Constitutional Law Commons^™

The First Amendment And The Regulation Of Speech Intermediaries, Shaun B. Spencer

Marquette Law Review

Calls to regulate social media platforms abound on both sides of the political spectrum. Some want to prevent platforms from deplatforming users or moderating content, while others want them to deplatform more users and moderate more content. Both types of regulation will draw First Amendment challenges. As Justices Thomas and Alito have observed, applying settled First Amendment doctrine to emerging regulation of social media platforms presents significant analytical challenges.

Inherent Powers And The Limits Of Public Health Fake News, Michael P. Goodyear

St. John's Law Review

(Excerpt)

In a Vero Beach, Florida, supermarket, Susan Wiles rode her motorized cart through the produce aisle. In any year other than 2020 or 2021, this would have been a routine trip to the grocery store. But in 2020, Mrs. Wiles was missing an accessory that had become ubiquitous in society during that year: a face mask. Despite causing a commotion, Mrs. Wiles stood by her decision, claiming that the concerns about COVID-19 were overblown: “I don’t fall for this. It’s not what they say it is.” Mrs. Wiles’ statement is emblematic of the year 2020. This is not the …

The Pledge Of Allegiance And Compelled Speech Revisited: Requiring Parental Consent, Caroline Mala Corbin

Indiana Law Journal

Since the Supreme Court decided West Virginia State Board of Education v. Barnette in 1943, free speech law has been clear: public schools may not force students to recite the Pledge of Allegiance. Nevertheless, in two states—Texas and Florida— students may decline to participate only with parental permission. The Eleventh Circuit Court of Appeals upheld the law on the grounds that the parental requirement furthered parents’ substantive due process right to control the upbringing of their children.

The Eleventh Circuit decision is flawed both in its understanding of the First Amendment right to be free of compelled speech and the …

Compelled Speech And The Regulatory State, Alan K. Chen

Indiana Law Journal

Since the Supreme Court’s 1943 decision in West Virginia Board of Education v. Barnette, it has been axiomatic that the First Amendment prohibits the government not only from censoring speech, but also from compelling it. The central holding of Barnette itself is largely uncontroversial—it seems obvious that the First Amendment’s free speech clause means that no government may require people to espouse or reproduce an ideological statement against their will. But the Court has extended the compelled speech doctrine to stop the government from forcing people to make even truthful, factual statements. These claims have resulted in some of the …

Tort Law Implications Of Compelled Physician Speech, Nadia N. Sawicki

Indiana Law Journal

Abortion-specific informed consent laws in many states compel physicians to communicate state-mandated information that is arguably inaccurate, immaterial, and inconsistent with their professional obligations. These laws face ongoing First Amendment challenges as violations of the constitutional right against compelled speech. This Article argues that laws compelling physician speech also pose significant problems that should concern scholars of tort law.

State laws that impose tort liability on physicians who refuse to communicate a state-mandated message often do so by deviating from foundational principles of tort law. Not only do they change the substantive disclosure duties of physicians under informed consent law, …

Compelled Disclosure And The Workplace Rights It Enables, Catherine Fisk

Indiana Law Journal

Worker and consumer protection laws often rely on the regulated entity to notify workers or consumers of their legal rights because it is effective and efficient to provide information at the time and place where it is most likely to be useful. Until the Supreme Court ruled in NIFLA v. Becerra in 2018 that a California law regulating crisis pregnancy centers was an unconstitutional speaker-based, contentdiscriminatory regulation of speech, mandatory disclosure laws were constitutionally uncontroversial economic regulation. Yet, the day after striking down a disclosure law in NIFLA, the Court in Janus v. AFSCME Council 31 expanded the right of …

Platforms: The First Amendment Misfits, Jane R. Bambauer, James Rollins, Vincent Yesue

Indiana Law Journal

This Essay explains why previous First Amendment precedents that allowed government to require a private entity to host the speech of others have limited applicability to online platforms like Twitter and Facebook. Moreover, the backdrop of an open internet makes platforms sufficiently vulnerable to competition and responsive to “listener” preferences that the dominance of some firms like Facebook and Google is not really a chokepoint: aggressive changes to content curation will lead to user dissatisfaction and defection, whether those changes are made by the government or the companies themselves. As a result, there are no close analogies in First Amendment …

Nifla And The Construction Of Compelled Speech Doctrine, Robert Post

Indiana Law Journal

Virginia State Board of Education v. Barnette. There are good and convincing explanations for the Court’s decision in Barnette, but the Court’s recent expansion of the doctrine, culminating in National Institute of Family & Life Advocates (NIFLA) v. Becerra, holds that compelled speech is in most instances “content-based” regulation requiring heightened judicial scrutiny.

