First Amendment Commons^™

Free Speech, Social Media, And Public Universities: How The First Amendment Limits University Sanctions For Online Expression And Empowers Students, Staff, And Faculty, Eric T. Kasper

Mitchell Hamline Law Review

No abstract provided.

On-Campus Or Off-Campus? - That Is Still The Question: Mahanoy Area Sch. Dist. V. B.L. And The Supreme Court’S New Digital Frontier, Kristopher L. Caudle

Campbell Law Review

This Article examines the contours of the “on-campus” versus “off-campus” distinction embedded in the Supreme Court’s opinion in Mahoney School District v. B.L. This Article argues that B.L., and the Court’s broader Tinker doctrine, fail to adequately address modern student speech issues, especially student speech arising in extracurricular programs and activities. This Article proposes a two-part legal framework for future courts to analyze student speech issues in an increasingly digital post-pandemic world.

Regulatory Constitutional Law: Protecting Immigrant Free Speech Without Relying On The First Amendment, Michael Kagan

Scholarly Works

No abstract provided.

The Constitutional Costs Of School Policing, Maryam Ahranjani, Natalie Saing

Scholarly Works

Responding to fears of violence and liability on K-12 campuses, local school boards and superintendents have made on-site or embedded school police omnipresent in American public schools. Yet, very little attention is paid to the many costs associated with their presence. When situating law enforcement's presence squarely in the racist history of policing and school policing the juxtaposition with the civic purpose of public education reveals significant constitutional costs. This Article builds on existing scholarship by bringing attention to the conflict between the First, Fourth, Fifth, Eighth, and Fourteenth Amendments and the dimensions of embedded school police. Ultimately, schools must …

Freedom To Morph? An Analysis Of Morphed Imagery, Child Pornography, And The First Amendment, Katie H. Jung

Catholic University Journal of Law and Technology

This article examines the current law related to child pornography and how it leaves a gap for morphed imagery to flourish. The jurisprudence in this area is insufficient to keep up with the changing technology which allows children to be portrayed in morphed imagery and argues that this should not fall within First Amendment protection. The Supreme Court has made it clear that protecting children is an exceedingly important interest and that traditional child pornography falls outside of what was traditionally considered to be protected First Amendment speech. This article argues that the Circuit Split, should the Supreme Court take …

Defrosting The Chill: How Facial Recognition Technology Threatens Free Speech, Kirsten E. Roy

Roger Williams University Law Review

No abstract provided.

Rap Reform: Why Rhode Island Should Exclude Police Detectives And Gang Experts From Interpreting A Criminal Defendant’S Ambiguous Rap Lyrics, Chad O. Stroum

Roger Williams University Law Review

No abstract provided.

Distrust, Negative First Amendment Theory, And The Regulation Of Lies, Helen Norton

Publications

This symposium essay explores the relationship between “negative” First Amendment theory—rooted in distrust of the government’s potential for regulatory abuse—and the government’s regulation of lies. Negative First Amendment theory explains why many lies are protected from governmental regulation—even when the regulation neither punishes nor chills valuable speech (as was the case, for example, of the statute at issue in United States v. Alvarez). But negative theory, like any theory, also needs limiting principles that explain when the government’s regulation is constitutionally justifiable.

In my view, we engage in the principled application of negative theory when we invoke it in (the …

Panel 2: Modern Trends And Internet Speech, Enrique Armijo, Paul M. Barrett, Michael A. Cheah, Zahra Takhshid, Felix Wu

Cardozo Arts & Entertainment Law Journal

The article explores the complexities and future of Section 230, focusing on its role in protecting online platforms from liability for user-generated content. Panelists argue that Section 230 is an immunity, not a subsidy, and discuss its implications for content moderation, new technologies, and regulatory oversight. They propose various reforms, including FTC regulation and clarifying Section 230's scope for emerging harms.

Against Corporate Activism: Examining The Use Of Corporate Speech To Promote Corporate Social Responsibility, W.C. Bunting

Oklahoma Law Review

No abstract provided.

Establishing A Right To Last Rites: Examining Death Row Inmates’ Right To Clergy Presence In The Execution Chamber In Gutierrez V. Saenz, Sarah B. Conley

Oklahoma Law Review

No abstract provided.

Tinkering With Tinker: Why The Supreme Court Must Protect Student Speech Through Social Media, Alexis Roach

Honors Theses and Capstones

The goal of this paper is to address the failing of the Supreme Court in their decision of the case Mahanoy Area School District v. B.L.[1]. While the Court defended students’ rights to free speech under the First Amendment in Tinker v. Des Moines (1969)[2], they have since restricted that right through a number of cases. While the Court’s decision in Mahanoy Area School District v. B.L. protected student speech, the Court failed to provide a standard for application in cases regarding social media in schools. This paper argues that while the Court was correct in …

The Supreme Court’S Hands-Off Approach To Religious Questions In The Era Of Covid-19 And Beyond, Samuel J. Levine

Scholarly Works

No abstract provided.

