First Amendment Commons^™

Masking God In Resurrection School V. Hertel: One School’S Efforts To Exercise Religion During An Ongoing Pandemic, Sean Turnipseed

MC Law Review

SARS-CoV-2, colloquially termed “COVID-19,” dramatically altered the world in which we live. But no one would have guessed the virus would spark a flurry of litigation under the U.S. Constitution’s Free Exercise Clause. Shortly after the virus began to spread, former President Donald Trump advised a twoweek plan with hopes to “flatten the curve” of COVID-19’s impact. The plan encouraged individuals to avoid gatherings with ten or more people, work and attend school from home, eat at home rather than in restaurants, and avoid discretionary travel and shopping, to name a few. But the two-week plan did not effectively thwart …

Qualified Immunity And The Unintentional, Or Intentional, Chill On Free Speech, Madison Heiney

Indiana Journal of Law and Social Equality

No abstract provided.

Fair Use Failing The First Amendment? How The Parody And Satire Dichotomy May Be Stunting Political Discourse, Megan L. Wheeler

IP Theory

The First Amendment, in certain circumstances, is used as a defense to “protect[] satire and parody as a form of free speech and expression.”2 When it comes to jokes, “[q]uestions . . . have arisen in case law [pertaining to satire typically] concerning libel, emotional distress and copyright infringement.”3 Further, in a right of publicity claim, “[t]he First Amendment clearly protects all but the most intrusive coverage of news, or details of a person’s private life, such as are reported in the tabloid press or talk shows.”4 This demonstrates that humor and satire have a close relationship with the First …

Incombustible Ideas: Evaluating The Impact Of Federal Court Opinions Regarding Book Banning In Public-School Libraries, Noah T. Holloway

Indiana Journal of Law and Social Equality

No abstract provided.

(E)Racing Speech In School, Francesca L. Procaccini

Vanderbilt Law School Faculty Publications

Speech on race and racism in our nation’s public schools is under attack for partisan gain. The Free Speech Clause of the First Amendment teaches a lot about the wisdom and legality of laws that chill such speech in the classroom. But more importantly, a First Amendment analysis of these laws reveals profound insights about the health and meaning of our free speech doctrine.

Through a First Amendment analysis of “anti-critical race theory” laws, this essay illuminates the first principles of free speech law. Specifically, it shows that the First Amendment offers little refuge to teachers or parents looking to …

Copyright And Political Campaigns: How Much Control Should A Copyright Owner Have Over The Use Of Their Musical Work In A Political Campaign, Jared Zim

University of Miami Business Law Review

Music often tells a powerful story, driving emotional connections. As a result, politicians rely on music in every aspect of their political campaigns from political advertisements to campaign rallies. There is a long history of such political uses of music, often without an artist’s permission. While most disputes over such uses have ended in either settlement or the campaign stopping use of the infringed work, former President Donald Trump’s unauthorized use of music on the campaign trail sparked countless artist complaints. The complaining musicians feared any implication that they endorsed Trump and did not want any association with a political …

Where To Place The “Nones” In The Church And State Debate? Empirical Evidence From Establishment Clause Cases In Federal Court, Gregory C. Sisk, Michael Heise

St. John's Law Review

In this third iteration of our ongoing empirical examination of religious liberty decisions in the lower federal courts, we studied all digested Establishment Clause decisions by federal circuit and district court judges from 2006 through 2015. The first clause of the First Amendment to the United States Constitution directs that “Congress shall make no law respecting an establishment of religion.” That provision has generated decades of controversy regarding the appropriate role of religion in public life.

Holding key variables constant, we found that Catholic judges approved Establishment Clause claims at a 29.6% rate, compared with a 41.5% rate before non-Catholic …

Disinformation And The First Amendment: Fraud On The Public, Wes Henricksen

St. John's Law Review

(Excerpt)

Following the 2020 presidential election, the losing candidate, Donald Trump, along with most of the Republican Party, spread the false claim that the election had been stolen by Democrats. Joe Biden, so the claim went, had not been legitimately elected, and was therefore an illegitimate President and needed to be removed. This profitable falsehood6 became known as the “Big Lie.” It was not only baseless, but it was in fact made in spite of and in direct conflict with the overwhelming evidence debunking it. This did not stop people from believing it. Millions bought into the Big Lie, which …

