First Amendment Commons^™

“You Can’T Post That!”: Constitutionality Of Non-Disparagement Orders Barring Divorced Parents’ Social Media Posts, Kaitlyn B. Hammond

Vanderbilt Law Review

When a marriage goes wrong, a court may use a non-disparagement order to prevent a party from speaking negatively about another in some way, either permanently or temporarily. Family courts often use non-disparagement orders to protect parties or their children from psychological harm during divorce or child-custody proceedings. In such cases, non-disparagement orders forbid parents from denigrating one another in front of their children and/or third parties. To protect the child, non-disparagement orders are often imposed upon both parents by the court. But courts do not always protect children and other parties from disparagement in this way. Although non-disparagement orders …

Government Religious Speech And The Establishment Clause, Mark Storslee Associate Professor, Michael Helfand

Vanderbilt Law Review

The government says religious things. From monuments and holiday displays to legislative prayers, religion saturates the government's public voice. But how can that be permissible when the Establishment Clause, at least in theory, indicates the government should be religiously neutral?
So far, the Supreme Court's attempts to address the puzzle have come up short. Early on, the Court suggested that seemingly all government speech must be secular, or that it refrain from "endorsing" religion. But the Court never consistently enforced those limits, struggling to reconcile them with America's historical experience. And in recent years, the Court has rejected those approaches …

Applying The Public Forum Doctrine To Public Official And Campaign Social Media Accounts, Jonathan Peters, Skylar Bandoly

Vanderbilt Journal of Entertainment & Technology Law

The US Court of Appeals for the Second Circuit ruled in the 2019 case Knight First Amendment Institute at Columbia University v. Trump that the @realDonaldTrump Twitter account was a designated public forum, making it a First Amendment violation for President Trump to block users from it on the basis of their viewpoints. A few years later, in the 2024 case Lindke v. Freed, the US Supreme Court established a two-part test to determine whether a public official’s social media activity constituted state action under 42 U.S.C. § 1983. This Article reviews these and related cases to explore—in the context …

State And Regulatory Agency Approaches To Limiting Deepfakes In Political Advertising, Mary Margaret Burniston J.D. Candidate

Vanderbilt Journal of Entertainment & Technology Law

With recent advancements in artificial intelligence (AI), regulators have turned their attention to the issue of how—and whether—to regulate the use of AI in political advertisements. While nineteen states have passed legislation regulating AI in political advertising, such regulations may be challenged as violations of the First Amendment. Furthermore, federal agencies also dispute which regulatory agency has jurisdiction to address the problem, with the Federal Election Commission (FEC) and the Federal Communications Commission (FCC) both claiming authority. Beyond issues of jurisdiction, agency action is also limited by the US Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo.

As …

The Pamela Anderson Exception: How The Public Figure Doctrine Makes Involuntary Pornography A Subject Of Public Concern In Congress’S Revenge Porn Statute, Jared Kossover

Vanderbilt Law Review

Congress’s chosen remedy for the proliferation of online revenge porn has a design flaw. The Violence Against Women Reauthorization Act, codified in 15 U.S.C. § 6851, provides a civil right, enforceable in federal court, to victims of nonconsensual pornography. However, exceptions for matters within the “public concern,” written into the statute with the First Amendment in mind, weaken the force of the Act and threaten to make its proscriptions a nullity. This Note calls on Congress to narrow the public concern exception in the Violence Against Women Reauthorization Act to include only matters of political significance. Such an amendment will …

Retaliation And Confrontation Of The State, Jon Mcneal

Vanderbilt Law Review

Popular resistance to the weaponization of government has eroded in America. On the political Right, the post-Reagan consensus favoring limited government has given way to a new generation of leaders—like Vice President J.D. Vance and Florida Governor Ron DeSantis—who openly advocate for using state power against their political opponents. Collectively they are the New Right: a populist, antiestablishment, conservative movement opposing pluralistic systems, institutions, and cultural elites. While both political liberals and conservatives have wielded state power against their adversaries, leveraging state power to reward friends and punish enemies is fundamental to the New Right’s worldview. Following German jurist Carl …

Free Speech For Me But Not For Airbnb”: Restricting Hate-Group Activity In Public Accommodations, Sabrina Apple

Vanderbilt Law Review

As digital services grow increasingly indispensable to modern life, courts grow inundated with novel claims of entitlement against these platforms. As narrow, formalistic interpretations of Title II permit industry leaders to sidestep equal access obligations, misinformed interpretations of First Amendment protections allow violent speech and conduct to parade uninhibited. Within the mistreatment of these two established doctrines lies a critical distinction: the former is in desperate need of modernization to fulfill its original intent, and the latter is in desperate need of restoration for the same ends. This climate creates conditions ripe for doctrinal upheaval. This Note considers how the …

