First Amendment Commons^™

Crafting New Boundaries: Model Legislation To Address The New-Real Threat Of Virtual Child Pornography Without Running Afoul Of Ashcroft V. Free Speech Coalition, Abbey Marzen

St. Thomas Law Review

In 2002, the United States Supreme Court held in Ashcroft v. Speech Coalition that virtual child pornography is protected speech under the First Amendment. While the threat of virtual child pornography may not have been pressing when this case was decided, we are now feeling the far-reaching effects of the Court's decision in Ashcroft, especially in the era of generative artificial intelligence ("Gen Al"). Gen Al has created a portal for child predators to easily create virtual child pornography. Despite several attempts to pass legislation prohibiting the possession and creation of virtual child pornography, many state courts have struck down …

Respecting An Establishment Of Religion: A Look At The Establishment Clause And The Accommodation Approach, Kendal Zylstra

St. Thomas Law Review

An often-litigated portion ofthe First Amendment, conversations surrounding the Establishment Clause remain as vibrant as they were centuries ago. The Establishment Clause restricts the government from establishing a state-sponsored religion, but it goes much further than that. But how far does it go? Some argue that the American people should be free from religion, while others argue the government should neutralize the playing field when it comes to religion in the public sphere. Still others advocate for a more "accommodating" approach that acknowledges that one cannot leave their religion at the door, advocates for the free exercise of religion, and …

Searching For Truth That Speaks To Power: Free Speech And Equality On Campus, Stephen M. Feldman

American University Law Review

University campuses are being rent apart in disputes pitting free expression against equality [read: diversity, equity, and inclusion]. Yet scholarly discussions and university declarations widely agree: While universities should encourage an inclusive educational environment, free-speech principles prohibit universities from restricting or punishing hate speech, group libel, and other forms of offensive expression. This Article argues that this prioritizing of free speech over equality on campus is mistaken. Equality should often be favored over free expression in campus settings. Although Supreme Court precedents are ambiguous, one can reasonably argue that the doctrine allows universities to restrict and punish offensive expression, including …

This Comment Is Gay: How Banning Lgbtq-Themed Books Violates First Amendment Rights, Michael Karam

Upper Level Writing Requirement Research Papers

No abstract provided.

Henderson And The Objective Observer Standard: The Future Of Race-Conscious Standards Post-Students For Fair Admissions, Gabriela Dionisio

Seattle University Law Review

On June 29, 2023, the Supreme Court of the United States decided Students for Fair Admissions v. President & Fellows of Harvard College, which struck down race-conscious admissions policies. Within just a year after its ruling, Students for Fair Admissions has already had a sweeping impact, reaching beyond higher education. Although the Supreme Court did not indicate whether Students for Fair Admissions applies to sectors beyond higher education, law firms, and other employers have already modified their diversity policies and initiatives, erasing race and company diversity considerations. Given those dramatic changes, there is growing fear that Students for Fair Admissions …

Same Crime, Different Time: Sentencing Disparities In The Deep South & A Path Forward Under The Fourteenth Amendment, Hailey M. Donovan

Seattle University Law Review

The United States has the highest incarceration rate of any country in the world. The American obsession with crime and punishment can be tracked over the last half-century, as the nation’s incarceration rate has risen astronomically. Since 1970, the number of incarcerated people in the United States has increased more than sevenfold to over 2.3 million, outpacing both crime and population growth considerably. While the rise itself is undoubtedly bleak, a more troubling truth lies just below the surface. Not all states contribute equally to American mass incarceration. Rather, states have vastly different incarceration rates. Unlike at the federal level, …

The Volokh Briefs: Drawing The Line Against Compelled Speech In Public Accommodations, Dale Carpenter

Faculty Journal Articles and Book Chapters

In a series of important amicus briefs (the “Volokh Briefs”) filed over the course of about a decade, Professor Eugene Volokh was the principal architect of an argument for protecting expressive goods and services offered for sale the commercial marketplace.  This free speech protection would override certain applications of state antidiscrimination law.

