Law Commons^™

Can The Undue-Burden Standard Add Clarity And Rigor To Intermediate Scrutiny In First Amendment Jurisprudence? A Proposal Cutting Across Constitutional Domains For Time, Place & Manner Regulations, Clay Calvert, Minch Minchin

UF Law Faculty Publications

When the government regulates the time, place, or manner of speech, it must satisfy intermediate scrutiny and prove that (1) it has a significant interest, (2) the regulation is narrowly tailored, and (3) ample alternative channels of expression remain open. This article advocates simplifying and improving this test in First Amendment jurisprudence by replacing the often-confused second and third prongs with the far less deferential and much more rigorous undue-burden test embraced by the U.S. Supreme Court in 2016 in the abortion-regulation case of Whole Woman’s Health v. Hellerstedt. Incorporating the undue-burden standard maintains intermediate scrutiny’s balancing framework while …

The Government Speech Doctrine In Walker’S Wake: Early Rifts And Reverberations On Free Speech, Viewpoint Discrimination, And Offensive Expression, Clay Calvert

UF Law Faculty Publications

This Article examines the immediate effects on free expression of the U.S. Supreme Court’s 2015 ruling in Walker v. Texas Division, Sons of Confederate Veterans, Inc. involving the government speech doctrine. In Walker, a sharply—and largely partisanly—divided Court upheld, in the face of a First Amendment challenge, Texas’s decision denying a private organization’s application for a specialty license plate featuring Confederate battle flag imagery. This Article initially reviews the government speech doctrine and Walker. It then analyzes Walker’s impact on cases that, like it, involve specialty license plate programs. Next, this Article explores lower court efforts stretching …

Legislating The First Amendment: A Trio Of Recommendations For Lawmakers Targeting Free Expression, Clay Calvert

UF Law Faculty Publications

This Article offers three recommendations for lawmakers attempting to restrict expression that is presumptively protected by the First Amendment. The proposals include: (1) embracing a ''prism of protection" through which all potential laws affecting expression are filtered prior to drafting; (2) mandating inclusion of sunset clauses in all statutes that may detrimentally impact free expression; and (3) adopting a comprehensive legislative oversight and review process for determining if an expired statute should be renewed, revised or abandoned. Although far from creating what Dean Roscoe Pound more than 100 years ago called a "science of legislation, " the proposals here nonetheless …

Beyond Trademarks And Offense: Tam And The Justices’ Evolution On Free Speech, Clay Calvert

UF Law Faculty Publications

In Matal v. Tam , the Supreme Court threw out the “disparagement clause” of the Lanham Act, the federal trademark law, because trademarks are private speech and thus regulating them based on government determinations of offensiveness violates the First Amendment. The solid outcome here contrasts with the narrow, incremental results in some other recent First Amendment cases that reached the Court.

Recent Development: Mitchell V. Md. Motor Vehicle Admin.: Vanity Licence Plates Constitute Private Speech In A Nonpublic Forum, Which Require Restrictions To Be Reasonable And Viewpoint Neutral, Sarah J. Jentilet

University of Baltimore Law Forum

The Court of Appeals of Maryland held that the Motor Vehicle Administration acted within constitutional boundaries when it recalled a vanity license plate displaying the word "MIERDA." Mitchell v. Md. Motor Vehicle Admin., 450 Md. 282, 288, 148 A.3d 319, 323 (2016). The court found that the message on a vanity plate is considered private speech in a nonpublic forum, and accordingly government speech restrictions must be reasonable and viewpoint neutral. Id.

In 2009, the Motor Vehicle Administration ("MVA") issued vanity plates with the term "MIERDA" to John T. Mitchell ("Mitchell"). Two years later, Mitchell renewed the plates. Thereafter, the …

Church, State & The Trump Administration, Public Rights/Private Conscience Project

Center for Gender & Sexuality Law

President Donald Trump has repeatedly pledged to be a staunch defender of religious liberties. Nevertheless, his campaign promises, as well as statements made by him and his cabinet appointees, suggest that Trump holds a limited and deeply flawed understanding of religious freedom, among other constitutional rights and guarantees. While members of the new administration will act quickly and aggressively to advance certain conservative Christian religious tenets by limiting the rights of LGBTQ communities and curtailing access to reproductive health care, the President has promised to significantly restrain the rights of religious minorities by imposing a Muslim immigration ban, increase profiling …

