First Amendment Commons^™

Protecting The Role Of The Press During Times Of Crisis, Mary-Rose Papandrea

William & Mary Law Review

President Trump’s daily tweets attacking the media have led many observers to express concern about the state of the press in our nation. Trump has called the press “the ... enemy of the [American] people,” encouraged a climate of hatred toward journalists at his rallies, refused to condemn Saudi Arabia for the brutal killing of reporter Jamal Khashoggi, and accused the media of writing “fake news.” The public’s trust in the institutional press has simultaneously diminished. Combined with the continuing economic challenges journalists face, the press is certainly facing some difficult times.

Nevertheless, things are not as dire as they …

The Press, National Security, And Civil Discourse: How A Federal Shield Law Could Reaffirm Media Credibility In An Era Of “Fake News”, Jenna Johnson

Texas A&M Law Review

The Constitution expressly provides protection for the freedom of the press. Yet there is one area in which the press is not so free: the freedom to refuse disclosing confidential sources when subpoenaed by the federal government. Currently, there is no federal reporter’s privilege. The Supreme Court has held the First Amendment provides no such protection, and repeated congressional attempts to codify a reporter’s privilege in a federal shield law have failed.

Arguments against a shield law include national security concerns and the struggle to precisely define “journalist.” Such concerns were evident in the most recently proposed shield law, the …

Extrajudicial Statements And Prejudice In The Digital Age: Creating Factors To Preserve The Balance Between Attorney And State Interests In Trial Litigation, Emily R. O'Hara

William & Mary Law Review

As social media’s prevalence and usage grows within the United States, people and organizations capitalize on new media to send news to users. In 2017, 67 percent of people consumed their news from social media websites, and the rate continues to grow. Local and national news sources bring newsworthy stories to active users on social media sites such as Twitter, where users can communicate and interact with one another to promote ideas and spread information. These online accounts cover not only mundane, day-to-day news, but also salacious stories relating to civil and criminal lawsuits.

In April 2018, attorney Neal Katyal …

Free-Speech Formalism And Social Injustice, Stephen M. Feldman

William & Mary Journal of Race, Gender, and Social Justice

The Roberts Court has shifted constitutional law in a formalist direction. This Essay explains the Court’s formalism and its causes and consequences in First Amendment free-expression cases. The thesis is that the current conservative justices’ reliance on formalism intertwines with their attitudes toward public and private spheres of activity. Their attitudes toward the public-private dichotomy are, in turn, shaped by their political ideologies as well as by the contemporary practices of democratic government, which have shifted significantly over American history. Formalism contains an inherent political tilt favoring those who already wield power in the private sphere. Formalism favors the wealthy …

"When The Enemy Drew Our Attention": Reconsidering Prior Restraint In The Context Of Dual Use Research Of Concern, Caine Caverly

William & Mary Bill of Rights Journal

Through 2016 and 2017, a team led by Canadian virologist David Evans, and funded by an American pharmaceutical company, attempted to synthesize the previously extinct horsepox virus. After just six months and an expenditure of $100,000, the research team was able to successfully construct the virus “using only commercially available information, technology and tools.” In January of 2018, the team went on to publish their information in an American-based journal, PLOS ONE.

The publication was controversial because it included a potential “blueprint” for the synthesis of a genetic strand in the same viral family as the highly lethal, albeit eradicated, …

Safeguarding Fair Use Through First Amendment's Asymmetric Constitutional Fact Review, Amanda Reid

William & Mary Bill of Rights Journal

This Article proposes a novel procedural safeguard for copyright fair use. Two courts recently overturned jury verdicts on the question of fair use. In Corbello v. De Vito, the trial court overturned a jury verdict that had rejected a fair use defense. In Oracle America, Inc. v. Google LLC, the Federal Circuit reversed a jury verdictthat had found in favor of a defendant's fair use defense. While this Article offers a new perspective on these cases, the main goal is more ambitious: a theoretical framework to heighten protection for the free expression interests of users of copyrighted works. Specifically, appellate …

Brief For Child Usa Et Al. As Amici Curiae Supporting Respondents, Our Lady Of Guadalupe School V. Morrissey-Berru, Leslie C. Griffin

Court Briefs

No abstract provided.

