First Amendment Commons^™

The Constitution And Revenge Porn, John A. Humbach

Pace Law Review

While the Supreme Court has recognized a number of circumstances that justify government impingements on free expression, the Court has been extremely reluctant to permit speech restrictions that discriminate based on a message’s content, its viewpoint, or the speaker. It has nearly always refused to tolerate such discrimination unless the case falls within one of the several historically established exceptions to First Amendment protection. Because of the special place that the modern First Amendment cases accord to content discrimination (and the allied discriminations based on viewpoint and speaker), any statutes designed specifically to outlaw revenge porn as such would seem …

Lost In Compromise: Free Speech, Criminal Justice, And Attorney Pretrial Publicity, Margaret Tarkington

Florida Law Review

Prior approaches to examining attorney speech rights have failed to address pretrial publicity in a manner that protects the criminal justice system and the essential roles of the prosecutor and defense attorney therein, as discussed in Part I. Yet the access-to-justice theory, as discussed in Part II, attunes attorney speech rights to the role of the attorney in the proper and constitutional functioning of the justice system. As discussed in Part III, the very nature of the criminal justice system imposes vastly differing obligations and duties on the prosecution and defense and their respective attorney–client relationships. In Part IV, this …

A Cautionary Tale About Policing Peaceful Protests: First Amendment Rights Still Reign Supreme, Kia H. Vernon

North Carolina Central Law Review

No abstract provided.

Newsroom: Horwitz On Traffic Obstruction Bills, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

The Need To Criminalize Revenge Porn: How A Law Protecting Victims Can Avoid Running Afoul Of The First Amendment, Adrienne N. Kitchen

Chicago-Kent Law Review

Revenge porn occurs when someone posts sexually explicit images of their former paramour on the web, often with contact information for the victim’s work and home. There are thousands, perhaps tens of thousands, of victims. Victims lose or quit their jobs; they are harassed by strangers; some change their name or alter their appearance. Some victims resort to suicide; others are stalked, assaulted, or killed. Civil suits fail to remove the images or deter perpetrators. Current criminal laws are insufficient in several common instances. These shortcomings mean there is a need to criminalize revenge porn.

Revenge porn is obscene and …

Overcriminalizing Speech, Michal Buchhandler-Raphael

Scholarly Articles

Recent years have seen a significant expansion in the criminal justice system’s use of various preemptive measures, aimed to prevent harm before it occurs. This development consists of adopting a myriad of prophylactic statutes, including endangerment crimes, which target behaviors that merely pose a risk of future harm but are not in themselves harmful at the time they are committed.

This Article demonstrates that a significant portion of these endangerment crimes criminalize various forms of speech and expression. Examples include conspiracies, attempts, verbal harassment, instructional speech on how to commit crimes, and possession crimes. The Article argues that in contrast …

Membership Crime Vs. The Right To Assemble, 48 J. Marshall L. Rev. 729 (2015), Steven Morrison

UIC Law Review

The World War I (WWI) era generated the substantive First Amendment. Subsequent jurisprudence, however, has focused on the speech right and left the right to assemble underdeveloped. This is so because courts, lawyers, and scholars view the WWI cases as speech cases. In fact, these cases implicitly tested the assembly right more than they have been read to test the speech right because they involved “membership crime” – criminal conspiracy in federal and state courts, and criminal syndicalism at the state level. This Article uncovers the importance of the assembly right during the substantive First Amendment’s generation. It therefore serves …

Court Of Appeals Of New York, Watson V. State Commission On Judicial Conduct, Denise Shanley

Touro Law Review

No abstract provided.

Defining The Line Between Constitutionally Protected Speech And True Threats: Can I Be Arrested For Being Annoying?, Allison E. Dolzani

Touro Law Review

No abstract provided.

Dirty Secrets: The First Amendment In Protective-Order Litigation, Dustin B. Benham

Cardozo Law Review

No abstract provided.

City Court, City Of Rochester, People V. Griswold, James Dougherty

Touro Law Review

No abstract provided.

