Law Commons^™

Wake Up: How Application Of Garcetti To Public Educator Speech Harms Educators And Students Through The Lens Of Florida's Individual Freedom Act, Lindsay Mccarthy

St. John's Law Review

(Excerpt)

Nearly twenty of the nation’s states have enacted some kind of law that limits the teaching of controversial topics like race, gender, and politics. Within the last three years, these laws have become more commonplace as social movements like Black Lives Matter and #MeToo have brought topics like systemic racism and gender inequality to the nation’s attention. As the country becomes more polarized, state legislatures—typically conservative ones—have resorted to these censorship laws to fight back against the perceived indoctrination of children. The state that has gained the most notoriety for such laws is Florida. In 2022, Florida passed a …

Whose Right(S)?: Civil Rights Impact Of Cultural Conflicts In The Curriculum, S. David Mitchell

Faculty Publications

Statutes seeking to prohibit the teaching of certain curricular topics that are considered divisive infringe upon the civil rights of students, parents, and teachers. The conflict over what should be taught implicates the rights of students, specifically their right to receive and to learn information; the rights of parents, specifically the right to control the education of their children; and the rights of teachers, specifically the First Amendment and academic freedom. “Anti-Woke” legislation, as it is broadly termed, is designed to silence those who seek to engage in the critical analysis of the structural and systemic barriers that have prevented …

Misreading The Federal Child Pornography Statutes, Owen Senders

Georgia Criminal Law Review

For the past 40 years, federal courts have committed two grievous textual errors in interpreting the federal child-pornography statutes and sentencing guidelines. These errors have caused hundreds of wrongful convictions—many the bases for decades-long sentences—and have produced a body of caselaw that is profoundly incoherent and in direct conflict with basic tenets of First Amendment doctrine. They have also likely endangered children. This article identifies these errors, surveys their consequences, and suggests legal arguments for people charged or convicted under the child-pornography statutes.

The first error impacts the application of all of the federal child-pornography statutes and sentencing guidelines. These …

A Matter Of Public Concern: Wright V. Dorsey And The Need For Speech Protections Beyond Anti-Slapp Law, Henry Valentine

Duke Journal of Constitutional Law & Public Policy Sidebar

Wright v. Dorsey, a recent defamation case, demonstrates the limitations of anti-SLAPP ("Strategic Litigation Against Public Participation") law and the need for supplemental speech protections. Joshua Wright, an antitrust law practitioner and former professor, sued Elyse Dorsey and Angela Landry for defamation. Dorsey and Landry had claimed that Wright used his position as their professor (and later employer) to pressure them into non-consensual sexual relationships; Wright acknowledged their relationships but claimed they were fully consensual, and that stating otherwise was defamatory. Anti-SLAPP law failed to protect Dorsey and Landry even though Wright's lawsuit was ultimately a SLAPP. To better protect …

Under The Limelight Of Fame: Life, Success, And Revenge Porn—A Public Figure’S Right To Privacy Versus Speech On Matters Of Public Concern, Jose Garcia

Northern Illinois University Law Review

The twenty-first century continues to evolve technologically and socially. However, the main constant in society is the public’s devotion to celebrity culture. Celebrity culture constantly has the public’s attention, from Travis Kelce’s and Taylor Swift’s relationship, to the controversies surrounding President Donald Trump. As a result, being a public figure in a technologically advanced society comes with a limited right to privacy. Public figures over the years have become victims of nonconsensual pornography with limited options for recovery and accountability. California Civil Code Section 1708.85 is a prime example of a statute that poses a challenge to a public figure …

Applying The Public Forum Doctrine To Public Official And Campaign Social Media Accounts, Jonathan Peters, Skylar Bandoly

Vanderbilt Journal of Entertainment & Technology Law

The US Court of Appeals for the Second Circuit ruled in the 2019 case Knight First Amendment Institute at Columbia University v. Trump that the @realDonaldTrump Twitter account was a designated public forum, making it a First Amendment violation for President Trump to block users from it on the basis of their viewpoints. A few years later, in the 2024 case Lindke v. Freed, the US Supreme Court established a two-part test to determine whether a public official’s social media activity constituted state action under 42 U.S.C. § 1983. This Article reviews these and related cases to explore—in the context …

