First Amendment Commons^™

Reconceptualizing Public Employee Speech, Randy J. Kozel

Journal Articles

If government employees didn't have any free speech rights, America might well be a much quieter place. But tying public employers' hands by denying them the ability to restrict employee speech could take a massive toll on governmental efficiency-a toll that we would all end up paying with our tax dollars. Striking the proper balance between protecting free speech and promoting social order is a tricky enough proposition when the government is acting in its familiar role as sovereign. When we move into the realm of public employee speech, striking the balance gets even tougher; it requires us to …

Controlling Corporate Speech: Is Regulation Fair Disclosure Unconstitutional, Antony Page, Katy H. Yang

Faculty Publications

We analyze whether Regulation Fair Disclosure, SEC Chairman Arthur Levitt's crowning achievement, violates the First Amendment. Regulation FD requires that a company that discloses material non-public information to certain private audiences must also make that information public, subject to certain safe-harbors. The Regulation solely targets speech, acting either to compel it to a public audience or as a burden on private disclosure. Part I examines the reach of Regulation FD, the enforcement actions to date, and currently available empirical data. Part II provides an introduction to the interaction of the First Amendment and SEC regulations affecting speech. Part III broadens …

"And What Do You Say I Am?": The Meaning Of The Kentucky Display, Gerard V. Bradley

Journal Articles

In McCreary County v. ACLU, a bare majority of the Supreme Court affirmed that secularism is still the overriding principle of church-state law. Their “touchstone” was the “principle” which “mandates governmental neutrality between...religion and nonreligion.” But that’s actually not quite it. “Neutrality” between something and its absence— such as “religion” and “nonreligion”—would be (if it is imaginable at all) at least some of the thing. “Neutrality” between, say, a desert climate and a tropical climate would be someplace like Northern Indiana: rains here quite a bit but nothing like it does in the Amazon.

If “neutrality” means anything here …

Jaycees Reconsidered: Judge Richard S. Arnold And The Freedom Of Association, Richard W. Garnett

Journal Articles

In Roberts v. United States Jaycees, the Supreme Court reversed Judge Richard S. Arnold's decision for the Court of Appeals and held­ - without dissent - that the First Amendment did not shield the Jaycees' men-only membership policy from the non-discrimination requirements of the Minnesota Human Rights Act. The claim in this essay is that Judge Arnold's position and decision in the Jaycees case deserved, and still deserve, more thoughtful and sympathetic treatment. Even some of Judge Arnold's many friends and fans tend to treat as something of an embarrassing lapse or anomalous error his conclusion in that case that, …

Reconciling Data Privacy And The First Amendment, Neil M. Richards

Scholarship@WashULaw

This article challenges the First Amendment critique of data privacy regulation–the claim that data privacy rules restrict the dissemination of truthful information and thus violate the First Amendment. The critique, which is ascendant in privacy discourse, warps legislative and judicial processes by constitutionalizing information policy. Rejection of the First Amendment critique is justified on three grounds. First, the critique mistakenly equates privacy regulation with speech regulation. Building on scholarship examining the boundaries of First Amendment protection, this article suggests that speech restrictions in a wide variety of commercial contexts have never been thought to trigger heightened First Amendment scrutiny, refuting …

Substantive Due Process As A Source Of Constitutional Protection For Nonpolitical Speech, Gregory P. Magarian

Scholarship@WashULaw

We live in a time when our right to speak out against our government faces threats unimagined since the Vietnam era. As the present war in Iraq and the campaign against international terrorism have dragged on, the federal and state governments as well as nongovernmental institutions have grown increasingly bold in their efforts to suppress political dissent. Law enforcement officers infiltrate and bully peaceful dissident groups; police crack down brutally on mass demonstrations; cities confine protesters at major political events to ironically designated “free speech zones.” These events buttress a contention, familiar from the work of several prominent First Amendment …