First Amendment Commons^™

Enemy Construction And The Press, Ronnell Anderson Jones, Lisa Grow Sun

Utah Law Faculty Scholarship

When the president of the United States declared recently that the press is “the enemy,” it set off a firestorm of criticism from defenders of the institutional media and champions of the press’s role in the democracy. But even these Trump critics have mostly failed to appreciate the wider ramifications of the president’s narrative choice. Our earlier work describes the process of governmental “enemy construction,” by which officials use war rhetoric and other signaling behaviors to convey that a person or institution is not merely an institution that, although wholly legitimate, has engaged in behaviors that are disappointing or disapproved, …

A Progressive Mind: Louis D. Brandeis And The Origins Of Free Speech, Elizabeth Todd Byron

Touro Law Review

No abstract provided.

Public Employee Speech: Answering The Unanswered And Related Questions In Lane V. Franks, John E. Rumel

Articles

No abstract provided.

Ohio State Journal Of Dispute Resolution Symposium: A Memorial To Chris Fairman, Roberto L. Corrada

Sturm College of Law: Faculty Scholarship

I wanted to thank a few people for inviting me here and allowing me to pay homage to my old friend Chris Fairman and to strike a personal note of opening to this symposium. First, thanks to Garry Jenkins, now the Dean at Minnesota, for reaching out to me after we saw each other last year at Chris's memorial service in Austin. I would also like to thank Professor Sarah Rudolph Cole for reaching out to the broader community immediately after Chris's passing away. Finally, I'd like to thank the students of the JDR for pulling this symposium together and …

Finding A Fair Balance For The Right Of Publicity And First Amendment Protections, Christine Digregorio

Touro Law Review

No abstract provided.

Ithink My Electronic Data Is Secure, But Is It: A Constitutional Analysis Of In Re The Search Of An Apple Iphone, Shira Bloom

Touro Law Review

No abstract provided.

You Can't Sit With Us: Limiting Free Speech In Sports Arenas And How The Tampa Bay Lightning Took Home Ice Advantage Too Far, Kaitlin Shire

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Political Insider Trading, Michael R. Siebecker

Sturm College of Law: Faculty Scholarship

Should the same legal principles that prohibit insider trading require corporations to disclose their political spending as well? The question seems particularly important in light of the increasing dominance of corporations in the political realm, the lack of transparency regarding corporate political activity, and the inherently suspicious motives of corporate executives who use corporate treasuries to advance their personal political preferences. This Article examines how the fiduciary principles of trust that underpin prohibitions on insider trading could inform and enhance the content of the general fiduciary duties that corporate officers and directors owe to their shareholders. Although insider trading prohibitions …

"Free Speech, First Amendment, And New Media For Cons And Festivals" From Pop Culture Business Handbook For Cons And Festivals, Jon Garon

Faculty Scholarship

This article is part of a series of book excerpts from The Pop Culture Business Handbook for Cons and Festivals, which provides the business, strategy, and legal reference guide for fan conventions, film festivals, musical festivals, and cultural events.Although most events are organized by private parties, the location of these events in public venues and the crowd management issues involving free speech make First Amendment and free speech issues a critical component of event management. This excerpt provides a framework for understanding the legal and security issues involving free speech at public events.

The Weaponized Lawsuit Against The Media: Litigation Funding As A New Threat To Journalism, Lili Levi

American University Law Review

No abstract provided.

Blog: Without Rhyme Or Reason, Meikhel M. Philogene

The Modern American

No abstract provided.

