First Amendment Commons^™

The Visibility Value Of The First Amendment, Brian C. Murchison

William & Mary Bill of Rights Journal

No abstract provided.

Gerrymandering And Association, Daniel P. Tokaji

William & Mary Law Review

No abstract provided.

The Bergdahl Block: How The Military Limits Public Access To Preliminary Hearings And What We Can Do About It, Eric R. Carpenter

William & Mary Bill of Rights Journal

Sergeant Bowe Bergdahl and Private First Class Bradley (now Chelsea) Manning have something in common. Military officials unlawfully closed all or portions of their preliminary hearings to the public. When doing so, military officials exploited two unusual features of the military justice system, thereby denying the accused and the media of their respective Sixth Amendment and First Amendment rights to a public hearing.

The first feature is that the military justice system does not include a standing trial-level court. If there is a problem at the preliminary hearing, the accused and media have nowhere to go for help. The accused …

Pornography And Gender Inequality—Using Copyright Law As A Step Forward, Kayla Louis

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Protecting The Silence Of Speech: Academic Safe Spaces, The Free Speech Critique, And The Solution Of Free Association, Trevor N. Ward

William & Mary Bill of Rights Journal

No abstract provided.

Horizontal Cybersurveillance Through Sentiment Analysis, Margaret Hu

William & Mary Bill of Rights Journal

This Essay describes emerging big data technologies that facilitate horizontal cybersurveillance. Horizontal cybersurveillance makes possible what has been termed as “sentiment analysis.” Sentiment analysis can be described as opinion mining and social movement forecasting. Through sentiment analysis, mass cybersurveillance technologies can be deployed to detect potential terrorism and state conflict, predict protest and civil unrest, and gauge the mood of populations and subpopulations. Horizontal cybersurveillance through sentiment analysis has the likely result of chilling expressive and associational freedoms, while at the same time risking mass data seizures and searches. These programs, therefore, must be assessed as adversely impacting a combination …

Protests In Peril, Timothy Zick

Faculty Publications

No abstract provided.

All Employers Must Wash Their Speech Before Returning To Work: The First Amendment & Compelled Use Of Employees’ Preferred Gender Pronouns, Tyler Sherman

William & Mary Bill of Rights Journal

No abstract provided.

What Trump Misses About Free Speech, Timothy Zick

Popular Media

No abstract provided.

Section 1: Moot Court: Masterpiece Cakeshop, Ltd., Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Restroom Use, Civil Rights, And Free Speech "Opportunism", Timothy Zick

Faculty Publications

Commentators have expressed concerns that litigants are invoking the First Amendment's Free Speech Clause strategically, in order to compensate for the weakness or futility of other constitutional claims. The phenomenon has been given a label- "opportunism "-and scholars have examined some of its causes and consequences. This Article takes a closer and somewhat skeptical look at the concept offree speech "opportunism." It imagines that the Free Speech Clause will be invoked in challenges to laws or policies that restrict public restroom use based on a person's gender. Would such challenges be "opportunistic, " as the term has been defined? What …

The Government Speech Doctrine In Walker’S Wake: Early Rifts And Reverberations On Free Speech, Viewpoint Discrimination, And Offensive Expression, Clay Calvert

William & Mary Bill of Rights Journal

This Article examines the immediate effects on free expression of the U.S. Supreme Court’s 2015 ruling in Walker v. Texas Division, Sons of Confederate Veterans, Inc. involving the government speech doctrine. In Walker, a sharply—and largely partisanly—divided Court upheld, in the face of a First Amendment challenge, Texas’s decision denying a private organization’s application for a specialty license plate featuring Confederate battle flag imagery. This Article initially reviews the government speech doctrine and Walker. It then analyzes Walker’s impact on cases that, like it, involve specialty license plate programs. Next, this Article explores lower court efforts stretching …

The Commercial Difference, Felix T. Wu

William & Mary Law Review

When it comes to the First Amendment, commerciality does, and should, matter. This Article develops the view that the key distinguishing characteristic of corporate or commercial speech is that the interest at stake is “derivative,” in the sense that we care about the speech interest for reasons other than caring about the rights of the entity directly asserting a claim under the First Amendment. To say that the interest is derivative is not to say that it is unimportant, and one could find corporate and commercial speech interests to be both derivative and strong enough to apply heightened scrutiny to …

Rights Dynamism, Timothy Zick

Faculty Publications

No abstract provided.

