First Amendment Commons^™

An Unsatisfactory State Of The Law: The Limited Options For A Corporation Dealing With Cyber Hostilities By State Actors, Daniel Garrie, Shane R. Reeves

Cardozo Law Review

No abstract provided.

Rethinking The Ban On Employer-Labor Organization Cooperation, Heather M. Whitney

Cardozo Law Review

As a result of a variety of changed conditions, traditional union density is at an all-time low. But while only 6.6% of private sector workers are unionized, the rest of the workforce has not been without collective voice; nontraditional forms of worker organizations continue to emerge. Fast Food Forward, the Coalition of Immokalee Workers' Fair Food Program, Google's LGBT Employee Resource Group, and nascent organizing of "on-demand economy" Uber and Lyft drivers are a few examples of nontraditional worker organizations providing gains for workers.

The success of many of these organizations has depended on avoiding the National Labor Relations Act …

At The Intersection Of Religious Organization Missions And Employment Laws: The Case Of Minister Employment Suits, Jarod S. Gonzalez

Catholic University Law Review

Reviewing the intersection of a religious organization’s right to select employees based on their goals and mission and modern employment law, this article argues that the analysis of the ministerial exception will depend on the type of suit brought. Specifically, the Article identifies five analytical categories: (1) employment discrimination/employment retaliation claims; (2) breach of employment contract claims; (3) whistleblower claims; (4) tort claims; and (5) miscellaneous claims.

The Article begins by describing the ministerial exception and ecclesiastical abstention doctrines that exist under the First Amendment through the lens of the Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church & School …

Guns, Speech, And Breathing Space: Response To Andrew Jay Mcclurg's The Second Amendment Right To Be Negligent, Allen K. Rostron

Faculty Works

No abstract provided.

The Road To Adopting And Implementing Systemic Disclosure Changes In The Dallas County District Attorney’S Office, Susan Hawk, Patricia J. Cummings

Cardozo Law Review de•novo

Discovery and Brady are currently two of the most discussed and debated topics in our criminal justice system. Americans have become more and more aware of the number of individuals convicted and incarcerated for crimes they did not commit. In 2007, in a very bold and innovative move, the Dallas County District Attorney’s Office created the Conviction Integrity Unit (CIU) to reexamine questionable convictions to determine if a particular defendant was in fact guilty.

A New Test To Reconcile The Right Of Publicity With Core First Amendment Values, Nat Stern, Mark Joseph Stern

Scholarly Publications

No abstract provided.

Section 230 Of The Communications Decency Act: The True Culprit Of Internet Defamation, Heather Saint

Loyola of Los Angeles Entertainment Law Review

This Note highlights the growing concern of Internet defamation and the lack of viable legal remedies available to its victims. Internet defamation is internet speech with the purpose to disparage another’s reputation. At common law, a victim of alleged defamation has the right to file suit against not only the original speaker of the defamatory statements, but the person or entity to give that statement further publication as well. In certain cases even the distributor, such as a newspaper stand, can be held liable for a defamation claim. However, liability due to defamatory speech on the Internet is quite different. …

Freedom Of Unspoken Speech: Implied Defamation And Its Constitutional Limitations, Julie M. Capie

Touro Law Review

No abstract provided.

The Uneasy And Often Unhelpful Interaction Of Tort Law And Constitutional Law In First Amendment Litigation, George C. Christie

Marquette Law Review

There are increasing tensions between the First Amendment and the common law torts of intentional infliction of emotional distress, defamation, and privacy. This Article discusses the conflicting interactions among the three models that are competing for primacy as the tort law governing expressive activities evolves to accommodate the requirements of the First Amendment. At one extreme there is the model that expression containing information which has been lawfully obtained that contains neither intentional falsehoods nor incitements to immediate violence can only be sanctioned in narrowly defined exceptional circumstances, even if that expression involves matters that are universally regarded as being …

Why Can't I Know How The Sausage Is Made?: How Ag-Gag Statutes Threaten Animal Welfare Groups And The First Amendment, Daniel L. Sternberg

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Tort, Speech, And The Dubious Alchemy Of State Action, Cristina Carmody Tilley

Faculty Publications

Plaintiffs have historically used private law torts like defamation, privacy, and intentional infliction of emotional distress to vindicate their dignitary interests. But fifty years ago in New York Times v. Sullivan, the Supreme Court took an unprecedented approach to state action doctrine in order to recast these causes of action as public-private law hybrids that explicitly privileged speech over dignity. In constitutional challenges to private law disputes, the Court had for decades defined the state action under review to include just the contested verdict at issue. In Sullivan, it broke with that practice and defined the relevant state action to …

Can Dead Soldiers Revive A "Dead" Doctrine? An Argument For The Revitalization Of "Fighting Words" To Protect Grieving Families Post-Snyder V. Phelps, Kevin P. Donoughe

Cleveland State Law Review

This Note avers that speech of the Westboro Baptist Church, in the context of funeral pickets, can be construed as targeted personal attacks on grieving families which have the potential to incite—and indeed have incited—immediate breaches of the peace and violent rebuttals. In light of Snyder, and the inadequacy of time, place, and manner statutes as a protection for grieving families, this Note argues for the revitalization of the “fighting words” doctrine to encompass targeted, ad hominem attacks from organizations like the Westboro Baptist Church, thereby leaving this speech unprotected by the First Amendment and exposing the speakers to tort …

The Uneasy And Often Unhelpful Interaction Of Tort Law And Constitutional Law In First Amendment Litigation, George C. Christie

Faculty Scholarship

There are increasing tensions between the First Amendment and the common law torts of intentional infliction of emotional distress, defamation, and privacy. This Article discusses the conflicting interactions among the three models that are competing for primacy as the tort law governing expressive activities evolves to accommodate the requirements of the First Amendment. At one extreme there is the model that expression containing information which has been lawfully obtained that contains neither intentional falsehoods nor incitements to immediate violence can only be sanctioned in narrowly defined exceptional circumstances, even if that expression involves matters that are universally regarded as being …

Supreme Court, New York County, Renco Group, Inc. V. Workers World Party, Inc., Edward Puerta

Touro Law Review

No abstract provided.

