First Amendment Commons^™

Laying Siege To The Ivory Tower: Resource Allocation In Response To The Heckler's Veto On University Campuses, Macklin W. Thornton

San Diego Law Review

High in the towers of academia, the lofty ideals of free speech are tossed around with a deceptive ease. However, as legal minds grapple with heady legal doctrines, free speech has concrete consequences down at the foot of those towers. At this ivory base, the property line between the university and the community blur. Students and nonstudents assemble and deliver conflicting speech that, at times, foments violence. Molotov cocktails, gun shots, broken windows, disgruntled students. All attempts to trigger the dreaded heckler’s veto—an attempt the government has an obligation to prevent. In addition to the public relations disasters grown from …

Kennedy's Last Term: A Report On The 2017-2018 Supreme Court, Marc O. Degirolami, Kevin C. Walsh

Faculty Publications

(Excerpt)

Twenty-eighteen brought the end of Justice Anthony Kennedy’s tenure on the Supreme Court. We are now entering a period of uncertainty about American constitutional law. Will we remain on the trajectory of the last half-century? Or will the Court move in a different direction?

The character of the Supreme Court in closely divided cases is often a function of the median justice. The new median justice will be Chief Justice John Roberts if Kennedy’s replacement is a conservative likely to vote most often with Justices Clarence Thomas, Neil Gorsuch, and Samuel Alito. This will mark a new phase of …

The Law Of Advertising Outrage, Mark Bartholomew

Journal Articles

This article examines the stimulation of audience outrage, both as a marketing strategy and as a subject of legal regulation. A brief history of advertising in the United States reveals repeated yet relatively infrequent attempts to attract consumer attention through overt transgressions of social norms relating to sex, violence, race, and religion. Natural concerns over audience reaction limited use of this particular advertising tactic as businesses needed to be careful not to alienate prospective purchasers. But now companies can engage in “algorithmic outrage”—social media advertising meant to stimulate individual feelings of anger and upset—with less concern for a consumer backlash. …

Telemarketing, Technology, And The Regulation Of Private Speech: First Amendment Lessons From The Fcc’S Tcpa Rules, Justin (Gus) Hurwitz

Brooklyn Law Review

This article considers the viability of the Telephone Consumer Protection Act (TCPA) in light of recent Supreme Court First Amendment precedent and technological and regulatory developments. Robocalls—phone calls made using autodialers or prerecorded messages without the consent of the call recipient—have become one of the primary consumer protection issues facing regulators. With more than 2.4 billion of these calls placed each month, consumer concern about them dominate complaints received by both the Federal Communications Commission and Federal Trade Commission. Simultaneously, as cellphones have become a ubiquitous means by which individuals engage with one another and have become the public square, …

Prisoner-To-Public Communication, Demetria D. Frank

Brooklyn Law Review

The pervasive problem of over-incarceration in the United States is in part due to lack of correctional facility accountability to the public, and public lack of access to the prisoner experience. In light of the incessant persistence of over-incarceration and “hands off approach” taken by courts in prison administration, this article proposes an unqualified and unfettered prisoner-to-public communication right that would provide prison accountability to the public.

Google, Charlottesville, And The Need To Protect Private Employees’ Political Speech, Chloe M. Gordils

Brooklyn Law Review

At a time when the freedom of speech is increasingly under attack, the question becomes: what protections are available to employees of private companies who wish to engage in political expression while off the clock? Although public employees are in many ways protected by the First Amendment from government intrusion into their political speech, private employees in many states are left largely unprotected. This note examines the current statutory protections offered to protect private employees from being fired or retaliated against based on their political opinions, and argues that the inconsistency and unpredictability of state laws call for a uniform …

Speech-And-Display Laws: Balancing Physicians' Free Speech Rights And States' Interests In The Context Of Abortion, Emily Ruppert

Journal of Law and Policy

“The question is not pro-abortion or anti-abortion, the question is who makes the decision: a woman and her physician, or the government.” – Gloria Steinem

The Modern Public Square: Digital Viewpoint Discrimination In The Age Of @Realdonaldtrump, Jonathan Groffinan

Cardozo Journal of Equal Rights & Social Justice

The note argues that official social media accounts used by political figures for public engagement should be classified as designated public forums, ensuring First Amendment protections against viewpoint discrimination. It contends that blocking users based on their viewpoints violates constitutional rights, as such accounts serve as modern public squares essential for free speech and open discourse.

