Law Commons^™

Justice Davide Souter And His Care For First Amendment Freedoms, David Hudson

Law Faculty Scholarship

Justice David Souter left a remarkable legacy during his time on the U.S. Supreme Court. Nowhere was this more evident than in his sensitivity and solicitude for First Amendment freedoms. This essay examines Justice Souter’s First Amendment legacy primarily through his jurisprudence in three areas: (1) the secondary effects doctrine; (2) public employee free-speech cases; and (3) Establishment Clause opinions.

Cultural Democracy And The First Amendment, Jack M. Balkin

Northwestern University Law Review

Freedom of speech secures cultural democracy as well as political democracy. Just as it is important to make state power accountable to citizens, it is also important to give people a say over the development of forms of cultural power that transcend the state. In a free society, people should have the right to participate in the forms of meaning-making that shape who they are and that help constitute them as individuals.

The digital age shows the advantages of a cultural theory over purely democracy-based theories. First, the cultural account offers a more convincing explanation of why expression that seems …

Foreword, Cassandra Myers

Northwestern University Law Review

No abstract provided.

Multifactoral Free Speech, Alexander Tsesis

Northwestern University Law Review

This Article presents a multifactoral approach to free speech analysis. Difficult cases present a variety of challenges that require judges to weigh concerns for the protection of robust dialogue, especially about public issues, against concerns that sound in common law (such as reputation), statutory law (such as repose against harassment), and in constitutional law (such as copyright). Even when speech is implicated, the Court should aim to resolve other relevant individual and social issues arising from litigation. Focusing only on free speech categories is likely to discount substantial, and sometimes compelling, social concerns warranting reflection, analysis, and application. Examining the …

A Free Speech Response To The Gay Rights/Religious Liberty Conflict, Andrew Koppelman

Northwestern University Law Review

The most sensible reconciliation of the tension between religious liberty and public accommodations law, in the recent cases involving merchants with religious objections to same-sex marriage, would permit business owners to present their views to the world, but forbid them either to threaten to discriminate or to treat any individual customer worse than others. Even if such businesses have no statutory right to refuse to facilitate ceremonies they regard as immoral, they are unlikely to be asked to participate in those ceremonies. This solution may, however, be forbidden by the law of hostile environment harassment. That raises a severe free …

The Democratic First Amendment, Ashutosh Bhagwat

Northwestern University Law Review

Over the past several decades, the Supreme Court and most First Amendment scholars have taken the position that the primary reason why the First Amendment protects freedom of speech is to advance democratic self-governance. In this Article, I will argue that this position, while surely correct insofar as it goes, is also radically incomplete. The fundamental problem is that the Court and, until recently, scholars have focused exclusively on the Religion Clauses and the Free Speech Clause. The rest of the First Amendment—the Press, Assembly, and Petition Clauses—might as well not exist. The topic of this Article is the five …

The Government Brand, Mary-Rose Papandrea

Northwestern University Law Review

In Walker v. Texas Division, Sons of Confederate Veterans, Inc., the U.S. Supreme Court held that Texas could deny the Sons of Confederate Veterans a specialty license plate because the public found the group’s Confederate flag logo offensive. The Court did not reach this conclusion because it deemed the Confederate flag to fall within a category of unprotected speech, such as true threats, incitement, or fighting words; because it revisited its determination in R.A.V. v. City of St. Paul that restrictions on hate speech are unconstitutional; because travelers who see the license plates are a “captive audience”; or because …

Siri-Ously? Free Speech Rights And Artificial Intelligence, Toni M. Massaro, Helen Norton

Northwestern University Law Review

Computers with communicative artificial intelligence (AI) are pushing First Amendment theory and doctrine in profound and novel ways. They are becoming increasingly self-directed and corporal in ways that may one day make it difficult to call the communication ours versus theirs. This, in turn, invites questions about whether the First Amendment ever will (or ever should) cover AI speech or speakers even absent a locatable and accountable human creator. In this Article, we explain why current free speech theory and doctrine pose surprisingly few barriers to this counterintuitive result; their elasticity suggests that speaker humanness no longer may be …

Human Rights Law And Racial Hate Speech Regulation In Australia: Reform And Replace?, Dr. Alan Berman

Georgia Journal of International & Comparative Law

No abstract provided.

