First Amendment Commons^™

The Myth Of Second-Class Free Exercise, Frederick Mark Gedicks

Villanova Law Review (1956 - )

No abstract provided.

Developments In The News Media Privilege: The Qualified Constitutional Approach Becoming Common Law, Lawerence J. Mullen

Maine Law Review

In late 1977 and early 1978, the Boston Globe published a series of articles about a Delaware corporation engaged in building fiberglass boats in New Hampshire. The articles reported a number of allegedly serious defects in the boats, some of which may have contributed to sinkings. Critical comments of boat owners, surveyors, Coast Guard officers, company employees and a repairman were included. The builder was given an opportunity to respond in part of one article. Provoked by this quotidien instance of investigative journalism, the boat builder brought a libel action against the Globe in federal district court. The boat builder's …

"Fighting Words" And The First Amendment In Maine: State V. John W., Deborah J. Ross

Maine Law Review

On April 1, 1979, John W. was driving his car, accompanied by his sister Maria. The car was stopped by a police officer who requested John's license and registration. Maria asked the officer why they had been stopped. When the officer remained silent, Maria became abusive and was arrested for disorderly conduct. John demanded to know what was going on. Ordered to get back into his car, John began shouting at the police: "Hey, turn around and come back here;" "Hey, you fucking pig, you fuckin' kangaroo;" "Fuck you." John was arrested and convicted in a juvenile proceeding of disorderly …

The Constitutional Law Of Defamation—Recent Developments And Suggested State Court Responses, Susan Gail Shorey

Maine Law Review

Prior to the 1964 decision in New York Times Co. v. Sullivan, defamation law in the United States was controlled by common law principles developed in the state courts. In New York Times the United States Supreme Court staked out an area of first amendment privilege, which limited the states' power to permit recovery in defamation actions brought by public officials. Later extensions of this constitutional privilege made it appear for a time that constitutional requirements would produce a unified nation-wide body of defamation law to replace the various common law rules followed in the fifty states. In view of …

Open Justice Baltimore V. Baltimore City Law Department: Brief For Scholars Of Civil Procedure And First Amendment Organizations As Amici Curiae In Support Of Petitioners, Maureen Carroll

Appellate Briefs

Amici are scholars whose research and teaching focus on civil procedure, including pleading standards; an organization that provides legal assistance at no charge to individuals who have had their rights violated, including First Amendment rights; and a nonprofit, nonpartisan organization dedicated to defending freedom of speech, freedom of the press, and the people’s right to know. Their expertise is relevant to the impacts of the legal issue in this case on civil procedure and the First Amendment. Amici also have a strong professional interest in the proper disposition of cases involving civil procedure and ensuring the efficient disposition of meritorious …

Censorship As A Cure For The Youth Mental Health Crisis In The United States: Utah's Social Media Ban For Minors, Lora M. Singh

William & Mary Journal of Race, Gender, and Social Justice

On October 1, 2024, Utah’s Social Media Regulation Act was scheduled to go into effect, regulating minors’ access and relationship to social media platforms. The Act will, in part, require minor account holders to obtain parent or guardian consent to maintain a social media account, limit the hours minors can be on social media, and prohibit social media platforms from using “addictive” features with minors’ social media accounts. Utah’s Legislature enacted the Social Media Regulation Act in response to the current mental health crisis among Utah minors, which is part of a larger mental health crisis among youth across the …

The Waiting Is The Hardest Part: The Constitutionality Of Firearm Waiting Periods, F. Lee Francis

Dickinson Law Review (2017-Present)

This Article examines the constitutionality of firearm waiting period laws through the lens of the Supreme Court’s evolving Second Amendment jurisprudence. Although such laws are frequently defended as prudent public safety measures, their validity turns not on legislative purpose but on constitutional principle, particularly as framed in District of Columbia v. Heller and New York State Rifle & Pistol Ass’n v. Bruen.

