First Amendment Commons^™

Government Sponsored Social Media And Public Forum Doctrine Under The First Amendment: Perils And Pitfalls, Lyrissa Lidsky

Faculty Publications

Between the extremes of no interactivity and complete interactivity, it is difficult to predict whether courts will label a government sponsored social media site a public forum or not. But it is precisely "in between" where government actors are likely to wish to engage citizens and where citizens are most likely to benefit from government social media initiatives. The goal of this article, therefore, is to provide guidance to lawyers trying to navigate the morass that is the U.S. Supreme Court's public forum jurisprudence in order to advise government actors wishing to establish social media forums.

The First Amendment In Trans-Border Perspective: Toward A More Cosmopolitan Orientation, Timothy Zick

Faculty Publications

This Article examines the First Amendment’s critical trans-border dimension—its application to speech, association, press, and religious activities that cross or occur beyond territorial borders. Judicial and scholarly analysis of this aspect of the First Amendment has been limited, at least as compared to consideration of more domestic or purely local concerns. This Article identifies two basic orientations with respect to the First Amendment—the provincial and the cosmopolitan. The provincial orientation, which is the traditional account, generally views the First Amendment rather narrowly—i.e., as a collection of local liberties or a set of limitations on domestic governance. First Amendment provincialism does …

Religious Freedom, Church-State Separation, & The Ministerial Exception, Carl H. Esbeck, Thomas C. Berg, Kimberlee Wood Colby, Richard W. Garnett

Faculty Publications

The Hosanna-Tabor case concerns the separation of church and state, an arrangement that is often misunderstood but is nevertheless a critical dimension of the freedom of religion protected by the First Amendment to our Constitution. For nearly a thousand years, the tradition of Western constitutionalism - the project of protecting political freedom by marking boundaries to the power of government - has been assisted by the principled commitment to religious liberty and to church-state separation, correctly understood. A community that respects - as ours does - both the importance of, and the distinction between, the spheres of political and religious …

Recognizing The Public Schools' Authority To Discipline Students' Off-Campus Cyberbullying Of Classmates, Douglas E. Abrams

Faculty Publications

The American Medical Association, the National Institute of Child Health and Human Development, and the U.S. Centers for Disease Control and Prevention have identified bullying in the public elementary and secondary schools as a "public health problem". This article explains the schools' comprehensive authority, consistent with the First Amendment, to impose discipline on cyberbullies, by suspension or expulsion if necessary. Ever since Tinker v. Des Moines Independent Community School District (1969), the Supreme Court's First Amendment decisions have granted the schools authority to discipline student speech that causes, or reasonably threatens, (1) "substantial disruption of or material interference with school …

Incendiary Speech And Social Media, Lyrissa Lidsky

Faculty Publications

Incidents illustrating the incendiary capacity of social media have rekindled concerns about the "mismatch" between existing doctrinal categories and new types of dangerous speech. This Essay examines two such incidents, one in which an offensive tweet and YouTube video led a hostile audience to riot and murder, and the other in which a blogger urged his nameless, faceless audience to murder federal judges. One incident resulted in liability for the speaker even though no violence occurred; the other did not lead to liability for the speaker even though at least thirty people died as a result of his words. An …

Law School Clinics And The First Amendment, Jonathan L. Entin

Faculty Publications

No abstract provided.

Brand Renegades, Jeremy N. Sheff

Faculty Publications

Recent appearances of trademarks in popular culture-in rap lyrics, on reality TV shows, even in youth riots have raised the question whether the owners of those trademarks might pursue legal remedies to protect their brands from unwanted social associations. This Article argues that they cannot, and that we should understand this limitation on trademark rights as grounded in a principle that consumption of certain brands is an expressive act that First Amendment principles place outside trademark owners' control.

The Curious Life Of In Loco Parentis At American Universities, Philip Lee

Faculty Publications

In this article I trace the legal history, through court opinions, of in loco parentis (Latin for “in the place of the parent”) as applied to the relationship between American universities and their students. I demonstrate that until the 1960s, the in loco parentis doctrine allowed universities to exercise great discretion in developing the “character” of their students without respect to their students’ constitutional rights. The demise of this doctrine forced courts, and universities themselves, to redefine the relationship of universities with their students in important ways.

Symposium On Commercial Speech And Public Health, Jonathan H. Adler

Faculty Publications

Does the constitutional protection of commercial speech impair the government's ability to protect and promote public health? Or does the commercial speech doctrine itself enhance consumer education and harness market competition to advance public health? Do First Amendment limitations on regulation of commercial messages unduly retard governmental efforts to safeguard consumers? Or do they properly constrain illiberal paternalism? If the Court has been over-protective of health-related commercial speech, is there a principled place to redraw the line? And how should those governmental agencies entrusted with the power to protect public health and welfare respond to these constitutional constraints?