Tiktok On The Clock: It Is Time To Hold Social Media Platforms Responsible For The Dangerous Content They Push To Children, Angelina Rego

The Journal of Business, Entrepreneurship & the Law

This article examines the unresolved issue of social media companies endangering children through their targeted algorithms in a world where Section 230 protects them from any consequences. Part II will provide background on harmful content, like viral challenges, plaguing social media and endangering children. In addition, Part II will present an overview of Section 230’s immunity and its very limited exceptions. Next, Part III will analyze the legislative intent behind Section 230 and its relation to the First Amendment, highlighting that protecting children aligns with the act’s original purpose. Then, Part IV will discuss the few alternative workarounds available to …

Holding Up A Mirror To Hostile Gender Legislation: The Impact Of Drag Bans On The Theater Industry, Claire B. Epstein

Pace Law Review

States, particularly infringing upon the rights of the LGBTQIA+ community. Certain states have sought to introduce “drag ban” laws under the guise of protecting children from viewing obscene content. These laws, in effect, are harmful to people, children especially, and have a chilling effect on expression, leaving critical harm in their wake. Laws such as these cast a wide net of regulation, opening up otherwise innocent citizens to criminal and civil liability. The theater industry is particularly affected by these regulations, even if lawmakers do not acknowledge this potential harm. This article will focus on three laws seeking to regulate …

Legislative Transparency And Self-Government: Nevada And First Amendment Application, Allister Dias

Student Research

With the rise in political tension in the United States, the call for transparency from elected officials has reached an all-time high. While the role of American democracy is to promote a sense of participation from constituents, the lack of information regarding policy decisions has exempted the public from the halls of the legislature. This policy brief examines legislative transparency in Nevada through the concept of self-government theory. Despite a 1994 constitutional amendment to require publicly accessible legislative committee meetings, exemptions from Open Meeting Law and statutory exemptions continue to limit public access and further the divide between the government …

Beyond The Ivy League: Stopping The Spread Of Antisemitism On American Campuses: Hearing Before The H. Comm. On Educ. & The Workforce, 119th Cong., May 7, 2025 (Statement Of David D. Cole), David Cole

Testimony Before Congress

In this testimony, submitted to the House Committee on Education and the Workforce for a hearing on antisemitism on campus, I sought to offer a legal framework for considering antisemitic speech on campus. The testimony cautions against equating criticism of Israel with antisemitism. But more importantly, it notes that even where speech is actually antisemitic, it is generally protected by the First Amendment (and therefore also protected by private university policies that protect free speech on campus). Title VI of the Civil Rights Act does not prohibit antisemitic speech, even virulently antisemitic speech. It prohibits discrimination on the basis of …

What Copyright Can't Do, Blake E. Reid

Pepperdine Law Review

Copyright has become a powerful regulatory regime for modern American life. Copyrighted works, including text, images, video, sounds, music, and software, coupled with routine, frictionless copying, form a large part of the information, cultural and social context, and infrastructure of our increasingly digital society. Copyright law’s powerful remedies are now positioned to intervene in a wide range of everyday activities. As a result, scholars, policymakers, and advocates have increasingly called for modifying and applying U.S. copyright law to solve a wide range of public policy problems, from vindicating disability rights to protecting privacy to promoting competition among wireless carriers. But …

Creating Peaceful Coexistence Through Virtue: A Theological Approach To Institutional Religious Freedom, Equality, And The First Amendment, Alex Deagon

Journal of Catholic Legal Studies

(Excerpt)

In the current era of fraught tension between religious freedom and equality, scholars from across the spectrum of perspectives have called for generosity, empathy, and compromise from both sides. Drawing from chapters in my book A Principled Framework for the Autonomy of Religious Communities: Reconciling Freedom and Discrimination, in this Article I propose to give substantive content and criteria to such exhortations by adopting a theological perspective which aims to create peaceful coexistence through cultivating and applying Christian virtues such as love, grace, forgiveness, humility, and patience. Together, these virtues recognise the inherent worth of all humans as …