Using examples ranging from professional malpractice to compulsory tax returns, this Article argues that the doctrinal rule of NIFLA is demonstrably incorrect. It suggests that the doctrinal category of “compelled speech” may itself be confused insofar as it imagines that all legal obligations to communicate are equally …

Is Corporate Law Nonpartisan?, Ofer Eldar, Gabriel V. Rauterberg

Articles

Only rarely does the United States Supreme Court hear a case with fundamental implications for corporate law. In Carney v. Adams, however, the Supreme Court had the opportunity to address whether the State of Delaware’s requirement of partisan balance for its judiciary violates the First Amendment. Although the Court disposed of the case on other grounds, Justice Sotomayor acknowledged that the issue “will likely be raised again.” The stakes are high because most large businesses are incorporated in Delaware and thus are governed by its corporate law. Former Delaware governors and chief justices lined up to defend the state’s “nonpartisan” …

How Favored, Exactly? An Analysis Of The Most Favored Nation Theory Of Religious Exemptions From Calvary Chapel To Tandon, Luray Buckner

Notre Dame Law Review

In this Note, I argue that Justice Kavanaugh’s most favored nation test for religious exemptions actually differs from the one employed by the majority of the Court in Tandon. The majority’s formulation of the test is vague and explicitly requires courts to engage in a fact-intensive comparability analysis. Practically, lower courts applying Tandon to religious exemption questions have exploited this comparability step to rule against religious claimants generally, but more specifically to deny them strict scrutiny. Because the Tandon test was formulated to apply to all free exercise claims, the test is necessarily framed in more general terms and …

“Rap Music On Trial”: Examining The Consequences Of Rap Lyrics Being Admissible At Trial, Malik Stewart

SLU Law Journal Online

Rap lyrics are being deemed admissible in court to convict criminal defendants. In this article, Malik Stewart considers the consequences of admitting rap lyrics to evidence to prove a defendant’s guilt, possible First Amendment violations, the efforts to prevent prosecutors from using rap lyrics as evidence, and the ways in which rap music is being targeted by prosecutors. The article also considers the emergence of Drill music and what to expect moving forward.

The Shurtleff Conundrum: Resolving The Conflict In Government-Speech And Public Forum Analysis, James Walraven

Duke Journal of Constitutional Law & Public Policy Sidebar

Shurtleff v. Boston is the Supreme Court's latest opportunity to clarify the murky line between the "government-speech" and "public forum" doctrines. The Court will decide whether the City of Boston violated the Free Speech Clause by refusing to fly a flag with Christian imagery in front of City Hall. The City had previously allowed the flying of numerous national and cultural flags by various organizations, but refused to fly a conservative social organization's "Christian flag" because of the City's fear of appearing to endorse a particular religion.

Under the public forum doctrine, private citizens' free speech is protected to varying …

Establishment’S Political Priority To Free Exercise, Marc O. Degirolami

Notre Dame Law Review

Americans are beset by disagreement about the First Amendment. Progressive scholars are attacking the venerable liberal view that First Amendment rights must not be constricted to secure communal, political benefits. To prioritize free speech rights, they say, reflects an unjust inflation of individual interest over our common political commitments. These disagreements afflict the Religion Clauses as well. Critics claim that religious exemption has become more important than the values of disestablishment that define the polity. Free exercise exemption, they argue, has subordinated establishment.

