First Amendment Commons^™

Entertaining Satan: Why We Tolerate Terrorist Incitement, Andrew Koppelman

Fordham Law Review

Words are dangerous. That is why governments sometimes want to suppress speech. The law of free speech reflects a settled decision that, at the time that law was adopted, the dangers were worth tolerating. But people keep dreaming up nasty new things to do with speech. Recently, the Islamic State of Iraq and Syria (ISIS) and other terrorist organizations have employed a small army of Iagos on the internet to recruit new instruments of destruction. Some of what they have posted is protected speech under present First Amendment law. In response, scholars have suggested that there should be some new …

Terrorists Are Always Muslim But Never White: At The Intersection Of Critical Race Theory And Propaganda, Caroline Mala Corbin

Fordham Law Review

When you hear the word “terrorist,” who do you picture? Chances are, it is not a white person. In the United States, two common though false narratives about terrorists who attack America abound. We see them on television, in the movies, on the news, and, currently, in the Trump administration. The first is that “terrorists are always (brown) Muslims.” The second is that “white people are never terrorists.” Different strands of critical race theory can help us understand these two narratives. One strand examines the role of unconscious cognitive biases in the production of stereotypes, such as the stereotype of …

The Internet As Marketplace Of Madness— And A Terrorist’S Best Friend, Thane Rosenbaum

Fordham Law Review

The panel I was assigned to, for this distinguished gathering of scholars at Fordham Law School, where I had previously been a professor for twentythree years, was given the name, “Caution Against Overreaching.” Overreaching and the caution it occasions, in this case, refer to the First Amendment, a uniquely American absolutist, legalistic obsession. For many who fixate on such matters, the government must never be allowed to trample upon the unfettered free speech rights guaranteed under America’s first, and most favorite, Amendment.

Terror On Your Timeline: Criminalizing Terrorist Incitement On Social Media Through Doctrinal Shift, Zachary Leibowitz

Fordham Law Review

The United States faces a barrage of threats from terrorist organizations on a daily basis. The government takes some steps to prevent these threats from coming to fruition, but not much is being done proactively. Any person can log into a social media account to preach hate and incite violence against the United States and its citizenry, and sometimes these words result in action. When speakers are not held accountable, they can continue to incite the masses to violent action across the United States. This Note proposes a new incitement doctrine to prevent these speakers from being able to spread …

Protection Against The Discovery Or Disclosure Of Church Documents And Records, Jeffrey Hunter Moon

The Catholic Lawyer

No abstract provided.

Masterpiece Cakeshop, Ltd. V. Colorado Civil Rights Commission: Brief Of Amici Curiae Public Accommodation Law Scholars In Support Of Respondents, Samuel Bagenstos

Appellate Briefs

Amici are legal scholars with expertise in the historical and contemporary applications of the public accommodation laws. This brief argues that the First Amendment exemption Masterpiece claims would subvert the historic purpose of these laws: to promote equal dignity in the marketplace.

For more than half a century, state public accommodation laws across the country have protected against denials of dignity and equal treatment in the public marketplace. Throughout that period, this Court has consistently rejected arguments that businesses open to the general public have a constitutional right to provide less than the full and equal services required by such …

Reply Brief. Crouse V. Caldwell, 138 S.Ct. 470 (2017) (No. 17-242), Eric Schnapper, Steven H. Goldblatt, Shon Hopwood, Marybeth Mullaney, Jennifer Munter Stark

Court Briefs

QUESTIONS PRESENTED (1) When disputes of fact arise regarding whether speech by a public employee is protected by the First Amendment, should those factual issues be resolved by a trier of fact (the rule in the Second, Third, Sixth, Eighth and Tenth Circuits), or by the court as a matter of constitutional law (the rule in the Fourth Circuit)? (2) When a government employee engages in speech on a subject of public concern, and a court applying Pickering balances the First Amendment interest against any contrary interests of the employer, should the extent of that First Amendment interest be “lessened” …

Developments In Liability Theories And Defenses, Robert A. Destro

The Catholic Lawyer

No abstract provided.