A Clear And Present Danger: The Need For Regulated Accountability For Online Service Providers To Preserve And Promote Free Speech, Notice, And Due Process, Benjamin H. Winters

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

A Fish Out Of Water: Why The Gao's Approach To Finding Agency Propaganda Is Inadequate In The Social Media Age, Jennifer Pierce

Cardozo Law Review

No abstract provided.

Reasonable Action: Reproductive Rights, The Free Exercise Clause, And Religious Freedom In The United States And The Republic Of Ireland, Liam Ray

St. John's Law Review

(Excerpt)

This Note will argue that by denying certiorari in Stormans v. Wiesman, the Supreme Court missed an important opportunity to provide guidance to the states as to how the Free Exercise Clause applies to the kind of stocking and dispensing regulations adopted by the State of Washington. This Note will further argue from a policy perspective that the approach to these kinds of regulations adopted by the Republic of Ireland (“ROI”) presents the best approach for states to adopt because it provides a balance in terms of respecting the free exercise rights of pharmacists and pharmacy owners with …

An Antitrust Approach To Corporate Free Exercise Claims, Ronald J. Colombo

St. John's Law Review

(Excerpt)

This Article suggests that antitrust law’s concept of market power could similarly be employed in balancing the free exercise rights of a corporation or any for-profit business venture against the rights of individuals. When a business enterprise seeks a religious liberty exemption from a rights-granting law, a major factor in assessing its claim should be the degree to which it wields market power in the relevant market. If the business is a monopolist, and, a fortiori, wielding tremendous market power, its claim for a free exercise exemption should probably fail. If, conversely, the business is but a minor marketplace …

Locked Up, Shut Up: Why Speech In Prison Matters, Evan Bianchi, David Shapiro

St. John's Law Review

(Excerpt)

This Article proceeds in three Parts. Part I describes the deferential Turner standard that governs First Amendment claims brought by prisoners. Virtually every word uttered or written to a prisoner and virtually every word uttered or written by a prisoner receives extremely limited legal protection. Largely as a result of this legal regime, senseless censorship is all too common in American prisons. Jailers and prison officials seem to have received the message that they can ban speech with impunity.

Part II argues that the combination of Turner deference and mass incarceration divests prisoners of expressive power, thereby distorting public …

Section 1: Moot Court: Nieves, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

The Meaning Of Wrongdoing - A Crime Of Disrespecting The Flag: Grounds For Preserving National Unity, Mohammed Saif-Alden Wattad

San Diego International Law Journal

To conclude on this issue, the rights of others, as individuals and as a whole, are formulated as the social protected interest that criminal law seeks to protect through criminal means, and it is with these rights that criminal law theory should be concerned in the first level of scrutiny. However, in the second level of scrutiny, an additional set of rights are brought into play; these are the rights of the individual, namely the actor, to exercise their constitutional rights e.g., free speech, liberty, free exercise of religion. The second level of scrutiny requires balancing those rights with the …

Reply: Conscience And Equality, Nelson Tebbe

Journal of Civil Rights and Economic Development

(Excerpt)

In this Reply, I explore some larger questions that have been prompted by the book but that fell outside its focus on the interaction between religious freedom and civil rights law. Spurred by the responses, but also independent of them, I examine the implications of my arguments for an egalitarian theory of the First Amendment. Though it is of course impossible to fully develop such a vision in this Reply, there is room to begin that work. Along the way, I answer some of the more pointed questions posed in these six responses.

Keynote Address, Ryan Calo

Seattle University Law Review

Transcript of the keynote address at the 2018 Seattle University School of Law symposium “Singularity: AI and the Law.” The keynote address is presented by Ryan Calo and discusses the current status of artificial intelligence learning, and how this current status is moving toward robotic singularity.

Robotic Speakers And Human Listeners, Helen Norton

Seattle University Law Review

This article discusses protected First Amendment speech and how this protection should be applied to robotic speech. Robotic speech is that created by automated means, currently “bots” but the producers of automated speech are evolving. The article further differentiates between rights of the producers of this speech and listeners or consumers of the speech, and the impact of First Amendment protections on each group.

Panel 2: Accountability For The Actions Of Robots, Ryan Calo, Howard Jay Chizeck, Elizabeth Joh, Blake Hannaford

Seattle University Law Review

Transcript of the panel discussion at the 2018 Seattle University School of Law symposium “Singularity: AI and the Law” discussing human control and Artificial Intellegence learning. The panel participants are Ryan Calo, Howard Jay Chizeck, Elizabeth Joh, and Blake Hannaford.