Attorney-Fee Shifting Is The Solution To Slapping Meritless Claims Out Of Federal Court, Gleisy Sopena

FIU Law Review

Strategic Lawsuits Against Public Participation (“SLAPPs”) are meritless claims brought against individuals or corporations to silence them for exercising protected speech under the First Amendment. In response to the chilling effects of these SLAPPsuits, State legislatures have enacted anti-SLAPP statutes to quickly dismiss these meritless claims and protect the targets of these suits. These anti-SLAPP statutes have two prominent components: a special motion to dismiss and an attorney fee-shifting provision that is dependent on prevailing on the special motion set forth in the statute. Federal courts sitting in diversity are divided over whether the special motion standards set forth in …

The “Liberty Of Silence” Challenging State Legislation That Strips Municipalities Of Authority To Remove Confederate Monuments, Roger C. Hartley

FIU Law Review

There are roughly 700 Confederate monuments still standing in courthouse lawns, parks, and downtown squares in virtually every city, town, and village throughout the “Old South.” Most of these Confederate monuments are located in states that have enacted legislation that bans the removal of Confederate monuments. Such legislative bans are in effect in Alabama, Georgia, Kentucky Mississippi, North Carolina, South Carolina, and Tennessee. Legislation that bans removal of Confederate monuments from public spaces poses a racial justice issue for millions of residents in these states because it forces political majorities in Southern communities (many constituting majority-minority communities) to host a …

Obstruction Of Journalism, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

Identifying oneself as press used to be a near-grant of immunity. It meant safer passage through all manner of dangerous terrain. But today, being recognizable as a journalist may be more likely to make one a target.

Physical attacks against journalists in the United States increased nearly 1,300 percent in 2020. The rate of online violence against journalists is also soaring. This violence is aimed almost entirely at women, people of color, non-Christians, and non-straight journalists. It silences voices already relegated to the edges. Rather than letting our national conversation branch, the violence attempts to shear it to a white, …

A Free Press Without Democracy, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

For several decades, the American press has been fighting for its economic survival. But while it has been consumed with this effort, the political threat to a free press has grown perhaps greater than the economic one. Democracy is eroding globally, including in the United States. Given the importance of a free press to democracy, the press needs to more urgently consider how it maintains its freedom as erosion persists.

This Article sets out a framework for American press priorities in this pivotal moment. It suggests that to resist and weather a turn to autocracy, the press must endeavor to …

Establishment’S Political Priority To Free Exercise, Marc O. Degirolami

Scholarly Articles

Americans are beset by disagreement about the First Amendment. Progressive scholars are attacking the venerable liberal view that First Amendment rights must not be constricted to secure communal, political benefits. To prioritize free speech rights, they say, reflects an unjust inflation of individual interest over our common political commitments. These disagreements afflict the Religion Clauses as well. Critics claim that religious exemption has become more important than the values of disestablishment that define the polity. Free exercise exemption, they argue, has subordinated establishment. This Article contests these views. The fundamental rules and norms constituting the political regime—what the Article calls …

Reconsidering The Nomos In Today’S Media Environment, Kimberlianne Podlas

Touro Law Review

Today’s media landscape is wholly unlike that which existed when Cover first discussed narrative and the nomos; specifically, the status of television as both a cultural messenger and object of scholarly study has changed significantly. Accordingly, this article contemplates narrative in the contemporary media environment, specifically, television as an essential source of narratives. To enhance understandings of the roles television narratives play and which narratives play a role, this article employs an empirical perspective. Surveying Media Theory, it outlines research on television effects, including when and why television’s representations of law can impact audience attitudes, behaviors, perceptions, knowledge, and judgements. …

The Unintended Consequences Of The Court's Religious Freedom Revolution: A History Of White Supremacy And Private Christian Church Schools, Vania Blaiklock

Scholarly Articles

Although private church schools have historically received less attention than charter schools and other private nonsectarian schools in public discourse, in recent years, the Supreme Court’s First Amendment jurisprudence has allowed private church schools to make great strides in achieving state funding. At a time where public education is facing criticism on all sides, it seems natural that school choice supporters are more vocal than ever. This Essay takes a closer look at private church schools and their relationship to white supremacy in anticipation of the Court’s decision in Carson ex rel. O.C. v. Makin. Ultimately, that case will …

Restating The "F" Word: The Cursing Cheerleader, The First Amendment, And Proximate Cause, Don Corbett

University of San Francisco Law Review

No abstract provided.

The New Thoreaus, Mark L. Movsesian

Faculty Publications

Fifty years ago, in Wisconsin v. Yoder, the Supreme Court famously indicated that “religion” denotes a communal rather than a purely individual phenomenon. An organized group like the Amish would qualify as religious, the Court wrote, but a solitary seeker like the nineteenth century transcendentalist Henry David Thoreau would not. At the time, the question was mostly peripheral; hardly any Americans claimed to have their own, personal religions that would make it difficult for them to comply with civil law. In the intervening decades, though, American religion has changed. One-fifth of us—roughly sixty-six million people—now claim, like Thoreau, to …

The New Disestablishments, Marc O. Degirolami

Faculty Publications

(Excerpt)

The individual has the autonomy of choice respecting matters of sex, gender, and procreation. The findings of science as established by the knowledge class, together with the policy preferences of that class in this domain, should be imposed on everyone. These propositions reflect two central creeds of what this Article calls the "new establishment." They, or statements like them, are the basis for policies across the nation touching many walks of life, from business to education, media, advertising, science, healthcare and medicine, and more.