Testimony Before The House Committee On Science, Space And Technology, Charles Tiefer

All Faculty Scholarship

Thank you for the opportunity to testify today. I served in the House General Counsel’s office in 1984-1995, becoming General Counsel (Acting). (Since 1995, I have been Professor at the University of Baltimore School of Law,)

So, I have lengthy fulltime experience, including extensive work on Congressional subpoenas. My work takes in whether the House, or this Committee, may justifiably try to enforce subpoenas against state Attorneys General (the answer being: no). I have had more years of experience than almost anyone else in House history focused on this area. While the other professors on this panel have done various …

The Freedom To Film Pornography, Marc J. Randazza

Nevada Law Journal

No abstract provided.

Newsroom: Good Reason For Secrecy On 38 Studios 8/12/2016, Niki Kuckes, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

The Deregulatory First Amendment At Work, Charlotte Garden

Faculty Articles

It has been more than seventy years since Justice Hugo Black wrote that First Amendment rights were “essential to the poorly financed causes of little people.” Since then, the well-financed causes of the powerful have discovered the First Amendment as well, deploying it to crowd out the little people in electoral politics and undo their legislative successes in the courts. The seeds for this project were planted in the 1970s — the decade in which Justice Lewis Powell joined the Court, and in which the Court decided both Buckley v. Valeo and Virginia State Board of Pharmacy v. Virginia Citizens …

The Wrong Of Publicity, Albert Vetere

Pace Intellectual Property, Sports & Entertainment Law Forum

The right of publicity has been, since at least 1977, a recognized concept. It was used, much like the other areas of intellectual property law to protect what a person had worked hard to create, in this case the concept of themselves. Their creativity in making themselves known and in having an "act" was worth protecting. However, the right of publicity has drastically changed since its conception. What is has become in the past almost forty years is a strange amalgamation of concepts, protected by laws that were never meant to be used to protect it in the first place. …

Copyright’S Other Functions, Margaret Chon

Chicago-Kent Journal of Intellectual Property

This response to a keynote speech by Judge Margaret McKeown explores some dimensions of copyright in addition to its dominant function as a set of market-facilitating exclusive rights. The recent possible trend towards protecting privacy and other non-commercial concerns via copyright law is not necessarily inconsistent with its historical usages, does not necessarily threaten freedom of expression and may further important privacy policies. The balance of these competing policies is shifting, especially in an environment of proliferating digital content where cyber civil rights may need further development in response to cyberbullying. It examines the specific case of non-consensual pornography as …

Suspect Assertions Of Copyright, Edward Lee

Chicago-Kent Journal of Intellectual Property

No abstract provided.

The Challenges Of Following Good Advice About Copyright And The First Amendment, Alfred C. Yen

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Prosecuting Online Threats After Elonis, Michael Pierce

Northwestern University Law Review

In Elonis v. United States, decided last term, the Supreme Court vacated a conviction for online threats on the ground that the lower court erred in its instructions to the jury regarding mens rea. In doing so, however, the Court declined to articulate which mens rea standard would have sustained a conviction. It is thus currently uncertain which mens rea the government must prove when prosecuting online threats under 18 U.S.C. § 875(c). The Elonis Court discussed three potential mens rea standards; as universal standards for online threats, each leaves something to be desired. Fortunately, federal courts need not …

Taking A Bite Out Of Michael Vick's Publicity Rights: An Analysis Of How Teh Right Of Publicity Should Be Treated After A Celebrity Is Convicted Of A Crime, Stephen Reginald Fowler

Journal of Intellectual Property Law

No abstract provided.

The Air Jordan Rules: Image Advertising Adds New Dimension To Right Of Publicity–First Amendment Tension, Stephen Mckelvey, Jonathan Goins, Frederick Krauss

Fordham Intellectual Property, Media and Entertainment Law Journal

Every year, corporations spend on average nearly thirty-five billion dollars on sports-related marketing, ranging from stadium naming rights and promotional sponsorships, to commercials and endorsement deals. In mining through some of the potential legal traps, corporate advertisers understand that utilizing the name, image, or likeness of athletes or celebrities in marketing and promotional campaigns requires some form of consent and compensation. Corporations hire lawyers for “advertising clearance”: to ensure that slogans, logos, and images are available for use, and that video and music in audio-visual recordings are otherwise licensed. The concept of getting permission or authorization is relatively straight-forward. However, …

Copyright And Freedom Of Expression In Historical Perspective, Pamela Samuelson

Journal of Intellectual Property Law

No abstract provided.

Trapped In Public: The Regulation Of Street Harassment And Cyber-Harassment Under The Captive Audience Doctrine, Joanne Sweeny

Nevada Law Journal

No abstract provided.

