First Amendment Commons^™

Masthead, Lead Article Editor

Catholic University Journal of Law and Technology

No abstract provided.

Middleware Technologies: Towards User-Determined News Curation In Social Media, Jose M. Marella

Catholic University Journal of Law and Technology

News distribution and consumption now largely occur within, and are subject to dynamics dictated by, social media platforms. Platforms create audiences, facilitate matching, provide basic services, and set interaction standards. But these networks are structured to maximize engagement and benefit the platforms’ main businesses, leaving individuals with little to no ability to tailor news consumption according to their preferences.

To re-orient platform-dictated dynamics towards user-determined exchanges, middleware technologies—software services appended to social media platforms to curate information flows—are touted as a promising solution. Still, not enough literature articulates middleware’s virtues and hurdles, especially in the context of online news. This …

Swipe Right Into A Disciplinary Hearing: How The Use Of Dating Apps Could Earn An Attorney More Than A Bad First Date, Zachary S. Aman

Catholic University Journal of Law and Technology

The Model Rules of Professional Conduct seek to police the conduct of attorneys. Each jurisdiction adopts its own rules of professional conduct to apply to the attorneys licensed within it. Notably, the model rules prohibit any sexual relationship between the attorney and client unless that relationship precedes the attorney-client relationship. Traditionally, defining a "sexual relationship" was simple, particularly if the attorney and client engaged in sexual intercourse. The introduction of dating apps, however, has blurred the line.

This article outlines the inherent risks of attorneys using dating apps at a time when most newly-licensed attorneys make up the majority of …

Establishing The Legal Framework To Regulate Quantum Computing Technology, Kaya Derose

Catholic University Journal of Law and Technology

No abstract provided.

§230 And Tinfoil Hats: What Conspiracy Theories Teach Us About The Marketplace Of Ideas And Online Speech, Connor B. Flannery

Catholic University Journal of Law and Technology

Famously imputed into First Amendment jurisprudence by Justice Oliver Wendell Holmes, the Marketplace of Ideas is a foundational paradigm in free speech theory. However, current trends in social discourse suggest the Marketplace has crashed. Conspiracy theories illustrate this crash as a story of unintended consequences and, paradoxically, a consequence of judicial and legislative efforts to prevent it. Acknowledging the popularity and widespread use of the internet and social media, I explore solutions to rejuvenate the Marketplace of Ideas and better align its prominence in First Amendment doctrine with the reality of the current speech landscape.

Table Of Contents, Lead Article Editor

Catholic University Journal of Law and Technology

No abstract provided.

Constructing The Establishment Clause, Vincent Phillip Muñoz, Kate Hardiman Rhodes

Loyola University Chicago Law Journal

In this Article, we attempt to document how the history of the Supreme Court’s Establishment Clause jurisprudence is a history of constructionism, much of it—though not all—originalist in flavor. We use “construction” in a technical sense and in contradistinction to “interpretation.” Construction is the act of importing meaning into the constitutional text. To document and explain how leading Supreme Court justices have engaged in originalist constructionism, we employ the interpretation-construction distinction as well as two additional analytical concepts recently discussed by leading legal scholars: Sam Bray’s recovery of “the mischief rule” and Jack Balkin’s textual typology of principles, standards, and …

The Death And Resurrection Of Establishment Doctrine, Gerard V. Bradley

Duquesne Law Review

Lead Article

The biggest news of the Supreme Court's 2021-22 term was the Court's "abandonment" of Lemon v. Kurtzman as the default test for Establishment Clause jurisprudence. For a full half-century, Lemon v. Kurtzman defined what our constitutional separation of church and state meant. But now the Court has definitively laid it to rest. The important question of church-state relations stands at a strategic fork in the road that the Court has not faced since 1962, and perhaps not since 1947. Justice Gorsuch complained that Lemon demonstrably failed as law. That it was a judicial tool that flopped by every …

A "Mere Shadow" Of A Conflict: Obscuring The Establishment Clause In Kennedy V. Bremerton, Ann L. Schiavone