Justice Scalia And Abortion Speech, Timothy Zick

Faculty Publications

No abstract provided.

False Commercial Speech And The First Amendment: Understanding The Implications Of The Equivalency Principle, Martin H. Redish, Kyle Voils

William & Mary Bill of Rights Journal

No abstract provided.

The Status Of The Hearer In Mr. Madison’S Neighborhood, Burt Neuborne

William & Mary Bill of Rights Journal

No abstract provided.

A Reverent Reflection Of The Splendid Scholarship Of Martin Redish—Does Reexamining Commercial Speech Shed Light On The Regrettable Reliance Upon Lie & Insult In Political Campaigns?, Douglas W. Kmiec

William & Mary Bill of Rights Journal

No abstract provided.

Introduction: The Moral Demands Of Commercial Speech, Andrew Koppelman

William & Mary Bill of Rights Journal

No abstract provided.

Are Commercial Speech Cases Ideological? An Empirical Inquiry, Adam M. Samaha, Roy Germano

William & Mary Bill of Rights Journal

The empirical study of judicial behavior continues to grow and mature. The live challenges include specification, such as constructing useful conceptions and measures of ideology, mapping particular domains in which identifiable forces influence decisions, and quantifying the magnitudes of those influences. To make progress on these challenges, we roll out new and expanded datasets that build on the work of Cass Sunstein, Lee Epstein, Gregory Sisk, and others, and we report on the character of constitutional litigation today. Our datasets cover U.S. Court of Appeals decisions in five domains: (1) commercial speech, (2) gun rights, (3) abortion rights, (4) establishment …

Commercial Speech And The Perils Of Parity, Frederick Schauer

William & Mary Bill of Rights Journal

No abstract provided.

The Coverage/Protection Distinction In The Law Of Freedom Of Speech—An Essay On Meta-Doctrine In Constitutional Law, Mark Tushnet

William & Mary Bill of Rights Journal

No abstract provided.

No Regrets (Almost): After Virginia Board Of Pharmacy, Alan B. Morrison

William & Mary Bill of Rights Journal

No abstract provided.

Why You Should Doubt Reports That The First Amendment Would Protect Gen. Flynn From Prosecution Under The Logan Act, Timothy Zick

Popular Media

No abstract provided.

The Dynamic Relationship Between Freedom Of Speech And Equality, Timothy Zick

Faculty Publications

This Article examines the dynamic intersection between freedom of speech and equal protection, with a particular focus on the race and LGBT equality movements. Unlike other works on expression and/or equality, the Article emphasizes the relational and bi-directional connections between freedom of speech and equal protection. Freedom of speech has played a critical role in terms of advancing constitutional equality. However, with regard to both race and LGBT equality, free speech rights also failed in important respects to facilitate equality claims and movements. Advocacy and agitation on behalf of equality rights have also left indelible positive and negative marks on …

Punishing Sexual Fantasy, Andrew Gilden

William & Mary Law Review

The Internet has created unprecedented opportunities for adults and teenagers to explore their sexual identities, but it has also created new ways for the law to monitor and punish a diverse range of taboo sexual communication. A young mother loses custody of her two children due to sexually explicit Facebook conversations. A teenager is prosecuted for child pornography crimes after sending a naked selfie to her teenage boyfriend. An NYPD officer is convicted for conspiracy to kidnap several women based on conversations he had on a “dark fetish” fantasy website. In each of these cases, online sexual exploration and fantasy …

The Most Loved, Most Hated Magazine In America: The Rise And Demise Of Confidential Magazine, Samantha Barbas

William & Mary Bill of Rights Journal

No abstract provided.

But First, (Don’T) Let Me Take A Selfie: New Hampshire’S Ban On Ballot Selfies And First Amendment Scrutiny, Emily Wagman

William & Mary Bill of Rights Journal

No abstract provided.

'Serial' Should Release Bergdahl Interviews, Jeffrey Bellin

Popular Media

No abstract provided.

Forging Ahead From Ferguson: Re-Evaluating The Right To Assemble In The Face Of Police Militarization, Ashley M. Eick

William & Mary Bill of Rights Journal

No abstract provided.