Brief Of Amici Curiae 775 Law Professors In Support Of Plaintiff's Motion For Summary Judgment And Declaratory And Permanent Injunctive Relief, Wilfred U. Codrington Iii, Haiyun Damon-Feng, Rebecca Ingber, Rachel Landy, Jacob Noti-Victor, Alexander A. Reinert, Anthony J. Sebok

Amicus Briefs

Amicus curiae brief submitted by 775 law professors in support of Susman Godfrey LLP's motion for summary judgment and request for declaratory and permanent injunctive relief in Susman Godfrey LLP v. Executive Office of the President. The brief argues that Executive Order 14263 unlawfully targets a law firm based on its clients, advocacy, and litigation activities, in violation of the First Amendment, Fifth Amendment, and Sixth Amendment. The amici contend that the order constitutes impermissible viewpoint discrimination, interferes with the right to counsel, and threatens the independence of the legal profession and the rule of law.

A Hermeneutic Phenomenological Study Of Missouri K-12 Public School Educators' Expression Experiences On Social Media, Jacob Murphy Small

Doctoral Dissertations and Projects

The purpose of this hermeneutic phenomenological study was to understand how Missouri public school educators experience their expression regarding social media, seeking to understand their views and lived experiences with expressing themselves on social media. The theory guiding this study was Bandura’s social cognitive theory as it explains the learned behavior of teachers exercising their agency through social media. The central research question for this study was, what are the lived experiences of Missouri K-12 public school educators regarding their expression on social media? This study examined the lived experiences of Missouri public school teachers, gaining an insight to teachers’ …

The Impact Of Counterman V. Colorado On Stalking Prosecutions In Idaho, Stephanie Wodnik

Idaho Law Review

This Note reflects on the recent United States Supreme Court decision in Counterman v. Colorado, which held that in order to find liability for true threat crimes the state or plaintiff must prove the defendant’s subjective intent to threaten the recipient. The holding creates a new, additional burden on the movant to prove intent, where before, the majority of state and circuit courts only required an objective, reasonable person standard to prove intent in true threat cases. Idaho, being one of the states that previously used a reasonable person standard in prosecuting true threats, is affected by this holding …

When Can A Lawyer Lawfully Use Threats When Negotiating?, James M. Fischer

St. Mary's Journal on Legal Malpractice & Ethics

This Article focuses upon a basic negotiation device—a threat, used in a particular context—threats contained in settlement demand letters. In some, but not all, cases, however, the threat may be deemed a crime (extortion), in which case, the lawyer may be subject to sanction (criminal or civil liability, professional discipline) for making the threat. This consequence has, however, been largely ignored in academic literature. That is unfortunate, for it appears that many lawyers are unaware of the risks negotiation threats present because the risk is not well defined in the professional codes lawyers would normally look to for guidance.

This …

Re-Evaluating Fulton V. City Of Philadelphia: A “Narrow” “Wisp” Of A Decision Or Free Exercise “Bedrock?”, Mark Rienzi

Catholic University Law Review

In Fulton v. City of Philadelphia (2021), a unanimous Supreme Court held that Philadelphia violated the Free Exercise Clause by excluding Catholic Social Services from participating in its foster program because CSS would not certify same-sex couples. Both supporters and critics of the Court’s decision publicly characterized the decision as “narrow” and noted that Philadelphia (and other governments) can easily sidestep Fulton and continue excluding religious providers from foster and adoption programs.

Four years later, the evidence shows that Fulton is anything but narrow. In Philadelphia and in other jurisdictions, Fulton has played a strong role in ending litigation against …

The Challenges Facing Academic Freedom And Free Speech, Keith E. Whittington

Catholic University Law Review

There are growing challenges to free speech and academic freedom on American college campuses. There is pressure from both the political left and the political right to suppress controversial speech on campus, and there are calls to restrict speech that come both from members of the campus community and from those beyond the campus gates. In this difficult environment, it is essential that academics both understand the principles of academic freedom and campus free speech and work to advocate for them.