The Credibility Effect: Defamation Law And Audiences, Yonathan A. Arbel

Articles

What should be the legal response to false statements? In the context of defamation law, courts try to set a standard that balances the interests of speakers and their potential targets. This article empirically demonstrates an unappreciated effect of such decisions on third parties: a credibility effect. Using a series of lab experiments, I find that defamation law makes individuals more trusting of reports from various media. This credibility effect is desirable when the report is true but can lead to unintended consequences in the case of misinformation. In particular, the credibility effect is shown to cast a stigma on …

How Free Is Your Speech On Social Media? Reconciling The Circuit Split Created By The Eleventh And Fifth Circuit’S Decisions On Anti-Censorship Laws Governing Social Media Platforms, Stella Preston

Mercer Law Review

If you were to walk up to a random person on the street and ask to look at their cell phone, it is almost guaranteed that you would find one or more social media applications (apps) installed. In fact, according to a 2021 study conducted by Pew Research Center, around 72% of the adult population within the United States uses some form of social media. Some of the most notoriously known and popularly used social media apps include Facebook, Twitter, Instagram, and YouTube. At a fundamental and foundational level, social media is used as a means of communication between people …

Disinformation And The Defamation Renaissance: A Misleading Promise Of “Truth”, Lili Levi

University of Richmond Law Review

Today, defamation litigation is experiencing a renaissance, with progressives and conservatives, public officials and celebrities, corporations and high school students all heading to the courthouse to use libel lawsuits as a social and political fix. Many of these suits reflect a powerful new rhetoric—reframing the goal of defamation law as fighting disinformation. Appeals to the need to combat falsity in public discourse have fueled efforts to reverse the Supreme Court’s press–protective constitutional limits on defamation law under the New York Times v. Sullivan framework. The anti–disinformation frame could tip the scales and generate a majority on the Court to dismantle …

Boden Lecture: The Past’S Lessons For Today: Can Common-Carrier Principles Make For A Better Internet?, James B. Speta

Marquette Law Review

None.

Defamation With Bayesian Audiences, Yonathan Arbel, Murat C. Mungan

Articles

How strictly should the law regulate false defamatory statements? We first show that the presence of judicial errors often puts defamation law on a Laffer curve: regulation that is too lax or too strict is inferior to moderate regulation. While moderate regulation is ideal, it is not always attainable because of practical and legal constraints. With these constraints, we consider a Bayesian audience that takes the strictness of defamation law into account when evaluating statements. The optimal standard is then taxer than is prescribed by standard models with naive audiences. These findings underscore the importance of accounting for audience effects …

Transforming Natural Religion: An Essay On Religious Liberty And The Constitution, Steven J. Heyman

BYU Law Review

Recent Supreme Court decisions such as Burwell v. Hobby Lobby, Masterpiece Cakeshop v. Colorado Civil Rights Commission, and Fulton v. City of Philadelphia raise the fundamental question of what place religion and religious liberty should hold within a liberal constitutional order that is based on a commitment to the freedom, equality, and well-being of all persons. To explore this question, it is natural to begin with an inquiry into what founding–era Americans thought when they incorporated the First Amendment’s Free Exercise Clause into the constitutional order that they were creating. Contrary to the views taken by many judges and scholars, …

The End Of Government Speech, G. Alex Sinha

Cardozo Law Review

Thirty years ago, the Supreme Court created the government-speech doctrine to protect certain forms of government action against First Amendment challenges. The government must speak to govern, the thinking goes, and the First Amendment regulates private rather than governmental speech. Therefore, government action that is classified as “government speech” should not be vulnerable to free-speech claims. The doctrine has since been used accordingly, vaccinating certain government programs against the First Amendment. For example, the doctrine has insulated regulations banning federally funded medical providers from counseling patients about abortion; advertising campaigns spearheaded by the federal government; state-level choices about which specialty …

The Right Of Publicity: A New Framework For Regulating Facial Recognition, Jason M. Schultz

Brooklyn Law Review

For over a century, the right of publicity (ROP) has protected individuals from unwanted commercial exploitation of their identities. Originating around the turn of the twentieth century in response to the newest image-appropriation technologies of the time, including portrait photography, mass-production packaging, and a ubiquitous printing press, the ROP has continued to evolve along with each new wave of technologies that enable companies to exploit peoples’ images and identities for commercial gain. Over time, the ROP has protected identities from misappropriation in photographs, films, advertisements, action figures, baseball cards, animatronic robots, video game avatars, and even digital resurrection in film …

