First Amendment Commons^™

The Future Of Freedom Of Expression Online, Evelyn Aswad

Faculty Articles

Should social media companies ban Holocaust denial from their platforms? What about conspiracy theorists that spew hate? Does good corporate citizenship mean platforms should remove offensive speech or tolerate it? The content moderation rules that companies develop to govern speech on their platforms will have significant implications for the future of freedom of expression. Given that the prospects for compelling platforms to respect users’ free speech rights are bleak within the U.S. system, what can be done to protect this important right? In June 2018, the United Nations’ top expert for freedom of expression called on companies to align their …

Say What You Want: How Unfettered Freedom Of Speech On The Internet Creates No Recourse For Those Victimized, Wes Gerrie

Catholic University Journal of Law and Technology

In today’s society, virtually everyone relies on online posts in order to make decisions—from what products to purchase to what restaurants to visit. The introduction and increase of online communication has made posting reviews online a simpler, easier, and more efficient process. However, the increase of online communication has threatened the delicate balance between free speech and harmful speech.

A tangled web of recent case law and federal law exists which aggressively protects the free speech of online reviewers. The law has carved out immunity for the website operators that host an online reviewer’s comments, which in turn makes an …

Masthead

Catholic University Journal of Law and Technology

No abstract provided.

Deepfake Videos: When Seeing Isn't Believing, Holly Kathleen Hall

Catholic University Journal of Law and Technology

Videos, known as deepfakes, use readily available software to create a work that shows people saying and doing things they may never have uttered or engaged in. The technology making the videos appear very authentic is advancing at such a rate that people may not be able to detect if the videos are fact or fiction. Given the hasty acceptance of other forms of fake news in society, deepfake videos have the ability to affect the nature of information the public receives about candidates and policies. This study examines the potential use of deepfake videos in the democratic process, analyzes …

The First Amendment Case Against Partisan Gerrymandering, Emmet J. Bondurant Ii, Ben W. Thorpe

Georgia Law Review

The Supreme Court recognizes that "[p]artisan
gerrymanders... [are incompatible] with democratic
principles."I This makes good sense. The fundamental
objective of redistrictingis to "establish 'fairand effective
representation for all citizens. '2 And partisan
gerrymandering-whichthe Supreme Court defines as
"drawing... district lines to subordinate adherents of
one political party and entrench a rival party in
power'--runs counter to that fundamental objective.
Nonetheless, the Supreme Court has yet to invalidate
a redistricting plan solely as an unconstitutional
partisan gerrymander. This Symposium issue of the
Georgia Law Review, however, comes at a crucial
moment in the Court's treatment of that question. A case
now …

Religious Liberty Versus Rights Of Others, Arnold H. Loewy

Kentucky Law Journal

No abstract provided.

The Off-Label Use Of Pom Wonderful: Using Section 43(A) To Eliminate Misleading Off-Label Drug Promotion, Christopher A. Hurley

Washington and Lee Law Review

No abstract provided.

To Speak Or Not To Speak, That Is Your Liberty: Janus V. Afscme, David Forte

Law Faculty Articles and Essays

Some Supreme Court precedents go through extensive death spasms before being interred. Lochner v. New York, Plessy v. Ferguson, and Austin v. Michigan Chamber of Commerce come to mind. Others like Chisholm v. Georgia and Minersville School District v. Gobitis incurred a swift and summary execution. Still others, overtaken by subsequent cases, remain wraith-like presences among the Court’s past acts: Beauharnais v. Illinois and Buck v. Bell, for example, remain “on the books.”

Free Speech Hypocrisy: Campus Free Speech Conflicts And The Sub-Legal First Amendment, Christina E. Wells

University of Colorado Law Review

No abstract provided.

Climate Change Disinformation, Citizen Competence, And The First Amendment, James Weinstein

University of Colorado Law Review

No abstract provided.

Government Lies And The Press Clause, Helen L. Norton

University of Colorado Law Review

No abstract provided.

Taxpayers For Public Education V. Douglas County School District: The School Choice Movement Soldiers On, Bryce Carlson

University of Colorado Law Review

For nearly a decade, the school choice movement in Colorado has hung in the balance as the fate of the Douglas County School District Choice Scholarship Program worked its way through the courts, even reaching the United States Supreme Court in the process. The main issue at stake was whether Article IX, § 7 of the Colorado Constitution, which prevents public institutions from making any appropriation to a "church or sectarian society," barred students from using a school district scholarship to attend a private religiously affiliated school.

