First Amendment Commons^™

Citizen-Critics, Citizen Journalists, And The Perils Of Defining The Press, William E. Lee

Georgia Law Review

Media lawyers frequently describe New York Times Co. v. Sullivan as a great win for the press. Certainly the Court's ruling saved the New York Times from financial ruin. However, four Alabama ministers active in the Southern Christian Leadership Conference (SCLC), Ralph D. Abernathy, Joseph E. Lowery, Fred L. Shuttlesworth, and S.S. Seay Sr., were also targeted by Sullivan as defendants. Despite testimony that the ministers had not authorized the use of their names in the advertisement, "Heed Their Rising Voices," and learned of the ad only when Sullivan asked them for a retraction, the jury found each liable for …

Institutional Actors In New York Times Co. V. Sullivan, Paul Horwitz

Georgia Law Review

Like all major cases, New York Times Co. v. Sullivan, which has now reached its fiftieth anniversary, is capable of multiple readings. This is less true of Sullivan than of some other epochal cases, especially those cases that continue to have a powerful political valence. Brown v. Board of Education, in particular, which will mark its sixtieth anniversary this year, continues to provoke fierce debates about its meaning and, in a deeper sense, its ownership. Sullivan is unquestionably one of the most important decisions in First Amendment jurisprudence. It has certainly produced debate. But arguments about Sullivan generally focus on …

Fast Forward Fifty Years: Protecting Uninhibited, Robust, And Wide-Open Debate After New York Times Co. V. Sullivan, Amy K. Sanders

Georgia Law Review

In September 2013, California Governor Jerry Brown signed into law SB 606, criminalizing attempts to photograph or videotape a child if the reason for doing so was because the child's parent is a celebrity or public official. Not surprisingly, the measure garnered significant support from Hollywood's elite, including legislative testimony from actress-moms Halle Berry and Jennifer Garner. Against the outcry of the California Broadcasters Association and the California Newspaper Publishers Association, the California Legislature approved the measure, which raises current penalties for first-time offenders to one year of incarceration and/or a $10,000 fine (up from a maximum of six months …

In New York Times Co. V. Sullivan, The Supreme Court Got It Right Then- And Now, David G. Savage

Georgia Law Review

On April 5, 1960, Ray Jenkins, a city editor for the Alabama Journal,the afternoon paper in Montgomery, was having lunch at his desk and skimming through the old papers that had piled up. They included a week-old copy of the New York Times. He spotted an item that had a local angle, and he wrote a thirteen-paragraph story for that day's paper. "Sixty prominent liberals, including [former First Lady] Eleanor Roosevelt, have signed a full page advertisement in the New York Times appealing for contributions to 'The Committee to Defend Martin Luther King and the Struggle for Freedom in the …

From Google To Tolstoy Bot: Should The First Amendment Protect Speech Generated By Algorithms?, Margot Kaminski

Publications

No abstract provided.

Too Strict?, Richard B. Collins

Publications

Should the strict scrutiny standard govern judicial review of claims that government has burdened religious freedom? American law’s patchwork of rules applies that demanding standard to some claims but denies any meaningful review to others. A major difficulty is that most claims alleging denial of religious freedom depend on beliefs that cannot be reviewed by secular courts. Claims based on allegations alone shift the burden to the defending government. Strict scrutiny purports to make justification very difficult; governments are supposed to lose most cases. A second defect of the test in religious freedom cases is its failure to consider harm …

The Stealth Press Clause, Sonja R. West

Georgia Law Review

As we reflect on the 50th anniversary of New York Times Co. v. Sullivan, there will likely be many tributes to Sullivan as one of the Supreme Court's most significant press cases. Yet Sullivan was not really a "press" case. The Supreme Court, in its opinion, granted all speakers greater protection against defamation liability regardless of whether they were a member of the press. Sullivan is not the only famous so-called "press" case that was not just about the press. Several more "not-just-the-press" victories followed in Sullivan's wake. New York Times Co. v. United States (the "Pentagon Papers case"), for …

Scandal! Early Supreme Court News Coverage And The Justice-Journalist Divide, Amy Gajda

Georgia Law Review

In January of 1900, United States Supreme Court Associate Justice Henry Brown (author of Plessy v. Ferguson) had apparently just about had it with the press. He gave what was called "[t]he principal address" before members of the New York State Bar Association in Albany and focused not principally on law, but on what he called journalism's sensationalistic methods.' "Ugly stories are told," he told the gathered attorneys, "of spies put upon houses to unearth domestic scandals or upon the steps of public men to ferret out political secrets," including early reports of court decisions. The greatest of the cruelties …