Panel 1: Robotic Speech And The First Amendment, Bruce E. H. Johnson, Helen Norton, David Skover

Seattle University Law Review

Transcript of the panel discussion at the 2018 Seattle University School of Law symposium “Singularity: AI and the Law.” The panel is moderated by Seattle University School of Law Professor Gregory Silverman, and discusses the forthcoming book Robotica, by David M. Skover and Ronald K. L. Collins. The panelists are Bruce E. H. Johnson, Helen Norton, and David M. Skover.

Virtual Ethics And The Creeper Act, Justin Tiehen

Seattle University Law Review

A legal and moral discussion of the development of child sex bots (CSB), childlike sex dolls, comparing society-at-large’s general squeamishness of the area, and attempts to regulate (for example, the CREEPER Act) with the prophylactic therapeutic benefits of these robots.

Artificial Intellegence And Policing: First Questions, Elizabeth E. Joh

Seattle University Law Review

Artificial intelligence is playing an increasingly larger role in all sectors of society, including policing. Many police departments are already using artificial intelligence (AI) to help predict and identify suspicious persons and places.1 Increased computational power and oceans of data have given rise to inferences about violence and threats.2 AI will change policing just as it will healthcare, insurance, commerce, and transportation. But what questions should we ask about AI and policing?

Introduction, Annette Clark

Seattle University Law Review

Introductory remarks given by Dean Annette Clark at the 2018 Seattle University School of Law symposium “Singularity: AI and the Law.”

Ethical Machines?, Ariela Tubert

Seattle University Law Review

This Article explores the possibility of having ethical artificial intelligence. It argues that we face a dilemma in trying to develop artificial intelligence that is ethical: either we have to be able to codify ethics as a set of rules or we have to value a machine’s ability to make ethical mistakes so that it can learn ethics like children do. Neither path seems very promising, though perhaps by thinking about the difficulties with each we may come to a better understanding of artificial intelligence and ourselves.

Decriminalization Of Prostitution Policy: Amnesty International Punishes A Dissenting Member, Marcia R. Lieberman

Dignity: A Journal of Analysis of Exploitation and Violence

In 2016, Marcia Lieberman, a local group coordinator for Amnesty International, USA, was expelled by the board of directors for speaking out publicly against the new Policy on the Decriminalization of Sex Work. Amnesty used a little-known rule that prohibits a member from publicly opposing a position that Amnesty has taken. Lieberman writes about her experience and her view that Amnesty violated its fundamental principle of protecting free speech to silence her dissent.

Don't Take Me Out To That Ballpark: State Action, Government Speech, And Chief Wahoo After Matal, Robert H. Hendricks

Cornell Law Review

Close your eyes and imagine yourself driving to a concert. On the way, you pass a car bearing a license plate with the image of a Confederate flag. You pause, and ask . . . Did the state approve that license plate? Does the state endorse the use of the Confederate flag? You keep driving. Eventually you reach the concert and walk in. To your surprise, an Asian- American band named “The Slants” is opening. You pause, and ask . . . I thought the government approves trademarks? Does the Patent and Trademark Office endorse derogatory slurs? These questions strike …

The First Amendment And Mandatory Condom Laws: Rethinking The “Porn Exception” In Strict Scrutiny, Content Neutrality And Secondary Effects Analysis, Jason M. Shepard

Nevada Law Journal

No abstract provided.

Managing Dissent, Timothy Zick

Faculty Publications

In his insightful new book, Managed Speech: The Roberts Court's First Amendment (2017), Professor Greg Magarian criticizes the Roberts Court for adopting a "managed speech" approach in its First Amendment cases. According to Professor Magarian, that approach gives too much power to private and governmental actors to manage public discourse, constrain dissident speakers, and instill social and political stability. This Article argues that at least insofar as it relates to many forms of public dissent, the managed speech approach is both deeply rooted in First Amendment jurisprudence and culturally prevalent. Historically, First Amendment jurisprudence has expressed support for narrowly managed …

Chilling: The Constitutional Implications Of Body-Worn Cameras And Facial Recognition Technology At Public Protests, Julian R. Murphy

Washington and Lee Law Review Online

In recent years body-worn cameras have been championed by community groups, scholars, and the courts as a potential check on police misconduct. Such has been the enthusiasm for body-worn cameras that, in a relatively short time, they have been rolled out to police departments across the country. Perhaps because of the optimism surrounding these devices there has been little consideration of the Fourth Amendment issues they pose, especially when they are coupled with facial recognition technology (FRT). There is one particular context in which police use of FRT equipped body-worn cameras is especially concerning: public protests. This Comment constitutes the …

President Trump: Challenging Core First Amendment Principles, Timothy Zick

Popular Media

No abstract provided.