The End Of An Era: The Uncertain Future Of Section 230 Immunity For Social Media Platforms, Lillian H. Rucker

Vanderbilt Journal of Entertainment & Technology Law

Major social media platforms (SMPs), such as Facebook, Instagram, and TikTok, have become the primary means of communication for billions of people worldwide. They are the largest modern news distributors and the primary curators of online public discourse. However, the expanding influence of SMPs has led many to publicly scrutinize the content moderation decisions of such platforms, as SMPs regularly remove, block, censor, and ban user-generated content (UGC), including third-party written messages, photos, and videos, at their discretion. Because SMPs exercise immense power and are largely self-regulated, there has been growing public sentiment that SMP content moderation violates Users’ free …

Cancelling Dr. Seuss, Cathay Y.N. Smith

Vanderbilt Journal of Entertainment & Technology Law

Dr. Seuss Enterprises announced in March 2021 that it would no longer license or publish six of its children’s books because those books portrayed people in racist or culturally stereotypical ways. Since then, the public has learned through news reports and social media that other publishers have similarly reviewed and altered their catalogues of classic children’s works, including withdrawing them from the public, editing them to remove problematic content, or adding disclaimers to warn the public about racially insensitive or outdated content. The public reaction to Dr. Seuss’s decision and these other actions has been largely divided. Some criticized these …

Deplatforming, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

Deplatforming in the technology sector is hotly debated, and at times may even seem unprecedented. In recent years, scholars, commentators, jurists, and lawmakers have focused on the possibility of treating social-media platforms as common carriers or public utilities, implying that the imposition of a duty to serve the public would restrict them from deplatforming individuals and content.

But, in American law, the duty to serve all comers was never absolute. In fact, the question of whether and how to deplatform-—to exclude content, individuals, or businesses from critical services—- has been commonly and regularly debated throughout American history. In the common …

(E)Racing Speech In School, Francesca L. Procaccini

Vanderbilt Law School Faculty Publications

Speech on race and racism in our nation’s public schools is under attack for partisan gain. The Free Speech Clause of the First Amendment teaches a lot about the wisdom and legality of laws that chill such speech in the classroom. But more importantly, a First Amendment analysis of these laws reveals profound insights about the health and meaning of our free speech doctrine.

Through a First Amendment analysis of “anti-critical race theory” laws, this essay illuminates the first principles of free speech law. Specifically, it shows that the First Amendment offers little refuge to teachers or parents looking to …

Comment, Francesca L. Procaccini

Vanderbilt Law School Faculty Publications

Let's start with the antecedent question that both the theme of this conference and all three papers in this session present. That is, before we ask how law schools might better advance the freedom of expression on campus, and even before asking what role law schools play in protecting or suppressing free speech more generally, we must ask the first order question: whether freedom of expression at U.S. law schools is indeed imperiled?

There is an underlying assumption in all three papers that something is amiss, that things are not quite at their optimal, that improve- ment is needed. And …

Can't Really Teach: Crt Bans Impose Upon Teachers' First Amendment Pedagogical Rights, Mary L. Krebs

Vanderbilt Law Review

The jurisprudence governing K-12 teachers’ speech protection has been a convoluted hodgepodge of caselaw since the 1960s when the Supreme Court established that teachers retain at least some First Amendment protection as public educators. Now, as new so-called Critical Race Theory bans prohibit an array of hot button topics in the classroom, K-12 teachers must either preemptively censor themselves or risk running afoul of these vague bans with indeterminate legal protection. This Note proposes an elucidation of K-12 teachers’ free speech rights via a two-part test to assess the reasonability of instructional speech. Rather than analogizing K-12 teacher speech to …

Equal Speech Protection, Francesca L. Procaccini

Vanderbilt Law School Faculty Publications

Political speech is not special. No type of speech is. First Amendment doctrine ubiquitously claims to value speech on a hierarchy, with political speech occupying the highest and most-protected position, followed by commercial speech and speech on private matters, with low-value speech on the bottom, least-protected rung. This hierarchy is a myth. The true but hidden framework of free speech law is actually one of equal speech protection. All speech, including political speech, receives comparable protection--and that level of protection is quite moderate across the board. Specifically, the equal protection speech receives permits the state to regulate speech in order …

What Was The "Dartmouth College" Case Really About?, Charles R.T. O'Kelley

Vanderbilt Law Review

This Article is the first modern work of corporation law scholarship fully examining the Dartmouth College case as it was lived and understood at the time. Earlier scholars, the author of this Article included, have relied on the case to make doctrinal and theory-of-the firm arguments about Supreme Court precedents regarding the constitutional rights of corporations. Moreover, these earlier works have primarily focused on, and found talismanic meaning, in two sentences in Marshall’s opinion:

