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 …

The Scrivener’S Secrets Seen Through The Spyglass: Gchq And The International Right To Journalistic Expression, Matthew B. Hurowitz

Brooklyn Journal of International Law

As part of the U.K.’s electronic surveillance program, the Government Communications Headquarters (GCHQ), started in 1909 to combat German Spies, now collects metadata from both foreigners and its own citizens. Through the express statutory authority of the Regulation of Investigatory Powers Act of 2000 (RIPA), and a loophole in section 94 of the Telecommunications Act of 1984, the GCHQ collects metadata, which is all of the information that is extrinsic to the actual contents of a communication. The GCHQ can request an authorization from a public authority—a member of its own staff—to collect traffic data, service use information, or subscriber …

The Fragility Of The Free American Press, Ronnell Andersen Jones, Sonja R. West

Northwestern University Law Review

President Donald Trump has faced criticism for attacking the press and for abandoning longstanding traditions of accommodating and respecting it. This Essay argues that the national discussion spurred by Trump’s treatment of the press has fallen short of capturing the true seriousness of the situation. Trump’s assault on the custom of press accommodation follows a generation-long collapse of other major press protections. In order to fully understand the critical juncture at which American press freedom now stands, we must expand the discussion beyond talk of a rogue president’s aberrant attacks on the press and consider the increasingly fragile edifice on …

Toward A Legal Harm Principle: Constructing And Applying A Legal Principle From John Stuart Mill's General Harm Principle, Kathryn Alice Zawisza

Graduate Theses and Dissertations

My goal in this work is to outline a specifically legal harm principle that is derived from John Stuart Mill’s harm principle in On Liberty. I will do this by providing a close reading of On Liberty and comparing it to what he says in chapter V of Utilitarianism. I believe that these two works provide a foundation for a harm principle that defines the domain and limits of the law. While this goal is not new, I focus on Mill’s general harm principle and the two maxims that he believes make it up in order to construct a relatively …

The Audacity Of Protecting Racist Speech Under The National Labor Relations Act, Michael Z. Green

Faculty Scholarship

This Article, written for a symposium hosted by the University of Chicago Legal Forum on the Disruptive Workplace, analyzes the most recent failures of the National Labor Relations Board (NLRB) to determine a thoughtful and balanced approach in addressing racist speech. Imagine two employees in the private sector workplace are discussing the possibility of selecting a union to represent their interests regarding wages and working conditions. During this conversation, a black employee notes the importance of using their collective voices to improve working conditions and compares the activity of selecting a union with the Black Lives Matter protests aimed at …

Conant V. Walters: A Misapplication Of Free Speech Rights In The Doctor-Patient Relationship, Katharine M. Mccarthy

Maine Law Review

In Conant v. Walters, the United States Court of Appeals for the Ninth Circuit addressed the application of the First Amendment's right of free speech to a federal policy that prohibited the recommendation of medical marijuana by physicians. This class action suit, brought by physicians and severely ill patients, successfully enjoined the federal government from enforcing its policy revoking the federal prescriptive licenses of physicians who recommend or approve of marijuana use by patients suffering from certain severe illnesses. The federal government's policy, issued in 1996 through a statement of Barry McCaffrey, director of the Office of National Drug Control …

An Examination Of The Instruction Of Religion Clause Issues In Massachusetts Teacher Education Programs, Matthew E. Henry

Educational Studies Dissertations

The prevailing research, as well as reported complaints of academic, civic, personal, and social harm, indicates that public school teachers do not exhibit the professional knowledge, skills, and attitudes grounded in the religion clauses of the U.S. Constitution. This study investigated how TEPs in the Commonwealth of Massachusetts document their instruction of preservice teachers on religion clause issues as they apply to grade 6-12 content area pedagogy, curriculum, and professional ethos. The institutional documents presented to preservice teachers were collected from four teacher education programs in the Commonwealth. An evaluation tool— synthesized from the leading scholarship and research on the …

Unmasking The Teen Cyberbully: A First Amendment-Compliant Approach To Protecting Child Victims Of Anonymous, School-Related Internet Harassment, Benjamin A. Holden

Akron Law Review

In proposing a new rule under the First Amendment to adjudicate anonymous Cyberbullying cases, this Article first reviews and summarizes the First Amendment precedents governing regulation of speech by minors and student speech in the school environment. Second, it reviews and discusses the prevalence of minors’ online harassment or Cyberbullying, including pre-litigation disputes reported in the press. Third, it reviews and summarizes the First Amendment precedents governing the “unmasking” of anonymous speakers. Finally, the Cyberbully Unmasking Test is proposed and applied.