Under those decisions, the scope of the Second Amendment is determined not by judicial balancing of contemporary interests, but by reference to the Nation’s historical tradition of firearm regulation. The Article surveys that tradition and finds no …

Big Business As Gun Control, David B. Kopel, George A. Mocsary, Bhav Ninder Singh

Dickinson Law Review (2017-Present)

Gun control increasingly bypasses direct legislative enactments by co-opting the commercial marketplace. Financial institutions and insurers often face regulatory pressures, frequently articulated through vague notions of “reputational risk,” to terminate or restrict services for lawful firearms businesses and advocacy groups. The debanking tactic, seen in initiatives such as Operation Choke Point, can deny essential financial products to firearm owners, merchants, and organizations, curtailing the practical exercise of constitutionally protected rights. Simultaneously, government agencies sometimes pursue warrantless data collection from bank records and merchant category codes, building profiles of lawful purchasers and eroding privacy and due-process norms.

Social media platforms compound …

The Pamela Anderson Exception: How The Public Figure Doctrine Makes Involuntary Pornography A Subject Of Public Concern In Congress’S Revenge Porn Statute, Jared Kossover

Vanderbilt Law Review

Congress’s chosen remedy for the proliferation of online revenge porn has a design flaw. The Violence Against Women Reauthorization Act, codified in 15 U.S.C. § 6851, provides a civil right, enforceable in federal court, to victims of nonconsensual pornography. However, exceptions for matters within the “public concern,” written into the statute with the First Amendment in mind, weaken the force of the Act and threaten to make its proscriptions a nullity. This Note calls on Congress to narrow the public concern exception in the Violence Against Women Reauthorization Act to include only matters of political significance. Such an amendment will …

Lessons For The Trump Administration From The Biden U.S. National Strategy To Counter Antisemitism, Lili Levi

Articles

In May 2023, the Biden Administration issued the first-ever U.S. National Strategy to Counter Antisemitism [hereinafter National Strategy] with a goal of hindering further normalization of antisemitism by increasing public awareness of antisemitism and highlighting positive Jewish contributions to America. Recent events, however-particularly the social and political upheaval over protests of the war in Gaza-have led to public contestation over Israel, increased instances of antisemitism, and the partisan politicization of Jewish issues. Now, the Trump Administration explicitly purports to fight antisemitism by widespread attacks on universities over antisemitism on campus. Does this mean that the National Strategy has become anachronistic, …

Interesting Intersections Of Immigration And First Amendment Law, David L. Hudson Jr., Maximiliano Gluzman

Law Faculty Scholarship

This article examines the complex and evolving intersections between immigration law and the First Amendment, identifying four doctrinal areas in which free speech claims arise prominently. First, it analyzes historical and contemporary grounds of inadmissibility and deportability based on speech, including ideological exclusions targeting anarchists and communists, and considers the continuing influence of the plenary power doctrine. Second, it explores retaliatory deportation claims, in which noncitizens allege that removal proceedings were initiated or accelerated in response to protected political advocacy, highlighting the chilling effects such actions may impose on core political speech. Third, the article evaluates constitutional challenges to federal …

The Problem Of Biased Precedents, Ronen Avraham, Issachar Rosen-Zvi

Cardozo Law Review

This Article addresses the problem ofbiased precedents, wherein sophisticated repeat players, often corporate and state entities armed with superior resources and a vested interest in shaping the law, manipulate legal proceedings to systematically establish self-advantageous precedents. Specifically, by strategically choosing to litigate cases they anticipate will lead to favorable precedents and settling those expected to produce unfavorable outcomes, these players systematically bias the law over time to their advantage, at the expense of one-shot parties and society at large. The problem of biased precedents challenges the commonly held view about the efficiency and fairness of the legal system and raises …

Unfinished Liberties, Inevitable Balancing, Sherif Girgis

Journal Articles

From the Article

In constitutional liberties cases, the Supreme Court has tried to reduce balancing, understood loosely to mean determining a right’s contours based on sweeping political-moral considerations, not just text and history. It fears that today’s balancing would displace a balance struck by the Founders. Balancing is indeed problematic—but this campaign to end it is bound to fail. Though avoidable for many constitutional rights, balancing is inevitable for general liberties like religion, the Second Amendment, and speech. This inevitability arises not from gaps in text or history but from these liberties’ special role.