The Impact Of Clapper V. Amnesty International Usa On The Doctrine Of Fear-Based Standing, Amanda M. Mcdowell

Georgia Law Review

The Supreme Court's 2013 decision in Clapper v. Amnesty International USA dealt with the government's electronic surveillance authority under the Foreign Intelligence SurveillanceAct (FISA) Amendments. In a 5- 4 opinion, the Court held that a variety of U.S. persons, including attorneys and media organizations, did not have standing to challenge the constitutionality of the FISA Amendments because the plaintiffs' fear of future unlawful surveillance was not "certainly impending." Depending on how lower courts choose to interpret Clapper, the decision could have a significant impact on the doctrine of fear-based standing, which allows plaintiffs to establish standing based on fear of …

The Semiotics Of Film In Us Supreme Court Cases, Jessica Silbey, Meghan Hayes Slack

Faculty Scholarship

This chapter explores the treatment of film as a cultural object among varied legal subject matter in US Supreme Court jurisprudence. Film is significant as an object or industry well beyond its incarnation as popular media. Its role in law – even the highest level of US appellate law – is similarly varied and goes well beyond the subject of a copyright case (as a moving picture) or as an evidentiary proffer (as a video of a criminal confession). This chapter traces the discussion of film in US Supreme Court cases in order to map the wide-ranging and diverse ­relations …

The Marrow Of Tradition: The Roberts Court And Categorial First Amendment Speech Exclusions, Gregory P. Magarian

Scholarship@WashULaw

INTRODUCTION The Roberts Court has made a lot of First Amendment law. Since Chief Justice John Roberts took the Supreme Court’s helm in 2006, the Court has issued decisions on the merits in about thirty-five free speech cases. With greater vigor than the late Rehnquist Court, the present Justices have waded into free speech controversies ranging from violent video games to commercial speech to campaign fi- nance regulation. In all those areas, the Court has handed import- ant victories to First Amendment claimants. Free speech advocates’ conventional (not to say universal) view of this Court is adoring. Renowned First Amendment …

Hobby Lobby And The Pathology Of Citizens United, Ellen D. Katz

Articles

Four years ago, Citizens United v. Federal Election Commission held that for-profit corporations possess a First Amendment right to make independent campaign expenditures. In so doing, the United States Supreme Court invited speculation that such corporations might possess other First Amendment rights as well. The petitioners in Conestoga Wood Specialties Corp. v. Sebelius are now arguing that for-profit corporations are among the intended beneficiaries of the Free Exercise Clause and, along with the respondents in Sebelius v. Hobby Lobby Stores, that they also qualify as “persons” under the Religious Freedom Restoration Act (RFRA). Neither suggestion follows inexorably from Citizens United, …

Tollbooths And Newsstands On The Information Superhighway, Brad A. Greenberg

Michigan Telecommunications & Technology Law Review

Countering the perception that speech limitations affecting distribution necessarily reduce access to information, this Essay proffers that copyright expansions actually can increase access and thereby serve important copyright and First Amendment values. In doing so, this discussion contributes to the growing literature and two recent Supreme Court opinions discussing whether copyright law and First Amendment interests can coexist.

Pro-Whistleblower Reform In The Post-Garcetti Era, Julian W. Kleinbrodt

Michigan Law Review

Whistleblowers who expose government ineptitude, inefficiency, and corruption are valuable assets to a well-functioning democracy. Until recently, the Connick–Pickering test governed public employee speech law; it gave First Amendment protection to government employees who spoke on matters of public concern—-such as whistleblowers-—so long as the government’s administrative concerns did not outweigh the employees’ free speech interests. The Supreme Court significantly curtailed the protection of such speech in its recent case, Garcetti v. Ceballos. This case created a categorical threshold requirement that afforded no protection to speech made as an employee rather than as a citizen. Garcetti’s problematic rule has forced …

Section 5: First Amendment & Separation Of Powers, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 1: Moot Court: Town Of Greece V. Galloway, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Brief Of Eugene Volokh, Richard W. Garnett, Michael Stokes Paulsen, Timothy Zick, William E. Lee, Alan K. Chen, & Ronald J. Krotoszynski, Jr. As Amici Curiae In Support Of Petitioners, Kevin C. Walsh, Matthew A. Fitzgerald, Andriana S. Daly, Richard W. Garnett

