First Amendment Commons^™

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 …

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.

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 …

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.

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.

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.

Fissures, Fractures & Doctrinal Drifts: Paying The Price In First Amendment Jurisprudence For A Half Decade Of Avoidance, Minimalism & Partisanship, Clay Calvert, Matthew D. Bunker

William & Mary Bill of Rights Journal

This Article comprehensively examines how the U.S. Supreme Court’s adherence to principles of constitutional avoidance and judicial minimalism, along with partisan rifts among the Justices, have detrimentally affected multiple First Amendment doctrines over the past five years. The doctrines analyzed here include true threats, broadcast indecency, offensive expression, government speech, and strict scrutiny, as well as the fundamental dichotomy between content-based and contentneutral regulations.

(Same) Sex, Lies, And Democracy: Tradition, Religion, And Substantive Due Process (With An Emphasis On Obergefell V. Hodges), Stephen M. Feldman

William & Mary Bill of Rights Journal

Substantive due process issues implicitly concern voice. Whose voice will be heard? Although such issues often remain submerged, the Justices occasionally translate them into disputes over democratic participation and power. The Supreme Court’s most important substantive due process decision in years, Obergefell v. Hodges, entailed such a battle over democracy. The multiple dissenting opinions insisted that the decision demeaned the opponents of same-sex marriage, many of whom were inspired by traditional values and religious convictions. The majority explicitly disagreed, reasoning that the case resolved the rights of same-sex couples to marry and did not diminish the opponents’ voices. The dissenters …

The Establishment Clause, State Action, And Town Of Greece, Nathan S. Chapman

William & Mary Bill of Rights Journal

The Establishment Clause forbids the government from engaging in the same religious exercise that the law protects when performed by a private party. Thus, an establishment case often turns on whether religious activity is “state action.” Too often, however, courts ignore the state action analysis or merge it with the substantive Establishment Clause analysis. This muddles both doctrines and threatens individual religious liberty.

This Article argues that the state action doctrine should account for the government’s distribution of private rights. Accordingly, the Constitution applies to the government’s distribution of rights, but not to a private party’s use of those rights. …

#Tweeting For Terrorism: First Amendment Implications In Using Proterrorist Tweets To Convict Under The Material Support Statute, Abigail M. Pierce

William & Mary Bill of Rights Journal

No abstract provided.

"Shouting 'Fire' In A Theater": The Life And Times Of Constitutional Law's Most Enduring Analogy, Carlton F.W. Larson

William & Mary Bill of Rights Journal

In 1919, Justice Oliver Wendell Holmes introduced the specter of a man falsely shouting “fire” in a theater into First Amendment law. Nearly one hundred years later, this remains the most enduring analogy in constitutional law. It has been relied on in hundreds of constitutional cases, and it has permeated popular discourse on the scope of individual rights.

This Article examines both the origins and the later life of Holmes’s theater analogy. Part I is a detective story, seeking to solve the mystery of how Holmes came up with this particular example. This story takes us to the forgotten world …

Neither Tinker, Nor Hazelwood, Nor Fraser, Nor Morse: Why Violent Student Assignments Represent A Unique First Amendment Challenge, William C. Nevin

William & Mary Bill of Rights Journal

This Article will both (1) explore a subset of violent student speech cases that could rightly be considered under Hazelwood if only the student expression bore the sign of official school sponsorship and (2) argue for the creation of a new standard based on Hazelwood to govern non-sponsored curricular speech. Furthermore, this new standard would operate much like the current Hazelwood analysis with one key distinction: where student speech is curricular and non-sponsored in nature, the only options available to school administrators would be those representing pedagogical counter-speech. Punitive discipline, such as the suspension seen in Cuff, would not be …

Snap: How The Moral Elasticity Of The Denaturalization Statute Goes Too Far, Aram A. Gavoor, Daniel Miktus

William & Mary Bill of Rights Journal

Comprehensive immigration reform is a popular topic in Congress. While many reform bills have been offered, none have addressed the significant substantive and procedural issues surrounding denaturalization, the process where the federal government may seek to have a naturalized person’s citizenship revoked in federal court if his citizenship was unlawfully or fraudulently procured.Though denaturalization serves public policy as a final check on naturalization fraud, existing law also permits the government to denaturalize an individual solely for speech and expressive association that occurs after one acquires citizenship. This provision, 8 U.S.C. § 1451(c), violates naturalized citizens’ First Amendment rights to free …

A Liberal Communitarian Approach To Security Limitations On The Freedom Of The Press, Amitai Etzioni

William & Mary Bill of Rights Journal

No abstract provided.

Officious Intermeddling Or Protected First Amendment Activity? The Constitutionality Of Prohibitory Champerty Law After Citizens United, Bradley C. Tobias

William & Mary Bill of Rights Journal

No abstract provided.

Secondary Speech And The Protective Approach To Interpretive Dualities In The Roberts Court, Nat Stern

William & Mary Bill of Rights Journal

No abstract provided.

Innocent Beware: On Religion Clause Jurisprudence And The Negligent Retention Or Hiring Of Clergy, Mark Strasser

William & Mary Bill of Rights Journal

No abstract provided.

A Winn For Originalism Puts Establishment Clause Reform Within Reach, Patrick T. Gillen

William & Mary Bill of Rights Journal

No abstract provided.

Distinguishing Between Custom And Law: Empirical Examples Of Endogeneity In Property And First Amendment Precedents, Daniel L. Chen, Susan Yeh

William & Mary Bill of Rights Journal

No abstract provided.

Detailing Commercial Speech: What Pharmaceutical Marketing Reveals About Bans On Commercial Speech, Andrew J. Wolf

William & Mary Bill of Rights Journal

No abstract provided.

Justices Hawking Jesus: Endorsement Through Citation To Religious Amici In Supreme Court Opinions, Tiffany Marie Westfall Ferris

William & Mary Bill of Rights Journal

No abstract provided.