First Amendment Commons^™

The Weaponized Lawsuit Against The Media: Litigation Funding As A New Threat To Journalism, Lili Levi

Articles

This Article identifies a new front in the current war against the media one in which billionaire private actors clandestinely fund other people's lawsuits in an attempt to censor press entities. The use of strategic litigation to shutter media outlets constitutes a major threat to the expressive order. And the current climate of press failures, institutional disaggregation, decreasing accountability journalism, and declining public trust-the very vulnerability of the press today-significantly amplifies the chilling impact of strategic third party funding. It does so whether the strategy is death-by-a-thousand litigations or titanic, bankruptcy-inducing damage verdicts.

Still, contrary to the assertions of both …

Ending The Pursuit: Releasing Attorney Advertising Regulations At The Intersection Of Technology And The First Amendment, Jan L. Jacobowitz

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No abstract provided.

Justice Scalia, The Establishment Clause, And Christian Privilege, Caroline Mala Corbin

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No abstract provided.

Is Social Media The New Era’S “Water Cooler”? #Notifyouareagovernmentemployee, Sabrina Niewialkouski

University of Miami Law Review

Current Free Speech doctrine does not sufficiently protect government employees’ First Amendment rights. There are two major flaws in the test implemented by the Supreme Court in order to find whether the First Amendment protects an employee. First, the Garcetti test, where a government employee loses First Amendment protection if her speech is pursuant to her official duty, is inadequate, overbroad, and should be done away with completely – or at the least interpreted more narrowly. Secondly, the Pickering balancing test is less of a balancing and more of a prioritization of the government’s interests and should be interpreted to …

The Contraception Mandate Accomodated: Why The Rfra Claim In Zubik V. Burwell Fails, Caroline Mala Corbin

Short Works

No abstract provided.

Deference To Claims Of Substantial Religious Burden, Caroline Mala Corbin

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No abstract provided.

Nonconsensual Pornography And The First Amendment: A Case For A New Unprotected Category Of Speech, Alix Iris Cohen

University of Miami Law Review

Nonconsensual pornography, or the distribution of sexually graphic images of individuals without their consent, is not illegal at the federal level, nor is it illegal in the majority of states. Failure to pass laws prohibiting nonconsensual pornography, commonly referred to as “revenge porn,” leaves many victims without recourse. Opponents of legislation regulating revenge porn claim that it cannot be banned because it constitutes speech that is protected by the First Amendment. This Comment argues that nonconsensual pornography should be considered an unprotected category of speech, which would enable it to be prohibited without triggering First Amendment concerns. The method of …

Intentional Discrimination In Establishment Clause Jurisprudence, Caroline Mala Corbin

Articles

In Town of Greece, New York v. Galloway, the Supreme Court upheld a legislative prayer practice with overwhelmingly Christian prayers in part because the Court concluded that the exclusion of all other religions was unintentional. This requirement-that a religiously disparate impact must be intentional before it amounts to an establishment violation-is new for Establishment Clause doctrine. An intent requirement, however, is not new for equal protection or free exercise claims. This Essay explores the increased symmetry between the Establishment Clause, the Equal Protection Clause, and the Free Exercise Clause. It argues that many of the critiques of the intentional …

A "Faustian Pact"? Native Advertising And The Future Of The Press, Lili Levi

Articles

As technology undermines the economic model supporting the traditional press, news organizations are succumbing to the siren call of "native advertising" – a new marketing technique for unobtrusively integrating paid advertising into editorial content. Brands are increasingly turning to native ads to preempt consumers' well-documented ad avoidance. Although the native advertising model debuted on digital-native news sites, it is now ubiquitous in elite legacy media as well. Everyone knew "native" had arrived for good when the venerable New York Times not only introduced its online "Paid Post," but incorporated sponsored content in its print editions, and even hired an in-house …

Commentary: Exploiting Mixed Speech, Caroline Mala Corbin

Articles

The Supreme Court has been taking advantage of mixed speech—that is, speech that is both private and governmental—to characterize challenged speech in a way that ultimately permits the government to sponsor Christian speech. In Pleasant Grove City v. Summum, a free speech case where the government accepted a Christian Ten Commandments monument but rejected a Summum Seven Aphorisms monument, the Court held that privately donated monuments displayed in public parks were government speech as opposed to private speech and therefore not subject to free speech limits on viewpoint discrimination. In Town of Greece v. Galloway, an establishment case …

Speech Or Conduct? The Free Speech Claims Of Wedding Vendors, Caroline Mala Corbin

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Corporate Religious Liberty, Caroline Mala Corbin

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Fumbling The First Amendment: The Right Of Publicity Goes 2-0 Against Freedom Of Expression, Thomas E. Kadri

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Two circuits in one summer found in favor of college athletes in right-of-publicity suits filed against the makers of the NCAA Football videogame. Both panels split 2-1; both applied the transformative use test; both dissenters predicted chilling consequences. By insisting that the likeness of each player be "transformed," the Third and Ninth Circuits employed a test that imperils the use of realistic depictions of public figures in expressive works. This standard could have frosty implications for artists in a range of media: docudramas, biographies, and works of historical fiction may be at risk. This Comment examines the tension between the …

Lies And Their Protection: A Comparison Of The Right To Lie About Receiving A Military Honor In The United States And Canada, Marilyn N. Harvey

University of Miami International and Comparative Law Review

No abstract provided.