False Speech And The First Amendment: The Problem With Free Speech In A Fake News Crisis, Eliza J. Estrella

Brooklyn Law Review

Social media platforms are used daily by millions of Americans to connect with friends and family, shop from home, and stay attuned to current events. But the increasing ease and speed of accessing information on social media leaves its users exposed to misinformation, disinformation, and fake news that is designed to deceive. Because natural cognitive biases make individualized truth-filtering mechanisms unreliable, it is often difficult for the public to distinguish between fact and fiction. Widespread belief in viral fake news stories have caused serious and dangerous consequences to public health, safety, and democracy. However, because false speech remains categorically protected …

Social Media Vigilantism, Joanne Sweeny

Brooklyn Law Review

One of the most well-reported consequences of the #MeToo movement is the ramifications it has had for powerful men accused of engaging in sexual assault or harassment. As part of telling their stories, women (and some men) named their abusers, leading, in some cases, to their alleged abusers suffering legal repercussions. But, much more commonly, legal repercussions never follow, often due to the expiration of the statute of limitations for the crimes committed by the abuser. Instead, social or employment consequences were the only negative impact felt by these abusers. Still, the backlash against #MeToo includes the complaint that these …

Brief Of Professor Derek T. Muller As Amicus Curiae In Support Of Petition For Certiorari, Michael Francisco, Michael Brody, Derek T. Muller

Court Briefs

No. 22-1033
Eugene Mazo v. New Jersey Secretary of State

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

From the Summary of Argument

This Court has expressly held that the Anderson-Burdick balancing test for evaluating certain kinds of election laws does not extend to cases of pure political speech. McIntyre v. Ohio Elections Commission, 514 U.S. 334, 344 (1995). Laws restricting political speech are subject to strict scrutiny. Nevertheless, lower courts—including the Third Circuit in this case— continue to defy this Court’s guidance.

This case presents an important opportunity to …

Frustrating Morals: Is There An Implied Reverse Morals Clause In Publishing Agreements?, Matthew L. Fulton

Brooklyn Journal of Corporate, Financial & Commercial Law

In response to the #MeToo movement and the widespread condemnation of public figures for misconduct, book publishers adopted a standard contract provision used in other entertainment industries called a morals clause. Morals clauses allow a publisher to terminate the agreement if the author is subject to public condemnation. Although these provisions provide robust protection for publishers, these one-sided clauses provide no such protection for authors if publishers are subject to similar condemnation. Although authors may not have the leverage to negotiate reciprocal morals clauses, some authors may have an implied reverse morals clause through the frustration of purpose defense to …

Sacred Spheres: Religious Autonomy As An International Human Right, Diana V. Thomson, Kayla A. Toney

Catholic University Law Review

How should courts resolve thorny human rights disputes that arise within religious groups? According to an emerging international consensus, they shouldn’t. When a case involves sensitive internal decisions by a religious organization, such as choosing who is qualified to teach the faith, courts are increasingly taking a hands-off approach. This global consensus has formed across international treaties, tribunals, and domestic courts in European and American nations. Every major human rights instrument and many international and domestic courts recognize that religious freedom must extend to religious communities, especially houses of worship and schools where believers gather to practice their faith and …

Appellant's Opening Brief, Zack Greenamyre, W. Gerald Weber, John A. Meiser, Meredith Holland Kessler

Court Briefs

No. 23-10332
Rev. Stephen Jarrard v. Sheriff of Polk County

Appeal from the United States District Court for the Northern District of Georgia No. 4:20-cv-00002-MLB

From the Summary of the Argument

This is an unusual appeal. Sheriff Johnny Moats and Chief Jailer Al Sharp all but admitted that they retaliated against Jarrard and barred him from Polk County Jail’s volunteer ministry program because they disagree with his religious belief that baptism is required for salvation. Indeed, Moats told Jarrard in writing that Jarrard’s beliefs are “contrary to the teaching of the Bible” and that he would not be allowed to …

Clark Memorandum: Spring 2023, J. Reuben Clark Law School, Byu Law School Alumni Association, J. Reuben Clark Law Society

The Clark Memorandum

• Fidei Defensor: Defending Faith to Enable Communities of Reconciliation
• Conscience, Peacebuilding, and Faith-Based Law Schools
• Elvis Was Right: The Unavoidable Intersection Between Personal Values and a Fulfilling Practice of Law
• The Future of the Establishment Clause: Implications of Kennedy v. Bremerton School District

Texas’ War On Social Media: Censorship Or False Flag, Leni Morales

DePaul Journal of Art, Technology & Intellectual Property Law

No abstract provided.