The argument bore fruit in 303 Creative v. Elenis (2023), which held that under the First Amendment’s Free Speech Clause the state could not force a designer to fashion websites incorporating the designer’s customized text and graphics for the celebration of same-sex weddings. As Volokh and others urged, …

The First Amendment, Discrimination, And Public Accommodations At Common Law, Adam J. Macleod

Scholarly Articles

Many recent cases of constitutional conflict have pitted First Amendment liberties of speech, religious exercise, and association against nondiscrimination rules and policies, especially laws governing public accommodations and public forums. To resolve these cases and to understand how civil rights fit together, courts and scholars need a logical and satisfying account of the foundations of public accommodations law. But the law seems to be confused and legal scholars are of different minds. Some assert that proprietors who open their premises and services to the public have no right at common law to exclude or refuse service to anyone. Others find …

A License To Discriminate? 303 Creative V. Elenis And Where The Supreme Court May Go, Christopher J. Manettas

Touro Law Review

No abstract provided.

On The Legality Of Defrauding The Public, Wes Henricksen

Marquette Law Review

Speech used to intentionally mislead others to gain a tangible benefit while causing harm to the one deceived or to others is generally labeled “fraud.” This term is used in both legal and nonlegal contexts. Where speech used to defraud satisfies the elements of a tort or a crime, it becomes “actionable fraud.” Categories of actionable fraud include common law deceit, securities fraud, and wire fraud. But taken together, these laws address harmful dishonesty in an inconsistent manner. While they broadly prohibit deceiving individual victims, they often allow deceiving the public at large. As a result, it is often lawful …

Public Primacy In Corporate Law, Dorothy S. Lund

Seattle University Law Review

This Article explores the malleability of agency theory by showing that it could be used to justify a “public primacy” standard for corporate law that would direct fiduciaries to promote the value of the corporation for the benefit of the public. Employing agency theory to describe the relationship between corporate management and the broader public sheds light on aspects of firm behavior, as well as the nature of state contracting with corporations. It also provides a lodestar for a possible future evolution of corporate law and governance: minimize the agency costs created by the divergence of interests between management and …

Robo-Voting: Does Delegated Proxy Voting Pose A Challenge For Shareholder Democracy?, John Matsusaka, Chong Shu

Seattle University Law Review

Robo-voting is the practice by an investment fund of mechanically voting in corporate elections according to the advice of its proxy advisor— in effect fully delegating its voting decision to its advisor. We examined over 65 million votes cast during the period 2008–2021 by 14,582 mutual funds to describe and quantify the prevalence of robo-voting. Overall, 33% of mutual funds robo-voted in 2021: 22% with ISS, 4% with Glass Lewis, and six percent with the recommendations of the issuer’s management. The fraction of funds that robo-voted increased until around 2013 and then stabilized at the current level. Despite the sizable …

The Limits Of Corporate Governance, Cathy Hwang, Emily Winston

Seattle University Law Review

What is the purpose of the corporation? For decades, the answer was clear: to put shareholders’ interests first. In many cases, this theory of shareholder primacy also became synonymous with the imperative to maximize shareholder wealth. In the world where shareholder primacy was a north star, courts, scholars, and policymakers had relatively little to fight about: most debates were minor skirmishes about exactly how to maximize shareholder wealth.

Part I of this Essay discusses the shortcomings of shareholder primacy and stakeholder governance, arguing that neither of these modes of governance provides an adequate framework for incentivizing corporations to do good. …

The Pioneers, Waves, And Random Walks Of Securities Law In The Supreme Court, Elizabeth Pollman

Seattle University Law Review

After the pioneers, waves, and random walks that have animated the history of securities laws in the U.S. Supreme Court, we might now be on the precipice of a new chapter. Pritchard and Thompson’s superb book, A History of Securities Law in the Supreme Court, illuminates with rich archival detail how the Court’s view of the securities laws and the SEC have changed over time and how individuals have influenced this history. The book provides an invaluable resource for understanding nearly a century’s worth of Supreme Court jurisprudence in the area of securities law and much needed context for …

Three Stories: A Comment On Pritchard & Thompson’S A History Of Securities Laws In The Supreme Court, Harwell Wells

Seattle University Law Review

Adam Pritchard and Robert Thompson’s A History of Securities Laws in the Supreme Court should stand for decades as the definitive work on the Federal securities laws’ career in the Supreme Court across the twentieth century.1 Like all good histories, it both tells a story and makes an argument. The story recounts how the Court dealt with the major securities laws, as well the agency charged with enforcing them, the Securities and Exchange Commission (SEC), and the rules it promulgated, from the 1930s into the twenty-first century. But the book does not just string together a series of events, “one …

On The Value Of History: A Review Of A.C. Pritchard & Robert B. Thompson’S A History Of Securities Law In The Supreme Court, Joel Seligman