Whether these propositions constitute a "religious" establishment turns out to be an irrelevant distraction. To …

Establishment’S Political Priority To Free Exercise, Marc O. Degirolami

Faculty Publications

Americans are beset by disagreement about the First Amendment. Progressive scholars are attacking the venerable liberal view that First Amendment rights must not be constricted to secure communal, political benefits. To prioritize free speech rights, they say, reflects an unjust inflation of individual interest over our common political commitments. These disagreements afflict the Religion Clauses as well. Critics claim that religious exemption has become more important than the values of disestablishment that define the polity. Free exercise exemption, they argue, has subordinated establishment.

This Article contests these views. The fundamental rules and norms constituting the political regime—what the Article calls …

The "End" Of Neutrality: Tumultuous Times Require A Deeper Value, Carol Pauli

Cardozo Journal of Conflict Resolution

American political talk has grown so fragmented and polarized that some observers say that "[w]e are no longer in any 'public conversation." Accusations of "fake news" are followed by disheartening discoveries that providing people with accurate information may only serve to further entrench their erroneous beliefs. One longtime journalism professor worries aloud that "what's at risk is the idea of a public that is even 'inform-able."' Putting the problem in terms familiar to mediation, can we get the parties back to the table? This essay will focus on journalists, whose ideal has been to maintain a neutral position from which …

Section 230 And The Right To Remove Vaccine Misinformation, Michael A. Cheah

Cardozo Arts & Entertainment Law Journal

Recognizing its clear propensity to cause serious public harm, many online platforms have restricted vaccine misinformation. This essay argues that these platforms are protected from liability when they remove such content under Section 230 of the Communications Decency Act. The essay conducts a textual and policy-based analysis of the "publisher" immunity conferred by Section 230(c) (1) and the immunity for restricting objectionable materials under Section 230(c)(2) and concludes that both protect the removal of vaccine misinformation. The essay further argues that repealing Section 230 will not encourage platforms to combat vaccine misinformation as some policymakers have suggested. That is because …

Five Reflections From Five Years Of Fosta/Sesta, Kendra Albert

Cardozo Arts & Entertainment Law Journal

The article critically examines the impact of the Fight Online Sex Trafficking Act (FOSTA) and the Stop Enabling Sex Traffickers Act (SESTA), arguing that these laws have disproportionately harmed sex workers by leading to widespread deplatforming and increased criminalization. While FOSTA/SESTA aimed to combat sex trafficking, the author contends that the legislation conflated sex work with trafficking, resulting in the shutdown of harm reduction platforms and exacerbating risks for sex workers. The article emphasizes the need to center the voices of marginalized communities in policy-making and advocates for decriminalization as a more effective approach to preventing exploitation.

Smoke Without Fire: Employing Mediation To Create Workplace Accommodations For Medical Cannabis Use By Disabled Armed Forces Veterans, Brendan William Potocki

Cardozo Journal of Conflict Resolution

Over the course of a nearly twelve-year career in the Air Force, which included multiple tours of duty in Afghanistan and Iraq, Stephen Otero experienced unspeakable trauma. He has the scars-both visible and invisible-to prove it. Despite being diagnosed with post-traumatic stress disorder ("PTSD") in 2008, Otero once again placed country before self and reaffirmed his commitment to serving the United States by agreeing to complete another tour of duty. During this final deployment, Otero sustained extensive abdominal injuries as a result of a suicide bombing attack.

#Freebritney: The Importance Of Public Access To The Guardianship System, Cecily D'Amore

Cardozo Arts & Entertainment Law Journal

The note examines the systemic issues in the U.S. guardianship system, highlighted by Britney Spears' highly publicized conservatorship case, and advocates for increased transparency and accountability. It argues that while guardianship laws are designed to protect vulnerable individuals, cases like Spears' reveal gaps in oversight, inconsistent public access to records, and the need for less restrictive alternatives. The note proposes reforms, including enhanced public access to guardianship case information and the creation of a centralized database, to address these shortcomings and prevent abuse.

Platforms As Blackacres, Thomas E. Kadri

Articles

While writing this Article, I interviewed a journalist who writes stories about harmful technologies. To do this work, he gathers information from websites to reveal trends that online platforms would prefer to hide. His team has exposed how Facebook threatens people's privacy and safety, how Amazon hides cheaper deals from consumers, and how Google diverts political speech from our inboxes. You'd think the journalist might want credit for telling these important stories, but he instead insisted on anonymity when we talked because his lawyer was worried he'd be confessing to breaking the law-to committing the crime and tort of cyber-trespass. …