Trump And Cabinet Nominees Seek To Restrict Muslim Rights, Break Down The Wall Between Church And State, Public Rights/Private Conscience Project

Center for Gender & Sexuality Law

A new document issued by the Public Rights/Private Conscience Project (PRPCP) at Columbia Law School outlines the numerous areas in which the Trump administration will seek to advance particular conservative Christian tenets, restrict the rights of religious minorities, and break down the barrier between church and state. Enactment of the administration’s policy priorities would call into question the careful balance that currently exists between the First Amendment and other fundamental rights guaranteed under the Constitution. The report, entitled Church, State & the Trump Administration, highlights the ways in which the new administration’s early executive actions and cabinet nominations, as …

Natural Rights And The First Amendment, Jud Campbell

Law Faculty Publications

The Supreme Court often claims that the First Amendment reflects an original judgment about the proper scope of expressive freedom. After a century of academic debate, however, the meanings of speech and press freedoms at the Founding remain remarkably hazy. Many scholars, often pointing to Founding Era sedition prosecutions, emphasize the limited scope of these rights. Others focus on the libertarian ideas that helped shape opposition to the Sedition Act of 1798. Still more claim that speech and press freedoms lacked any commonly accepted meaning. The relationship between speech and press freedoms is contested, too. Most scholars view these freedoms …

A Right To Know How You'll Die: A First Amendment Challenge To State Secrecy Statutes Regarding Lethal Injection Drugs, Kelly A. Mennemeier

Journal of Criminal Law and Criminology

In the years since 2008, when the Supreme Court upheld the constitutionality of a commonly used lethal injection protocol in Baze v. Rees, states have shifted away from the approved protocol and turned towards new drugs, drug protocols, and drug sources to carry out state-sponsored executions by lethal injection. Even as states have shifted to new, untested protocols and less-regulated sources than they used in pre-Baze years, state legislatures have enacted and amended secrecy statutes that hide information about the drug protocols and sources of lethal injection drugs from the press, the public, and condemned prisoners. Meanwhile, a …

Campus Speech And Harassment, Alexander Tsesis

Faculty Publications & Other Works

No abstract provided.

Ballot Selfies: Balancing The Right To Speak Out On Political Issues And The Right To Vote Free From Improper Influence And Coercion, Isidora Koutsoulias

Journal of Law and Policy

Courts and legislatures face the difficult task of balancing individual First Amendment rights with other basic freedoms, a task that has become increasingly challenging with the advent of new technology. The emergence of the ballot selfie has caused a legal uproar due to the perception that it may compromise the sanctity of the electoral process and the secret ballot process by facilitating vote buying and coercion. Consequently, several states have enacted laws that prohibit most or all ballot selfies. However, many individuals have rightfully protested these laws as an unreasonable restraint on freedom of speech. This Note argues that although …

A License To Infringe: The Tenth Circuit's Reliance On The Reasonable Observer Test To Determine Symbolic Speech Protection Of License Plates, Hayley Stillwell

Faculty Articles

No abstract provided.

Costing Out Campus Speaker Restrictions, Suzanne B. Goldberg

Faculty Scholarship

Frederick Schauer gently points out the challenging, and arguably absurd, situation we find ourselves in today, where a commitment to free expression has enabled provocateurs not only to spew hostile messages into our communities but also to divert extraordinary levels of resources to protect their messaging.

This is not new, of course. As Professor Schauer details, governments and courts have long wrestled with speakers dropping into communities where they are not wanted, generating significant tension and upset, and requiring outsized expenditures in efforts to ensure public safety.