Duquesne Law Review

In Kennedy v. Bremerton School District,¹ the Roberts Court continued its move to carve out larger spaces for religious practice and expression in public spheres.² But in so doing it left lower courts and school districts with many more questions than answers concerning what the Establishment Clause means and what it requires of them. Can school districts still protect students from religious coercion by teachers, classmates, and others? Are entanglements between church and state or the appearance of endorsement no longer problematic?³ Should the individual history and tradition of schools and communities influence decision making on …

Analysis Of Carson V. Makin, Wilson Huhn

Duquesne Law Review

Many school districts in the State of Maine lack high schools, so the children in those districts must attend another school selected by their parents.¹ In 1873 the State of Maine enacted a tuition assistance program, called "town tuitioning," that offers a stipend to participating schools to partially defray the cost of educating children from districts that lack a high school.² In 1981 the State of Maine enacted a law that categorically excludes "sectarian schools" from participating in the tuition assistance program.³ The Maine Department of Education defines a "sectarian school" as a school that is both …

Talk Should Be Cheap: The Supreme Court Has Spoken On Compelled Fees, But Universities Are Not Listening, Falco Anthony Muscante Ii

Duquesne Law Review

Taking money from a person to support political and ideological projects with which that person disagrees is, in the words of Thomas Jefferson, "sinful and tyrannical." Public universities are meddling with sin and tyranny by compelling some students to pay mandatory student activity fees in support of political and ideological activities with which those students disagree. This Article provides separate legal and historical backgrounds for both public union dues and fees and the more-recent public university student activity fees to ultimately propose a constitutional system congruent with Janus v. AFSCME, Council 31, and its impact on Board of Regents …

"We Don't Know What We Want": The Tug Between Rights And Public Health Online, Jonathan Zittrain

Duquesne Law Review

Twitter and Facebook boast billions of subscribers, many of whom are real people. The companies are also roundly hated, particularly by tech experts-at least those who follow them for something other than their stock performance.¹ Objections to platforms' behavior are commonly expressed as amazement that they could be so obviously and consistently wrong in failing to police awful content their users post. There is also amazement about unobjectionable posts and comments from users that they take down.² That, in turn, has led to pressure for regulatory initiatives to push the companies into doing what they so clearly ought …

The Tug Between Private And Public Power Online, Evelyn Douek

Duquesne Law Review

Professor Zittrain's article describes, in his characteristically vivid and engaging way, one of the most consequential tugs of war of the internet age: the battle over the rules for what can and cannot be said online. The legal centerpiece of Zittrain's story is the Skokie case from the late 1970s, which held that Nazis had a First Amendment right to march in a Chicago suburb with a large population of Holocaust survivors.¹ Zittrain calls the case "a near-perfect encapsulation of mainstream late twentieth century characterization of the right to free speech in America."² And he's right-there is perhaps …

Platform Governance's Legitimate Dilemmas, Alicia Solow-Niederman

Duquesne Law Review

How can we govern if "we don't know what we want?"¹ In characteristically engaging and thought-provoking fashion, Jonathan Zittrain's Essay interrogates our ongoing struggle to answer this thorny question.² As Professor Zittrain exposes, governing social media firms like Twitter and Facebook is no easy feat.³ Part of the challenge is defining the problem itself: it's hard to diagnose what, exactly, "is so 'obviously' wrong" with social media today.⁴ Naturally, without a consensus on what is wrong, it is difficult, if not impossible, to make it right.

Private Ownership Of Public Facts: Docudramas, Deals, And Life Story Rights, Dave Fagundes, Jorge L. Contreras

Utah Law Faculty Scholarship

From Elizabeth Taylor to Mike Tyson, celebrities have claimed ownership of their personae. But while the right of publicity and other laws give individuals the right to control commercial exploitation of their images, voices, mannerisms and taglines, the law stops short of recognizing a property interest in the events of their lives. On the contrary, the First Amendment protects producers of expressive works when telling non-defamatory stories about real people. The intuition that exists among celebrities and lay persons alike that individuals own their “life stories” has been fueled by the decades-old Hollywood practice of “acquiring” life story rights from …

Blank Space: The Legal Gray Area Created By Police Abuse Of Copyright Law, Connor Druhan