The editors …

Reviving Slander, Cristina Carmody Tilley

Faculty Publications

Roman law treated differently speech restricted to small, closed communities and speech within or among large, permeable communities. Intracommunity speech was subject to unlimited tort consequences, while intercommunity speech was subject to central government regulation. As English speech law evolved, slander rules governing spoken speech became a convenient proxy for intracommunity speech regulation, while libel rules governing written speech became a convenient proxy for intercommunity speech. In American law, the conceptual collapse of slander and libel meant that constitutional limits designed to lift central government regulation of intercommunity speech perhaps inadvertently vitiated tort consequences for intracommunity speech. The Supreme Court's …

Panel Discussion At "Signs Of The Times: The First Amendment And Religious Symbolism", Carl H. Esbeck

Faculty Publications

No abstract provided.

Proving Fair Use: Burden Of Proof As Burden Of Speech, Ned Snow

Faculty Publications

Courts have created a burden of proof in copyright that chills protected speech. The doctrine of fair use purports to ensure that copyright law does not trample rights of speakers whose expression employs copyrighted material. Yet those speakers face a burden of proof that weighs heavily in the fair use analysis, where factual inquiries are often subjective and speculative. Failure to satisfy the burden means severe penalties, which prospect quickly chills the free exercise of speech that constitutes a fair use. The fair-use burden of proof is repugnant to the fair use purpose. Today, copyright holders are exploiting the burden …

Regulating Offensiveness: Snyder V. Phelps, Emotion, And The First Amendment, Christina E. Wells

Faculty Publications

In its upcoming term, the Court will decide in Snyder v. Phelps whether Albert Snyder can sue the Reverend Fred Phelps and other members of the Westboro Baptist Church for invasion of privacy and intentional infliction of emotional distress for protesting near his son’s funeral. Those arguing in favor of tort liability claim that the Phelps’ speech during a time of mourning and vulnerability is especially outrageous and injurious and that the First Amendment allows such regulation. Their arguments, however, effectively rely on the offensiveness of the Phelps’ message rather than on any external indicia of harm, such as noisy …

The Myth Of The Level Playing Field: Knowledge, Affect, And Repetition In Public Debate, Jeremy N. Sheff

Faculty Publications

The industrialization of the channels and scale of communication has led some well-meaning reformers to try to regulate the ability of powerful private actors to leverage economic inequality into political inequality, particularly in the area of campaign finance. Such reform efforts are ostensibly intended to further the deliberative democratic ideal of rational, informed public decision making by preventing well-funded private interests from improperly influencing democratic debate and, by extension, political outcomes. This Article examines empirical findings in political science, psychology, and marketing and argues that, in the context of contemporary American society, the normative principles of deliberative democracy and formal …

Summum, The Vocality Of Public Places, And The Public Forum, Timothy Zick

Faculty Publications

No abstract provided.

Territoriality And The First Amendment: Free Speech At - And Beyond - Our Borders, Timothy Zick

Faculty Publications

No abstract provided.

Educating The United States Supreme Court At Summers' School: A Lesson On The "Special Character Of The Animal", Rafael Gely, Ramona L. Paetzold, Leonard Bierman

Faculty Publications

In this article, we explore the implications that Professor Summers' insights regarding public employment have for the Garcetti and Davenport decisions. In particular, we focus on the extent to which the political nature of public employment affects public employees' rights to freedom of speech as well as matters regarding the representational functions of public employee unions.

Religion In The Workplace: A Report On The Layers Of Relevant Law In The United States, William W. Van Alstyne

Faculty Publications

No abstract provided.

The Public's Domain In Trademark Law: A First Amendment Theory Of The Consumer, Laura A. Heymann

Faculty Publications

No abstract provided.

Nobody's Fools: The Rational Audience As First Amendment Ideal, Lyrissa Lidsky

Faculty Publications

Assumptions about audiences shape the outcomes of First Amendment cases. Yet the Supreme Court rarely specifies what its assumptions about audiences are, much less attempts to justify them. Drawing on literary theory, this Article identifies and defends two critical assumptions that emerge from First Amendment cases involving so-called "core" speech. The first is that audiences are capable of rationally assessing the truth, quality, and credibility of core speech. The second is that more speech is generally preferable to less. These assumptions, which I refer to collectively as the rational audience model, lie at the heart of the "marketplace of ideas" …

