First Amendment Commons^™

Virtue, Freedom, And The First Amendment, Marc O. Degirolami

Faculty Publications

The modern First Amendment embodies the idea of freedom as a fundamental good of contemporary American society. The First Amendment protects and promotes everybody’s freedom of thought, belief, speech, and religious exercise as basic goods—as given ends of American political and moral life. It does not protect these freedoms for the sake of promoting any particular vision of the virtuous society. It is neutral on that score, setting limits only in those rare cases when the exercise of a First Amendment freedom exacts an intolerable social cost.

Something like this collection of views constitutes the conventional account of the First …

Persistent Threats To Commercial Speech, Jonathan H. Adler

Faculty Publications

The current Supreme Court is very protective of speech, including commercial speech. Threats to commercial speech persist nonetheless. This article briefly examines two: the use of commercial speech restrictions as a form of rent-seeking, and compelled commercial speech. Regulation of commercial speech is sometimes used to protect established corporate interests from competitors who are less able to bear the costs of regulation, with consequences that extend beyond the economic marketplace. In the case of commercial speech, courts have also been unduly deferential to claims of a consumer “right to know” as a basis for mandated labeling and disclosure. Greater and …

Religion, Liberty, And The Jurisdictional Limits Of Law [Review], Edited By Iain T. Benson And Barry W. Bussey, Nicholas P. Miller

Faculty Publications

"In recent years law and religion scholarship in Canada has grown significantly. This distinctive collection of 18 papers addresses, from a variety of angles, the jurisdiction of law itself and limits of law – an important but often overlooked aspect of settling the boundaries of church and state, religion and law."

Compelled Commercial Speech And The Consumer "Right To Know", Jonathan H. Adler

Faculty Publications

Compelled commercial speech, including mandatory labeling and the disclosure of factually true information, should not be seen as a separate category of speech under the First Amendment. Rather, compelled commercial speech should be understood as a type of commercial speech and be subject to the same level of protection as commercial speech generally. Accordingly, commercial speech compulsions, such as mandatory disclosures and labeling requirements, must be supported by a substantial government interest under the Central Hudson framework. The assertion of a consumer “right to know” does not constitute such an interest and cannot, by itself, justify compelled commercial speech within …

Content-Based Copyright Denial, Ned Snow

Faculty Publications

No principle of First Amendment law is more firmly established than the principle that government may not restrict speech based on its content. It would seem to follow, then, that Congress may not withhold copyright protection for disfavored categories of content, such as violent video games or pornography. This Article argues otherwise. This Article is the first to recognize a distinction in the scope of coverage between the First Amendment and the Copyright Clause. It claims that speech protection from government censorship does not imply speech protection from private copying. Crucially, I argue that this distinction in the scope of …

First Amendment Cosmopolitanism, Skepticism, And Democracy, Timothy Zick

Faculty Publications

This is a response to Professor Ronald J. Krotoszynski, Jr.’s review of my book, The Cosmopolitan First Amendment: Protecting Transborder Expressive and Religious Liberties (Cambridge University Press, 2014). The response explains the basic principles of First Amendment cosmopolitanism and highlights the importance of the First Amendment’s transborder dimension. It also responds to skeptical and critical reactions to some of the book’s arguments. Finally, the response elaborates on First Amendment cosmopolitanism’s relationship to democratic values.

Religious Rights In Historical, Theoretical And International Context: Hobby Lobby As A Jurisprudential Anomaly, S. I. Strong

Faculty Publications

The United States has a long and complicated history concerning religious rights, and the U.S. Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores, Inc., has done little to clear up the jurisprudence in this field. Although the decision will doubtless generate a great deal of commentary as a matter of constitutional and statutory law, the better approach is to consider whether and to what extent the majority and dissenting opinions reflect the fundamental principles of religious liberty. Only in that context can the merits of such a novel decision be evaluated free from political and other biases.

This …

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 …

Protest, Policing, And The Petition Clause: A Review Of Ronald Krotoszynski's Reclaiming The Petition Clause, Christina E. Wells

Faculty Publications

This essay, a short book review of Ronald Krotoszynski Jr.'s book, Reclaiming the Petition Clause Seditious Libel, "Offensive" Protest, and the Right to Petition the Government for Redress of Grievances, examines the variety of restrictions that actually affect protestors in the modern landscape. Professor Krotoszynski effectively argues that the Supreme Court's current use of content neutral time place and manner restrictions allows government officials to engage in surreptitious content censorship and also revives the defunct crime of seditious libel. His proposal to locate protestors' rights in the petition clause of the First Amendment is both historically grounded and attempts to …

Dystopian Constitutionalism, Thomas P. Crocker

Faculty Publications

This article describes and defends the distinctive role and rich tradition of using contrastive dystopian states in constitutional theory and practice. As constitutional tradition going back to the founding, U.S. constitutional analysis was replete with arguments about what practices would lead to an undesirable state of tyranny. In more recent constitutional history, the use of contrasting examples of the “police state,” totalitarianism, or Orwellian references have been prevalent in Supreme Court opinions across doctrinal domains, most recently making a prominent appearance at oral argument in the Fourth Amendment case, United States v. Jones. In contrast to more comprehensive constitutional theories, …