Advancing America’S Emblematic Right: Doctrinal Bases For The Fundamental Constitutional Right To Vote Per Se, Susan H. Bitensky

University of Miami Law Review

This Article identifies and examines the Supreme Court’s longstanding unintelligibility with respect to recognition of a fundamental right to vote per se under the Constitution. In a host of equal protection cases, the Court’s refusal to “say what the law is” in this regard has produced a chaotic jurisprudence on the status of the right. Because ours is a constitutional schema consisting of multiple types of rights to vote, the refusal manifests as judicial reliance on and acclamation of some unspecified right to vote. It is refusal by lack of clarity. The unsorted right has led some scholars to conclude …

Montana Is Trying To Ban Tiktok. What Does The First Amendment Have To Say?, Deborah Pearlstein, John Dellamore

Online Publications

Last month, Montana became the first U.S. state to pass a bill banning TikTok from operating within its borders. If Governor Greg Gianforte signs some version of the bill, it will become the first statewide ban in the country to take direct aim at the popular social media app, which various U.S. government officials have warned poses a serious national security threat. But while Montana may be the first to act, significant gaps remain in the public debate surrounding both the nature of the threat that TikTok presents, and the constitutional questions that trying to regulate it might create.

The Primacy Of Free Exercise In Public-Employee Religious Speech, Nicholas J. Grandpre

Notre Dame Law Review

This Note addresses the question left open by the Court and highlighted by Justice Thomas: under what standard of review should courts review public-employee religious expression protected by both the Free Speech and Free Exercise Clauses? This Note begins by introducing the doctrine of government-employee speech. Then, this Note surveys proposals within existing scholarship that address how courts ought to treat public-employee religious expression. In doing so, this Note evaluates the following proposals: (1) applying Pickering balancing as is; (2) applying a modified version of Pickering balancing; (3) replacing Pickering balancing with intermediate scrutiny; (4) the Holmesian approach: deeming public-employee …

Serious Value, Prurient Appeal, And "Obscene" Books In The Hands Of Children, Todd E. Pettys

William & Mary Bill of Rights Journal

Controversy has erupted across the country concerning sexually explicit books that are available to children in bookstores, schools, and libraries. Many have called for tough enforcement of obscenity laws, with some saying librarians and schoolteachers who distribute certain books to children should face jail time. Using four controversial books as examples, this Article takes today’s book wars as an opportunity to achieve two things. First, the Article explains the narrow circumstances in which the First Amendment permits the government to block the distribution of books to children due to concerns about the books’ prurient appeal. The Article’s second aim is …

The Rise Of Public School Prayer With The Demise Of Lemon V. Kurtzman, Samantha Thompson Lipp

Mercer Law Review

The Supreme Court of the United States has officially overturned Lemon v. Kurtzman. The controversial and heavily criticized Lemon opinion sets forth the primary test courts used for over fifty years in analyzing claims under the Establishment Clause. The official overruling of Lemon signals the Supreme Court’s embrace of a more accommodating approach toward religion in the public sphere. This Comment predicts how, in Lemon’s absence, the Supreme Court will likely reassess precedent in the context of public school prayer and become more accommodating of religion.

In Part II, this Comment addresses the three approaches to interpreting the …

Policing The Police: Establishing The Right To Record And Civilian Oversight Boards To Oversee America’S Police, Michael G. Brewster

Brooklyn Law Review

Police misconduct is a persistent issue in the United States that undermines public trust in law enforcement and the criminal justice system as a whole. The video of George Floyd’s arrest and murder played an irreplaceable role in bringing attention to the case and sparking nationwide discussions about the state of policing in America. The video, showing former Minneapolis police officer Derek Chauvin kneeling on Mr. Floyd’s neck for several minutes, also helped convict Mr. Chauvin of murder at trial. Recording police activity is an important means of holding officers accountable for their actions and protecting citizens from abuse of …