"A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties …

No Exit: Ten Years Of "Privacy Vs. Speech" Post-Sorrell, G. S. Hans

Vanderbilt Law School Faculty Publications

A decade has passed since the U.S. Supreme Court held in Sorrell vs. IMS Health that a Vermont privacy law violated the First Amendment. Somewhat surprisingly, the debate about the intersection between privacy laws and free speech protections has not progressed much in the intervening years. If anything, the concerns that some privacy advocates had following Sorrell-that the First Amendment could be used as a tool to overturn privacy regulations-have extended to other areas of economic regulation. As a public interest attorney working on technology law and policy, I entered into practice not long after Sorrell was decided, when it …

The Regulation Of Commercial Speech: Can Alternative Meat Companies Have Their Beef And Speak It Too?, Eryn Terry

Vanderbilt Journal of Entertainment & Technology Law

Would you eat a hamburger that was made in a petri dish? Consumers may have this option soon as laboratory-grown meat begins to hit supermarket shelves. Laboratory-grown meat is made from animal stem cells that eventually transform into primitive fibers and tissue within the confines of a petri dish. Although a lot remains unknown about laboratory-grown meat, consumers can think of it as meat production without the farm. How might consumers react to meat labels indicating that their products were made in a petri dish? Laboratory-grown meat companies have yet to find out, as some states have passed laws that …

Licensing Knowledge, Claudia E. Haupt

Vanderbilt Law Review

When professionals give advice, they disseminate professional knowledge to their clients. Professional advice is valuable to clients because they gain access to a body of knowledge they do not otherwise possess. To preserve the accuracy, and hence the value, of this knowledge transfer, the First Amendment should protect professional speech against state interference that seeks to alter the content of professional advice in a way that contradicts professional knowledge. But before professionals can give professional advice, they are routinely subject to licensing by the state. This seemingly creates a tension between state involvement in professional licensing and protection against state …

Commercial Clicks: Advertising Algorithms As Commercial Speech, Kerri A. Thompson

Vanderbilt Journal of Entertainment & Technology Law

Congressional hearings have finally called for the "right regulation" of social media platforms. The First Amendment, however, has shielded internet companies from regulation since the birth of social media. Even if Congress enacts legislation now, internet companies will be able to defend against the "wrong regulation" by claiming the regulation unconstitutionally limits their freedom of speech. This Article uses Facebook's advertising algorithms as a case study of how Congress can properly regulate Facebook by analyzing the advertising algorithms as commercial speech, which receives less protection under First Amendment jurisprudence. In doing so, Congress can protect the strong public interest in …

Weeding Out Wolves: Protecting Speakers And Punishing Pirates In Unmasking Analyses, Nathaniel Plemons

Vanderbilt Journal of Entertainment & Technology Law

This Note examines the prevalence of anonymous internet speakers, the practical and legal issues that courts confront when balancing the rights of anonymous internet speakers with those of plaintiffs seeking to unmask them, and the serious dangers courts expose speakers to if wrongfully unmasked. Part I argues that internet speech merits the same First Amendment protections as traditional speech, notes the unique benefits of anonymous internet speech, examines the practical difficulties faced by courts and plaintiffs in unmasking anonymous speakers, and details the immense dangers these speakers face if wrongfully exposed. Part II analyzes the most common approaches courts use …

The (Limited) Constitutional Right To Compete In An Occupation, Rebecca Haw Allensworth

Vanderbilt Law School Faculty Publications

Is there a constitutional right to compete in an occupation? The “right to earn a living” movement, gaining steam in policy circles and winning some battles in the lower courts, says so. Advocates for this right say that the right to compete in an occupation stands on equal footing with our most sacred constitutional rights such as the right to be free from racial discrimination. This Article takes a different view, arguing that while there is a limited constitutional right to compete in an occupation, it is—and should be—weaker than these advocates claim. Some state licensing laws run afoul of …

Keeping It Off The Record: Student Social Media Monitoring And The Need For Updated Student Records Laws, Alice Haston

Vanderbilt Journal of Entertainment & Technology Law

An increasing number of school districts work with private companies to monitor public social media and to notify administrators of alarming student information. Although these services help address challenging school safety issues, the Family Educational Rights and Privacy Act (FERPA) and state law offer little guidance on how districts should store student social media data. This Note encourages states to pass student records laws similar to recent California legislation and urges the Department of Education to clarify the relationship between student social media and education records under FERPA. New state and federal initiatives would help ensure that third parties may …

What Happens When Police Robots Violate The Constitution?, Vid Sankar

Vanderbilt Journal of Entertainment & Technology Law

Public concern surrounding excessive use of force by police officers and the overmilitarization of the police continues to grow. The use of police robots, both with and without artificial intelligence capabilities, is already transforming the practice of policing. Police use of robots gained national attention on July 7, 2016, when Dallas police used a robot to disarm and kill an active shooter who killed five and injured several others in a hostage situation. The qualified immunity doctrine was designed to protect police officers, but under the Supreme Court's current qualified immunity framework, police robots may pose a challenge to accomplishing …

