First Amendment Commons^™

Symposium Introduction, William D. Araiza, Joel M. Gora

Brooklyn Law Review

On April 12, 2019, scholars gathered at Brooklyn Law School to consider the past, the present, and the future of free speech, and concerns about incitement that militate toward suppression. The speakers provided incisive and timely insight on these important matters—insight that is reflected in the papers published in this symposium issue of the Brooklyn Law Review. This introduction provides an overview of this symposium issue and the questions presented by each article.

In Defense Of Brandenburg: The Aclu And Incitement Doctrine In 1919, 1969, And 2019, Emerson J. Sykes

Brooklyn Law Review

In the United States, full-throated advocacy—even advocacy of violence—is protected by the First Amendment of the Constitution. Few other countries define “incitement to violence” as narrowly, and governments tend to exploit any authority to regulate speech. The ACLU has played a central role in developing America’s speech-protective modern incitement doctrine over the last century, sometimes by representing clients with abhorrent views, including in the landmark Brandenburg v. Ohio. The Brandenburg test sets a high bar for incitement that should be maintained, even with respect to online speech. Calls for increased regulation of speech should not be heeded.

Brandenburg And Terrorism In The Digital Age, David S. Han

Brooklyn Law Review

This essay explores the tension between the longstanding Brandenburg standard and the current technological context—one in which abstract advocacy of terrorist conduct, widely and cheaply disseminated through the internet and channeled through social media, has contributed to a number of devastating attacks such as the Orlando nightclub shooting, the Boston marathon bombings, and the shootings in San Bernardino. It does so through the lens of the Supreme Court’s recent decision in Carpenter v. United States—a Fourth Amendment case that similarly dealt with the collision between the longstanding constitutional righThis essay explores the tension between the longstanding Brandenburg standard and the …

Assumptions About “Terrorism” And The Brandenburg Incitement Test, Christina E. Wells

Brooklyn Law Review

The incitement standard announced in Brandenburg v. Ohio, which bars government officials from punishing advocacy of illegal activity unless it is directed and likely to imminently incite such activity, is one of the most speech-protective tests in the Supreme Court’s jurisprudence. However, terrorist advocacy – glorification of violence, spreading of propaganda, and recruitment of individuals to their cause – is putting pressure on the Brandenburg standard. Scholars have suggested working around Brandenburg’s incitement standard to counter the dangerous influence of terrorist advocacy, especially online advocacy. Although scholars’ concern with the harms of terrorism is understandable, their willingness to alter Brandenburg …

"Incitement Lite" For The Nonpublic Forum, Leslie Gielow Jacobs

Brooklyn Law Review

The incitement exception set out in Brandenburg v. Ohio defines the authority of the government, acting in its sovereign capacity, to impose criminal punishment on speakers because the content of their advocacy may persuade listeners to commit crimes. Nonpublic forum managers have much greater flexibility than the government-as-sovereign to restrict the private speakers they invite onto their property because the content of their speech may persuade listeners to engage in harmful conduct. In nonpublic forum management, speakers experience no sanctions and, unlike the government-as-sovereign, nonpublic forum managers may close their forums to all private speakers to avoid unwanted speech. This …

Words We Fear: Burning Tweets & The Politics Of Incitement, Rachel E. Vanlandingham

Brooklyn Law Review

The United States government has long wrestled with the link between speech and violence, periodically employing speculative claims of potential violence and law-breaking to suppress political speech in times of national insecurity. By the late 1960s, however, the Supreme Court fully operationalized the First Amendment’s premise that most government speech suppression is antithetical to self-government, individual autonomy, equality, and liberty. The Court therefore, required immediacy of potential violence before the government could punish speech advocating such illegality, but left private actors free to censor and suppress speech. Today, social media companies, at the behest of the government, are doing what …

The First Amendment And The Imminence Of Harm, Floyd Abrams

Brooklyn Law Review

Noted First Amendment litigator Floyd Abrams engages questions about the past, the present and the future of free speech directly by considering the key words from Justice Holmes’s canonical formulation for the constitutional standard governing regulation of incitement speech—the requirement that any danger justifying such speech regulation must be “clear and present.” Mr. Abrams asks what types of “danger” are sufficiently “present” to provide that justification, using as examples the Communist teachings at issue in Dennis v. United States and The Progressive magazine’s publication of plans for constructing a hydrogen bomb. While Mr. Abrams reaches no hard and fast conclusion …