"Duty-Defining Power" And The First Amendment's Civil Domain, Timothy Zick

Faculty Publications

In Rethinking Free Speech and Civil Liability,1 Daniel Solove and Neil Richards attempt something truly ambitious. The authors seek to map coherent boundaries for the First Amendment’s vast civil domain. Their project merits serious attention. Currently, different rules apply to civil liability for speech depending on whether the liability arises in tort, contract, or property. Solove and Richards claim that these boundaries are unworkable, under-theorized, and in some cases destined to collide. They develop a framework for mapping the First Amendment’s civil domain that is based upon a distinction regarding the type of power the state exercises in various civil …

Where's The Harm?: Free Speech And The Regulation Of Lies, Lyrissa Lidsky

Faculty Publications

The United States Supreme Court has interpreted the First Amendment to accord a measure of protection to outright lies. This essay seeks to explain why. Using Holocaust denial as an example of verifiably false speech, this essay poses the question of whether such speech poses a more serious danger than First Amendment jurisprudence traditionally has acknowledged. This essay also probes the unintended consequences of governmental attempts to impose criminal punishment on lies.

Prediction Markets And The First Amendment, Miriam A. Cherry, Robert L. Rogers

Faculty Publications

The continuing development of prediction markets is important because of their success in foretelling the future in politics, economics, and science. In this article, we identify the expressive elements inherent in prediction markets and explore how legislation such as the Unlawful Internet Gambling Enforcement Act of 2006 might harm such predictive speech. This article is the first to explore First Amendment protections for prediction markets in such depth, and in so doing, we distinguish prediction markets from other regulated areas such as gambling, commodities, and securities trading. The article’s examination of prediction markets also illustrates the limitations of current commercial …

Privacy And Funeral Protests, Christina E. Wells

Faculty Publications

This article examines the free speech implications of funeral protest statutes. Enacted in response to the Westboro Baptist Church, whose members protest at funerals to spread their antigay message, such statutes restrict a broad array of peaceful expressive activity. This Article focuses on the states’ interest underlying these statutes - protecting mourners’ right to be free from unwanted intrusions while at funeral services. Few would argue against protecting funeral services from intrusive protests. These statutes, however, go far beyond that notion and protect mourners from offensive, rather than intrusive, protests. As such, they do not conceive of privacy as protection …

When Accommodations For Religion Violate The Establishment Clause: Regularizing The Supreme Court's Analysis, Carl H. Esbeck

Faculty Publications

This article sets forth five rules with respect to what government may do to accommodate religious practice and five rules with respect to what government may not do. As it turns out the Supreme Court has said that most religious accommodations are left to the broad discretion of legislators and public officials. So long as the object of the accommodation is to protect or expand religious freedom, as distinct from expanding religion, the accommodation will be permitted.

Authorship, Audiences, And Anonymous Speech, Thomas F. Cotter, Lyrissa Lidsky

Faculty Publications

A series of United States Supreme Court decisions establishes that the First Amendment provides a qualified right to speak and publish anonymously, or under a pseudonym. But the Court has never clearly defined the scope of this right. As a result, lower courts have been left with little guidance when it comes to dealing both with the Internet-fueled growth of torts and crimes committed by anonymous speakers, and with the increasing number of lawsuits aimed at silencing legitimate anonymous speech. In this Article, we provide both positive and normative foundations for a comprehensive approach to anonymous speech. We first draw …

Clouds, Cameras, And Computers: The First Amendment And Networked Public Places, Timothy Zick

Faculty Publications

It seems to be a common assumption that physical places like parks, sidewalks, and public squares, and "cyber-places" like the Web, constitute separate locations of communication. In reality, however, the intersection and collision of these two spaces is imminent. In some respects it has already occurred. Entire cities and counties are erecting wireless "clouds" that will bring the Internet to vast public spaces. Technologies of surveillance continue to proliferate. What one does and says in public places is increasingly subject to surveillance by means of a combination of hand-held devices and official surveillance tools like closed circuit television cameras (CCTV). …

Property, Place, And Public Discourse, Timothy Zick

Faculty Publications

No abstract provided.

Bartnicki As Lochner: Some Thoughts On First Amendment Lochnerism, Howard M. Wasserman

Faculty Publications

No abstract provided.

Copyright Lochnerism, Raymond Shih Ray Ku

Faculty Publications

Part I of this essay outlines the conflict between copyright and the First amendment as well as, the complementary argument for reconciling copyright and free speech, as it has been formulated by scholars and the Supreme Court. Part II discusses what I have referred to as the Framers' copyright and the extent to which arguments based upon the Framers' intent in this area may reconcile copyright and free speech. Lastly, Part III argues that reliance upon the complementary argument to deny any role for heightened First Amendment review in copyright cases is subject to two interrelated criticisms of Lochner. By …