Loyola University Chicago Law Journal

Music, a universal language sung and heard around the world, is a powerful force for bringing people together. It is also afforded a great deal of protection under United States copyright law. As the way we listen to music has evolved throughout history, so too have the ways that laws protect the rights of musicians and entertainers. However, due to the changing technological landscape and our methods for protecting music, law enforcement officials have found a loophole at the intersection of copyright law, free speech, and the tools we use to enforce the rights of copyright holders. The Digital Millennium …

Arresting Assembly: An Argument Against Expanding Criminally Punishable Protest, Allison Freedman

Faculty Scholarship

ARRESTING ASSEMBLY: AN ARGUMENT AGAINST EXPANDING
CRIMINALLY PUNISHABLE PROTEST
ALLISON M. FREEDMAN

ABSTRACT

In recent years, public protests have shed light on societal inequities that had previously gone unheard. Yet instead of responding to protesters’ concerns, many state legislators are attempting to silence disenfranchised groups by introducing hundreds of “anti-protest” bills. This is a recent phenomenon and one that is accelerating—the largest wave of “anti-protest” bills was introduced on the heels of the most robust protest movement in recent history, Black Lives Matter during the summer of 2020.

Although it is clear that legislators are attempting to tamp down public …

When Congress Passes The Buck: How Russia’S Invasion Of Ukraine Exposed Flaws In Granting The President Sanctioning Powers, Artem M. Joukov, Samantha M. Caspar

Seattle University Law Review

The United States (U.S.) Constitution provides few limitations on endowing the Executive Branch with powers to govern foreign trade, which was initially granted to the Legislature. In a world where global trade dominates, the power over foreign trade can be more important than the power over domestic matters. Leaving unrestrained trade authority to the Executive Branch may cause hazards for Americans and foreigners alike. Russia’s war in Ukraine demonstrates the flaws in permitting the Executive Branch to unilaterally sanction foreign states. This Article demonstrates how reactive Executive Branch policies infringed on the welfare and safety of American citizens and foreigners …

Pedaling Backwards: Examining The King County Board Of Health’S Choice To Repeal Its Bicycle Helmet Law, Schuyler M. Peters

Seattle University Law Review

In Part I, this Comment will explain the Helmet Law itself and the timeline that ultimately led to its repeal. Part II will focus on the positive impact of the Helmet Law, the dangers associated with the repeal, why the repeal should not have occurred in the manner it did, and what societal costs stem from the BOH’s decision. Part III will address the actions that must be taken to revoke this repeal and the reasons behind these alternative pathways, including an Equity Impact Review study specifically on the consequences of repeal, a collaborative outreach program to bring helmets to …

Traditionalism Rising, Marc O. Degirolami

Scholarly Articles

Constitutional traditionalism is rising. From due process to free speech, religious liberty, the right to keep and bear arms, and more, the Court made clear in its 2021 term that it will follow a method that is guided by “tradition.”

This paper is in part an exercise in naming: the Court’s 2021 body of work is, in fact, thoroughly traditionalist. It is therefore a propitious moment to explain just what traditionalism entails. After summarizing the basic features of traditionalism in some of my prior work and identifying them in the Court’s 2021 term decisions, this paper situates these recent examples …

The Stolen Election Lie And The Freedom Of Speech, Wes Henricksen

Faculty Scholarship

No abstract provided.

The Campus Battle Over Expression And Equality: Combatting Discrimination By Restricting Freedom?, Faisal Bhabha

Articles & Book Chapters

Given that the purpose of post-secondary education is to advance knowledge, academic life requires protection from unreasonable interference arising from institutional policies or public pressure. This paper argues that, in the interests of providing a safe and inclusive learning environment, universities have run the risk of unduly restricting debate and the exchange of ideas through unwarranted applications of anti-discrimination norms on campus. Based on a detailed review of the jurisprudence, the author contends that human rights legislation imposes no requirement, and provides little authority, for constraining thought or speech in higher education. Indeed, the threats to freedom of expression on …

Hard Truths: Libel By Implication Doctrine And The Need For A Uniform Standard, Carly Ryan