Criminal Procedure Decisions From The October 2006 Term, Susan N. Herman

Touro Law Review

No abstract provided.

Officious Intermeddling Or Protected First Amendment Activity? The Constitutionality Of Prohibitory Champerty Law After Citizens United, Bradley C. Tobias

William & Mary Bill of Rights Journal

No abstract provided.

Protecting More Than The Front Page: Codifying A Reporter’S Privilege For Digital And Citizen Journalists, Kathryn A. Rosenbaum

Notre Dame Law Review

This Note will first explain, in Part I, why journalists need to be protected, and detail the history of reporters invoking a reporter’s privilege in court to protect themselves from revealing their sources or information. It will then discuss Branzburg v. Hayes in Section II.A. Section II.B briefly examines circuits’ receptivity to statutory or constitutional protections of reporters. The Supreme Court has stated that Congress could pass a law to protect reporters. However, while multiple federal shield laws have been proposed, none have been passed. The most recent proposal occurred in 2013, and as of December 2013, the Senate version …

Criminalizing Revenge Porn, Danielle Keats Citron, Mary Anne Franks

Faculty Scholarship

Violations of sexual privacy, notably the non-consensual publication of sexually graphic images in violation of someone's trust, deserve criminal punishment. They deny subjects' ability to decide if and when they are sexually exposed to the public and undermine trust needed for intimate relationships. Then too they produce grave emotional and dignitary harms, exact steep financial costs, and increase the risks of physical assault. A narrowly and carefully crafted criminal statute can comport with the First Amendment. The criminalization of revenge porn is necessary to protect against devastating privacy invasions that chill self-expression and ruin lives.

Lethal Injection And The Right Of Access: The Intersection Of The Eighth And First Amendments, Timothy F. Brown

Faculty Publications, School of Management

The Spring and Summer of 2014 have witnessed renewed debate on the constitutionality of the death penalty after a series of high profile legal battles concerning access to lethal injection protocols and subsequent questionable executions. Due to shortages in the drugs traditionally used for the lethal injection, States have changed their lethal injection protocols to shield information from both the prisoners and the public. Citing public safety concerns, the States refuse to release information concerning the procurement of the drugs to the public. Such obstruction hinders the public’s ability to determine the cruelty of the punishment imposed and creates the …

When Speech Isn't Free: Legal Barriers And Consequences Of Reporting Sexual Violence, Kevin M. Fleming

Departmental Honors Projects

Incidents of sexual violence continue to be a serious problem for society. Likewise, acts of sexual violence impose severe consequences for survivors. The consequences initially begin at the onset of the survivor’s journey to psychological recovery following the traumatic sexual assault. The consequences take on a unique set of characteristics when the survivor attempts to use the justice system to confront the perpetrator who committed the offense. These characteristics can transform an adversarial process into an isolated battle for the survivor. In the worst cases, the justice system empowers individuals who wish to silence survivors with free speech restrictions instead …

Chapters 859 & 863: Model Revenge Porn Legislation Or Merely A Work In Progress?, Michelle Daniels

McGeorge Law Review

No abstract provided.

The Trickle-Down War, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

The history of the European nation-state, wrote political sociologist Charles Tilly, is inextricably bound up with the history of warfare. To oversimplify Tilly’s nuanced and complex arguments, the story goes something like this: As power-holders (originally bandits and local strongmen) sought to expand their power, they needed capital to pay for weapons, soldiers and supplies. The need for capital and new recruits drove the creation of taxation systems and census mechanisms, and the need for more effective systems of taxation and recruitment necessitated better roads, better communications and better record keeping. This in turn enabled the creation of larger and …

Give Me Internet Or Give Me Death: Analyzing The Constitutionality Of Internet Restrictions As A Condition Of Supervised Release For Child Pornography Offenders, Laura Tatelman

Cardozo Journal of Equal Rights & Social Justice

The note argues that blanket bans on internet and internet-capable devices as a condition of supervised release for child pornography offenders are unconstitutional under the doctrine of unconstitutional conditions. These bans infringe on fundamental liberties such as speech, association, and access to information, disproportionately affecting offenders’ ability to reintegrate into society. The analysis advocates for a balanced approach that prioritizes public safety while respecting constitutional rights, suggesting alternatives like supervised release rather than outright internet prohibition.