Corporate Religious Liberty: Why Corporations Are Not Entitled To Religious Exemptions, Caroline Mala Corbin

Short Works

No abstract provided.

Compelled Disclosures, Caroline Mala Corbin

Articles

Courts have faced a wave of compelled disclosure cases recently. By government mandate, tobacco manufacturers must include graphic warnings on their cigarette packages, doctors must show and describe ultrasound images of fetuses to women seeking to abort them, and crisis pregnancy centers must disclose that they do not provide contraception or abortion services. Although applying the same compelled speech doctrine to similar issues, appeals courts have reached very different results in challenges to these laws. Drawing from First Amendment theory, this Article first identifies why compelled disclosures undermine free speech values. It then applies those insights to the specific examples …

Emotional Compelled Disclosures, Caroline Mala Corbin

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The Tools Of Political Dissent: A First Amendment Guide To Fun Registries, Thomas E. Kadri

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"Smut And Nothing But": The Fcc, Indecency, And Regulatory Transformations In The Shadows, Lili Levi

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The Contraception Mandate, Caroline Mala Corbin

Articles

Under the new health care regime, health insurance plans must cover contraception. While religious employers are exempt from this requirement, religiously affiliated employers are not. Several have sued, claiming that the "contraception mandate" violates the Free Exercise Clause, the Free Speech Clause, and the Religious Freedom Restoration Act. This Essay explains why the contraception mandate violates none of them.

The Irony Of Hosanna-Tabor Evangelical Lutheran Church And School V Eeoc, Caroline Mala Corbin

Articles

In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a schoolteacher sued her employer for retaliating against her in violation of the American with Disabilities Act (ADA). The success of her ADA claim turned on whether the Supreme Court thought that she was a minister. If she was not a minister, she would have probably won. After all, the school stated in writing that a main reason for her termination was her threatened lawsuit. But because the Supreme Court decided that she was a minister, and that ministers may not sue their religious employers for discrimination under the ministerial …

Endless Pursuit: Capturing Technology At The Intersection Of The First Amendment And Attorney Advertising, Jan L. Jacobowitz, Gayland O. Heathcote Ii

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No abstract provided.

Debate: The Contraception Mandate And Religious Freedom, Steven D. Smith, Caroline Mala Corbin

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The Problem Of Trans-National Libel, Lili Levi

Articles

Forum shopping in trans-national libel cases-"libel tourism"- - has a chilling effect on journalism, academic scholarship, and scientific criticism. The United States and Britain (the most popular venue for such cases) have recently attempted to address the issue legislatively. In 2010, the United States passed the SPEECH Act, which prohibits recognition and enforcement of libel judgments from jurisdictions applying law less speech-protective than the First Amendment. In Britain, consultation has closed and the Parliamentary Joint Committee has issued its report on a broad-ranging libel reform bill proposed by the Government in March 2011. This Article questions the extent to which …

When Bad Speech Does Good, Mary Anne Franks

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Nonbelievers And Government Speech, Caroline Mala Corbin

Articles

In the past few years, nonbelievers have become much more prominent in the United States. But while their visibility has increased, they are still a small minority, and they remain disliked, distrusted, and not truly American in the eyes of many. As a result, many nonbelievers are hesitant about disclosing their views, and those who do often face hostility and discrimination.

This Article argues that government religious speech such as "In God We Trust" or a Latin cross war memorial violates the Establishment Clause in part because it exacerbates the precarious position of nonbelievers in this country. One of the …

Response: The Continuing Relevance Of The Establishment Clause: A Reply To Professor Richard C. Schragger, Caroline Mala Corbin

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No abstract provided.

Ceremonial Deism And The Reasonable Religious Outsider, Caroline Mala Corbin

Articles

State invocations of God are common in the United States; indeed, the national motto is "In God We Trust." Yet the Establishment Clause forbids the state from favoring some religions over others. Nonetheless, courts have found the national motto and other examples of what is termed ceremonial deism constitutional on the ground that the practices are longstanding, have de minimis and nonsectarian religious content, and achieve a secular goal. Therefore, they conclude, a reasonable person would not think that the state was endorsing religion.

But would all reasonable people reach this conclusion? This Article examines the "reasonable person" at the …

Robert Tsai, Eloquence And Reason: Creating A First Amendment Culture Book Review, Zanita E. Fenton

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No abstract provided.

The First Amendment Right Against Compelled Listening, Caroline Mala Corbin

Articles

This Article argues for a new First Amendment right: the right against compelled listening. Free speech jurisprudence - which already recognizes the right to speak, the right to listen, and the right against compelled speech - is incomplete without the right against compelled listening. The same values that underlie the other free speech rights also lead to this right. Furthermore, this claim holds true regardless of whether one conceives of the primary purpose of the Free Speech Clause as creating a marketplace of ideas, enhancing participatory democracy, or promoting individual autonomy. The Article starts by examining the protection afforded to …