First Amendment Commons^™

Republication Liability On The Web, Jeffrey Standen

Marquette Law Review

The tort of defamation evolved in an era where defamatory speech was published in books, magazines, newspapers, or other printed documents. The doctrines that are antecedent to the tort, such as publication, fault, defamation per se, presumed damages, and republication liability, similarly presumed that most defamation would appear in written form in a published work. Similarly, the significant limitations on defamation liability that were produced by a succession of Supreme Court constitutional precedent, including restrictions on prior restraint, heightened fault standards, expanded “public” classes, the “fact/opinion” dichotomy, and the “truth/substantial truth” burden shifting, also were based on a publishing world …

The Pledge Of Allegiance And Compelled Speech Revisited: Requiring Parental Consent, Caroline Mala Corbin

Articles

Since the Supreme Court decided West Virginia State Board of Education v. Barnette in 1943, free speech law has been clear: public schools may not force students to recite the Pledge of Allegiance. Nevertheless, in two states -Texas and Florida- students may decline to participate only with parental permission. The Eleventh Circuit Court of Appeals upheld the law on the grounds that the parental requirement furthered parents' substantive due process right to control the upbringing of their children.

The Eleventh Circuit decision is flawed both in its understanding of the First Amendment right to be free of compelled speech and …

The Dilemma Of Banned Books: Questioning The Ethics Of Censoring Literature In Schools, Kyle King

Augustana Center for the Study of Ethics Essay Contest

Literature, specifically in the form of novels, has been a vital organ of the public education system within the United States. Not only does reading such works transform us into better close readers and strengthen our vocabulary, but the texts at hand can be very essential to analyze specific contexts or issues that might have existed either throughout history or even in the present day. In today’s country, the issue of banning certain books from school curricula has become as prevalent as ever, where mostly Southern Republican officials are calling for lists of books to be restricted from teaching due …

Understanding Chilling Effects, Jonathon W. Penney

Articles & Book Chapters

With digital surveillance and censorship on the rise, the amount of data available unprecedented, and corporate and governmental actors increasingly employing emerging technologies like artificial intelligence and facial recognition technology for surveillance and data analytics, concerns about “chilling effects,” that is, the capacity for these activities to “chill” or deter people from exercising their rights and freedoms, have taken on greater urgency and importance. Yet, there remains a clear dearth in systematic theoretical and empirical work points. This has left significant gaps in understanding. This Article has attempted to fill that void, synthesizing theoretical and empirical insights from law, privacy, …

Law Library Blog (April 2022): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Private And Public Sector Models For Entrepreneur, Small Business Owner, And Investor Immigration Pathways, Shane Dizon

Articles & Chapters

No abstract provided.

Sex Work Is Real Work: The Implications Of U.S. Strippers Winning The Right To Unionize, An International Comparative Study, Katherine Fustich

Cardozo International & Comparative Law Review

The note examines the landmark NLRB decision in *Nolan Enterprises*, which granted U.S. strippers the right to unionize by classifying them as employees rather than independent contractors. This ruling has significant implications for labor rights in the sex work industry, both domestically and internationally. The analysis compares this development with international perspectives from the UK, Germany, and the Netherlands, highlighting the challenges and opportunities for sex worker unionization and the broader implications for labor movements globally.

The Political And Social Change Driven By Protest: The Need To Reform The Anti-Riot Act And Examine Anti-Riot Provisions, Ronald E. Britt Ii

Fordham Law Review

The right to join in peaceful assembly and petition is critical to an effective democracy and is at the core of the First Amendment. The assault of peaceful protestors in the pursuit of racial justice is not a new phenomenon, and legislators at the federal and state levels have drafted anti-riot provisions as a measure to target protestors they deem an existential threat to American society. As these provisions have become increasingly prevalent in light of the protests following the murders of Breonna Taylor and George Floyd, they have the likelihood of severely chilling the effect on protestors’ right to …

Teacher Prayer In Public Schools, Maya Syngal Mcgrath

Fordham Law Review

When American citizens elect to work in government positions, they relinquish certain free speech rights granted by the First Amendment. In Garcetti v. Ceballos, the U.S. Supreme Court ruled that when public employees make statements pursuant to their government job duties, they do not speak as citizens for First Amendment purposes. As such, they are not constitutionally insulated from employer discipline. Determining whether public employees speak as a result of, or in accordance with, their official responsibilities can be difficult, and one government job has proven more challenging than most: the public school teacher. In 2021, the Ninth Circuit …

Equal Speech Protection, Francesca L. Procaccini

Vanderbilt Law School Faculty Publications

Political speech is not special. No type of speech is. First Amendment doctrine ubiquitously claims to value speech on a hierarchy, with political speech occupying the highest and most-protected position, followed by commercial speech and speech on private matters, with low-value speech on the bottom, least-protected rung. This hierarchy is a myth. The true but hidden framework of free speech law is actually one of equal speech protection. All speech, including political speech, receives comparable protection--and that level of protection is quite moderate across the board. Specifically, the equal protection speech receives permits the state to regulate speech in order …