Rule Of Law, Activism And Equality: Growing Antisubordination Norms Within The University, 50 J. Marshall L. Rev. 249 (2017), Peter Halewood, Donna Young

UIC Law Review

This article examines this recent surge of student activism to determine how it fits within larger social movements and to evaluate how receptive courts and legislatures may be to some of the claims raised by the protests. Significant changes in civil rights laws have often been driven by significant shifts in societal perceptions of and engagement with social justice issues. And importantly, social movements have often fostered the political pressure necessary for social, legal, and political reform. There is the potential for these protests to influence courts and legislatures and shape their interpretations of legal rules in ways that recognize …

Principles Limiting Recovery Against Undercover Investigators In Ag-Gag States: Law, Policy And Logic, 50 J. Marshall L. Rev. 649 (2017), Sarah Hanneken

UIC Law Review

This Comment explores the history and purpose of ag-gag legislation as well as its constitutional shortcomings, particularly with regard to damages. Using North Carolina’s recent ag-gag efforts to silence whistleblowers as an effective case study, this Comment explains how free-speech protections, public policy, and causation principles all limit the monetary damages recoverable against undercover investigators. It begins in Part II with a history of undercover investigations and their role in confronting systemic exploitation within various industries. It then describes how these industries have responded to the unwanted attention by turning to the courts and legislatures for redress. It is in …

Beyond The First Amendment: What The Evolution Of Maryland's Constitutional Free-Speech Guarantee Shows About Its Intended Breadth, Anthony W. Kraus

University of Baltimore Law Forum

Most Maryland lawyers are vaguely aware that Maryland's Declaration of Rights contains its own guarantee of free speech that is worded differently from the First Amendment of the United States Constitution. What the Declaration of Rights actually says about free speech, however, and what can be inferred from its distinctive phrasing and legislative history, are not matters that have received much particularized attention. Decisions of Maryland's courts routinely state that Article 40 of the Declaration of Rights - the principal source of state free-speech rights - is construed in pari materia with the First Amendment, which, as a practical matter, …

The Wholesale Exclusion Of Religion From Public Benefits Programs: Why The First Amendment Religion Clauses Must Take A Backseat To Equal Protection, Michael J. Borger

Touro Law Review

No abstract provided.

"My Lips Are Sealed, Unless..." Examining The Reporter's Privilege In New York And Why It Should Be Applied Federally, Luann Dallojacono

Touro Law Review

No abstract provided.

First Amendment Right To A Remedy, Benjamin Plener Cover

Articles

Scholars and jurists agree that the First Amendment right “to petition the Government for a redress of grievances” includes a right of court access, but narrowly define this right as the right to file a lawsuit. This dominant view fails to meaningfully differentiate between the right to petition, the freedom of speech, and due process, missing the distinct significance of the Petition Clause when individuals petition courts. The most significant threats to court access today occur after the filing stage, when courts deny or limit remedies to legally injured persons — by enforcing a mandatory arbitration provision or an exhaustion …

God And State Preambles, Peter J. Smith, Robert W. Tuttle

Marquette Law Review

Those who question the permissibility of official acknowledgements of God might be surprised to learn that the preambles of forty-five of the fifty state constitutions expressly invoke God. The practice is common in both liberal and conservative states and is equally prevalent in all regions of the country. Virtually all of those preambles give thanks to God, and many also seek God's blessing n the state's endeavors. Yet there has been no detailed assessment of the preambles' history or significance. This paper seeks to remedy that gap.

The preambles complicate the claim that official acknowledgements of God are incompatible with …

A Free Speech Tale Of Two County Clerk Refusals, Caroline Mala Corbin

Articles

The ever-expanding Free Speech Clause has made possible claims that would have been unthinkable until recently. This symposium Essay examines the compelled speech claims of two hypothetical county clerks who believe that marriage should be limited to unions between one man and one woman, and who argue that forcing them to issue marriage licenses to gay and lesbian couples compels them to speak in favor of same-sex marriage in violation of the Free Speech Clause.