This Article contests these views. The fundamental rules and norms constituting the political regime—what the Article calls …

Outside Tinker’S Reach: An Examination Of Mahanoy Area School District V. B. L. And Its Implications, Michelle Hunt

Northwestern Journal of Law & Social Policy

In the 1969 landmark case Tinker v. Des Moines Independent Community School District, the Supreme Court reassured students that they do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Ever since then, the exact scope of students’ free speech rights has been unclear, but the high court has used Tinker’s substantial disruption test to clarify its scope in successive legal challenges. In 2017, B. L., a Mahanoy Area School District student, was suspended from her cheerleading team after using vulgar language off-campus that made its way back to her coaches. She …

Fundamental First Amendment Principles, David L. Hudson Jr.

Law Faculty Scholarship

In Fundamental First Amendment Principles, published in the Northern Illinois University Law Review, David L. Hudson Jr. and Jacob David Glenn distill the complexity of modern free-speech jurisprudence into ten foundational principles that structure First Amendment analysis. The Article emphasizes that the core of the First Amendment lies in protecting criticism of government and prohibiting viewpoint discrimination, while also safeguarding symbolic expression, offensive and unpopular speech, and the right not to speak. At the same time, the authors underscore that not all speech is protected, identifying historically recognized categorical exceptions such as incitement, true threats, obscenity, and defamation. The …

Lochner's Revenge: Tiered Scrutiny And The Acceptance Of Judicial Subjectivity, Phillip J. Closius

University of Cincinnati Law Review

No abstract provided.

Campaign Finance Reform, Union Dues, And The First Amendment: The Collision Of Politics And Rights, Mark Adams

Articles

No abstract provided.

Reassociating Student Rights: Giving It The Ole College Try, Tyler Mlakar

Arkansas Law Review

At the beginning of 2020, the World Health Organization (“WHO”) declared Coronavirus disease 2019 (“COVID-19”) a “public health emergency of international concern.” Governments around the world began instituting citywide and even nationwide “lockdowns.” In the United States, the approach was far more splintered. While there was no nationwide lockdown, states across the country instituted varying measures ranging from “shelter-in-place” and “stay at home” orders, to school closures, limits on the size of public gatherings, “mask mandates,” and even some states allowing restaurants and bars to remain open. Across the United States, these measures have resulted in the most pervasive governmental …

Why Arkansas Act 710 Was Upheld, And Will Be Again, Mark Goldfeder

Arkansas Law Review

A lie can travel halfway around the world while the truth is putting on its shoes. - ironically, not Mark Twain The recent Eighth Circuit ruling in Arkansas Times LP v. Waldrip, the lawsuit revolving around an Arkansas antidiscrimination bill, has led to a lot of (at best) confusion or (at worst) purposeful obfuscation by people unwilling or unable to differentiate between procedural issues and the constitutional merits of a case. In other words, reports of the bill’s death have been very much exaggerated.

Nobody's Business: A Novel Theory Of The Anonymous First Amendment, Jordan Wallace-Wolf

Law Faculty Scholarship

Namelessness is a double-edged sword. It can be a way of avoiding prejudice and focusing attention on one's ideas, but it can also be a license to defame and misinform. These points have been widely discussed. Still, the breadth of these discussions has left some of the depths unplumbed, because rarely is the question explicitly faced: what is the normative significance of namelessness itself, as opposed to its effects under different conditions? My answer is that anonymity is an evasion of responsibility for one's conduct. Persons should ordinarily be held responsible for what they do, but in some cases, where …

Professional Speech At Scale, Cassandra Burke Robertson, Sharona Hoffman

Faculty Publications

Regulatory actions affecting professional speech are facing new challenges from all sides. On one side, the Supreme Court has grown increasingly protective of professionals’ free speech rights, and it has subjected regulations affecting that speech to heightened levels of scrutiny that call into question traditional regulatory practices in both law and medicine. On the other side, technological developments, including the growth of massive digital platforms and the introduction of artificial intelligence programs, have created brand new problems of regulatory scale. Professional speech is now able to reach a wide audience faster than ever before, creating risks that misinformation will cause …

Regulating Fraud On The Marketplace Of Ideas: Federal Securities Law As A Model For Constitutionally Permissible Social Media Regulation, Michael M. Epstein

Seattle University Law Review

This article begins with an introduction discussing speech falsity and the duty under U.S. law by comparing commercial and noncommercial speech. Part I explores the problem of online disinformation. Part II addresses online disinformation in a non-commercial context. Part III contains three subsections assesses non-transactional commercial speech as a basis for non-commercial disinformation regulation. Part IV advocates for a fiduciary duty to fashion a remedy. Part V of this article concludes by suggesting a possible solution for creating a online disinformation law that could survive the First Amendment.