Aba Model Rule 8.4(G), Discriminatory Speech, And The First Amendment, Bruce Green, Rebecca Roiphe

Articles & Chapters

The ABA adopted Model Rule 8.4(g), which targets certain speech and conduct that are based on “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.” In particular, according to the accompanying comment, Rule 8.4(g) reaches speech that is “derogatory and demeaning” or that “manifests bias or prejudice towards others” and is “harmful” (including, presumably, emotionally harmful). This rule targets a significant amount of speech that would be constitutionally protected if it were uttered by a nonlawyer. This article argues that there is no justification for treating lawyers differently from others in many …

The Roberts Court's Transformative Religious Freedom Cases: The Doctrine And The Politics Of Grievance, Stephen M. Feldman

Cardozo Journal of Equal Rights & Social Justice

The article argues that the Roberts Court has adopted a conservative approach in religious freedom cases, shifting toward a jurisprudence that favors Christianity and undermines the separation of church and state. This approach, rooted in tradition and a de facto Christian America, has led to significant changes in both Establishment Clause and Free Exercise Clause doctrines. The Court's decisions increasingly protect Christian practices and institutions while marginalizing non-Christian religions, reflecting a broader ideological shift toward judicial engagement and away from principles of federalism and judicial restraint.

Proving Racism: Gibson Bros. Inc. V. Oberlin College And The Implications On Defamation Law, Liam H. Mcmillin

University of Cincinnati Law Review

No abstract provided.

Lochner's Revenge: Tiered Scrutiny And The Acceptance Of Judicial Subjectivity, Phillip J. Closius

University of Cincinnati Law Review

No abstract provided.

A Call For State Legislators To Reconsider Their Stance On School Choice And School Funding, Leah Blake

Brigham Young University Journal of Public Law

No abstract provided.

Hip Hop And The Law : Presented By Intellectual Property Law Association 03/31/2022, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Health Choice Or Health Coercion? The Osha Emergency Temporary Standard Covid-19 Vaccination Mandates: Ax Or Vax, Savannah Snyder

Helm's School of Government Conference - 2021-2024

No abstract provided.

Inviting An Impermissible Inquiry? Rfra’S Substantial-Burden Requirement And “Centrality”, D. Bowie Duncan

Pepperdine Law Review

The Religious Freedom Restoration Act (RFRA) prohibits the federal government from substan-tially burdening a person’s religious exercise unless the government can satisfy strict scrutiny. The statute also defines religious exercise to prohibit courts from inquiring into how central a particular religious exercise is to a person’s religion. “The term ‘religious exercise,’” reads the relevant provision, “includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” Despite this prohibition on centrality inquiries, some scholars argue that RFRA’s substantial-burden element requires courts to consider the religious costs a law imposes on a religious adherent …

Sharpening The Focus Of Free Speech Law: The Crucial Role Of Government Intent, R. George Wright

Texas A&M Law Review

Contemporary free speech law is typically misfocused. This misfocus serves neither the purposes underlying the institution of free speech nor any broader social rights and interests in conflict with freedom of speech. As a general matter, the adjudication of free speech claims should properly focus, centrally, on the intent of the regulating government. More specifically, courts should focus crucially on whether the government has, in enacting or enforcing its speech regulation, intended to suppress or disadvantage a presumed or actual idea or its expression. This sharpened focus would allow the courts to responsibly address a surprisingly broad range of free …

Brief Of Amicus Curiae Notre Dame Law School Religious Liberty Initiative In Support Of Petitioner, Nicole Stelle Garnett, Richard W. Garnett Iv, Francesca Genova Matozzo, Steven A. Engel, Michael H. Mcginley

Court Briefs

No. 21-418
Joseph A. Kennedy v. Bremerton School District

On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit

From the Summary of Argument

This case offers the Court a much-needed opportunity to resolve the longstanding confusion caused by its conflicting and erroneous interpretations of the Establishment Clause. Although recent decisions clarify that the government may not suppress private religious expression, the Court has yet to clear away an undergrowth of older precedents that are often read to suggest the opposite. Rather than permit those outdated decisions to persist and perpetuate confusion, the Court should …

Social Media, Section 230, And Free Expression, Russell L. Weaver

Mercer Law Review

Throughout history, as new communications technologies have been developed, they have been controlled by “gatekeepers” who had the power to decide who could access those technologies. Although Johannes Gutenberg’s invention of the printing press in the Fifteenth century was revolutionary and ultimately led to major innovations in science and technology, as well as to dramatic societal changes, Gutenberg’s invention was not accessible by everyone. Because printing presses were expensive, only wealthy individuals could afford to own and operate them, and those few individuals had the power to control who could use their technologies to mass communicate. Many of the technologies …

Campaign Finance Reform, Union Dues, And The First Amendment: The Collision Of Politics And Rights, Mark Adams

Articles

No abstract provided.