Mediated Images Of Violence And The First Amendment: From Video Games To The Evening News, Clay Calvert, Robert D. Richards

Maine Law Review

In July 2004, a federal district court struck down, on First Amendment grounds, a Washington state law that restricted minors' access to video games containing “realistic or photographic-like depictions of aggressive conflict in which the player kills, injures, or otherwise causes physical harm to a human form in the game who is depicted, by dress or other recognizable symbols, as a public law enforcement officer.” The decision was anything but surprising. It followed in the footsteps of recent opinions issued by two federal appellate courts that held unconstitutional similar legislation regulating minors' access to fictional images of violence in video …

Protests In Peril, Timothy Zick

Faculty Publications

No abstract provided.

The Constitutionality Of Polygamy Prohibitions After Lawrence V. Texas: Is Scalia A Punchline Or A Prophet?, Joseph Bozzuti

The Catholic Lawyer

No abstract provided.

Shh! State Legislators Bite Your Tongues: Semantics Dictates The Constitutionality Of Public School "Moment Of Silence" Statutes, Elizabeth Anne Walsh

The Catholic Lawyer

No abstract provided.

Religion, Neutrality, And The Public School Curriculum: Equal Treatment Or Separation?, Matthew D. Donovan

The Catholic Lawyer

No abstract provided.

The Expansion Of Charitable Choice, The Faith Based Initiative, And The Supreme Court's Establishment Clause Jurisprudence, Steven Fitzgerald

The Catholic Lawyer

No abstract provided.

Mitchell V. Helms: Does Government Aid To Religious Schools Violate The First Amendment? An Extensive Analysis Of The Decision And Its Repercussions, Peter Swift

The Catholic Lawyer

No abstract provided.

Illusion Or Protection? Free Exercise Rights And Laws Mandating Insurance Coverage Of Contraception, Edward T. Mechmann, Esq.

The Catholic Lawyer

No abstract provided.

Constitutional Jurisprudence Of Law And Religion: Privacy V. Piety - Has The Supreme Court Petered Out?, Matthew A. Ritter, M.Div., J.D., Ph.D.

The Catholic Lawyer

No abstract provided.

Education Funding In Maine In Light Of Zelman And Locke: Too Much Play In The Joints?, Sarah M. Lavigne

Maine Law Review

The United States Supreme Court has struggled with the countervailing directives of the Free Exercise Clause and the Establishment Clause for decades. One area in which this battle has been particularly contentious is the issue of public funding of religious schools. On one hand, opponents argue that such funding is an impermissible co-mingling of church and state, thereby violating the Establishment Clause. Meanwhile, proponents of public funding of religious schools argue that, to withhold funding from religious schools would place a burden on those wishing to send their children to religious schools, thereby impermissibly preventing individuals from practicing their faith …

The Regulation Of Indecent Material Accessible To Children On The Internet, Joel Sanders

The Catholic Lawyer

No abstract provided.

A Jewish And (Declining) Democratic State? Constitutional Retrogression In Israel, Nadiv Mordechay, Yaniv Roznai

Maryland Law Review

This Article describes and analyzes an increasing trend of contemporary democratic hybridization and constitutional retrogression in Israel. We seek to reconstruct the Israeli case as a state of affairs where a strong leadership, coupled with rising political elites, are leading to a wide-ranging political risk to the constitutional liberal-democracy, to an erosion of its democratic institutions, and to an incremental democratic backslide.

This Article contributes to the evolving recent literature in comparative constitutional law on the constitutional implications of democratic retrogression by characterizing the Israeli case as one that might be categorized as constitutional retrogression. This, as we argue, carries …

Free Speech And The Confluence Of National Security And Internet Exceptionalism, Alan K. Chen

Fordham Law Review

In this Article, I argue that, notwithstanding these contemporary developments, the Court got it mostly right in Brandenburg. Or, I want to at least suggest that it is premature to reconstruct the Brandenburg test to address perceived changes in our global environment. For the most part, Brandenburg has succeeded in mediating the balance between protecting political or ideological advocacy and enabling the government to regulate actual incitement, even in the contemporary era. Moreover, I argue that society should be especially wary of calls to narrow Brandenburg’s speech-protective standard because such changes might be significantly influenced by the confluence of two …

The Role Of Internet Intermediaries In Tackling Terrorism Online, Raphael Cohen-Almagor