Manipulation Of Suspects And Unrecorded Questioning, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Fifty years after Miranda, courts still do not have clear guidance on the types oftechniques police may use during interrogation. While first-generation tactics (a.k.a. the third degree) are banned, second-generation tactics such as those found in the famous Reid Manual continue to be used by interrogators. The Supreme Court has sent only vague signals as to which of these second- generation techniques, if any, are impermissible, and has made no mention of newly developed third-generation tactics that are much less reliant on manipulation. This Article divides second-generation techniques into four categories: impersonation, rationalization, fabrication, and negotiation. After concluding, based on …

Keeping Gideon's Promise: Using Equal Protection To Address The Denial Of Counsel In Misdemeanor Cases, Lauren Sudeall, Brandon Buskey

Vanderbilt Law School Faculty Publications

The Sixth Amendment of the U.S. Constitution guarantees criminal defendants the right to counsel, and the U.S. Supreme Court has made clear that right is applicable to all defendants in felony cases, even those unable to afford a lawyer. Yet, for defendants facing misdemeanor charges, only those defendants whose convictions result in incarceration are entitled to the assistance of counsel.

The number of misdemeanor prosecutions has increased dramatically in recent years, as have the volume and severity of collateral consequences attached to such convictions; yet, the Court's right to counsel jurisprudence in this area has remained stagnant. Critics of the …

Terrorist Speech On Social Media, Alexander Tsesis

Vanderbilt Law Review

The presence of terrorist speech on the internet tests the limits of the First Amendment. Widely available cyber terrorist sermons, instructional videos, blogs, and interactive websites raise complex expressive concerns. On the one hand, statements that support nefarious and even violent movements are constitutionally protected against totalitarian-like repressions of civil liberties. The Supreme Court has erected a bulwark of associational and communicative protections to curtail government from stifling debate through overbroad regulations. On the other hand, the protection of free speech has never been an absolute bar against the regulation of low value expressions, such as calls to violence and …

Free Speech Or Slavery Profiteering?: Solutions For Policing Online Sex--Trafficking Advertisement, Marguerite A. O'Brien

Vanderbilt Journal of Entertainment & Technology Law

Online sex trafficking is big business. The Department of Homeland Security estimates that sex trafficking generates billions of dollars per year. The marketplace for sex has moved from the street corner to classified ad websites such as Backpage.com, and all too often the victims of online sex trafficking are minors. The National Center for Missing and Exploited Children reported an 846 percent increase in reports of child sexual exploitation between 2010 and 2015--growth the organization attributes to the availability of sex ads on websites such as Backpage.com. Law enforcement agencies and victims have sought to hold Backpage.com liable for facilitating …

High Value Lies, Ugly Truths, And The First Amendment, Alan K. Chen, Justin Marceau

Vanderbilt Law Review

Lying has a complicated relationship with the First Amendment. It is beyond question that some lies-such as perjury and fraud-are simply not covered by the Constitution's free speech clause.' But it is equally clear that some lies, even intentionally lying about military honors, are entitled to First Amendment protection. Until very recently, however, it has been taken for granted in Supreme Court doctrine and academic writing that any constitutional protection for lies is purely prophylactic-it provides protection to the truth-speaker by also incidentally protecting the liar. What remains unresolved is whether other rationales might also justify First Amendment protection for …

An Immovable Object And An Unstoppable Force: Reconciling The First Amendment And Antidiscrimination Laws In The Claybrooks Court, Erin A. Shackelford

Vanderbilt Journal of Entertainment & Technology Law

This Note broadly addresses the problem of racial stereotyping and racial roles in the media. It is viewed through the lens of Claybrooks v. ABC, Inc., a recent federal district court decision of first impression. In Claybrooks, the court dismissed the plaintiffs discrimination claims, ruling that casting decisions were protected under the First Amendment. This Note will address the problem of racial discrimination by focusing on racial misrepresentations in the media and the role of reality television programs in that landscape. Specifically, this Note will propose a new solution for the Claybrooks court. This analysis will assert that cast members …

Speech Beyond Borders: Extraterritoriality And The First Amendment, Anna Su

Vanderbilt Law Review

Does the First Amendment follow the flag? In Boumediene v. Bush, the Supreme Court categorically rejected the claim that constitutional rights do not apply at all to governmental actions taken against aliens located abroad. Instead, the Court made the application of such rights, the First Amendment presumably included, contingent on "objective factors and practical concerns." In addition, by affirming previous decisions, Boumediene also extended its functional test to cover even U.S. citizens, leaving them in a situation where they might be without any constitutional recourse for violations of their First Amendment rights. But lower courts have found in the recent …