Brief For Child Usa Et Al. As Amici Curiae Supporting Respondents, Little Sisters Of The Poor Saints Peter And Paul Home V. Pennsylvania, Leslie C. Griffin

Court Briefs

No abstract provided.

Some First Amendment Implications Of The Trademark Registration Decisions, Marc Rohr

Marquette Intellectual Property Law Review

No abstract provided.

James Madison, Citizens United, And The Constitutional Problem Of Corruption, Anthony J. Gaughan

American University Law Review

No abstract provided.

First Amendment Traditionalism, Marc O. Degirolami

Scholarly Articles

Traditionalist constitutional interpretation takes political and cultural practices of long age and duration as constituting the presumptive meaning of the text. This Essay probes traditionalism's conceptual and normative foundations. It focuses on the Supreme Court's traditionalist interpretation of the First Amendment to understand the distinctive justifications for traditionalism and the relationship between traditionalism and originalism. The first part of the Essay identifies and describes traditionalism in some of the Court's Speech and Religion Clause jurisprudence, highlighting its salience in the Court's recent Establishment Clause doctrine.

Part II develops two justfications for traditionalism: "interpretive" and "democratic-populist." The interpretive justification is that …

Balancing Religious Liberties And Antidiscrimination Interests In The Public Employment Context: The Impact Of Masterpiece Cakeshop And American Legion, Brenda Bauges

Articles

No abstract provided.

The Second Amendment's Safe Space, Or The Constitutionlization Of Fragility, Mary Anne Franks

Articles

No abstract provided.

In Memory Of Professor James E. Bond, Janet Ainsworth

Seattle University Law Review

Janet Ainsworth, Professor of Law at Seattle University School of Law: In Memory of Professor James E. Bond.

"Inciting A Riot": Silent Sentinels, Group Protests, And Prisoners' Petition And Associational Rights, Nicole B. Godfrey

Seattle University Law Review

This Article argues for increased legal protections for prisoners who choose to engage in group protest to shed light on the conditions of their incarceration. A companion piece to a similar article that focused on prisoner free speech rights, this Article uses the acts of protest utilized by the Silent Sentinels to examine why prisoners’ rights to petition and association should be strengthened. By strengthening these rights, the Article argues that we will advance the values enshrined by the First Amendment’s Petition Clause while simultaneously advancing the rights of the incarcerated millions with little to no political power.

The Article …

Black Women And Girls And The Twenty-Sixth Amendment: Constitutional Connections, Activist Intersections, And The First Wave Youth Suffrage Movement, Mae C. Quinn

Seattle University Law Review

On this 100th anniversary of the Nineteenth Amendment—and on the cusp of the fiftieth anniversary of the Twenty-sixth Amendment—this article seeks to expand the voting rights canon. It complicates our understanding of voting rights history in the United States, adding layers to the history of federal constitutional enfranchisement and encouraging a more intersectional telling of our suffrage story in the days ahead.

Thus, this work not only seeks to acknowledge the Twenty-sixth Amendment as important constitutional content, as was the goal of the article I wrote with my law student colleagues for a conference held at the University of Akron …

Raising The Stakes: The Battle Between The First Amendment And Athlete's Publicity Rights In The Wake Of Murphy V. Ncaa, Alexis Nicole Lilly

American University Business Law Review

No abstract provided.

Platforms And The Fall Of The Fourth Estate: Looking Beyond The First Amendment To Protect Watchdog Journalism, Erin C. Carroll

Maryland Law Review

No abstract provided.

Reconsidering Thornton V. Caldor, Christopher C. Lund

Law Faculty Research Publications

No abstract provided.