University of Michigan Journal of Law Reform

Since the inception of the tort of libel, claims against the media have created a tension between the First Amendment’s commitment to a free press and the desire to prevent reputational harm to individuals. Further complicating the issue are cases in which plaintiffs allege that literally true statements are defamatory based on implications created through juxtapositions or omissions of facts. This is known as libel by implication, a tort currently governed by states through a patchwork of varying standards and interpretations. Not only does the lack of uniformity leave journalists without due notice of the law in the jurisdictions they …

Establishment As Tradition, Marc O. Degirolami

Scholarly Articles

Traditionalism is a constitutional theory that focuses on concrete political and cultural practices, and the endurance of those practices before, during, and after the ratification of the Constitution, as the presumptive determinants of constitutional meaning and constitutional law. The Supreme Court has long interpreted traditionally but now says explicitly that it uses a method of “text, history, and tradition” in several areas of constitutional law. Foremost among these is the Establishment Clause. This Essay examines two questions about traditionalism, both of which concern the Establishment Clause in distinct but related ways. First, why has traditionalism had special salience in this …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Beyond The Business Case: Moving From Transactional To Transformational Inclusion, Jamillah Bowman Williams

Seattle University Law Review

While workplace diversity is a hot topic, the extent to which the diversity management movement has effectively improved intergroup relations and reduced racial inequality remains unclear.1 Despite large investments in diversity and inclusion training and other company wide initiatives, historically excluded groups remain vastly underrepresented in leadership and the most lucrative careers, such as finance, law, and technology. This calls the efficacy of diversity, equity, and inclusion (DEI) efforts into question, particularly with respect to reducing racial inequality in the workplace.

This Article explains why it is time for organizational leaders to move beyond the transactional case for diversity and …

How Firms Turn Middle Managers Into Diversity Leaders, Alexandra Kalev, Frank Dobbin

Seattle University Law Review

In 2007, the Conference Board published a piece calling middle managers “the biggest roadblock to diversity and inclusion” for standing in the way of change efforts. Today, many chief diversity officers report that they have failed both to diversify middle management and to get middle managers involved in promoting inclusion. We explore popular diversity programs that create “paper” or “symbolic” principles for achieving diversity (diversity policy statements and guidelines for hiring, promotion, and discharge), as well as programs that engage middle managers in promoting diversity (special recruitment and mentoring programs, and diversity task forces). “Paper” policies often fall flat, but …

Gender And The Constitutional Theory Of The Firm, Jamee K. Moudud

Seattle University Law Review

This Article adds to the literature that has linked feminist economics to foreign trade and development. It argues that two key factors need to be in place jointly if efforts to promote gender equity are to succeed. On the one hand it argues that foreign debt is an important constraint to domestic progressive social policies of all kinds as it increases the power of international creditors who generally tend to support austerity policies. On the other hand, while alleviating the burden of foreign debt via exportpromotion policies is necessary, it is by no means a sufficient condition to promote domestic …

Court’S Choice Of Law Ruling Undermines Washington Community Property Law: A Critique Of Shanghai Commercial Bank V. Chang, Brian D. Hulse

Seattle University Law Review

This Article deals with the issues that arise when Washington courts face the following scenario. One spouse enters into a contract without the joinder (and perhaps without the knowledge) of the other spouse. Both spouses are domiciled in Washington. The contract has contacts with one or more jurisdictions other than Washington and is generally governed as to validity and interpretation by the law of another jurisdiction. The contracting spouse defaults and the other party to the contract obtains a judgment on the contract. The court confronts a question about the property to which the plaintiff will have recourse to collect …

Policing For Profit: A Constitutional Analysis Of Washington State’S Civil Forfeiture Laws, Julia Doherty

Seattle University Law Review

The summer of 2020 reignited a conversation about the relationship between race and policing in the United States. While many have taken the opportunity to scrutinize the racially discriminate components of our criminal justice system, comparable aspects of civil law must be equally scrutinized. A particular area of concern pertains to racially biased policing and the concept of “policing for profits” with Black, Indigenous, and people of color communities (BIPOC), which is accomplished mainly through civil asset forfeiture at a state and federal level.