First Amendment Commons^™

Electronic Privacy And Employee Speech, Pauline Kim

Scholarship@WashULaw

The boundary between work and private life is blurring as a result of changes in the organization of work and advances in technology. Current privacy law is ill-equipped to address these changes and as a result, employees’ privacy in their electronic communications is only weakly protected from employer scrutiny. At the same time, the law increasingly protects certain socially valued forms of employee speech. In particular, collective speech, speech that enforces workplace regulations and speech that deters or reports employer wrong-doing are explicitly protected by law from employer reprisals. These two developments — weak protection of employee privacy and increased …

Do Sexting Prosecutions Violate Teenagers' Constitutional Rights?, Joanne Sweeny

San Diego Law Review

The media has recently been highlighting a rash of prosecutions of teenagers who engage in "sexting"--sending nude or sexually explicit images of themselves or their peers--under child pornography laws. These prosecutions have led to mass criticism for threatening teens with long prison terms and registration as sex offenders for activities that are perceived to be relatively innocent. Many, if not most, of these sexting teens are legally permitted to engage in sexual activities through their states' statutory rape laws, which leads to an absurd situation in which teens are permitted to engage in sex but not photograph it. This mismatch …

Protecting Anonymous Expression: The Internet's Role In Washington State's Disclosure Laws And The Direct Democracy Process, Karen Cullinane

University of Michigan Journal of Law Reform

This Note proposes that the Washington State Legislature amend its Public Records Act to exempt from public disclosure personal information legally required to be disclosed by signers of referendum petitions. This Note also proposes that the Washington State Legislature designate an electronic system, to be detailed in its election law, by which referendum petitions can be checked for fraud without violating the right to anonymous expression protected by the First Amendment. Part I describes Washington State's referendum process and the path of Doe v. Reed, the case animating the reform presented in this Note. Part II illustrates how the rise …

William H. Sorrell, Attorney General Of Vermont, Et Al. V. Ims Health Inc., Et Al. - Amicus Brief In Support Of Petitioners, Kevin Outterson, David Orentlicher, Christopher T. Robertson, Frank A. Pasquale

Faculty Scholarship

On April 26, 2011, the US Supreme Court will hear oral arguments in the Vermont data mining case, Sorrell v. IMS Health Inc. Respondents claim this is the most important commercial speech case in a decade. Petitioner (the State of Vermont) argues this is the most important medical privacy case since Whalen v. Roe.

The is an amicus brief supporting Vermont, written by law professors and submitted on behalf of the New England Journal of Medicine

My Teacher Sux! [Censored]: Protecting Students' Right To Free Speech On The Internet, 28 J. Marshall J. Computer & Info. L. 385 (2011), Katherine Hokenson

UIC John Marshall Journal of Information Technology & Privacy Law

This comment will discusses the problem posed by student speech made on the Internet, how free speech issues are generally addressed by courts, the Supreme Court cases that have specifically addressed the First Amendment rights of students, and factors that courts dealing with student speech made on the Internet have attempted to use in their decisions. The comment will further look at how courts have analyzed online student speech cases in light of available Supreme Court precedent, and will propose that the Court adopt a hybrid of the Tinker test when addressing student speech made on the Internet, which will …

Free Speech On The Battlefield: Protecting The Use Of Social Media By America's Soldiers, 44 J. Marshall L. Rev. 1085 (2011), David Johnsen

UIC Law Review

No abstract provided.

Cohen V. Google, Inc., Eirik Cheverud

NYLS Law Review

No abstract provided.

A Fundamental Right To Read: Reader Privacy Protections In The U.S. Constitution, Eric Robertson

University of Colorado Law Review

Bookstore customers and library patrons typically expect their book purchases and book-borrowing habits to remain private, but what is the legal basis for this expectation and is it justified? This Comment examines court decisions, readers' privacy scholarship, and First Amendment jurisprudence in search of a consistent answer. Although courts and scholars have taken different approaches in identifying a right to readers' privacy and what activity it encompasses, this Comment concludes that a right to reader privacy is fundamental under the First Amendment. In the end, this Comment seeks to provide a simplified solution to the complex constitutional issues that can …

Ten Years After: Bartnicki V. Vopper As Laboratory For First Amendment Advocacy And Analysis, Eric Easton

All Faculty Scholarship

How many ways can one approach a First Amendment analysis? What influences a lawyer or a judge to select one analytical approach over another? And what is the long-term effect of a court's choice of one over another? In Bartnicki v. Vopper, a 2001 case in which the U.S. Supreme Court considered federal and state statutes prohibiting the disclosure of illegally intercepted telephone conversations, we are privileged to have a small laboratory through which to study the first two questions. And, from the vantage point of ten years, we ought to be able to make some informed predictions as to …