Keynote Address, Justin Hansford

Seattle University Law Review

Keynote Address by Justin Hansford

Clouded Precedent: Tandon V. Newsom And Its Implications For The Shadow Docket, Alexander Gouzoules

Faculty Publications

The Supreme Court’s “shadow docket”—the decisions issued outside its procedures for deciding cases on the merits—has drawn increasing attention and criticism from scholars, commentators, and elected representatives. Shadow docket decisions have been criticized on the grounds that they are made without the benefit of full briefing and argument, and because their abbreviated, per curiam opinions can be difficult for lower courts to interpret.

A spate of shadow docket decisions in the context of free-exercise challenges to COVID-19 public health orders culminated in Tandon v. Newsom, a potentially groundbreaking decision that may upend longstanding doctrines governing claims brought under the Free …

The Stubborn Survival Of The Central Hudson Test For Commercial Speech, Nat Stern

Seattle University Law Review

This Article examines the persistence of the Central Hudson standard in the face of multiple challenges as well as larger implications of its survival. Part I provides a brief overview of the Court’s commercial speech doctrine and the spectrum of criticism of Central Hudson for its allegedly excessive or inadequate protection of expression. Part II surveys a series of developments, especially in the last decade, that threaten to supersede Central Hudson’s “intermediate” standard of scrutiny for commercial speech restrictions. In response, Part III explains how none of these phenomena have resulted in the abandonment of the Central Hudson regime. …

Table Of Contents

Seattle University Law Review

Table of Contents

Back To The Sources? What’S Clear And Not So Clear About The Original Intent Of The First Amendment, John Witte Jr.

Faculty Articles

This Article peels through these layers of founding documents before exploring the final sixteen words of the First Amendment religion clauses. Part I explores the founding generation’s main teachings on religious freedom, identifying the major principles that they held in common. Part II sets out a few representative state constitutional provisions on religious freedom created from 1776 to 1784. Part III reviews briefly the actions by the Continental Congress on religion and religious freedom issued between 1774 and 1789. Part IV touches on the deprecated place of religious freedom in the drafting of the 1787 United States Constitution. Part V …

Reflections On Nomos: Paideic Communities And Same Sex Weddings, Marie A. Failinger

Touro Law Review

Robert Cover’s Nomos and Narrative is an instructive tale for the constitutional battle over whether religious wedding vendors must be required to serve same-sex couples. He helps us see how contending communities’ deep narratives of martyrdom and obedience to the values of their paideic communities can be silenced by the imperial community’s insistence on choosing one community’s story over another community’s in adjudication. The wedding vendor cases call for an alternative to jurispathic violence, for a constitutionally redemptive response that prizes a nomos of inclusion and respect for difference.

Appealing Compelled Disclosures In Discovery That Threaten First Amendment Rights, Richard L. Heppner Jr.

Law Faculty Publications

Last year, the Supreme Court held in Americans for Prosperity Foundation v. Bonta that a California anti-fraud policy compelling charities to disclose the identities of their major donors violated the First Amendment. That holding stems from the 1958 case NAACP v. Alabama where the Court held that a discovery order compelling the NAACP to disclose the names of its members violated the First Amendment right of free association because of the members’ justifiable fear of retaliation.

In the over sixty years since NAACP v. Alabama, the Court has only decided a handful of cases about how compelled disclosures of …

Compelled Speech And Proportionality, Alexander Tsesis

Faculty Publications & Other Works

This Article argues for a proportional First Amendment approach to compelled speech jurisprudence. It discusses the evolution of doctrine and how it led to recent opinions finding unconstitutional consumer protection, health disclosure, and collective bargaining statutes. In place of the currently formalistic approach, the Article argues for a transparent balancing of interests to avoid litigants’ opportunistic reliance on categorical First Amendment doctrines. Missing from the recent decisions that relied on the compelled speech doctrine is any systematic or contextual weighing of private and public concerns about disclosure regulations. The Roberts Court has been rather formalistic and categorical in its compelled …