A Contract Theory Of Academic Freedom, Philip Lee

Faculty Publications

(Excerpt)

Academic freedom is central to the core role of professors in a free society. Yet, current First Amendment protections exist to protect academic institutions, not the academics themselves. For example, in Urofsky v. Gilmore, six professors employed by various public colleges and universities in Virginia challenged a law restricting state employees from accessing sexually explicit material on computers owned or leased by the state. The professors claimed, in part, that such a restriction was in violation of their First Amendment academic freedom rights to conduct scholarly research. The Fourth Circuit upheld the law and noted that “to the …

A New Taxonomy For Online Harms, Kate Klonick

Faculty Publications

(Excerpt)

Bullying is generally understood among academics and educators as having to meet three criteria: (1) it must be verbal or physical aggression; (2) it must be repeated over time; and (3) it must involve a power differential. When talking about cyber bullying, the aggression is mostly verbal, using “threats, blackmail. . . gossip and rumors” and online personas or messages can be more cruel, vindictive and mean. Though cyber bullying typically describes acts between children, the same acts by adults could also be considered cyber harassment. Unlike harassment, however, bullying does not have a history of criminal liability—though all …

Professional Rights Speech, Timothy Zick

Faculty Publications

Some regulations of professional-client communications raise important, but sofar largely overlooked, constitutional concerns. Three recent examples of professional speech regulation-restrictions on physician inquiries regarding firearms, "reparative" therapy bans, and compelled abortion disclosures-highlight an important intersection between professional speech and constitutional rights. In each of the three examples, state regulations implicate a non-expressive constitutional right--the right to bear arms, equality, and abortion. States are actively, sometimes even aggressively, using their licensing authority to limit and structure conversations between professionals and their clients regarding constitutional rights. The author contends that government regulation of "professional rights speech" should be subjected to heightened First …

Rights Speech, Timothy Zick

Faculty Publications

Freedom of expression has a complex and dynamic relationship with a number of other constitutional rights, including abortion, the right to bear arms, equal protection, the franchise, and religious liberty. This Article discusses one aspect of that relationship. It critically analyzes the regulation of "rights speech" - communications about or concerning the recognition, scope, or exercise of constitutional rights. As illustrative examples, the Article focuses on regulation of speech about abortion and the Second Amendment right to bear arms. Governments frequently manage, structure, and limit how individuals discuss constitutional rights. For example, laws and regulations compel physicians to convey information …

Beyond The Schoolhouse Gates: The Unprecedented Expansion Of School Surveillance Authority Under Cyberbulling Laws, Emily Suski

Faculty Publications

For several years, states have grappled with the problem of cyberbullying and its sometimes devastating effects. Because cyberbullying often occurs between students, most states have understandably looked to schools to help address the problem. To that end, schools in forty-six states have the authority to intervene when students engage in cyberbullying. This solution seems all to the good unless a close examination of the cyberbullying laws and their implications is made. This Article explores some of the problematic implications of the cyberbullying laws. More specifically, it focuses on how the cyberbullying laws allow schools unprecedented surveillance authority over students. This …

Robert Bork & Commercial Speech, Jonathan H. Adler

Faculty Publications

Before he redefined antitrust, Judge Robert Bork took aim at the First Amendment. Though his work in this area was not nearly as influential, it received substantial attention, particularly after President Ronald Reagan nominated Judge Bork to replace Justice Lewis Powell on the Supreme Court in 1987. Judge Bork's 1971 article, Neutral Principles and Some First Amendment Problems challenged the prevailing wisdom on the proper scope of First Amendment protections. In this article, published seven years before The Antitrust Paradox, Bork maintained that only "explicitly political" speech warranted constitutional protection. Other types of speech or expression, including much indisputably …

Hobby Lobby, Corporate Law, And The Theory Of The Firm: Why For-Profit Corporations Are Rfra Persons, Alan J. Meese, Nathan B. Oman

Faculty Publications

No abstract provided.

Seeking Guidance? New Legal Challenges To 'Legislative Prayer', Marc O. Degirolami

Faculty Publications

(Excerpt)

It has long been the tradition of American citizens to pray for divine blessing and guidance in their civic business. This tradition, which predates the founding of the American Republic, finds expression at all levels of government, federal, state, and local. It was embraced by the First Continental Congress, the same Congress that both employed a paid chaplain and later drafted the First Amendment to the U.S. Constitution; it was maintained during the passage of the Fourteenth Amendment; and it persists in various guises to this day.