Indecency Four Years After Fox Television Stations: From Big Papi To A Porn Star, An Egregious Mess At The Fcc Continues, Clay Calvert, Minch Minchin, Keran Billaud, Kevin Bruckenstein, Tershone Phillips

University of Richmond Law Review

Using the WDBJ case as an analytical springboard, this article examines the tumultuous state of the FCC's indecency enforcement regime more than three years after the Supreme Court's June 2012 opinion in Fox Television Stations. Part I of this article briefly explores the missed First Amendment opportunities in Fox Television Stations, as well as some possible reasons why the Supreme Court chose to avoid the free-speech questions in that case." Part II addresses the FCC's decision in September 2012 to target only egregious instances of broadcast indecency and, in the process, to jettison hundreds of thousands of complaints that had …

With The Best Of Intentions: First Amendment Pitfalls For Government Regulation Of Signage And Noise, Kara Consalo

Journal Publications

A basic tenant of American jurisprudence is the protection of speech under the First, Fifth, and Fourteenth Amendments to the United States Constitution, as well as sections 4 and 9 of Article I of the Florida Constitution. While the extent of free speech is not limitless, this Article demonstrates that government attempts to regulate speech through regulation of signage and noise has been significantly curtailed by both federal and state courts in recent years. Further, a constitutional challenge to a government regulation will often be reviewed de novo as a pure question of law and is therefore subject to a …

Government Speech And The War On Terror, Helen Norton

Publications

The government is unique among speakers because of its coercive power, its substantial resources, its privileged access to national security and intelligence information, and its wide variety of expressive roles as commander-in-chief, policymaker, educator, employer, property owner, and more. Precisely because of this power, variety, and ubiquity, the government's speech can both provide great value and inflict great harm to the public. In wartime, more specifically, the government can affirmatively choose to use its voice to inform, inspire, heal, and unite -- or instead to deceive, divide, bully, and silence.

In this essay, I examine the U.S. government's role as …

Making News: Balancing Newsworthiness And Privacy In The Age Of Algorithms, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

In deciding privacy lawsuits against media defendants, courts have for decades deferred to the media. They have given it wide berth to determine what is newsworthy and so, what is protected under the First Amendment. And in doing so, they have often spoken reverently of the editorial process and journalistic decision-making.

Yet, in just the last several years, news production and consumption has changed dramatically. As we get more of our news from digital and social media sites, the role of information gatekeeper is shifting from journalists to computer engineers, programmers, and app designers. The algorithms that the latter write …

The Tip Of The Iceberg: A First Amendment Right To Promote Drugs Off-Label, Christopher Robertson

Faculty Scholarship

Scholars, advocates, and courts have begun to recognize a First Amendment right for the makers of drugs and medical devices to promote their products “off-label,” without proving safety and efficacy of new intended uses. Yet, so far, this debate has occurred in a vacuum of peculiar cases, where convoluted commercial speech doctrine underdetermines the outcome. Juxtaposing these cases against other routine prosecutions of those who peddle unapproved drugs reveals the common legal regime at issue. Review of the seven arguments deployed in the off-label domain finds that, if they were valid, they would undermine the FDA’s entire premarket approval regime. …

The Wholesale Exclusion Of Religion From Public Benefits Programs: Why The First Amendment Religion Clauses Must Take A Backseat To Equal Protection, Michael J. Borger

Touro Law Review

No abstract provided.

#Protected Hashtags, Trademarks, And The First Amendment, Delaram Yousefi

Touro Law Review

No abstract provided.

A Missed Opportunity To Clarify Students' First Amendment Rights In The Digital Age, Elizabeth Shaver

Akron Law Faculty Publications

In the last decade, the federal circuit courts have grappled with the issue whether, and to what extent, school officials constitutionally may discipline students for their off-campus electronic speech. Before 2015, three federal circuit courts had extended school authority to off-campus electronic speech by applying a vague test that allows school officials to reach far beyond the iconic “schoolhouse gate” referenced in the Supreme Court’s landmark decision in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) Two other federal circuits had avoided the issue altogether by deciding the cases before them on other grounds. In 2015, …

Unlawful Assembly As Social Control, John D. Inazu

Scholarship@WashULaw

Recent public protests from Occupy to Ferguson have highlighted anew the offense of unlawful assembly. This Article advances the simple but important thesis that contemporary approaches to unlawful assembly cede too much discretion to law enforcement. Too many unlawful assembly provisions neglect important elements of earlier statutory formulations. They also ignore constitutional principles meant to constrain the scope and extent of discretionary enforcement of social control by public authorities. In doing so, they fall short of the aspirations of the First Amendment — stifling dissent, muting expression, and ultimately weakening the democratic experiment. We can do better. We can start …