Court Briefs

No. 12-1168
Eleanor McCullen v. Martha Coakley

On Writ of Certiorari to the United States Court of Appeals for the First Circuit

From the Summary of Argument

Even many steadfast supporters of abortion rights believed that the Court erroneously applied the First Amendment in Hill v. Colorado, 530 U.S. 703 (2000). As put bluntly by leading liberal scholar Professor Laurence Tribe, Hill was among the candidates for “most blatantly erroneous” decisions of the 1999 Term. Tribe added that the case was “slam-dunk simple” yet the Court got it “slam-dunk wrong.”

Specifically, pro-choice and pro-life scholars alike agreed that the …

Rethinking Reporter's Privilege, Ronnell Andersen Jones

Michigan Law Review

Forty years ago, in Branzburg v. Hayes, the Supreme Court made its first and only inquiry into the constitutional protection of the relationship between a reporter and a confidential source. This case - decided at a moment in American history in which the role of an investigative press, and of information provided by confidential sources, was coming to the forefront of public consciousness in a new and significant way - produced a reporter-focused "privilege" that is now widely regarded to be both doctrinally questionable and deeply inconsistent in application. Although the post-Branzburg privilege has been recognized as flawed in a …

Brief Of Richard W. Garnett, Michael Stokes Paulsen, & Eugene Volokh As Amici Curiae In Support Of Petitioners, Kevin C. Walsh, Ryan A. Shores, Richard W. Garnett

Court Briefs

No. 12-1168
Eleanor McCullen v. Martha Coakley

On Petition for a Writ of Certiorari to the United States Court of Appeals for the First Circuit

From the Summary of Argument

This Court granted certiorari in Hill v. Colorado “[b]ecause of the importance of the case.” 530 U.S. 703, 714 (2000). The Court should grant certiorari in this case because of the importance of placing limits on Hill.

The Court does not need to overrule Hill to contain the damage wrought by the First Circuit’s expansion of it. But the Court should contain Hill and thereby prevent further erosion of …

Dun & Bradstreet V. Greenmoss Builders As An Example Of Justice Powell's Approach To Constitutional Jurisprudence, Paul M. Smith

Washington Law Review

Given this welcome opportunity to comment on the Levine and Wermiel account, I thought I would use it to offer some thoughts about Justice Powell’s approach to constitutional jurisprudence, particularly in First Amendment cases—an approach well illustrated by the story of Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.

The Supreme Court's Theory Of Private Law, Nathan B. Oman, Jason M. Solomon

Faculty Publications

In this Article, we revisit the clash between private law and the First Amendment in the Supreme Court’s recent case, Snyder v. Phelps, using a private-law lens. We are scholars who write about private law as individual justice, a perspective that has been lost in recent years but is currently enjoying something of a revival.

Our argument is that the Supreme Court’s theory of private law has led it down a path that has distorted its doctrine in several areas, including the First Amendment–tort clash in Snyder. In areas that range from punitive damages to preemption, the Supreme Court has …

Policeman, Citizen, Or Both? A Civilian Analogue Exception To Garcetti V. Ceballos, Caroline A. Flynn

Michigan Law Review

The First Amendment prohibits the government from leveraging its employment relationship with a public employee in order to silence the employee's speech. But the Supreme Court dramatically curtailed this right in Garcetti v. Ceballos by installing a categorical bar: if the public employee spoke "pursuant to her official duties," her First Amendment retaliation claim cannot proceed. Garcetti requires the employee to show that she was speaking entirely "as a citizen" and not at all "as an employee." But this is a false dichotomy - especially because the value of the employee's speech to the public is no less if she …

Religious Freedom In The United States: ‘When You Come To A Fork In The Road, Take It', Charles J. Russo

Educational Leadership Faculty Publications

As expansive as the Supreme Court’s view of the First Amendment religion clauses has been, its jurisprudence has demonstrated that its rulings do not always achieve the outcomes desired by proponents of religious freedom.³ From the perspective of supporters of religious freedom, this realization lends credence to the preceding wry comment by Justice Scalia. This article details the Court’s inconsistent treatment of Christianity, and people of faith broadly, especially in educational settings. These inconsistent judicial outcomes run the risk of increasingly marginalizing matters of faith and conscience in the public square.⁴ As discussed in this article, disputes over …