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 …

The First Amendment, Equal Protection, And Felon Disenfranchisement: A New Viewpoint, Janai S. Nelson

Faculty Publications

This Article engages the equality principles of the First Amendment and the Equal Protection Clause to reconsider the constitutionality of one of the last and most entrenched barriers to universal suffrage—felon disenfranchisement. A deeply racialized problem, felon disenfranchisement is additionally and independently a legislative judgment as to which citizen's ideas are worthy of inclusion in the electorate. Relying on a series of cases involving state interests in protecting the ballot and promoting its intelligent use, this Article demonstrates that felon disenfranchisement is open to attack under the Supreme Court's fundamental rights jurisprudence when it is motivated by a desire to …

A Jurisdictional Perspective On New York Times V. Sullivan, Howard M. Wasserman

Faculty Publications

New York Times v. Sullivan, arguably the Supreme Court's most significant First Amendment decision, marks its fiftieth anniversary next year. Often overlooked in discussions of the case's impact on the freedom of speech and freedom of the press is that it arose from a complex puzzle of constitutional, statutory, and judge-made jurisdictional and procedural rules. These kept the case in hostile Alabama state courts for four years and a half-million-dollar judgment before the Times and its civil rights leader co-defendants finally could avail themselves of the structural protections of federal court and Article III judges. The case's outcome and …

Defining Religion Down: Hasanna-Tabor, Martinez, And The U.S. Supreme Court, Carl H. Esbeck

Faculty Publications

While two recent Supreme Court cases on religious freedom appear sharply at odds, in one material respect they harmonize around an understanding that religion is fully protected only when exercised in private. CLS v. Martinez involved Hastings College of Law. Hastings' regulation of extracurricular organizations was unusual in requiring that any student can join an organization. This all-comers rule had a discriminatory impact on organizations with exclusionary memberships, such as the Christian Legal Society (CLS) which required subscribing to a statement of faith and conduct. The Court acknowledged the discriminatory effect, but said that the Free Speech Clause protects speech …

Public Forum 2.1: Public Higher Education Institutions And Social Media, Robert H. Jerry Ii, Lyrissa Lidsky

Faculty Publications

Public colleges and universities increasingly are using Facebook, Second Life, YouTube, Twitter, and other social media communications tools. Yet public colleges and universities are government actors, and their creation and maintenance of social media sites or forums create difficult constitutional and administrative challenges. Our separate experiences, both theoretical and practical, have convinced us of the value of providing guidance for public higher education institutions wishing to engage with their constituents-including prospective, current, and former students and many others-through social media.

Together, we seek to guide public university officials through the complex body of law governing their social media use and …

Government Speech: An Introduction To A Constitutional Dialogue, David Day

Faculty Publications

No abstract provided.

The Crazy Horse Malt Liquor Case: From Tradition To Modernity And Halfway Back (Part Iii Of South Dakota Law Review Trilogy), Frank Pommersheim

Faculty Publications

No abstract provided.

Crosses And Culture: State-Sponsored Religious Displays In The Us And Europe, Mark L. Movsesian

Faculty Publications

This article compares the recent jurisprudence of the US Supreme Court and the European Court of Human Rights on the question of state-sponsored religious displays. Both tribunals insist that states have a duty of religious “neutrality,” but each defines that term differently. For the Supreme Court, neutrality means that government may not proselytize, even indirectly, or appear to favor a particular church; neutrality may even mean that government must not endorse religion generally. For the ECtHR, by contrast, neutrality means only that government must avoid active religious indoctrination; the ECtHR allows government to give “preponderant visibility” to the symbols of …

Falsely Shouting Fire In A Global Theater: Emerging Complexities Of Transborder Expression, Timothy Zick

Faculty Publications

We have entered an era in which potentially harmful expression can be distributed around the world in an instant. In the emerging global theater, speakers and audiences are connected through new and proliferating media; communicative space and time are compressed to an extraordinary degree; domestic expression can implicate national security and foreign affairs concerns; and a new model of global information dissemination is developing in which speakers are sometimes located beyond the jurisdiction of nations that may be harmed by their communications and disclosures.

This Article examines the First Amendment complexities associated with the dissemination of potentially harmful information in …

Recovering The Assembly Clause, Timothy Zick

Faculty Publications

No abstract provided.

Rescuing The Dignitary Torts From The Constitution, Cristina Carmody Tilley

Faculty Publications

The rights of individuals to recover for dignitary torts has been withering for the past forty years, since the Supreme Court constitutionalized the state common law tort of defamation in New York Times v. Sullivan in 1964. The Court announced in that case that the First Amendment required it to impose high standards for individual defamation claims in order to protect robust speech. As that principle has taken hold, it has in effect squeezed the rights of individuals to recover for invasion of privacy and intentional infliction of emotional distress as well as defamation. Just last Term, the Court held …

The Law Of Reputation And The Interest Of The Audience, Laura A. Heymann

Faculty Publications

Although an individual has control over many of the statements, acts, and other biographical data points that are used to construct her reputation, she does not ultimately have control over the result of that reputational assessment, the pronouncement of which is a task reserved to others. Reputation is fundamentally a social concept; it does not exist until a community collectively forms a judgment about an individual or firm that has the potential to guide the community’s future interactions. Despite reputation’s relational nature, discussions of the law’s interest in reputation tend to focus on one of two parties: the individual or …