First Amendment Commons^™

Discriminatory Censorship Laws, Jonathan Feingold, Joshua Weishart

Faculty Scholarship

The summer of 2020 ignited global protests for racial justice. Across the United States, millions marched with a modest plea: that America reckon with its racism. For K-12 schools, this moment pushed local communities and district leaders to create more inclusive classrooms and curricula. Yet before the summer had ended, America's antiracist turn provoked a backlash campaign that has proven far more impactful and enduring.

This campaign has featured the rise and spread of "discriminatory censorship laws"-a term we apply to government action designed to demean inclusionary values and to deny students access to critical knowledge, inquiry, and thinking. As …

Liberty And Equality Under The First Amendment: Scrutinizing Book Bans Through An Equal Protection Framework, Sarah Ryan

Brooklyn Law Review

While the constitutional text refers only to liberty, equality has been recognized as an implicit principle of the First Amendment. The guarantee of free speech ensures an equal opportunity for every voice to be heard. As school book bans proliferate, the consistent targeting of titles containing themes of race or LGBTQIA+ identity reveals a discriminatory motivation on the part of state actors. The resultant infringement on students’ right to receive information, as well as the unequal treatment of particularly-themed content would seemingly run afoul of both the First Amendment and the Equal Protection Clause. Given the broad discretion granted to …

The Three Elements Of 303 Creative And How They Limit The Decision’S Impact, Dillon J. Richards

University of Miami Law Review

In 303 Creative LLC v. Elenis, the Supreme Court held that a state could not use a public accommodation law to require a wedding website business to create websites for gay weddings. As the Court saw it, the First Amendment shielded the company because its owner did not want to express speech supporting same-sex marriage—and being forced to create websites for same-sex weddings would compel just that.

Some public reaction to the Court’s opinion—perhaps understandably—construed the case as a full-on attack on gay rights, giving businesses a so-called license to discriminate that could not be limited to the wedding …

The First Amendment In Education: May Faculty At Public Schools Be Disciplined For Political Hate Speech?, Ken M. Levy

William & Mary Bill of Rights Journal

At a House hearing on December 5, 2023, the presidents of three universities— Harvard, MIT, and the University of Pennsylvania—refused to state that certain kinds of hate speech, specifically calls for genocide of Jews, are prohibited on their campuses. The backlash against two of them, Harvard’s Claudine Gay and Penn’s Liz Magill, was swift and devastating; both were successfully pressured to resign. Still, while Professors Gay’s and Magill’s responses were widely criticized as tone-deaf, they were legally correct. At many private, and all public, colleges and universities, even the worst hate speech is generally protected unless it is accompanied by …

Make America Fake Again?: Banning Deepfakes Of Federal Candidates In Political Advertisements Under The First Amendment, Sophie Loewenstein

Fordham Law Review

In recent years, artificial intelligence (AI) technology has developed rapidly. Accompanying this advancement in sophistication and accessibility are various societal benefits and risks. For example, political campaigns and political action committees have begun to use AI in advertisements to generate deepfakes of opposing candidates to influence voters. Deepfakes of political candidates interfere with voters’ ability to discern falsity from reality and make informed decisions at the ballot box. As a result, these deepfakes pose a threat to the integrity of elections and the existence of democracy. Despite the dangers of deepfakes, regulating false political speech raises significant First Amendment questions. …

University Of The District Of Columbia Law Review, University Of The District Of Columbia Law Review

University of the District of Columbia Law Review

No abstract provided.

Dol Fiduciary Rule 3.0 Strikeout, Base Knock, Or Home Run?, Antolin Reiber

DePaul Business & Commercial Law Journal

No abstract provided.

Money Is Morphing - Cryptocurrency Can Morph To Be An Environmentally And Financially Sustainable Alternative To Traditional Banking, Clovia Hamilton

DePaul Business & Commercial Law Journal

No abstract provided.

Survey Evidence In Trademark Actions, Ioana Vasiu And Lucian Vasiu

DePaul Business & Commercial Law Journal

No abstract provided.

Corporate Governance And Compelled Speech: Do State-Imposed Board Diversity Mandates Violate Free Speech?, Salar Ghahramani

DePaul Business & Commercial Law Journal

No abstract provided.

The Real Persons Are The Corporations We Made Along The Way, Leonard Brahin

DePaul Business & Commercial Law Journal

No abstract provided.

Front Matter

DePaul Business & Commercial Law Journal

No abstract provided.

Parental Rights Or Political Ploys? Unraveling The Deceptive Threads Of Modern “Parental Rights” Legislation, Cecilia Giles

University of Cincinnati Law Review

No abstract provided.