Fordham Law Review

Gatekeeping is defined as the work of third parties “who are able to disrupt misconduct by withholding their cooperation from wrongdoers.”1 Internet intermediaries need to be far more proactive as gatekeepers than they are now. Socially responsible measures can prevent the translation of violent thoughts into violent actions. Designated monitoring mechanisms can potentially prevent such unfortunate events. This Article suggests an approach that harnesses the strengths and capabilities of the public and private sectors in offering practical solutions to pressing problems. It proposes that internet intermediaries should fight stringently against terror and further argues that a responsible gatekeeping approach is …

Social Media Accountability For Terrorist Propaganda, Alexander Tsesis

Fordham Law Review

Terrorist organizations have found social media websites to be invaluable for disseminating ideology, recruiting terrorists, and planning operations. National and international leaders have repeatedly pointed out the dangers terrorists pose to ordinary people and state institutions. In the United States, the federal Communications Decency Act’s § 230 provides social networking websites with immunity against civil law suits. Litigants have therefore been unsuccessful in obtaining redress against internet companies who host or disseminate third-party terrorist content. This Article demonstrates that § 230 does not bar private parties from recovery if they can prove that a social media company had received complaints …

Free Speech And National Security Bootstraps, Heidi Kitrosser

Fordham Law Review

It is troubling that courts treat administrative designations—specifically, both FTO determinations and information classification—as bootstraps by which to yank speech restrictions from the clutches of probing judicial scrutiny. This Article builds on existing scholarly critiques to identify and examine the common thread of national security bootstrapping that runs through both sets of cases. The hope is that in so doing, some greater light may be shed both on the cases themselves and, more broadly, on the costs and benefits of judicial deference to executive national security claims where civil rights and civil liberties are at stake.

Government Speech And The War On Terror, Helen Norton

Fordham Law Review

This Article examines how the government’s speech in the War on Terror can threaten free speech, equal protection, and due process values. It focuses primarily on the constitutional harms threatened by the government’s speech itself (what some call a form of “soft law”), rather than on situations in which the government’s speech may be evidence of a constitutionally impermissible motive for its “hard law” actions.

Terrorizing Advocacy And The First Amendment: Free Expression And The Fallacy Of Mutual Exclusivity, Martin H. Redish, Matthew Fisher

Fordham Law Review

Traditional free speech doctrine is inadequate to account for modern terrorist speech. Unprotected threats and substantially protected lawful advocacy are not mutually exclusive. This Article proposes recognizing a new hybrid category of speech called “terrorizing advocacy.” This is a type of traditionally protected public advocacy of unlawful conduct that simultaneously exhibits the unprotected pathologies of a true threat. This Article explains why this new category confounds existing First Amendment doctrine and details a proposed model for how the doctrine should be reshaped.

Terrorist Incitement On The Internet, Alexander Tsesis

Fordham Law Review

I organized this symposium to advance understanding of how terrorist communications drive and influence social, political, religious, civil, literary, and artistic conduct. Viewing terrorist speech through wide prisms of law, culture, and contemporary media can provide lawmakers, adjudicators, and administrators a better understanding of how to contain and prevent the exploitation of modern communication technologies to influence, recruit, and exploit others to perpetrate ideologically driven acts of violence. Undertaking such a multipronged study requires not only looking at the personal and sociological appeals that extreme ideology exerts but also considering how to create political, administrative, educational, and economic conditions to …

Terrorist Advocacy And Exceptional Circumstances, David S. Han

Fordham Law Review

This Article proceeds as follows. Part I discusses the harmful effects of terrorist advocacy and outlines the present doctrinal treatment of such speech. Part II discusses the issue of exceptional circumstances and highlights the two approaches courts might take to account for them: applying strict scrutiny to the case at hand or broadly reformulating the First Amendment’s doctrinal boundaries. Part III sets forth my central thesis: courts should adhere to case-by-case strict scrutiny analysis, rather than broad doctrinal reformulation, as the initial means of accounting for exceptional circumstances with respect to terrorist advocacy. This approach reflects the vital importance of …

The Internet Will Not Break: Denying Bad Samaritans § 230 Immunity, Danielle Keats Citron, Benjamin Wittes

Fordham Law Review

Section 230 is overdue for a rethinking. If courts do not construe the scope of federal immunity to avoid injustice, we argue, Congress should amend the law. This is not to discount the important role that the immunity provision has played over the past twenty years. Far from it. Section 230 immunity has enabled innovation and expression beyond the imagination of the operators of early bulletin boards and computer service providers the provision was designed to protect. But its overbroad interpretation has left victims of online abuse with no leverage against site operators whose business models facilitate abuse. This state …