Seattle University Law Review

A.C. Pritchard and Bob Thompson have written a splendid history of securities law decisions in the Supreme Court. Their book is exemplary because of its detailed use of the long unpublished papers of Supreme Court justices, including those of Harry Blackmun, William O. Douglas, Felix Frankfurter and Lewis F. Powell, primary sources which included correspondence with other Justices and law clerks as well as interviews with law clerks. The use of these primary sources recounted throughout the text and 67 pages of End Notes deepens our understanding of the intentions of the Justices and sharpens our understanding of the conflicts …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Memories Of An Affirmative Action Activist, Margaret E. Montoya

Seattle University Law Review

Some twenty-five years ago, the Society of American Law Teachers (SALT) led a march supporting Affirmative Action in legal education to counter the spate of litigation and other legal prohibitions that exploded during the 1990s, seeking to limit or abolish race-based measures. The march began at the San Francisco Hilton Hotel, where the Association of American Law Schools (AALS) was having its annual meeting, and proceeded to Union Square. We, the organizers of the march, did not expect the march to become an iconic event; one that would be remembered as a harbinger of a new era of activism by …

Defeat Fascism, Transform Democracy: Mapping Academic Resources, Reframing The Fundamentals, And Organizing For Collective Actions, Francisco Valdes

Seattle University Law Review

The information we gathered during 2021–2023 shows that critical faculty and other academic resources are present throughout most of U.S. legal academia. Counting only full-time faculty, our limited research identified 778 contacts in 200 schools equating to nearly four contacts on average per school. But no organized critical “core” had coalesced within legal academia or, more broadly, throughout higher education expressly dedicated to defending and advancing critical knowledge and its production up to now. And yet, as the 2021–2022 formation of the Critical (Legal) Collective (“CLC”) outlined below demonstrates, many academics sense or acknowledge the need for greater cohesion among …

Sffa V. Harvard College: Closing The Doors Of Equality In Education, Ediberto Roman

Seattle University Law Review

The United States Supreme Court’s recent combined decision ending affirmative action in Students for Fair Admissions v. Harvard College and Students for Fair Admissions v. University of North Carolina was hailed in conservative circles as the beginning of “the long road” towards racial equality. Others declared that “the opinion may begin the restoration of our nation’s constitutional colorblind legal covenant.” Another writer pronounced, “Affirmative action perpetuated racial discrimination. Its end is a huge step forward.” A Washington-based opinion page even declared: “[T]he demise of race-based affirmative action should inspire renewed commitment to the ideal of equal opportunity in America.” Despite …

Religious Freedom And Diversity Missions: Insights From Jesuit Law Deans, Anthony E. Varona, Michèle Alexandre, Michael J. Kaufman, Madeleine M. Landrieu

Seattle University Law Review

This Article is a transcript of a panel moderated by Anthony E. Varona, Dean of Seattle University School of Law. During the panel, Jesuit and religious law school deans discussed what law schools with religious missions have to add to the conversation around SFFA and the continuing role of affirmative action in higher education.

The Class Of Injuries Test: A Unifying Proposal To Determining Duty, Proximate Cause, And Superseding Cause In Negligence Claims, Judge Leonard J. Feldman, Julia Doherty

Seattle University Law Review

While there seems to be universal agreement that liability in tort cannot be unlimited, there is widespread disagreement regarding the various tests that courts utilize to limit such liability. We assume here that breach can be proven: the defendant failed to conduct themself in accordance with the salient standard of conduct (for example, failure to exercise reasonable care under all the circumstances). In the ensuing litigation, the court and jury are asked to decide several issues that each limit liability for negligence. Here, we focus on three oft-debated issues: duty, proximate cause, and superseding cause. The tests for each are …

Ai, New Technologies, And Corporate Governance: Three Phenomena, Martin Petrin

Seattle University Law Review

Artificial intelligence (AI) and other new technologies are increasingly influencing the operations, business models, and structures of companies. This Article focuses on three emerging phenomena that impact significant aspects of corporate governance and regulation: (1) perforation and blurring of firm boundaries through the ubiquitous use of externally provided AI services; (2) businesses engaging in strategic access and leveraging of critical resources held by third parties without owning them; and (3) the unusual hybrid role of online platforms between market facilitators and markets themselves. The Article explores how these phenomena challenge traditional views of firms as separate units, with technology leading …

A Meaningful Life: The Future Of Juvenile Justice In Washington After Anderson, Samuel Coren