#Losingthethread: Recognizing Assembly Rights In The New Public Forum, Liz Grefrath

Brooklyn Law Review

The specter of banishment from the vibrant public forum of social media to the empty streets and deserted sidewalks is a matter of increasing political, social, and cultural importance. Today, nearly every government official maintains a social media presence on Facebook or Twitter, generally to promote initiatives, share ideological positions, engage constituents, and tangle with critics. Privacy controls and content moderation tools, however, offer government officials tantalizing opportunities to discretely and effectively muffle disapproval, stifle dissent, and shield themselves from criticism on their public social media pages through “blocking” features. Courts are just starting to grapple with the First Amendment …

Censorship, Free Speech & Facebook: Applying The First Amendment To Social Media Platforms Via The Public Function Exception, Matthew P. Hooker

Washington Journal of Law, Technology & Arts

Society has a love-hate relationship with social media. Thanks to social media platforms, the world is more connected than ever before. But with the ever-growing dominance of social media there have come a mass of challenges. What is okay to post? What isn't? And who or what should be regulating those standards? Platforms are now constantly criticized for their content regulation policies, sometimes because they are viewed as too harsh and other times because they are characterized as too lax. And naturally, the First Amendment quickly enters the conversation. Should social media platforms be subject to the First Amendment? Can—or …

The Constitutional Case For "Red Flag" Laws, Timothy Zick

Popular Media

No abstract provided.

Setting Our Feet: The Foundations Of Religious And Conscience Protections, Hanna Torline

Notre Dame Law Review

This Note does not attempt to claim that religion and conscience are not moral equivalents, that they are not equally important, or that they do not require equal legal treatment. Nor does it attempt to claim the converse. Simply put, it argues that a consideration of the different foundations underlying conscience protections and religious protections should give pause to anyone arguing that the two are equivalent. This Note concludes that the rationales behind protecting religion and conscience are different enough to merit consideration in the debate. For if religion and conscience are treated as equivalents under the law, they will …

De Facto State: Social Media Networks And The First Amendment, Paul Domer

Notre Dame Law Review

In Marsh v. Alabama, a Jehovah’s Witness was arrested and convicted of trespassing for proselytizing on a public sidewalk that nonetheless was, like everything else in the “company town,” privately owned. The Court reversed, holding that the First and Fourteenth Amendments applied against a private actor if it exercised all the powers and responsibilities traditionally associated with a government—policing, utilities, and traffic control, for example. Writing for the majority, Justice Black declared, “The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the …

Memorializing The Right To Free Speech: Hess V. Indiana And The Iu Bicentennial, Ashley A. Ahlbrand

Articles by Maurer Faculty

No abstract provided.

The Long Road Back To Skokie: Returning The First Amendment To Mask Wearers, Rob Kahn

Journal of Law and Policy

When the Seventh Circuit upheld the First Amendment right of Nazis to march in Skokie, Illinois in 1978, the protection of mask wearers was not far behind. Since then, doctrinal paths have diverged. While the Supreme Court continues to protect hate speech, mask wearing has been increasingly placed outside First Amendment protection. This article seeks to get to the bottom of this doctrinal divergence by addressing the symbolic purposes of mask bans—rooted in repudiating the Ku Klux Klan—as well as the doctrinal steps taken over the past forty years to restrict the First Amendment claims of mask wearers. It also …

Deep Fakes: A Looming Challenge For Privacy, Democracy, And National Security, Robert Chesney, Danielle K. Citron

Faculty Scholarship

Harmful lies are nothing new. But the ability to distort reality has taken an exponential leap forward with “deep fake” technology. This capability makes it possible to create audio and video of real people saying and doing things they never said or did. Machine learning techniques are escalating the technology’s sophistication, making deep fakes ever more realistic and increasingly resistant to detection. Deep-fake technology has characteristics that enable rapid and widespread diffusion, putting it into the hands of both sophisticated and unsophisticated actors. While deep-fake technology will bring with it certain benefits, it also will introduce many harms. The marketplace …

The Case Against Expanding Defamation Law, Yonathan A. Arbel, Murat C. Mungan

Faculty Scholarship

It is considered axiomatic that defamation law protects reputation. This proposition—commonsensical, pervasive, and influential—is faulty. Underlying this fallacy is the failure to appreciate audience effects: the interaction between defamation law and members of the audience.

