First Amendment Commons^™

Defining Deference: Impacts Of Abandoning Chevron On Emerging Technology Governance And Administrative Law, R. Aubrey Davis Iii

Seattle University Law Review

Emerging technologies, particularly Artificial Intelligence (AI), often lead to unforeseen legal outcomes. Notable abuses in areas such as facial recognition, employment bias, and housing discrimination are well known. However, legislative responses to these issues either have been largely reactive or there has been no legislative response at all. In lieu of legislation, agencies have sought to fill the gap. For example, the Federal Communications Commission (FCC) recently proposed a rule mandating voter notification for all AI-generated political phone calls citing the Telephone Consumer Protection Act (TCPA) of 1991 as authority. However, the TCPA was originally passed to curtail telemarketing, not …

Intellectual Property Or Modern Folklore? The Problem With Open Gaming Licenses In Tabletop Gaming, Rosie Midget

Seattle University Law Review

This Note addresses how courts and legislatures should address “Open Gaming Licenses” commonly attached to tabletop roleplaying games (TTRPGs), which game publishers use to promote a false image of accessibility—misleading consumers and building goodwill from the misunderstanding. Part I discusses what TTRPGs are, including the defining features of the hobby and culture surrounding it, as well as the unique interplay between publishers and players. Part II explores the question of which elements in a TTRPG system may be subject to copyright protection. Part III examines these elements in practice using Wizards of the Coast’s Dungeons and Dragons TTRPG as a …

The First Amendment And The Commencement Provocateur, Duncan Hosie

William & Mary Bill of Rights Journal

This Article explores an untheorized area of First Amendment doctrine: students’ graduation speeches at public or private universities that embrace free speech principles, either by state statute, state constitutional law, or internal policy. Responding to recent graduation speech controversies, it develops a two-tier theory that reconciles a multiplicity of values, including students’ expressive interests, universities’ institutional interests in curating commencement ceremonies and preventing reputational damage and political reprisals, and the interests of captive audiences in avoiding speech they deem offensive or profane. The Article challenges the prevailing view that university students’ graduation speeches implicate individual First Amendment rights. It develops …

But For A Free Press: A Response To Press Freedom Skeptics, Patrick J. Charles, Kevin Francis O'Neill

William & Mary Bill of Rights Journal

This Article is divided into three Parts. Part I will outline the history-in-law case for why the historical record sufficiently supports recognizing distinct constitutional press freedoms. Part II then provides a history-in-law response to some of the most common arguments made by press freedom skeptics as to why distinct constitutional press freedoms should not be recognized by the courts. Lastly, Part III makes the case for why the recognition of distinct constitutional press freedoms should become a jurisprudential reality and provides a roadmap to accomplish this.

This abstract has been taken from the authors' introduction.

The Bare-Majority Requirement Of The Delaware Judiciary And Its Unfortunate Violation Of The First Amendment, Tyler Mayhew

William & Mary Bill of Rights Journal

This Note will attempt to remedy the circuit split on the issue of whether judges are policymakers for purposes of the First Amendment, and if they are not—as this Note concludes—whether the Delaware Constitution is in violation of the First Amendment through its major-party and bare-majority requirement.

First, this Note will analyze the development of the only challenge to article IV, section 3 of the Delaware Constitution as it proceeded from the U.S. District Court for the District of Delaware to the U.S. Supreme Court where it was thrown out on standing. Second, this Note will argue that judges are …

First Amendment Protection Under Connecticut’S Free Speech Statute: Inconsistent Interpretations And Disappointing Results, Elizabeth C. Anderson

Connecticut Law Review

Connecticut has taken unique strides in safeguarding employees’ constitutional rights by granting private employees the same First Amendment protections offered to public employees. However, the definition of “discipline” adopted by most courts permits employers to punish employees for exercising their free speech through non-affirmative acts like retracting promised promotions and bonuses. The absence of a clear, universal definition of “discipline” creates uncertainty for employees and employers, undermining the protective purpose of Connecticut’s free speech statute. This Comment argues that if or when the Connecticut Appellate Court takes up the issue of defining “discipline” under Connecticut General Statutes Section 31-51q, the …

The Next Generation Of Free Expression Scholarship: A Very Short Manifesto (In Memory Of Fred Schauer), Mark Tushnet

William & Mary Bill of Rights Journal

This Manifesto begins with a discussion of the accomplishments of the prior generation of free expression scholarship. The core of the Manifesto starts with a description of the idea of epistemic authority and draws upon Leiter’s analysis to show its importance in free expression theory. It emphasizes, with Leiter, that epistemic authority is relational: between and among epistemic authorities, and between such authorities and “ordinary” citizens (that is, those who aren’t near the core of an epistemic community that, as a collective, defines the community’s core and boundaries).