The Colorado Supreme Court in 2015 ruled that the Choice Scholarship Program indeed …

When Lies Go Viral: The First Amendment Implications Of Regulating The Spread Of Fake News, Madeleine Rosuck

SMU Science and Technology Law Review

No abstract provided.

Religious Exemptions, Third-Party Harms, And The False Analogy To Church Taxes, Christopher C. Lund

Law Faculty Research Publications

No abstract provided.

U.S. Supreme Court Surveys: 2016 Term. Matal V. Tam: Free Speech Meets "Disparaging" Trademarks In The Supreme Court, Niki Kuckes

Roger Williams University Law Review

No abstract provided.

#I🔫U: Considering The Context Of Online Threats, Lyrissa Barnett Lidsky, Linda Riedemann Norbutt

UF Law Faculty Publications

The United States Supreme Court has failed to grapple with the unique interpretive difficulties presented by social media threats cases. Social media make hateful and threatening speech more common but also magnify the potential for a speaker's innocent words to be misunderstood People speak differently on different social media platforms, and architectural features of platforms, such as character limits, affect the meaning of speech. The same is true of other contextual clues unique to social media, such as gifs, hashtags, and emojis. Only by understanding social media contexts can legal decision-makers avoid overcriminalization of speech protected by the First Amendment. …

Defamation Per Se And Transgender Status: When Macro-Level Value Judgments About Equality Trump Micro-Level Reputational Injury, Clay Calvert, Ashton T. Hampton, Austin Vining

UF Law Faculty Publications

This Article uses the September 2017 defamation decision in Simmons v. American Media, Inc. as a springboard for examining defamatory meaning and reputational injury. Specifically, it focuses on cases in which judges acknowledge that plaintiffs have suffered reputational harm yet rule for defendants because promoting the cultural value of equality weighs against redress. In Simmons, a normative, axiological judgment--that the law should neither sanction nor ratify prejudicial views about transgender individuals-- prevailed at the trial court level over a celebrity's ability to recover for alleged reputational harm. Simmons sits at a dangerous intersection: a crossroads where a noble judicial desire …

The Open Mic, Unplugged: Challenges To Viewpoint-Based Constraints On Public-Comment Periods, Frank D. Lomonte, Clay Calvert

UF Law Faculty Publications

Perhaps the purest form of citizen political expression is addressing a government body directly during the public-comment period. Despite its salutary civic benefits, the public-comment period faces escalating threats, with local elected officials imposing rigid controls on speakers. Disturbingly, these rules sometimes are enforced via arrest. The U.S. Supreme Court recently confronted this scenario in Lozman v. City of Riviera Beach, involving the arrest of a citizen-critic who refused to stop using his city council's open-mic period to decry public corruption. While narrowly fact-specific, the Court's June 2018 resolution of the case reaffirms the importance of protecting speakers at …

Symposium: Truth, Trust And The First Amendment In The Digital Age: Foreword: Whither The Fourth Estate?, Lyrissa Barnett Lidsky

UF Law Faculty Publications

As a professor of Media Law, I have devoted my career over the past quarter of a century to the idea that the press plays a special role in our democracy. That role is largely encapsulated by the concept of the press as Fourth Estate – an unofficial branch of government in our scheme of separation of powers that checks the power of the three official branches. In our constitutional scheme, the press is the watchdog that informs us what the legislative, executive, and judicial branches of government are up to and continually replenishes the stock of news – real …

Fake News And The First Amendment: Reconciling A Disconnect Between Theory And Doctrine, Clay Calvert, Stephanie Mcneff, Austin Vining, Sebastian Zarate

UF Law Faculty Publications

This Article analyzes calls for regulating so-called “fake news” through the lens of both traditional theories of free expression – namely, the marketplace of ideas and democratic self-governance – and two well-established First Amendment doctrines, strict scrutiny and underinclusivity. The Article argues there is, at first glance, a seeming disconnect between theory and doctrine when it comes to either censoring or safeguarding fake news. The Article contends, however, that a structural rights interpretation of the First Amendment offers a viable means of reconciling theory and doctrine. A structural rights approach focuses on the dangers of collective power in defining the …

Gag Clauses And The Right To Gripe: The Consumer Review Fairness Act Of 2016 & State Efforts To Protect Online Reviews From Contractual Censorship, Clay Calvert

UF Law Faculty Publications

This article examines new legislation, including the federal Consumer Review Fairness Act, signed into law in December 2016, targeting non-disparagement clauses in consumer contracts. Such “gag clauses” typically prohibit or punish the posting of negative reviews of businesses on websites, such as Yelp and TripAdvisor. This article asserts that state and federal statutes provide the best means, from a pro-free-expression perspective, of attacking such clauses, given the disturbingly real possibility that the First Amendment has no bearing on contractual obligations between private parties.