Medical Futility And Religious Free Exercise, Teneille R. Brown

Utah Law Faculty Scholarship

A tragic scenario has become all too common in hospitals across the United States. Dying patients pray for medical miracles when their physicians think that continuing treatment would render no meaningful benefit. This situation is unfortunately referred to as “medical futility.” In these cases, physicians, who are less likely than their patients to rely on God as a means of coping with major illness, are at an impasse. Their patients request everything be done so that they can have more time for God to intervene, but in the physician’s professional experience, everything will probably do nothing. What is the physician …

Sex, Drugs, And Eagle Feathers: An Empirical Study Of Federal Religious Freedom Cases, Luke W. Goodrich

Utah Law Faculty Scholarship

This Article presents one of the first empirical studies of federal religious freedom cases since the Supreme Court’s landmark decision in Hobby Lobby. Critics of Hobby Lobby predicted that it would open the floodgates to a host of novel claims, transforming “religious freedom” from a shield for protecting religious minorities into a sword for imposing Christian values in the areas of abortion, contraception, and gay rights.

Our study finds that this prediction is unsupported. Instead, we find that religious freedom cases remain scarce. Successful cases are even scarcer. Religious minorities remain significantly overrepresented in religious freedom cases; Christians remain significantly …

Ballot Selfies: Balancing The Right To Speak Out On Political Issues And The Right To Vote Free From Improper Influence And Coercion, Isidora Koutsoulias

Journal of Law and Policy

Courts and legislatures face the difficult task of balancing individual First Amendment rights with other basic freedoms, a task that has become increasingly challenging with the advent of new technology. The emergence of the ballot selfie has caused a legal uproar due to the perception that it may compromise the sanctity of the electoral process and the secret ballot process by facilitating vote buying and coercion. Consequently, several states have enacted laws that prohibit most or all ballot selfies. However, many individuals have rightfully protested these laws as an unreasonable restraint on freedom of speech. This Note argues that although …

Privacy And The Right To Record, Margot E. Kaminski

Publications

Many U.S. laws protect privacy by governing recording. Recently, however, courts have recognized a First Amendment “right to record.” This Article addresses how courts should handle privacy laws in light of the developing First Amendment right to record.

The privacy harms addressed by recording laws are situated harms. Recording changes the way people behave in physical spaces by altering the nature of those spaces. Thus, recording laws can be placed within a long line of First Amendment case law that recognizes a valid government interest in managing the qualities of rivalrous physical space, so as not to allow one person’s …

Standing After Snowden: Lessons On Privacy Harm From National Security Surveillance Litigation, Margot E. Kaminski

Publications

Article III standing is difficult to achieve in the context of data security and data privacy claims. Injury in fact must be "concrete," "particularized," and "actual or imminent"--all characteristics that are challenging to meet with information harms. This Article suggests looking to an unusual source for clarification on privacy and standing: recent national security surveillance litigation. There we can find significant discussions of what rises to the level of Article III injury in fact. The answers may be surprising: the interception of sensitive information; the seizure of less sensitive information and housing of it in a database for analysis; and …

Checking The Government’S Deception Through Public Employee Speech, Helen Norton

Publications

No abstract provided.

Authorship, Disrupted: Ai Authors In Copyright And First Amendment Law, Margot E. Kaminski

Publications

Technology is often characterized as an outside force, with essential qualities, acting on the law. But the law, through both doctrine and theory, constructs the meaning of the technology it encounters. A particular feature of a particular technology disrupts the law only because the law has been structured in a way that makes that feature relevant. The law, in other words, plays a significant role in shaping its own disruption. This Essay is a study of how a particular technology, artificial intelligence, is framed by both copyright law and the First Amendment. How the algorithmic author is framed by these …

Religious Freedom And Recycled Tires: The Meaning And Implications Of Trinity Lutheran, Richard W. Garnett, Jackson C. Blais

Journal Articles

The Supreme Court's decision in Trinity Lutheran clearly affirmed a First Amendment rule against anti-religious discrimination. At the same time, it raised or left open a number of important and interesting questions about education reform, the relevance of anti-Catholic bias to states' so-called Blaine Amendments, and the sharpening tension between religious freedom and the application of antidiscrimination laws.