That discussion is followed by a description of challenges to the idea …

But For A Free Press: A Response To Press Freedom Skeptics, Kevin F. O'Neill, Patrick J. Charles

Law Faculty Articles and Essays

This Article is divided into three Parts. Part I will outline the history-in-law case forwhy the historical record sufficiently supports recognizing distinct constitutional press freedoms. Part II then provides a history-in-law response to some of the most common arguments made by press freedom skeptics as to why distinct constitutional press freedoms should not be recognized by the courts. Lastly, Part III makes the case for why the recognition of distinct constitutional press freedoms should become a jurisprudential reality and provides a roadmap to accomplish this.

“Any Rebroadcast, Retransmission, Or Account Of This Trial Without The Express Written Consent Of The Judge Is Prohibited”: The First Amendment And Judicial Constraints On Redistributing Courtroom Video, Frank D. Lomonte, Rachel Jones

Buffalo Law Review

No abstract provided.

“Shipping” Away The Captive Audience Meeting, Nathan Kakalec

Fordham Law Review

On November 14, 2024, the National Labor Relations Board (NLRB) overturned seventy-six years of labor law precedent by banning captive audience meetings in Amazon.com Services LLC. Captive audience meetings, mandatory meetings where employers discuss unionization with their employees, were a powerful anti-union tool used by employers to coerce their employees into rejecting unionization. The NLRB argues that captive audience meetings are inconsistent with § 7 and § 8 of the National Labor Relations Act (NLRA). Employers reject the NLRB’s assertion and contend that banning captive audience meetings infringes on their First Amendment right to communicate their views on unionization. …

They Managed A Protest: Prohibitory, Ethical, And Prudential Policing Of Academic Speech, David Schraub

BYU Law Review

No abstract provided.

What Copyright Can't Do, Blake E. Reid

Pepperdine Law Review

Copyright has become a powerful regulatory regime for modern American life. Copyrighted works, including text, images, video, sounds, music, and software, coupled with routine, frictionless copying, form a large part of the information, cultural and social context, and infrastructure of our increasingly digital society. Copyright law’s powerful remedies are now positioned to intervene in a wide range of everyday activities. As a result, scholars, policymakers, and advocates have increasingly called for modifying and applying U.S. copyright law to solve a wide range of public policy problems, from vindicating disability rights to protecting privacy to promoting competition among wireless carriers. But …

The Mic Drop: The Urgent Call For Scotus To Settle The Discord On Right Of Publicity Preemption And The Split That Never Was, Roselyn P. Castillo

University of Miami Business Law Review

The Roberts Court and . . . 50 Cent? Surely, no one predicted this duo, but sooner rather than later, it may be reflected in casebooks across the nation. In 2020, the Second Circuit joined what has been referred to as a growing circuit split over the tension between state law right of publicity claims and federal copyright preemption. Aligning with the Eighth and Ninth Circuits, the Second Circuit held that a state law right of publicity claim was preempted. Conversely, the Third, Fifth, and Seventh Circuits have held that copyright law does not preempt state law right of publicity …

Creating Peaceful Coexistence Through Virtue: A Theological Approach To Institutional Religious Freedom, Equality, And The First Amendment, Alex Deagon

Journal of Catholic Legal Studies

(Excerpt)

In the current era of fraught tension between religious freedom and equality, scholars from across the spectrum of perspectives have called for generosity, empathy, and compromise from both sides. Drawing from chapters in my book A Principled Framework for the Autonomy of Religious Communities: Reconciling Freedom and Discrimination, in this Article I propose to give substantive content and criteria to such exhortations by adopting a theological perspective which aims to create peaceful coexistence through cultivating and applying Christian virtues such as love, grace, forgiveness, humility, and patience. Together, these virtues recognise the inherent worth of all humans as …

Brief Of Amici Curiae 775 Law Professors In Support Of Plaintiff's Motion For Summary Judgment And Declaratory And Permanent Injunctive Relief, Wilfred U. Codrington Iii, Haiyun Damon-Feng, Rebecca Ingber, Rachel Landy, Jacob Noti-Victor, Alexander A. Reinert, Anthony J. Sebok

Amicus Briefs

Amicus curiae brief submitted by 775 law professors in support of Susman Godfrey LLP's motion for summary judgment and request for declaratory and permanent injunctive relief in Susman Godfrey LLP v. Executive Office of the President. The brief argues that Executive Order 14263 unlawfully targets a law firm based on its clients, advocacy, and litigation activities, in violation of the First Amendment, Fifth Amendment, and Sixth Amendment. The amici contend that the order constitutes impermissible viewpoint discrimination, interferes with the right to counsel, and threatens the independence of the legal profession and the rule of law.