The Freedom Of Speech In Public Forums On College Campuses: A Single-Site Case Study On Pushing The Boundaries Of The Freedom Of Speech, Alexander Davidson

Journalism

The purpose of this single-site study is to test how far speech can be pushed before it is no longer protected at the California Polytechnic State University. The purpose isn’t merely to push limitations for the sake of testing boundaries, but it is to see what types of speech truly add to the marketplace of ideas and what types simply do not. The main points of the study are to understand what speech is protected and what speech is not protected on California Polytechnic State University’s campus and to understand how the provocation that comes along with “negative speech” can …

Sex, Videos, And Insurance: How Gawker Could Have Avoided Financial Responsibility For The $140 Million Hulk Hogan Sex Tape Verdict, Christopher French

Faculty Scholarship

On March 18, 2016, and March 22, 2016, a jury awarded Terry Bollea (a.k.a Hulk Hogan) a total of $140 million in compensatory and punitive damages against Gawker Media for posting less than two minutes of a video of Hulk Hogan having sex with his best friend’s wife. The award was based upon a finding that Gawker intentionally had invaded Hulk Hogan’s privacy by posting the video online. The case has been receiving extensive media coverage because it is a tawdry tale involving a celebrity, betrayal, adultery, sex, and the First Amendment. The case likely will be remembered by most …

Protecting Public Employee Trial Testimony, Joseph Deloney

Chicago-Kent Law Review

In a number of jurisdictions around the United States, police officers and other public employees that regularly testify as part of their ordinary job duties can be placed in compromising positions. Because these types of employees regularly testify as part of their ordinary job duties, such testimony is considered “employee speech” and therefore unprotected by the First Amendment. Consequently, governmental employers can take adverse employment actions against an employee based on his or her truthful trial testimony without violating the employee’s First Amendment rights. Drawing from the Supreme Court’s 2014 decision in Lane v. Franks and other circuit court cases, …

Gutting Public Sector Unions: Friedrichs V. California Teachers Association, Jake Wasserman

Duke Journal of Constitutional Law & Public Policy Sidebar

In Friedrichs v. California Teachers Association, public-sector unions face a constitutional challenge that could lead to their demise. In California, all public school employees are represented by a union--whether or not they are union members--and are required to pay an agency fee. This requirement seems to run contrary to the First Amendment, which generally prohibits the government from compelling citizens to support the speech and expressive activities of a private organization. This commentary argues that the Court should not overrule its decision in Abood v. Detroit Board of Education and uphold the validity of agency-shop agreements.

“They Outlawed Solidarity!”, Richard Blum

Seattle University Law Review

In attacking § 8(b)(4)(ii)(B)’s ban on secondary labor picketing in support of a consumer boycott as a violation of the First Amendment, critics have repeatedly condemned the Supreme Court’s reliance on a supposed distinction between “pure speech” and “speech plus conduct,” such as a picket. The Court’s invocation of an “unlawful objectives” doctrine to defend banning speech contrary to public policy has also been repeatedly criticized. After all, picketing has been recognized as protected expressive activity and it is entirely lawful for consumers to choose to boycott the target of a picket. However, commentators have not sought to argue that …

Elonis V. United States: The Need To Uphold Individual Rights To Free Speech While Protecting Victims Of Online True Threats, Alison J. Best

Maryland Law Review

No abstract provided.

Constitutional Personhood, Zoe Robinson

College of Law Faculty

Over the past decade, in a variety of high-profile cases, the Supreme Court has grappled with difficult questions as to the constitutional personhood of a variety of claimants. Of most note are the recent corporate constitutional personhood claims that the protections of the First Amendment Speech and Religion Clauses extend to corporate entities. Corporate constitutional personhood, however, is only a small slice of a broader constitutional question about who or what is entitled to claim the protection of any given constitutional right. Beyond corporations, courts are being asked to answer very real questions about a person’s constitutional status: Do aliens …

A Tricky Negotiation: Free Speech Versus Insensitivity, Melvin Dilanchian

Washington University Undergraduate Law Review

The central question presented in this paper is whether specialty license plates constitute government speech, and are thus subject to disapproval by the Board of the Texas Department of Motor Vehicles. The core concerns reviewed in this research, largely focus on defining whose speech specialty license plates are. The purpose is to investigate and analyze the precedent established as a result of a recent case, Walker v. Texas Division, Sons of Confederate Veterans. The paper thoroughly reviews the arguments made in the majority opinion, as well as those of the dissenting opinion, with an interdisciplinary approach. The argument presented …