Defamation law seeks to affect the behavior of speakers by making them bear a cost for spreading untruthful information. Invariably, however, the law will also affect members of the audience, as statements made in a highly regulated environment tend to appear more reliable than statements made without accountability. Strict defamation law would tend to increase the perceived reliability of statements, which in some cases can …

Bitcoin Is Speech: Notes Toward Developing The Conceptual Contours Of Its Protection Under The First Amendment, Justin S. Wales, Richard J. Ovelmen

University of Miami Law Review

Bitcoin permits users to engage in direct expressive activity with one another without the need for centralized intermediaries. It does so by utilizing an open and community-managed global database called a blockchain. While much of the literature about Bitcoin has focused on its use as a form of digital payment, this Article suggests an expanded understanding by demonstrating its use as a protocol network, not unlike the internet, that can be used to extend the possible range of human expression. After developing an appreciation of the technology, this Article recommends a framework for applying the First Amendment to Bitcoin and …

The Legal Implications Of Synthetic And Manipulated Media, Thomas E. Kadri

Popular Media

Ahead of the U.S. 2020 presidential election, the Carnegie Endowment for International Peace convened more than 100 experts from three dozen organizations inside and outside Silicon Valley in private meetings to help address the challenges that synthetic and manipulated media pose for industry, government, and society more broadly. Among other things, the meetings developed a common understanding of the potential for synthetic and manipulated media circulated on technology platforms to disrupt the upcoming presidential election, generated definitions of “inappropriate” election-related synthetic and manipulated media that have informed platform content moderation policies, and equipped platforms with playbooks of effective and ethical …

Left With No Name: How Government Action In Intra-Church Trademark Disputes Violates The Free Exercise Clause Of The First Amendment, Mary Kate Nicholson

Washington and Lee Law Review

The United States was founded in part on the principle of freedom of religion, where citizens were free to practice any religion. The founding fathers felt so strongly about this principle that it was incorporated into the First Amendment. The Free Exercise Clause states that “Congress shall make no law . . . prohibiting the free exercise thereof . . . .” The Supreme Court later adopted the neutral principles approach to avoid Free Exercise violations resulting from courts deciding real property disputes. Without the application of the same neutral principles to intellectual property disputes between churches, however, there is …

Law School News: Logan To Serve As Adviser On Restatement Third Of Torts 11-07-2019, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Why Section 230 Is Better Than The First Amendment, Eric Goldman

Notre Dame Law Review Reflection

47 U.S.C. § 230 (“Section 230”) immunizes Internet services from liability for third-party content. This immunity acts as a crucial legal foundation for the modern Internet. However, growing skepticism about the Internet has placed the immunity in regulators’ sights.

If the First Amendment mirrors Section 230’s speech protections, narrowing Section 230 would be inconsequential. This Essay explains why that is not the case. Section 230 provides defendants with more substantive and procedural benefits than the First Amendment does. Because the First Amendment does not backfill these benefits, reductions to Section 230’s scope pose serious risks to Internet speech.