Does The Press Get Special Rights?, Lauren Gailey

Texas A&M Law Review

The press occupies a place in our system of government so unique and important that it’s often referred to as the “Fourth Estate.” The press is charged with ensuring that voters have the information they need to elect their leaders, shedding a sanitizing light on the inner workings of the government, and acting as a counterweight to its enormous power. In recognition of these functions—and, presumably, to enable and promote them—the architects of the Bill of Rights permanently enshrined the press in its own clause of the First Amendment.

Yet two centuries later, scholars have generally accepted that the press …

Brief Of Amici Curiae Fred T. Korematsu Center For Law And Equality, Service Employees International Union, American Federation Of Teachers, American Association Of University Professors, Center For Civil Rights And Critical Justice, Race And Law Centers, And Civil Rights And Advocacy Organizations In Support Of Plaintiff, Wilmer Cutler Pickering Hale & Dorr Llp V. Executive Office Of The President, U.S. District Court For The District Of Columbia (No. 1:25-Cv-000917-Rjl), Charlotte Garden, Jeremiah Chin, Jessica Levin, Melissa Lee, Jim Davy, Robert S. Chang, Susan Mcmahon

Court Briefs

Introduction

When Fred Korematsu stood in the San Francisco federal district court in 1942 to challenge the constitutionality of a criminal charge that he had violated an exclusion order issued pursuant to Executive Order 9066, he was represented by pro bono counsel funded by the San Francisco office of the American Civil Liberties Union (ACLU). But just four days after Fred’s attorneys filed a motion to dismiss his criminal charges, ACLU director Roger Baldwin—wanting to avoid angering President Roosevelt—conveyed the “national board’s decision to prohibit test cases from challenging Roosevelt’s authority to issue Executive Order 9066.” Instead, local ACLU affiliates …

Brief Of Amici Curiae Fred T. Korematsu Center For Law And Equality, Service Employees International Union, American Federation Of Teachers, American Association Of University Professors, Center For Civil Rights And Critical Justice, Race And Law Centers, And Civil Rights And Advocacy Organizations In Support Of Plaintiff, Jenner & Block V. U.S. Dep't Of Justice, U.S. District Court For The District Of Columbia (No. 1:25-Cv-000916-Jdb), Charlotte Garden, Jeremiah Chin, Jessica Levin, Melissa Lee, Jim Davy, Robert S. Chang, Susan Mcmahon

Court Briefs

Introduction

When Fred Korematsu stood in the San Francisco federal district court in 1942 to challenge the constitutionality of a criminal charge that he had violated an exclusion order issued pursuant to Executive Order 9066, he was represented by pro bono counsel funded by the San Francisco office of the American Civil Liberties Union (ACLU). But just four days after Fred’s attorneys filed a motion to dismiss his criminal charges, ACLU director Roger Baldwin—wanting to avoid angering President Roosevelt—conveyed the “national board’s decision to prohibit test cases from challenging Roosevelt’s authority to issue Executive Order 9066.” Instead, local ACLU affiliates …

Jenner & Block Llp V. Doj: Brief Of Amici Curiae 676 Law Professors In Support Of Plaintiff's Motion For Summary Judgment And For Declaratory And Permanent Injunctive Relief, Nicholas C. Howson, Leah Litman, Kyle D. Logue, Gabriel S. Mendlow, Leonard Niehoff, Richard Primus, Rebecca Scott

Appellate Briefs

Amici 676 law professors submit this brief in support of Plaintiff Jenner & Block’s Motion for Summary Judgment and for Declaratory and Permanent Injunctive Relief (the “Motion”) to emphasize the threat that the President’s Executive Order (the “Order”) presents to the independence and integrity of the legal profession, the rights of clients to seek redress in the courts, and, by extension, the rule of law. As experts in constitutional law, legal ethics, and the history of the legal profession, among other fields, we have a significant interest in ensuring that the principles of free speech, freedom of association, the right …