When a government employee such as a county clerk speaks, she may not be speaking as just a private individual. She may also be speaking …

Science As Speech, Natalie Ram

All Faculty Scholarship

In April 2015, researchers in China reported the successful genetic editing of human embryos using a new technology that promised to make gene editing easier and more effective than ever before. In the United States, the announcement drew immediate calls to regulate or prohibit
outright any use of this technology to alter human embryos, even for purely research purposes. The fervent response to the Chinese announcement was, in one respect, unexceptional. Proposals to regulate or prohibit scientific research following a new breakthrough occur with substantial frequency. Innovations in cloning technology and embryonic stem cell research have prompted similar outcries, and …

The Price Of Free Mobile Apps Under The Video Privacy Protection Act, Suzanne L. Riopel

American University Business Law Review

No abstract provided.

The Corporation In The Marketplace Of Ideas, 51 J. Marshall L. Rev. 19 (2017), Matthew Telleen

UIC Law Review

No abstract provided.

Reconciling The History Of The Hangman’S Noose And Its Severity Within Hostile Work Environment Claims, 51 J. Marshall L. Rev. 137 (2017), Tess Godhardt

UIC Law Review

No abstract provided.

Justice Scalia And Fourth Estate Skepticism, Ronnell Anderson Jones

Utah Law Faculty Scholarship

The about-face in characterization of the press during Justice Scalia's three decades on the Court is worthy of a discussion about its underlying causes and also a discussion about its potential effects. As I have noted elsewhere, both the explanations for the shift and the possible ramifications of it are complex and multifaceted. Scalia's push for a new, less positive depiction of the press came at a time when the institutional press experienced significant change and its reputation among the American public plummeted-suggesting that Justice Scalia (and, ultimately, his colleagues on the Court) were merely being perceptive observers of the …

Sex, Drugs, And Eagle Feathers: An Empirical Study Of Federal Religious Freedom Cases, Luke W. Goodrich

Utah Law Faculty Scholarship

This Article presents one of the first empirical studies of federal religious freedom cases since the Supreme Court’s landmark decision in Hobby Lobby. Critics of Hobby Lobby predicted that it would open the floodgates to a host of novel claims, transforming “religious freedom” from a shield for protecting religious minorities into a sword for imposing Christian values in the areas of abortion, contraception, and gay rights.

Our study finds that this prediction is unsupported. Instead, we find that religious freedom cases remain scarce. Successful cases are even scarcer. Religious minorities remain significantly overrepresented in religious freedom cases; Christians remain significantly …

Postmodern Free Expression: A Philosophical Rationale For The Digital Age, Stephen M. Feldman

Marquette Law Review

Three philosophical rationales--search-for-truth, self-governance, and self-fulfillment--have animated discussions of free expression for decades. Each rationale emerged and attained prominence in American jurisprudence in specific political and cultural circumstances. Moreover, each rationale shares a foundational commitment to the classical liberal (modernist) self. But the three traditional rationales are incompatible with our digital age. IN particular, the idea of the classical liberal self enjoying maximum liberty in a private sphere does not fit in the postmodern information society. The time for a new rationale has arrived. The same sociocultural conditions that undermine the traditional rationales suggest a self-emergence rationale built on the …

Contemplating Masterpiece Cakeshop, Terri R. Day

Faculty Scholarship

No abstract provided.

John Stuart Mill And Political Correctness, Lackland H. Bloom Jr.

Faculty Journal Articles and Book Chapters

This article will examine Mill’s arguments in favor of unrestrained freedom of speech and his objection to the social censorship of speech. It will then discuss the origins and impact of what is now characterized as political correctness. The article will then define the concept of social censorship and attempt to distinguish pure social censorship from private tangible punishment of speech. Next, the article will examine the ways in which social censorship serves important social goals and promotes free speech as well as the ways in which it undermines free speech. It will especially focus on the damage to intellectual …

#Protestersrightsmatter: The Case Against Increased Criminal Penalties For Protesters Blocking Roadways, Caroline M. Moos

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Partisan Judicial Speech And Recusal Procedure, Dmitry Bam

Faculty Publications

This article discusses Associate Professor Appleby’s thoughtful comment criticizing the Supreme Court’s self-recusal procedure in light of Justice Ginsberg’s critical remarks about then-Presidential Candidate Trump.