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 …

The Israeli Anti-Boycott Law: Should Artists Be Worried?, Arie Peled

Cardozo Arts & Entertainment Law Journal

Though much has been written about the economic dimension of Arab boycotts against Israel, much less attention has been paid to the implications of wider calls for a cultural boycott against Israel. Part I of this note will outline the scope of Israel's boycott problem by looking to the history of the Palestinian Boycott, Divestment, and Sanctions ("BDS") movement, while focusing in particular on the cultural aspects of this boycott. It will then discuss the current dimensions of the domestic and international cultural boycott campaigns Israel faces. Part II will analyze the Israeli legislative response to the BDS movement through …

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 …

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 …

Re-Establishing Distributor Liability On The Internet: Recognizing The Applicability Of Traditional Defamation Law To Section 230 Of The Communications Decency Act Of 1996, William E. Buelow Iii

West Virginia Law Review

Plaintiffs whose reputations have suffered irreparable injury from the distribution of defamatory statements have generally been permitted by law to recover damages from the enterprises that distributed the publications known to contain the defamatory material. However, when the enterprise that knowingly distributed the injurious content is an Internet service provider ("ISP"), present law denies that same plaintiff recovery. This perception of ISP immunity flows from a decision by the United States Court of Appeals for the Fourth Circuit in Zeran v. America Online, Inc., where the Court extended certain immunities offered by the Communications Decency Act of 1996 (the "CDA"). …

Losing The Struggle To Define The Proper Balance Between The Law Of Defamation And The First Amendment - Gertz V. Robert Welch, Inc.: One Step Forward, Two Steps Back, Douglas B. Large, Kristopher Kallman

Pepperdine Law Review

No abstract provided.

Balancing Intentional Infliction Of Emotional Distress Claims And First Amendment Protections In Snyder V. Phelps, Douglas Behrens

Cardozo Public Law, Policy & Ethics Journal

The article explores the delicate balance between First Amendment protections and Intentional Infliction of Emotional Distress (IIED) claims, using the Snyder v. Phelps case as a focal point. It argues that while the Supreme Court correctly ruled in favor of Westboro Baptist Church's free speech rights, the current legal framework for balancing these interests is outdated. The author proposes an "enhanced publicity test" to modernize the analysis, ensuring that speech contributing to public discourse is protected while safeguarding individuals from severe emotional harm caused by malicious speech.

Negligent Infliction Of Emotional Distress: New Tort Problem For The Mass Media, Robert E. Drechsel

Pepperdine Law Review

Negligent infliction of emotional distress is becoming an increasingly popular cause of action to be utilized against media defendants. This article begins by tracing the development of the tort and explaining its central elements through cases involving mass media defendants. It studies the relationship between negligent infliction and the torts of libel, invasion of privacy, and intentional infliction of emotional distress. After considering the appropriate balance between expression and emotional tranquility, it is concluded that negligent infliction actions present an ominous threat to the free flow of expression. Sound policy considerations, flowing in part from the first amendment, dictate that …

Dun & Bradstreet, Inc. V. Greenmoss Builders, Inc.: Does The Actual Malice Standard Of Gertz V. Robert Welch, Inc. Apply To Speech On Matters Of Purely Private Concern?, Jeff Boykin

Pepperdine Law Review

No abstract provided.

Journalists, Trespass, And Officials: Closing The Door On Florida Publishing Co. V. Fletcher , Kent R. Middleton

Pepperdine Law Review

No abstract provided.

Hustler Magazine, Inc. V. Falwell: Laugh Or Cry, Public Figures Must Learn To Live With Satirical Criticism , James R. Laguzza

Pepperdine Law Review

No abstract provided.

According To An Unnamed Official: Reconsidering The Consequences Of Confidential Source Agreements When Promises Are Broken By The Press, Peri Z. Hansen

Pepperdine Law Review

No abstract provided.

Masson V. New Yorker Magazine, Inc.: Permission For Journalists To Quote What I Mean, Not What I Say, Kevin M. Erwin

Pepperdine Law Review

No abstract provided.

Smoking Out Big Tobacco: Some Lessons About Academic Freedom, The World Wide Web, Media Conglomeration, And Public Service Pedagogy From The Battle Over The Brown & Williamson Documents, Clay Calvert

Pepperdine Law Review

No abstract provided.

Ambiguity In The Realm Of Defamation: Rhetorical Hyperbole Or Provable Falsity? - Gorilla Coffee, Inc. V. New York Times Co., Tiffany Frigenti

Touro Law Review

No abstract provided.

The Burden To Prove Libel: A Comparative Analysis Of Traditional English And U.S. Defamation Laws And The Dawn Of England's Modern Day, Elizabeth Samson

Cardozo Journal of International and Comparative Law

The article examines the divergence between English and U.S. defamation laws, particularly the burden of proof in libel cases. It argues that while the U.S. has evolved to prioritize free speech by shifting the burden to the plaintiff, England maintains a plaintiff-friendly approach, leading to libel tourism and chilling free speech. The author suggests that England should consider reforming its burden of proof to address these issues.