Putting The Shock Value In First Amendment Jurisprudence: When Freedom For The Citizen-Journalist Watchdog Trumps The Right Of Informational Privacy On The Internet, Clay Calvert, Mirelis Torres

Vanderbilt Journal of Entertainment & Technology Law

This Article, which takes the July 2010 ruling by the Fourth Circuit in Ostergren v. Cuccinelli as a point of departure, explores the growing tension between the First Amendment right of Free Speech and the nascent right to online informational privacy. The Article addresses the "shock value" in First Amendment jurisprudence, stretching from Cohen v. California and Texas v. Johnson through the recent ruling in Ostergren. The Article also examines the traditional watchdog function of the press increasingly performed on the Internet by so-called citizen-journalists akin to Betty Ostergren. The Article concludes that while the Fourth Circuit's decision in Ostergren …

Supreme Court Amicus Brief Of Aarp And The National Legislative Association On Petition Drug Prices In Support Of Petitioners, William H. Sorrell V. Ims Health, Inc., No. 10-779 (Filed March 1, 2011), Sean Flynn, Meredith Jacob, Stacy Canan

Amicus Briefs & Court Filings

This Court should refuse to apply the First Amendment to Vermont’s Prescription Confidentiality Law based on two essential facts. First, the regulation at issue is limited to the commercial use or private-channel distribution of confidential data. It is thus governed by cases of this Court upholding the regulation of uses of information in purely private settings that do not inform or contribute to the public sphere. Bartnicki v. Vopper, 532 U.S. 514, 526-27 n.10 (2001); Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985). Second, it concerns the regulation of secondary uses of information where the government …

The Limits Of Tort Privacy, Neil M. Richards

Scholarship@WashULaw

The conception of tort privacy developed by Warren, Brandeis and Prosser sits at the heart of American understandings of privacy law. Rooted in protection of private information against unwanted collection, use, and disclosure, tort privacy protects against emotional injury, and was directed by design against disclosures of true, embarrassing facts by the media. In this essay, I argue that as conceived by Warren and Brandeis and interpreted by Prosser, tort privacy is a poor vehicle for grappling with problems of privacy and reputation in the digital age. Tort privacy, especially the disclosure tort, has from its inception been in conflict …

Doninger's Wedge: Has Avery Doninger Bridged The Way For Internet Versions Of Matthew Fraser?, 43 J. Marshall L. Rev. 439 (2010), Adam Dauksas

UIC Law Review

No abstract provided.

The Puzzle Of Brandeis, Privacy, And Speech, Neil M. Richards

Scholarship@WashULaw

Most courts and scholarship assume that privacy and free speech are always in conflict, even though each of these traditions can be traced back to writings by Louis D. Brandeis – his 1890 Harvard Law Review article “The Right to Privacy” and his 1927 concurrence in Whitney v. California. How can modern notions of privacy and speech be so fundamentally opposed if Brandeis played a major role in crafting both? And how, if at all, did Brandeis recognize or address these tensions? These questions have been neglected by scholars of First Amendment law, privacy, and Brandeis. In this paper, I …

David Doe V. Goliath, Inc.: Judicial Ferment In 2009 For Business Plaintiffs Seeking The Identities Of Anonymous Online Speakers, 43 J. Marshall L. Rev. 1 (2009), Clay Calvert, Kayla Gutierrez, Karla D. Kennedy, Kara Carnley Murrhee

UIC Law Review

No abstract provided.

When Is Lying Illegal? When Should It Be? A Critical Analysis Of The Federal False Statements Act, 43 J. Marshall L. Rev. 111 (2009), Steven R. Morrison

UIC Law Review

No abstract provided.

In The Matter Of Ottinger V. Non-Party The Journal News, Daniel Haier

NYLS Law Review

No abstract provided.

Cybercrimes Vs. Cyberliberties, Nadine Strossen

Articles & Chapters

Cybercrimes vs. Cyberliberties, Chapter 8 in Internet Policy and Economics: Challenges and Perspectives 2nd ed. at 110-127 ( W.H. Lehr & L.M. Pupillo, eds. Springer, 2009).