Legal/Legislative Issues In Euthanasia And Physician-Assisted Suicide, Edward Grant

The Catholic Lawyer

No abstract provided.

The Right To Self-Directed Death: Reconsidering An Ancient Proscription, G. Steven Neeley

The Catholic Lawyer

No abstract provided.

Ideological Plaintiffs, Administrative Lawmaking, Standing, And The Petition Clause, Karl S. Coplan

Maine Law Review

Although Article I of the Constitution vests legislative power in the Congress, the lawmaking process in this country has evolved to involve all three branches. Congress enacts regulatory programs, but delegates to the executive branch the task of formulating and legislating the details of implementation through regulations. Once the executive branch agencies have acted, Article III courts routinely step in to review the consistency of these regulations with congressional mandates. In many cases, especially in the case of controversial regulations, the lawmaking process is not complete until judicial review. Entities burdened by such regulations-so-called "regulatory objects"-enjoy presumed standing to challenge …

Fighting The New Wars Of Religion: The Need For A Tolerant First Amendment, Leslie C. Griffin

Maine Law Review

Religious wars have broken out around the country about the legality of gay marriage, the consequences of gay ordination for property ownership, the funding of faith-based organizations and the placement of crosses and Ten Commandments (but not Seven Aphorisms) on public land. To resolve such impassioned disputes, Americans traditionally look to the Religion Clauses of the First Amendment, which state "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." Unfortunately, the Court's modern decisions interpreting those clauses have shed more heat than light on the discussion and have provoked ongoing controversy instead of …

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.

Newsroom: Is Wall Between Church And State Crumbling? 10-10-2017, Diana Hassel

Life of the Law School (1993- )

No abstract provided.

Finding Freedom For The Thoughts We Hate, John M. Greabe

Law Faculty Scholarship

In his dissenting opinion in United States v. Schwimmer (1929), Supreme Court Justice Oliver Wendell Holmes, Jr., famously defended tolerance as an indispensable constitutional value. He wrote: “[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought – not free thought for those who agree with us but freedom for the thought that we hate.”

Yet accepting that the Constitution protects the thought that we hate can be difficult, even during the best of times. And these are far from the best of times. Nuclear brinksmanship …

Rwu First Amendment Blog: Diana Hassel's Blog: Is The Wall Between Church And State Crumbling? 10-07-2017, Diana Hassel

Law School Blogs

No abstract provided.

The Religion Clauses Of The First Amendment: Where Is The Supreme Court Heading?, Michael W. Mcconnell

The Catholic Lawyer

No abstract provided.

Gay Rights Coalition V. Georgetown University: Failure To Recognize A Catholic University's Religious Liberty, Paul E. O'Connell

The Catholic Lawyer

No abstract provided.

God's Green Earth? The Environmental Impacts Of Religious Land Use, Kellen Zale

Maine Law Review

Boulder County, Colorado has been at the forefront of the environmental movement for decades. Starting with its citizens’ vote in 1967 to implement a tax specifically to preserve open space, the city has long been known for its progressive environmental policies. At the center of Boulder’s environmental protection efforts is a comprehensive system of land use regulations designed to mitigate the slow chokehold of ever-encroaching development on wetlands and open space, on groundwater and soils, and on wildlife and native species. Numerous communities across the country have followed Boulder’s much-praised model and enacted their own environmental zoning laws to protect …

Hate Speech In The Schools: A Potential Change In Direction, Kevin W. Saunders

Maine Law Review

The law regarding free expression and students in the public schools has long been somewhat confused. An early Supreme Court vindication of student speech rights has eroded over the years. Yet, it is perhaps unclear how great the erosion has been and how much of the original recognition still stands. This has left the lower courts rather unwilling to protect school students from hate speech, at least in cases where there has not been a history of such speech leading to disruption or even violence. Only recently has there been some sign of change in that regard, with a few …

Zoning And The Location Of Religious Establishments, Kenneth Pearlman

The Catholic Lawyer

No abstract provided.