Preserving First Amendment Values: Social Media And The Harmful Content Test, Liam Watts

Undergraduate Honors Theses

We live in a world in which the internet is unavoidable. It is used for our everyday tasks (such as sending business emails) and is even used to communicate with other individuals around the world (through messaging services, for example). Another unavoidable aspect of the internet is social media; it is used for communication, news gathering, and engaging in discussion, inter alia. Sometimes, the way individuals use social media is quite aversive. Thus, social media companies have rightfully tried to govern their platforms in a way that attempts to reduce the harm that comes from aversive content. However, social media …

Church And State Collide: The Constitutional Implications Of Louisiana's Ten Commandments Bill, Kimberly Aliaga

Brigham Young University Prelaw Review

: In the summer of 2024, Louisiana’s governor signed House Bill 71 (HB71), which mandated all K-12 schools to display the Ten Commandments in classrooms. While proponents of the bill claim it serves a secular purpose to promote morality and historical literacy, precedent cases like Stone v. Graham (1980) suggest otherwise. By requiring the display of the Ten Commandments in public classrooms, HB71 is a violation of the Establishment Clause and Free Exercise Clause found in the First Amendment. This article analyzes the bill by comparing it to similar cases, and by applying both the Lemon and Endorsement Test to …

The Waiting Is The Hardest Part: The Constitutionality Of Firearm Waiting Periods, F. Lee Francis

Dickinson Law Review (2017-Present)

This Article examines the constitutionality of firearm waiting period laws through the lens of the Supreme Court’s evolving Second Amendment jurisprudence. Although such laws are frequently defended as prudent public safety measures, their validity turns not on legislative purpose but on constitutional principle, particularly as framed in District of Columbia v. Heller and New York State Rifle & Pistol Ass’n v. Bruen.

Under those decisions, the scope of the Second Amendment is determined not by judicial balancing of contemporary interests, but by reference to the Nation’s historical tradition of firearm regulation. The Article surveys that tradition and finds no …

The Problem Of Biased Precedents, Ronen Avraham, Issachar Rosen-Zvi

Cardozo Law Review

This Article addresses the problem ofbiased precedents, wherein sophisticated repeat players, often corporate and state entities armed with superior resources and a vested interest in shaping the law, manipulate legal proceedings to systematically establish self-advantageous precedents. Specifically, by strategically choosing to litigate cases they anticipate will lead to favorable precedents and settling those expected to produce unfavorable outcomes, these players systematically bias the law over time to their advantage, at the expense of one-shot parties and society at large. The problem of biased precedents challenges the commonly held view about the efficiency and fairness of the legal system and raises …

The Pamela Anderson Exception: How The Public Figure Doctrine Makes Involuntary Pornography A Subject Of Public Concern In Congress’S Revenge Porn Statute, Jared Kossover

Vanderbilt Law Review

Congress’s chosen remedy for the proliferation of online revenge porn has a design flaw. The Violence Against Women Reauthorization Act, codified in 15 U.S.C. § 6851, provides a civil right, enforceable in federal court, to victims of nonconsensual pornography. However, exceptions for matters within the “public concern,” written into the statute with the First Amendment in mind, weaken the force of the Act and threaten to make its proscriptions a nullity. This Note calls on Congress to narrow the public concern exception in the Violence Against Women Reauthorization Act to include only matters of political significance. Such an amendment will …

Guaranteeing The Press, Jacob M. Schriner-Briggs

St. John's Law Review

A vibrant press is vital to meaningful self-government. Indeed, the indispensability of investigative journalism to democracy raises the stakes of the news industry’s ongoing collapse. Many of the country’s most prominent outlets are shedding jobs as local operations shutter entirely. The downstream effects of this market contraction frustrate the informed exercise of popular sovereignty.