Filtering Fake News Through A Lens Of Supreme Court Observations And Adages, Clay Calvert, Austin Vining

UF Law Faculty Publications

This Essay analyzes multiple issues affecting fake news. It does so through a prism of seven observations by the U.S. Supreme Court concerning the First Amendment, free speech, and other matters. The Court's wisdom in these quotations provides propitious points of entree for exploring how to address and remedy problems many fear fake news causes. The Essay concludes that because fake news will never be eradicated from the metaphorical marketplace of ideas, greater effort must be spent making real news - fake news's constructive flipside - more appetizing to the public.

Beyond Headlines & Holdings: Exploring Some Less Obvious Ramifications Of The Supreme Court's 2017 Free-Speech Rulings, Clay Calvert

UF Law Faculty Publications

Digging behind the holdings, this Article analyzes less conspicuous, yet highly consequential aspects of the United States Supreme Court’s First Amendment rulings during the opening half of 2017. The four facets of the opinions addressed here— items both within individual cases and cutting across them—hold vast significance for future free-speech battles. Nuances of the justices’ splintering in Matal v. Tam, Packingham v. North Carolina, and Expressions Hair Design v. Schneiderman are examined, as is the immediate impact of Justice Anthony Kennedy’s Packingham dicta regarding online social networks. Furthermore, Justice Sonia Sotomayor’s solo concurrence in the threats case of …

First Amendment Envelope Pushers: Revisiting The Incitement-To-Violence Test With Messrs. Brandenburg, Trump, & Spencer, Clay Calvert

UF Law Faculty Publications

This Article examines weaknesses with the United States Supreme Court’s Brandenburg v. Ohio incitement test as its fiftieth anniversary approaches. A lawsuit targeting Donald Trump, as well as multiple cases pitting white nationalist Richard Spencer against public universities, provide timely springboards for analysis. Specifically, In re Trump: 1) illustrates difficulties in proving Brandenburg’s intent requirement via circumstantial evidence; and 2) exposes problems regarding the extent to which past violent responses to a person’s words satisfy Brandenburg’s likelihood element. Additionally, the Spencer lawsuits raise concerns about: 1) whether Brandenburg should serve as a prior restraint mechanism for blocking potential speakers …

Is There Any Silver Lining To Trinity Lutheran Church, Inc. V. Comer?, Caroline Mala Corbin

Articles

No abstract provided.

First Amendment Electronic Speech: Ex Parte Reece, A Missed Opportunity To Narrow Texas’S Unconstitutionally Overbroad Anti-Harassment Statute, Brian Long

SMU Law Review

No abstract provided.

Reconsidering Incitement, Tinker And The Heckler’S Veto On College Campuses: Richard Spencer And The Charlottesville Factor, Clay Calvert

UF Law Faculty Publications

This Essay analyzes key First Amendment issues surrounding Richard Spencer and Milo Yiannopoulos speaking on public university campuses. Some institutions (Ohio State University, Michigan State University and Pennsylvania State University) have flatly banned Spencer, citing fears of incitement to violence but also sparking federal lawsuits. Other schools have permitted Spencer to speak, but at massive security costs, in an attempt to prevent a so-called heckler’s veto. This Essay examines the tension between providing a public platform for controversial speakers and the costs associated with doing so, including the relevance of the Supreme Court’s aging incitement test created in Brandenburg v. …

A First Amendment Right To Corrupt Your Politician, Eugene Temchenko

Cornell Law Review

Are you dealing with state or federal agencies, to no avail? Do you need someone on top to advocate for you? You may have a right to buy your Governor’s help. It is well-established that the Constitution protects the right of political association, which includes contributions to candidates in return for ingratiation and access. Nonetheless, courts and scholars have generally limited this right to contributions to campaigns for public office. After McDonnell v. United States, that may change. Reading the McDonnell opinion in light of McCutcheon, this Note and other commentators conclude that the Supreme Court may have inadvertently created …

Public Fora And The Problem Of Too Much Speech, R. George Wright

Kentucky Law Journal

No abstract provided.

Permissible Accommodation Or Impermissible Endorsement? A Proposed Approach To Religious Exemptions And The Establishment Clause, Gary J. Simson

Kentucky Law Journal

No abstract provided.