute a substantial burden under the Religious Land Use and Institutionalized Persons Act. In the absence of clear direction from the Supreme Court, I propose that courts should refrain from determining the value of a religious belief or practice as it relates …

Brief Of Religious Liberty Scholars As Amici Curiae In Support Of Defendants-Appellants, Michael Francisco, Richard W. Garnett

Court Briefs

No. SJC-12988
Margaret DeWeese-Boyd v. Gordon College

On Appeal from a Judgment of the Essex County Superior Court

From the Introduction

In the decision below, the trial court adopted a miserly understanding of the ministerial exception. It refused to apply it to a professor who taught social work at Gordon College, a Christian liberal arts school founded in 1889 which has a mission stating a "commitment to integrating faith and learning" and to "provide instruction in the Bible and other subjects" to prepare students "for the duties of the Christian ministry and other special forms of Christian work." RA/144,215. The …

Blackness As Fighting Words, Etienne C. Toussaint

Faculty Publications

The resurgence of worldwide protests by activists of the Movement for Black Lives (BLM) has ushered a global reckoning with the meaning of this generation’s rallying cry – “Black Lives Matter.” As citizens emblazon their streets with this expression in massive artistic murals, the Trump administration has responded with the militarized policing of non-violent public demonstrations, revealing not merely a disregard for public safety, but far worse, a concerted dismantling of protestors’ First Amendment rights. Nevertheless, BLM protests have persisted. Accordingly, this Essay considers the implications of this generation’s acclamation of Black humanity amidst the social tensions exposed during the …