Rethinking Free Speech And Civil Liability, Neil M. Richards, Daniel J. Solove

Scholarship@WashULaw

One of the most important and unresolved quandaries of First Amendment jurisprudence involves when civil liability for speech will trigger First Amendment protections. When speech results in civil liability, two starkly opposing rules are potentially applicable. Since New York Times v. Sullivan, the First Amendment requires heightened protection against tort liability for speech, such as defamation and invasion of privacy. But in other contexts involving civil liability for speech, the First Amendment provides virtually no protection. According to Cohen v. Cowles, there is no First Amendment scrutiny for speech restricted by promissory estoppel and contract. The First Amendment rarely requires …

The Chains Of The Constitution And Legal Process In The Library: A Post-Usa Patriot Reauthorization Act Assessment, Susan Nevelow Mart

Publications

Since the Patriot Act was passed in 2001, controversy has raged over nearly every provision. The controversy has been particularly intense over provisions that affect the patrons of libraries. This article follows those Patriot Act provisions that affect libraries, and reviews how they have been interpreted, how the Patriot Reauthorization Acts have changed them, and what government audits and court affidavits reveal about the use and misuse of the Patriot Act. The efforts of librarians and others opposed to the Patriot Act have had an effect, both legislatively and judicially, in changing and challenging the Patriot Act. Because libraries are …

Intellectual Privacy, Neil M. Richards

Scholarship@WashULaw

This Article is about intellectual privacy–the protection of records of our intellectual activities–and how legal protection of these records is essential to the First Amendment values of free thought and expression. We often think of privacy rules being in tension with the First Amendment, but protection of intellectual privacy is different. Intellectual privacy is vital to a robust culture of free expression, as it safeguards the integrity of our intellectual activities by shielding them from the unwanted gaze or interference of others. If we want to have something interesting to say in public, we need to pay attention to the …

Balancing Freedom Of Speech With The Right To Privacy: How To Legally Cope With The Funeral Protest Problem , Anna Zwierz Messar

Pace Law Review

No abstract provided.

Second Class For The Second Time: How The Commercial Speech Doctrine Stigmatizes Commercial Use Of Aggregated Public Records, Brian N. Larson, Genelle I. Belmas

Faculty Scholarship

This Article argues that access to aggregated electronic public records for commercial use should receive protection under the First Amendment in the same measure as the speech acts the access supports. In other words, we view commercial access to aggregated public records as an essential means to valuable speech. For many, however, the taint of the commercial speech doctrine is turning all “information flows” into commercial ones. This, in turn, is threatening the access to government records.

Newsgathering In Light Of Hipaa, Alexander A. Boni-Saenz

All Faculty Scholarship

This short piece examines the interaction between the Health Insurance Portability and Accountability Act (HIPAA), a federal law designed to protect the privacy of individuals’ health information, and state Freedom of Information (FOI) laws, which are designed to ensure public access to government documents. It describes three recent cases from different states that addressed difficult issues about where and how to draw the line between the public’s right to know and individuals’ rights to keep their medical information secret. It concludes that questions about the interaction of state FOI laws and HIPAA should be guided by the framework suggested in …

The Federal Election Commission & Political Blogging: A Perfect Balance Or Just Not Enough?, 24 J. Marshall J. Computer & Info. L. 611 (2006), Niki Vlachos

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

Revisiting The American Action For Public Disclosure Of Facts, In New Dimensions In Privacy Law: International And Comparative Perspectives (Andrew T. Kenyon & Megan Richardson Eds., 2006), Brian C. Murchison

Books and Chapters

Although the public disclosure tort has had an unpromising past, it appeals to what Anthony Lewis suggests is a sense of basic fairness to ‘those who have not sought power’ but have become illustrations of public issues. The tort’s weakness may be a function of cultural indifference or constitutional qualms, although the most likely explanation is institutional: until recently, the Supreme Court offered no illumination of a core interest. Libel law had reserved the obvious candidate, dignity, for civic contexts. Now, with the court’s decision in Bartnicki and the insights of a number of contemporary thinkers, it may be time …

Equal Protection In The World Of Art And Obscenity: The Art Photographer's Latent Struggle With Obscenity Standards In Contemporary America, Elaine Wang

Vanderbilt Journal of Entertainment & Technology Law

Part I of this article describes the initial hurdles that all visual art forms, including photography, face with respect to First Amendment protection given the power of visual imagery and the three-pronged test for obscenity set forth in Miller v. California. Of particular relevance is the "serious artistic value" prong of the Miller test and the problems inherent in determining who is to judge as well as how one might judge whether a work, particularly a photograph that may be construed to have a non-artistic function, possesses "serious artistic value."

Part II addresses the overall approach to photography in three …

Arkansas’S Public Records Retention Program: Records Retention As A Cornerstone Of Citizenship And Self-Government, Richard J. Peltz

University of Arkansas at Little Rock Law Review

No abstract provided.

Truth And Consequences: First Amendment Protection For Accurate Reporting On Government Investigations, Jonathan Donnellan, Justin Peacock

NYLS Law Review

No abstract provided.

Introduction, Russell L. Weaver, David F. Partlett

NYLS Law Review

No abstract provided.