Rage Rhetoric And The Revival Of American Sedition, Jonathan Turley

William & Mary Law Review

We are living in what Professor Jonathan Turley calls an age of rage. However, it is not the first such period. Professor Turley explores how the United States was formed (and the Constitution was written) in precisely such a period. Throughout that history, sedition has been used as the vehicle for criminalizing political speech. This Article explores how seditious libel has evolved as a crime and how it is experiencing a type of American revival. The crime of sedition can be traced back to the infamous trials of the Star Chamber and the flawed view of free speech articulated by …

The Dueling First Amendment Clauses: Are They In Tension, Or Do They Work Together?, James Black

Helm's School of Government Conference - 2021-2024

The Establishment and Free exercise clauses of the First Amendment respectively state that Congress does not have the ability to pass a law that would either establish a national religion or prohibit the free exercise of any religion. While some legal scholars have given a more secular interpretation of the Establishment Clause, suggesting that there is no place for Christianity or any other religion in the public square or to influence American government, this is in conflict with interpretation by a substantial number of legal experts and constitutional scholars living both in and before the modern era, some of whom …

Covid-19: The Federal Government, Federalism, South Dakota, And American Indians, Jordan Janson

Helm's School of Government Conference - 2021-2024

This essay assesses the roles of the federal government and its relationship with Tribal Regions and states alike. Additionally, how COVID-19 affected states and localities and how different Presidential Administrations handled and responded to the pandemic while being compared with the state of South Dakota. Assessing whether or not the federal government overstepped reveals the preparedness of states. Certain states handled COVID-19-related issues better than others, and this essay addresses how Tribal Regions in states provided Governors with extreme complexities. Finally, this essay delves into the rights and responsibilities of the federal government and the state pertaining to American Indian …

Anti-Press Bias: A Response To Andersen Jones And West's Presuming Trustworthiness, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

Professors RonNell Andersen Jones and Sonja R. West’s Presuming Trustworthiness is a deeply depressing read. That is what makes it so good. The article is a clear-eyed, data-driven approach to assessing just how endangered the legal status of the free press is. Given the universality of the agreement that a free press is central to democracy, Andersen Jones and West’s message is vital. Presuming Trustworthiness should raise alarms.

In response, I hope this essay can serve as a bullhorn. I want to amplify what Andersen Jones and West’s research and data bear out. Not only has the Supreme Court ceased …

Anti-Antisemitism Now, Lili Levi

University of Miami Law Review

On May 25, 2023, the Biden Administration released The U.S. National Strategy to Counter Antisemitism—America’s first national strategy of this kind. In early November 2023, the White House announced the establishment of the first-ever U.S. National Strategy to Counter Islamophobia. These historic commitments respond to increases in identity-based bias incidents and expression against Jews and Muslims. Antisemitic incidents, which were already rising even before the pandemic, increased by almost 400% since the start of the Israel-Hamas war. The war also triggered a sharp upturn in Islamophobic incidents in the U.S., including the shooting of three college students and …

Spies, Trolls, And Bots: Combating Foreign Election Interference In The Marketplace Of Ideas, Nahal Kazemi

Fordham Law Voting Rights and Democracy Forum

Foreign disinformation operations on social media pose a significant and rapidly evolving risk, particularly when aimed at American elections. We must urgently and effectively address this form of election interference. This Article examines potential responses to those risks, through a review of the unique characteristics, both practical and legal, of political advertising on social media platforms. This Article analyzes proposed legislative responses to foreign disinformation, noting that no single proposed law to date adequately addresses the threats and challenges posed by foreign disinformation. This Article considers the election law landscape in which the proposed laws would operate. It evaluates the …

Petition For Redress Or Telephonic Harassment? When Calling The Government Is A Crime, Daniel Caballero

Fordham Law Voting Rights and Democracy Forum

The telephone has enabled significant enhancements in communication. However, it has also brought with it abuses. One of these is telephonic harassment. The states and the federal government have passed laws that criminalize this inappropriate and psychologically harmful use of telephones. This Article assumes that these laws are constitutional when the caller harasses an ordinary citizen. But the First Amendment protects the right to petition the government for redress of grievances. So, what happens when the caller is both petitioning the government and intending to harass a government official? Does the First Amendment protect telephonic harassment of a public official? …

Henderson And The Objective Observer Standard: The Future Of Race-Conscious Standards Post-Students For Fair Admissions, Gabriela Dionisio

Seattle University Law Review

On June 29, 2023, the Supreme Court of the United States decided Students for Fair Admissions v. President & Fellows of Harvard College, which struck down race-conscious admissions policies. Within just a year after its ruling, Students for Fair Admissions has already had a sweeping impact, reaching beyond higher education. Although the Supreme Court did not indicate whether Students for Fair Admissions applies to sectors beyond higher education, law firms, and other employers have already modified their diversity policies and initiatives, erasing race and company diversity considerations. Given those dramatic changes, there is growing fear that Students for Fair Admissions …

Same Crime, Different Time: Sentencing Disparities In The Deep South & A Path Forward Under The Fourteenth Amendment, Hailey M. Donovan