Is There A Place For Islam In The West? Adjudicating The Muslim Headscarf In Europe And The United States, Andrea Pin

Notre Dame Law Review Reflection

Part I of this short Article explains the relevance of the Micropole and Achbita decisions; Part II explores the common line of reasoning behind them; and, finally, the conclusion analyzes their impact within the European scenario of religious freedom—especially for Muslims—and contrasts them with the United States’ approach to the topic.

Barnett Vs. Corson. Libel—Truth Of Statement As A Defence—Malice—Act Of Apr. 11, 1901, Construed

Dickinson Law Review (2017-Present)

No abstract provided.

A Less Corrupt Term: 2016–2017 Supreme Court Roundup, Marc O. Degirolami, Kevin C. Walsh

Faculty Publications

(Excerpt)

In these unusually turbulent times for the presidency and Congress, the Supreme Court’s latest term stands out for its lack of drama. There were no 5–4 end-of-the-term cases that mesmerized the nation. There were no blockbuster decisions.

Even so, the Court was hardly immune to the steady transformation of our governing institutions into reality TV shows. Over the weekend leading into the final day of the term, speculation ignited from who-knows-where about the possible departure of its main character, Justice Anthony Kennedy. To us, the chatter seemed forced—as if the viewing public needed something to fill the vacuum left …

Jailing The Twitter Bird: Social Media, Material Support To Terrorism, And Muzzling The Modern Press, Rachel E. Vanlandingham

Cardozo Law Review

Social media companies such as Facebook and Twitter are vulnerable to federal criminal prosecution under 18 U.S.C. § 2339B, the material support to terrorism statute, for providing a means for terrorists and their sympathizers to glorify and pursue their violence on social media. This Article exposes that vulnerability as well as the material support statute's conflicts with the First and Fifth Amendments in this context, such as the statute's chilling effect. In particular, the Article explores how social media providers have responded to threats from the U.S. government by suspending hundreds of thousands of user accounts, effectively censoring constitutionally protected …

Human Torts, Lisa J. Laplante

Cardozo Law Review

Human Torts is the first article to describe how ordinary municipal tort lawsuits in the United States provide essential remedies for human rights abuses. Despite the rising level of hate crimes, bullying, corporate malfeasance, and other private acts that result in great harm and can lead to civil litigation, American scholars have never explored how everyday tort claims grounded in purely domestic common law doctrine between private, non-state actors are in fact human rights claims even if never pleaded as such in U.S. courts. Framing tort litigation as a form of human rights protection may appear to be a novel …

Dark Arts And Other Wicked Ideas: Harry Potter, Banned Books And Intellectual Freedom, Michele Mcdaniel, Ryan Mcdaniel

Twenty Years of Harry Potter: Celebrating a Phenomenon

Come explore intellectual freedom during Banned Books Week (Sept. 24-30) with this enchanted perspective inspired by Harry Potter.

Identifying certain ideas as dangerous - and therefore banned or otherwise restricted - is a perennial phenomenon, manifesting throughout every time and culture. When reading the Harry Potter series, one encounters the Restricted Section in the Hogwarts Library, where the reader is informed that books about the Dark Arts and how to defend oneself against them are found. However, only those sufficiently matured and prepared may read the restricted materials, and then only under the close supervision and guidance of a wiser …

Sidewalk Counseling: A First Amendment Right, Thomas Patrick Monaghan

The Catholic Lawyer

No abstract provided.

Censorship On The Internet: Who Should Make The Rules, Joe Zopolsky

Oklahoma Journal of Law and Technology

No abstract provided.

Courthouses, Bookshelves, And Portals: The Implications Of U.S. V. American Library Association On First Amendment Forum Analysis And Future Internet-Based Litigation Strategies, Alexandra R. Harrington

Oklahoma Journal of Law and Technology

No abstract provided.