Seattle University Law Review

Until 2022, Washington’s line of juvenile sentencing jurisprudence gave every indication of continuing along the course set by Miller v. Alabama, as Washington courts recognized that “children are different” and should not be subjected to the harshest punishments available in the criminal legal system. State v. Anderson marked a stark diversion from this course. In upholding the constitutionality of a de facto life sentence for a juvenile, the Washington Supreme Court all but rejected the well-established scientific consensus surrounding juvenile brain development and implicit racial bias. Whether this decision reflects a minor aberration or a broader trend in the court’s …

Reconciling Disjunct Cryptocurrency Securities Enforcement With Purchaser Expectations, Jacob E. Simmons

Seattle University Law Review

The Southern District of New York’s July 2023 decision in SEC v. Ripple Labs, Inc. has been touted as a monumental win for cryptocurrency purchasers and related businesses. The Ripple court held that, except institutional investor transactions, all sales of Ripple’s XRP token were not investment contracts, a class of security subject to federal securities law. The court’s ruling meant that Ripple could not be held liable for the unregistered trading of XRP beyond its sales to institutional investors. Ripple adds new insights to a pervasive policymaking dilemma addressed in this Note: is the Securities and Exchange Commission’s (SEC) regulatory …

A Blueprint To Reclaim Legal Education From External Rankers, Scott Rempell

Seattle University Law Review

The U.S. News & World Report (U.S. News) law school rankings have impacted the perceptions and behaviors of everyone in the rankings ecosystem for decades. Commentators have almost universally condemned these ordinal rankings, yet they continue to influence the legal education market, often in highly detrimental ways.

The influence of these rankings stems from legitimate market demands, for reasons that the psychology of choice literature makes clear. People want (or need) to efficiently acquire and digest information that could help them make consequential decisions. At a time when consumers of law school information did not have such choice-making assistance, U.S. …

Real-World Consequences For Online Actions: The Case For Expanding Employee Harassment Protection Via Employers’ Rights Of Action, Alexander Barnes

Seattle University Law Review

This Note argues for expanding employers’ access to legal remedies that allow them to recoup the costs of protecting their employees from swatting, doxing, and other online harassment arising from their employees’ professional activity. Part I provides a brief description and history of the online harassment problem and its potentially deadly dangers. Part II describes employers’ legal responsibility to take action to protect their employees from harassment aimed at their employees within the scope of their employment. Part III explores common legal remedies that are currently available to employers, using the state of Washington as an example. Part III also …

Foreseeability And Duty In Washington Negligence Law: Leaving The Road Less Traveled By, Leo Linder

Seattle University Law Review

Washington negligence law is a confusing labyrinth of foreseeability that not even Ariadne’s string could guide plaintiffs out of. Foreseeability is implicated in four distinct analyses, several of which overlap considerably. Doctrines that were once questions of law are now questions of fact, and vice versa. Something needs to change.

Washington has taken the novel approach of bifurcating the duty element into two parts—duty’s mere existence, which is a question of law for the court to determine; and duty’s scope, which is a question of fact handed off to the jury to determine. Foreseeability impacts both of these assessments, but …

Deepfakes: Identity Misappropriation In The Digital Age, Benjamin Tandy

Belmont Law Review

This Note examines the rapid emergence of deepfake technology and its growing threat to individual identity, reputation, and democratic processes. Tracing the technological development of synthetic media—from “cheapfakes” to AI-driven deepfakes—the author highlights how generative adversarial networks and machine learning tools have enabled the creation of highly realistic, nonconsensual visual and audio fabrications. The Note documents the predominance of deepfake pornography and the increasing use of synthetic media in political misinformation campaigns, emphasizing the reputational and dignitary harms suffered by victims. After surveying state-level legislative responses, including both criminal prohibitions and civil causes of action, the author evaluates the limitations …

Content Moderation On Social Media: Social And Computational Standards And Implications, Mohit Singhal

Computer Science and Engineering Dissertations - Archive

Social media has become a powerful tool that reflects human communication's best and worst aspects. They allow individuals to freely express opinions, communicate with others, and learn about new stories. On the other hand, they have become fertile grounds for several forms of abuse, harassment, and the dissemination of misinformation. Social media platforms have established and employed content moderation to counteract the spread of abuse and misinformation.

Some critical challenges hinder the understanding of the social media content moderation ecosystem. This dissertation investigates various aspects of content moderation, including their coverage, fairness, and effectiveness. Firstly, it investigates how, in practice, …