Because journalism is a public good in the economic sense, the state must intervene to provision it. To this end, scholars have generally endorsed one of two legal bases for government action. The first argues that the First Amendment can constitutionalize press-favoring market interventions. The second …

A Supreme Sidestep: The Justices’ Artful Dodge On Platform Immunity, Leslie Garfield Tenzer

Northwestern Journal of Technology and Intellectual Property

The foiled ISIS plot to attack Taylor Swift concerts, coordinated by teens on social media platforms with a significant US presence, illustrates the dangerous consequences of unchecked online content. This incident, coupled with other tragic cases—such as the sexual exploitation of a minor lured through Facebook and Tyler Clementi’s suicide following a privacy violation on Twitter—highlights the urgent need to reassess 47 U.S.C. § 230 of the Communications Decency Act. Enacted in 1996, this law provides broad immunity to interactive computer services, including social media platforms, shielding them from liability for user-generated content. While initially celebrated as a catalyst for …

Get Educated: Ask, Tell, And Say Gay, Matthew Oster

St. John's Law Review

(Excerpt)

On July 6, 1999, Private Barry Winchell was murdered in his sleep by a fellow soldier for dating a transgender woman. Superiors were aware that Private Winchell was being harassed for dating a transgender woman but took no action to stop it. U.S. Department of Defense Directive 1304.26, commonly referred to as “Don’t Ask, Don’t Tell” (“DADT”), was the policy for the United States military for nearly two decades beginning in 1993. A policy meant to protect “unit cohesion” instead itself engendered hatred and violence among servicemembers. Unfortunately, government-sanctioned discrimination against the LGBTQ+ community did not end with the …

In The Age Of Garcetti: Public Teachers' Free Speech Rights Within The Transgender-Student Debates, Hannah Bradvica

Pepperdine Law Review

A culture war over gender identity is playing out on the school playground, as conservative lawmakers across the country have introduced and implemented various pieces of anti-trans legislation focused on stripping away the privacy and expression of transgender students’ identities. An important question within this legislation remains: may public school teachers be exempt from following these policies? This Comment examines teachers’ free speech rights within two contexts: mandated parental notification of transgender-student policies and guidelines requiring teachers to adhere to students’ preferred pronouns. It considers the viability of compelled-speech claims brought by teachers, applying First Amendment jurisprudence and Garcetti v. …

Retaliation And Confrontation Of The State, Jon Mcneal

Vanderbilt Law Review

Popular resistance to the weaponization of government has eroded in America. On the political Right, the post-Reagan consensus favoring limited government has given way to a new generation of leaders—like Vice President J.D. Vance and Florida Governor Ron DeSantis—who openly advocate for using state power against their political opponents. Collectively they are the New Right: a populist, antiestablishment, conservative movement opposing pluralistic systems, institutions, and cultural elites. While both political liberals and conservatives have wielded state power against their adversaries, leveraging state power to reward friends and punish enemies is fundamental to the New Right’s worldview. Following German jurist Carl …

Civil Rights V The First Amendment, And The Erosion Of The Belief–Action Dichotomy, Elena Lacorte

University of Miami Race & Social Justice Law Review

No abstract provided.

Brief For Religious Liberty Scholars In Support Of Petitioners, Mark S. Storslee, Kevin T. Baine, Richard S. Cleary Jr., Ian M. Swenson, Joshua A. Hanley, Richard W. Garnett

Court Briefs

No. 24-154
Catholic Charities Bureau, Inc. v. State of Wisconsin Labor and Industry Review Commission

On Petition for a Writ of Certiorari to the Supreme Court of the State of Wisconsin

From the Summary of Argument

The First Amendment’s Religion Clauses prohibit the government from answering religious questions or discriminating among religions. At a minimum, that means courts may not dole out protection to some religious groups but not others based on favored or supposedly ‘typical’ religious activities. When administering statutory exemptions whose beneficiaries are religious organizations, courts may not gainsay organizations’ sincere religious beliefs to impose their own view …