The Public Benefits Of Press Specialness, Ronnell Andersen Jones

Utah Law Faculty Scholarship

In many circumstances, a broad umbrella of shared rights for the press and the public is perfectly adequate. But there are also times when statutorily, and even constitutionally, we should be providing unique protection to those who, if granted rights beyond those available to all speakers, will use those rights to benefit society as a whole. In these areas, our ongoing refusal to conceptualize and legally recognize the specialness of the press function has robbed us of public benefits.

The Freedom of Information Act context is a perfect illustration of this. Federal agencies are so swamped by requesters with non-newsworthy, …

Queer And Convincing: Reviewing Freedom Of Religion And Lgbtq+ Protections Post-Fulton V. City Of Philadelphia, Arianna Nord

Washington Law Review

Recent increases in LGBTQ+ anti-discrimination laws have generated new conversations in the free exercise of religion debate. While federal courts have been wrestling with claims brought under the Free Exercise Clause of the First Amendment since the nineteenth century, city and state efforts to codify legal protections for LGBTQ+ individuals in the mid-twentieth century birthed novel challenges. Private individuals who do not condone intimate same-sex relationships and/or gender non-conforming behavior, on religious grounds seek greater legal protection for the ability to refuse to offer goods and services to LGBTQ+ persons. Federal and state courts must determine how to resolve these …

Against Political Speech, John M. Kang

Nevada Law Journal

No abstract provided.

The Coddling Of The American Worker's Mind: The Anti-Free Speech Nature Of Popular Labor Law Reforms, Daniel V. Johns

William & Mary Bill of Rights Journal

As the nation enters an era in which a new presidential administration will likely push such labor law reforms, it is worth considering whether transparently anti-free speech reform measures make sense for the future of labor policy and law. This Article argues that they do not. Because employee free choice is furthered, not diminished, by hearing both sides of an issue, American workers should have the opportunity to hear and evaluate employer speech in the course of union campaigns. Only then can employees make an informed decision about their workplace future. In the end, freedom of speech furthers employee freedom …

Social Media And Democracy After The Capitol Riot, Or, A Cautionary Tale Of The Giant Goldfish, Seth Oranburg

Mercer Law Review

Lately, people have been finding giant pet goldfish in lakes across America. You may see these tiny fish swimming in bowls at the county fair, but left alone in a lake or large pond, where they are dropped perhaps by a well-meaning child, they can grow to 20 pounds or more—and destroy ecosystems. The goldfish is a cautionary tale that has been told time and again in different forms, like Pandora’s box.

On January 6, 2021, a somewhat organized group of rioters overran and briefly took control of the U.S. Capitol. Social media clearly played a role in the riots …

Social Media Platforms And Free Expression: An Introduction, Eric J. Segall

Mercer Law Review

On Friday, October 8, 2021, the Mercer Law Review hosted a virtual Symposium on “Social Media Platforms and Free Expression.” This important topic could not be timelier. With the Right calling for regulation of Facebook and Twitter in order to stop the removal of conservatives from their platforms, to the direct effect of social media on our elections and our politics, the worldwide spread of this technology has brought with it new and difficult legal issues regarding freedom of expression and social harms. Congratulations to the Mercer Law Review for addressing these controversial and complex questions.

To Be Seen But Not Heard: How The Internet’S Negative Impact On Minors’ Constitutional Right To Privacy, Speech, And Autonomy Creates A Need For Empathy-By-Design, Jon M. Garon

Mercer Law Review

This Article reviews the rights of individuals younger than eighteen to engage in their daily activities, now often mediated through online service providers, learning management systems, and other technological intermediaries. Unlike prior generations, modern adolescents must navigate the complex world of online society in addition to their family life, school day, and the time they spend away from school at work or in social activities.

This project includes concerns over bullying and harassment, contractual rights, social media policies, child pornography laws, revenge pornography laws, and end-user license agreements.

The Protection Of Freedom Of Expression From Social Media Platforms, András Koltay

Mercer Law Review

Social media platforms have overturned the previously known system of public communication. As predicted at the outset, the spread of the public Internet that started three decades ago has resulted in a paradigm shift in this field. Now, anyone can publish their opinion outside the legacy media, at no significant cost, and can become known and be discussed by others. Due to the technological characteristics of the Internet, it might also be expected that this kind of mass expression, with such an abundance of content, would necessitate the emergence of gatekeepers, similar in function to the ones that existed earlier …