Outing The Majority: Gay Rights, Public Debate, And Polarization After Doe V. Reed, Marc Allen

Michigan Journal of Gender & Law

In 2010, the United States Supreme Court ruled in Doe v. Reed that Washington citizens who signed a petition to eliminate legal rights for LGBT couples did not have a right to keep their names secret. A year later, in ProtectMarriage.com v. Bowen, a district court in California partially relied on Reed to reject a similar request from groups who lobbied for California Proposition 8-a constitutional amendment that overturned the California Supreme Court's landmark 2008 gay marriage decision. These holdings are important to election law, feminist, and first amendment scholars for a number of reasons. First, they flip the traditional …

Baring Inequality: Revisiting The Legalization Debate Through The Lens Of Strippers' Rights, Sheerine Alemzadeh

Michigan Journal of Gender & Law

The debate over legalization of prostitution has fractured the feminist legal community for over a quarter century. Pro-legalization advocates promote the benefits attending government regulation of prostitution, including the ability to better prosecute sex crimes, increase public health and educational resources for individuals in the commercial sex trade, and apply labor and safety regulations to the commercial sex industry in the same manner as they are applied to other businesses. Some anti-legalization advocates identify themselves as "new abolitionists," and argue that government recognition of prostitution reinforces gender inequality. Often, this debate is framed in the hypothetical: What would happen if …

The North Carolina Woman’S Right To Know Act: An Unconstitutional Infringement On A Physician’S First Amendment Right To Free Speech, Ryan Bakelaar

Michigan Journal of Gender & Law

The North Carolina Woman’s Right to Know Act represents the crossroads of the Supreme Court’s First Amendment, informed consent, and abortion-related jurisprudence. The Act requires physicians to perform an obstetric ultrasound, verbally convey specific information regarding ultrasonographic findings, and communicate a host of other information to patients seeking abortions. The purported goal of the Act is to ensure that physicians obtain appropriate informed consent from such patients. By compelling a physician to convey this information, the State violates the physician’s First Amendment rights. Indeed, the State may not compel an individual to convey the State’s ideological message. Further, any statute …

The First Amendment And The Second Commandment, Amy Adler

NYLS Law Review

No abstract provided.

A Look At The Establishment Clause Through The Prism Of Religious Perspectives: Religious Majorities, Religious Minorities, And Nonbelievers, Samuel J. Levine

Chicago-Kent Law Review

As a number of commentators have observed, the Supreme Court's record in adjudicating the free exercise claims of religious minorities—in particular, unfamiliar and unpopular religious minorities—is vulnerable to the critique that the Court's rhetoric and, at times, the Court's holdings demonstrate an inability or unwillingness to look beyond majoritarian religious perspectives. Building on this scholarship, this article analyzes the Court's adjudication of Establishment Clause cases in the context of different religious perspectives, including those of religious minorities, religious minorities, and nonbelievers.

In exploring these questions, this article traces the Court's Establishment Clause jurisprudence through several decades, examining a number of …

Towards A Balanced Approach For The Protection Of Native American Sacred Sites, Alex Tallchief Skibine

Michigan Journal of Race and Law

Protection of "sacred sites" is very important to Native American religious practitioners because it is intrinsically tied to the survival of their cultures, and therefore to their survival as distinct peoples. The Supreme Court in Oregon v. Smith held that rational basis review, and not strict scrutiny, was the appropriate level of judicial review when evaluating the constitutionality of neutral laws of general applicability even when these laws impacted one's ability to practice a religion. Reacting to the decision, Congress enacted the Relgious Freedom Restoration Act (RFRA), which reinstated the strict scrutiny test for challenges to neutral laws of general …

The New Victims Of The Old Anti-Catholicism, Christopher C. Lund

Law Faculty Research Publications

Santayana once said that those who cannot remember the past are condemned to repeat it, the implication being that we can avoid future mistakes by paying better attention to past ones. Perhaps this is so. Or perhaps it is as George Bernard Shaw once said-that we learn from history only that we learn nothing from history. Yet one thing is surely clear. To the extent that modern injustices have identifiable historical antecedents, we rightly stand doubly condemned for them.

This Essay looks at four modern church-state cases which span the First Amendment spectrum. The plaintiffs are religiously diverse-one is a …