The First Amendment And Speech Urging Suicide: Lessons From The Case Of Michelle Carter And The Need To Expand Brandenburg'S Application, Clay Calvert

UF Law Faculty Publications

This Article examines the level of First Amendment protection that applies when a defendant-speaker is charged with involuntary manslaughter based on successfully urging a person to commit suicide. The Supreme Judicial Court of Massachusetts’ February 2019 decision in Commonwealth v. Carter provides a timely analytical springboard. The Article argues that courts should adopt the United States Supreme Court’s test for incitement created a half-century ago in Brandenburg v. Ohio before such speech is deemed unprotected by the First Amendment. It contends this standard is appropriate even in involuntary manslaughter cases where intent to cause a specific result is not required …

Does The Clear And Present Danger Test Survive Cost-Benefit Analysis?, Cass R. Sunstein

Cornell Law Review

Under American regulatory law, the dominant contemporary test involves cost-benefit analysis. The benefits of regulation must justify the costs; if they do, regulation is permissible and even mandatory. Under American free speech law, in sharp contrast, an important contemporary test for the regulation of speech involves "clear and present danger." In general, officials cannot censor or regulate political speech on the ground that the benefits of regulation justify the costs. They may proceed only if the speech is likely to produce imminent lawless action. In principle, it is not simple to explain why the free speech test does not involve …

The Integrity Of Marriage, Kaiponanea T. Matsumura

William & Mary Law Review

While the Supreme Court’s decision in Obergefell v. Hodges resolved a dispute about access to legal marriage, it also exposed a rift between the Justices about what rights, obligations, and social meanings marriage should entail. The majority opinion described marriage as a “unified whole” comprised of “essential attributes,” both legal and extralegal. The dissents, in contrast, were more skeptical about marriage’s inherent legal content. Justice Scalia, for instance, characterized marriage as a mere bundle of “civil consequences” attached to “whatever sexual attachments and living arrangements [the law] wishes.” This side debate has taken center stage in several recent disputes. In …

Political Activist + Public Servant?, Sharon Murchie

Language Arts Journal of Michigan

How do we write as political activists while also working as public servants? Do we have freedom of speech as public school teachers? Can—and should—our writing and our speech be censored? How can we write and work for social and political change, when we are charged with remaining apolitical in the classroom? This article outlines the limitations on teachers’ First Amendment Rights and is both a call to action and a call to caution.

Facebook V. Sullivan: Public Figures And Newsworthiness In Online Speech, Thomas E. Kadri, Kate Klonick

Articles

In the United States, there are now two systems to adjudicate disputes about harmful speech. The first is older and more established: the legal system in which judges apply constitutional law to limit tort claims alleging injuries caused by speech. The second is newer and less familiar: the content-moderation system in which platforms like Facebook implement the rules that govern online speech. These platforms are not bound by the First Amendment. But, as it turns out, they rely on many of the tools used by courts to resolve tensions between regulating harmful speech and preserving free expression-particularly the entangled concepts …

Online Threats: The Dire Need For A Reboot In True Threats Jurisprudence, John Sivils

SMU Law Review Forum

No abstract provided.

American Legion V. American Humanist Association, Seth T. Bonilla

Public Land & Resources Law Review

The separation of church and state is a key element of American democracy, but its interpretation has been challenged as the country grows more diverse. In American Legion v. American Humanist Association, the Supreme Court adopted a new standard to analyze whether a religious symbol on public land maintained by public funding violated the Constitution’s Establishment Clause.

Making Room For Big Data: Web Scraping And An Affirmative Right To Access Publicly Available Information Online, Amber Zamora

The Journal of Business, Entrepreneurship & the Law

This paper will explore the legality of web scraping through the lens of recent litigation between web scraper hiQ Labs and the online professional networking platform, LinkedIn. First, the paper will study the background of web scraping litigation, some challenges courts face in issuing consistent verdicts, and the most common claims companies make against web scrapers. Then the paper will address three of the most common claims and identify court motivations and limitations within the doctrines. The first claims are those arising from the federal Computer Fraud and Abuse Act (CFAA). Next, the paper will investigate copyright claims and defenses …

Speech Narcissism, Terri R. Day, Danielle Weatherby

Florida Law Review

From its embryonic stage during the civil rights era to its modern-day presence on college campuses, the political correctness movement has undergone an extreme metamorphosis. In the university setting, it was originally intended to welcome diverse views by encouraging minority students to feel part of the learning environment and to contribute to the “marketplace of ideas.” Recently, however, as students more frequently demand trigger warnings and safe spaces in response to speech that they deem personally offensive, the use of political correctness measures on college campuses has had the unintended consequence of chilling speech. Contrary to longstanding First Amendment principles, …