Brief Of Amici Curiae 676 Law Professors In Support Of Plaintiff’S Motion For Summary Judgment And For Declaratory And Permanent Injunctive Relief, Wilfred U. Codrington Iii, Rebecca Ingber, Rachel Landy, Jacob Noti-Victor, Alexander A. Reinert

Amicus Briefs

Amici 676 law professors submit this brief in support of Plaintiff Jenner & Block’s Motion for Summary Judgment and for Declaratory and Permanent Injunctive Relief (the “Motion”) to emphasize the threat that the President’s Executive Order (the “Order”) presents to the independence and integrity of the legal profession, the rights of clients to seek redress in the courts, and, by extension, the rule of law. As experts in constitutional law, legal ethics, and the history of the legal profession, among other fields, we have a significant interest in ensuring that the principles of free speech, freedom of association, the right …

Brief Of Amici Curiae Scholars For The Advancement Of Children's Constitutional Rights And Students Engaged In Advancing Texas In Support Of Respondents, Mahmoud V. Taylor, U.S. Supreme Court (No. 24-297), Tanya Washington, Jeremiah Chin, Sarah Medina Camiscoli, Travis F. Chance, Amalia Y. Sax-Bolder, Catherine E. Smith

Court Briefs

Amici are members of Students Engaged in Advancing Texas and United States legal scholars of children and the law, education law, family law, and anti-discrimination law.

Students Engaged in Advancing Texas is a nonprofit organization founded by young people to develop civic leadership and belonging and represents students of various faiths and identities who have an interest in the outcome of this case.

Amici draw this Court’s attention to the constitutional harms that public school students and LGBTQ+ students and students with LGBTQ+ parents would bear should the Court grant Petitioners’ injunctive relief.

Executive Watch: The Breadth And Depth Of The Trump Administration's Threat To The First Amendment, Timothy Zick

Popular Media

Given the Trump administration’s continued and varied assaults on the First Amendment, it is vital to monitor those attacks and then realize the gravity of the “sweeping and draconian sanctions ” imposed by unconstitutional executive fiat. Vigilance is especially important, as New York Times investigative reporter Michael S. Schmidt has noted, because “Mr. Trump has employed tactics including lawsuits, executive orders, regulations, dismissals from government jobs, withdrawal of security details and public intimidation to take on a wide range of individuals and institutions he views as having unfairly pursued him or sought to block his agenda.”

Mindful of such matters, …

Media Access And The First Amendment's Romantic Tradition, Merle W. Loper

Maine Law Review

Jerome Barron must be regarded as the legal profession's leading advocate of a legally enforceable public right of access to use the communication media-both printed and electronic. This book, above all, is an advocacy of that right and a survey of the need for public access. Professor Barron further discusses certain problems that an access right might raise-such as the allocation of access time and the regulation of offensiveness in broadcasting-and explores various aspects of these problems. As advocacy, the book is much more persuasive of the need for access to the contemporary media than it is of the prospects …

Gay Students Organization V. Bonner: Expressive Conduct And First Amendment Protection, Maine Law Review

Maine Law Review

After the Gay Students Organization, an officially recognized student group at the University of New Hampshire, held a dance on campus on November 9, 1973, the Governor of New Hampshire complained to the university's Board of Trustees about the impropriety of allowing such a "spectacle." The next day the Trustees banned all further G.S.O. social functions until the matter could be legally resolved. In Gay Students Organization v. Bonner, the G.S.O. brought an action for a declaratory judgment on the constitutionality of the university's ban. The court held the ban to be an unconstitutional restriction of the group's freedom of …

Re-Evaluating Fulton V. City Of Philadelphia: A “Narrow” “Wisp” Of A Decision Or Free Exercise “Bedrock?”, Mark Rienzi

Catholic University Law Review

In Fulton v. City of Philadelphia (2021), a unanimous Supreme Court held that Philadelphia violated the Free Exercise Clause by excluding Catholic Social Services from participating in its foster program because CSS would not certify same-sex couples. Both supporters and critics of the Court’s decision publicly characterized the decision as “narrow” and noted that Philadelphia (and other governments) can easily sidestep Fulton and continue excluding religious providers from foster and adoption programs.

Four years later, the evidence shows that Fulton is anything but narrow. In Philadelphia and in other jurisdictions, Fulton has played a strong role in ending litigation against …