Dusty Order: Law Enforcement And Participant Cooperation At Burning Man, Manuel A. Gomez

Faculty Books

Media depictions of Burning Man focus on the picturesque and eccentric appearance of the weeklong affair. The event is sometimes misportrayed as a lawless environment where participants are encouraged to engage in rowdy behavior. Most carnivalesque events offer an escape from reality and are generally thought to enable unruly conduct. Despite stereotypes, Burning Man is a different beast. Not only is the crime rate in Black Rock City lower than any other city of comparable size, but Burners show a high level of cooperative and law abiding behavior that helps maintain the social order without depending on official means of …

A First Amendment Defense To The Federal Cyberstalking Statute In The Age Of Twitter, Christopher Young

Washington Journal of Law, Technology & Arts

Real-time information technology facilitates more efficient channels of communication. As communication becomes nearly instantaneous and further reaching, it seems probable that more expression will fall within the scope of cyberharassment and cyberstalking laws. Attorneys who represent clients indicted on such criminal charges need to familiarize themselves with possible defenses. This Article suggests invoking the overbreadth doctrine to exonerate a client who is charged with violating the federal cyberstalking statute.

Chandler V. Florida: Cameras, Courts, And The Constitution, Allen F. Camp

Pepperdine Law Review

The rising importance of television journalism in the 1960's has resulted in the Supreme Court deciding whether a criminal defendant's due process rights are violated by camera coverage of the courtroom proceeding. The decision of Chandler v. Florida clearly provides the answer; for unless a defendant proves prejudice with specificity, the Constitution does not ban televised criminal trials. The author examines the issues with a revealing historical perspective. He then traces the Court's factual and legal analysis and concludes that the decision will serve to offer the states guidance in deciding whether to implement a program allowing television coverage of …

Thornburgh V. Abbott: Slamming The Prison Gates On Constitutional Rights, Megan M. Mcdonald

Pepperdine Law Review

No abstract provided.

A Requiem For Protest: Anglo-American Perspectives On Protest Post-9/11, 46 J. Marshall L. Rev. 455 (2013), Christopher Newman

UIC Law Review

No abstract provided.

Child Sexualization In The Media: A Need For Reform, Punam Panchal Alam

Student Works

No abstract provided.

The First Amendment, Equal Protection, And Felon Disenfranchisement: A New Viewpoint, Janai S. Nelson

Faculty Publications

This Article engages the equality principles of the First Amendment and the Equal Protection Clause to reconsider the constitutionality of one of the last and most entrenched barriers to universal suffrage—felon disenfranchisement. A deeply racialized problem, felon disenfranchisement is additionally and independently a legislative judgment as to which citizen's ideas are worthy of inclusion in the electorate. Relying on a series of cases involving state interests in protecting the ballot and promoting its intelligent use, this Article demonstrates that felon disenfranchisement is open to attack under the Supreme Court's fundamental rights jurisprudence when it is motivated by a desire to …

Allocating The Costs Of Parental Free Exercise: Striking A New Balance Between Sincere Religious Belief And A Child's Right To Medical Treatment , Paul A. Monopoli

Pepperdine Law Review

No abstract provided.

Possession Of Child Pornography: Should You Be Convicted When The Computer Cache Does The Saving For You?, Giannina Marin

Florida Law Review

This Note examines the concept of electronic possession in the field of child pornography, with the aim of reconciling the basic intuition behind possession with the reality of electronic data. Part II briefly discusses the case and statutory history that placed child pornography outside the bounds of the First Amendment and led to constitutionally valid prohibitions on the possession of child pornography. Part III sets forth the various ways in which individuals can access electronic child pornography, with a focus on the user’s level of interaction. Part IV discusses factors that the courts have considered in defining what constitutes possession …

California's Constitutional Right To Privacy, J. Clark Kelso

Pepperdine Law Review

No abstract provided.