Seattle University Law Review

The United States has the highest incarceration rate of any country in the world. The American obsession with crime and punishment can be tracked over the last half-century, as the nation’s incarceration rate has risen astronomically. Since 1970, the number of incarcerated people in the United States has increased more than sevenfold to over 2.3 million, outpacing both crime and population growth considerably. While the rise itself is undoubtedly bleak, a more troubling truth lies just below the surface. Not all states contribute equally to American mass incarceration. Rather, states have vastly different incarceration rates. Unlike at the federal level, …

Public Primacy In Corporate Law, Dorothy S. Lund

Seattle University Law Review

This Article explores the malleability of agency theory by showing that it could be used to justify a “public primacy” standard for corporate law that would direct fiduciaries to promote the value of the corporation for the benefit of the public. Employing agency theory to describe the relationship between corporate management and the broader public sheds light on aspects of firm behavior, as well as the nature of state contracting with corporations. It also provides a lodestar for a possible future evolution of corporate law and governance: minimize the agency costs created by the divergence of interests between management and …

Robo-Voting: Does Delegated Proxy Voting Pose A Challenge For Shareholder Democracy?, John Matsusaka, Chong Shu

Seattle University Law Review

Robo-voting is the practice by an investment fund of mechanically voting in corporate elections according to the advice of its proxy advisor— in effect fully delegating its voting decision to its advisor. We examined over 65 million votes cast during the period 2008–2021 by 14,582 mutual funds to describe and quantify the prevalence of robo-voting. Overall, 33% of mutual funds robo-voted in 2021: 22% with ISS, 4% with Glass Lewis, and six percent with the recommendations of the issuer’s management. The fraction of funds that robo-voted increased until around 2013 and then stabilized at the current level. Despite the sizable …

The Limits Of Corporate Governance, Cathy Hwang, Emily Winston

Seattle University Law Review

What is the purpose of the corporation? For decades, the answer was clear: to put shareholders’ interests first. In many cases, this theory of shareholder primacy also became synonymous with the imperative to maximize shareholder wealth. In the world where shareholder primacy was a north star, courts, scholars, and policymakers had relatively little to fight about: most debates were minor skirmishes about exactly how to maximize shareholder wealth.

Part I of this Essay discusses the shortcomings of shareholder primacy and stakeholder governance, arguing that neither of these modes of governance provides an adequate framework for incentivizing corporations to do good. …

The Pioneers, Waves, And Random Walks Of Securities Law In The Supreme Court, Elizabeth Pollman

Seattle University Law Review

After the pioneers, waves, and random walks that have animated the history of securities laws in the U.S. Supreme Court, we might now be on the precipice of a new chapter. Pritchard and Thompson’s superb book, A History of Securities Law in the Supreme Court, illuminates with rich archival detail how the Court’s view of the securities laws and the SEC have changed over time and how individuals have influenced this history. The book provides an invaluable resource for understanding nearly a century’s worth of Supreme Court jurisprudence in the area of securities law and much needed context for …

Three Stories: A Comment On Pritchard & Thompson’S A History Of Securities Laws In The Supreme Court, Harwell Wells

Seattle University Law Review

Adam Pritchard and Robert Thompson’s A History of Securities Laws in the Supreme Court should stand for decades as the definitive work on the Federal securities laws’ career in the Supreme Court across the twentieth century.1 Like all good histories, it both tells a story and makes an argument. The story recounts how the Court dealt with the major securities laws, as well the agency charged with enforcing them, the Securities and Exchange Commission (SEC), and the rules it promulgated, from the 1930s into the twenty-first century. But the book does not just string together a series of events, “one …

On The Value Of History: A Review Of A.C. Pritchard & Robert B. Thompson’S A History Of Securities Law In The Supreme Court, Joel Seligman

Seattle University Law Review

A.C. Pritchard and Bob Thompson have written a splendid history of securities law decisions in the Supreme Court. Their book is exemplary because of its detailed use of the long unpublished papers of Supreme Court justices, including those of Harry Blackmun, William O. Douglas, Felix Frankfurter and Lewis F. Powell, primary sources which included correspondence with other Justices and law clerks as well as interviews with law clerks. The use of these primary sources recounted throughout the text and 67 pages of End Notes deepens our understanding of the intentions of the Justices and sharpens our understanding of the conflicts …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Memories Of An Affirmative Action Activist, Margaret E. Montoya

Seattle University Law Review

Some twenty-five years ago, the Society of American Law Teachers (SALT) led a march supporting Affirmative Action in legal education to counter the spate of litigation and other legal prohibitions that exploded during the 1990s, seeking to limit or abolish race-based measures. The march began at the San Francisco Hilton Hotel, where the Association of American Law Schools (AALS) was having its annual meeting, and proceeded to Union Square. We, the organizers of the march, did not expect the march to become an iconic event; one that would be remembered as a harbinger of a new era of activism by …