How The Internet Unmakes Law, Mary Anne Franks

Articles

No abstract provided.

Section 230 Immunity: How The Trump Era Has Exposed The Current Conflict Between The First Amendment And The Good Samaritan Clause In The Modern Public Square, Brandon Salter, Dhillon Ramkhelawn

University of Arkansas at Little Rock Law Review

No abstract provided.

Constitutional Law—Where Does It Fit? Solving The School Board Prayer Puzzle, Austin Reed

University of Arkansas at Little Rock Law Review

No abstract provided.

Constitutional Law—The Erosion Of Political Anonymity And Its Chilling Effect On Freedom Of Association: Reconsidering The Constitutionality Of The Mandated Public Disclosure Of Individuals’ Political Donations, Scout Snowden

University of Arkansas at Little Rock Law Review

No abstract provided.

Religious Accommodation, The Establishment Clause, And Third-Party Harm, Mark Storslee

Faculty Scholarship

In the wake of Burwell v. Hobby Lobby, religious accommodation has become increasingly controversial. That controversy has given rise to a new legal theory gaining popularity among academics and possibly a few Supreme Court justices: the idea that the First Amendment's Establishment Clause condemns accommodations whenever they generate anything beyond a minimal cost for third parties.

The third-party thesis is appealing. But this Article argues that there are good reasons to believe it falls short as an interpretation of the Establishment Clause. In its place, the Article offers a new theory for understanding the relationship between costly accommodations and the …

Church Taxes And The Original Understanding Of The Establishment Clause, Mark Storslee

Faculty Scholarship

Since the Supreme Court’s decision in Everson v. Board of Education, it has been widely assumed that the Establishment Clause forbids government from 'aiding' or subsidizing religious activity, especially religious schools. This Article suggests that this reading of the Establishment Clause rests on a misunderstanding of Founding-era history, especially the history surrounding to church taxes. Contrary to popular belief, the decisive argument against those taxes was not an unqualified assertion that subsidizing religion was prohibited. Rather, the crucial argument was that church taxes were a coerced religious observance: a government-mandated sacrifice to God, a tithe. Understanding that argument helps …

The Arms Dealer Who Cries, :“First Amendment”, Gustave Passanante

Touro Law Review

No abstract provided.

Fosta: A Necessary Step In Advancement Of The Women’S Rights Movement, Alexandra Sanchez

Touro Law Review

No abstract provided.

Legal Interpretation, Mykaila Ashlynn Berry

Undergraduate Theses, Professional Papers, and Capstone Artifacts

The purpose of this project is to provide a fresh and in-depth analysis of legal jurisprudence through the use of two of the most important legal theorists of our time, H. L. A. Hart and Ronald Dworkin. This project focuses on how Dworkin’s position in his famous paper “Hard Cases”, helps us understand an important Supreme Court case, Cohen v. California. Cohen will be the main focus of my project. The project will discuss the case and the possible ways of deciding the case. Then the project explains both Dworkin’s and Hart’s positions. Finally, the project will analyze how Dworkin’s …

Obvious But Not Clear: The Right To Refuse To Cooperate With The Police During A Terry Stop, Sam Kamin, Zachary Shiffler

American University Law Review

No abstract provided.

Employing Smith To Prevent A Constitutional Right To Discriminate Based On Faith: Why The Supreme Court Should Affirm The Third Circuit In Fulton V. City Of Philadelphia, Margaret Smiley Chavez

American University Law Review

In the interest of the children in the Philadelphia foster care system, the City of Philadelphia prohibits its contracting foster care agencies from discriminating against prospective foster care parents on account of race, religion, and sexual orientation, among other things. Despite this requirement, in 2018, two foster care agencies—Catholic Social Services (CSS) and Bethany Christian Services— that have annual contracts with Philadelphia refused to certify same-sex couples as foster parents for religious reasons. While Bethany Christian Services reached an agreement with the city, CSS did not. As a result, the city froze foster care placement referrals to CSS and did …