General liberties are irreducibly open-ended—not reducible …

Guaranteeing The Press, Jacob M. Schriner-Briggs

St. John's Law Review

A vibrant press is vital to meaningful self-government. Indeed, the indispensability of investigative journalism to democracy raises the stakes of the news industry’s ongoing collapse. Many of the country’s most prominent outlets are shedding jobs as local operations shutter entirely. The downstream effects of this market contraction frustrate the informed exercise of popular sovereignty.

Because journalism is a public good in the economic sense, the state must intervene to provision it. To this end, scholars have generally endorsed one of two legal bases for government action. The first argues that the First Amendment can constitutionalize press-favoring market interventions. The second …

Occupy, Nicholas Marti

Nebraska Journal on Advancing Justice

No abstract provided.

Rise Re-Entry Program, Rise Artists

Nebraska Journal on Advancing Justice

No abstract provided.

Airport Milk Justice, Elsbeth Magilton

Nebraska Journal on Advancing Justice

This creative and personal Essay explores the complex and often overlooked experience of a new working mother. Through a series of personal stories featuring airports and security personnel, this author navigates the struggles and lack of support from society for breastfeeding on-the-go. Ultimately, the author was able to use these personal experiences and turn them into a positive advocacy mission for herself and for other working mothers across the United States by finding solutions and reaching out to airport regulators. This piece highlights candidly the intersection between motherhood and the professional world by illustrating the difficulties and evolving expectations for …

A Love Letter To The Leaders: Why Recognizing And Discussing Secondary Trauma In Legal Work Will Benefit Your Staff, Your Clients, And Most Importantly, The Work, Isabel Corngold, Elizabeth Cole

Nebraska Journal on Advancing Justice

When you work in a client-facing, client-centered section of the law like criminal law, and specifically wrongful convictions, you encounter trauma. Many organizations, including innocence organizations, do not do a sufficient job to recognize and address the impact of that trauma on their staff. This piece seeks to explain the potential impact of this trauma by, one, defining the terms burnout; secondary and vicarious trauma; empathetic distress; countertransference; and compassion fatigue, and, two, listing out signs and symptoms that can be caused by experiencing any of these emotions. Drawing from the authors’ experiences in innocence organizations, this piece addresses leaders …

Extraterritorial Civil Liability After Mallory: A Potential New Weapon For Anti-Abortion States In The Interstate Abortion War, Velma Lockman

Nebraska Journal on Advancing Justice

Dobbs v. Jackson Women’s Health Organization marked the culmination of a decades-long movement to overturn the constitutional right to abortion established in Roe v. Wade. The decision commenced an interstate abortion war, in which anti-abortion states are now seeking to enforce their anti-abortion statutes in pro-abortion states. One such statute is Senate Bill 8 (“S.B.8”), a Texas anti-abortion statute that utilizes civil liability to prosecute anyone for “aiding or abetting” abortion.

The year after Dobbs, the Supreme Court issued their opinion in Mallory v. Norfolk Southern Railway Company, which upheld a Pennsylvania consent-by-registration statute and allows Pennsylvania courts to exercise …

Ecarrots: Prison Control And Profits From Correctional Tablets, Justin Iverson

Nebraska Journal on Advancing Justice

In recent years, tablets have gained tremendous popularity behind bars for their ability to expand access to educational and rehabilitative services for people in prison. However, there are downsides to tablet implementation, including high costs at the expense of a captive population and shifting power dynamics resulting in possible volatility. This Article examines the use of correctional tablets in jails and prisons as mechanisms for administrative control and profit-making in an era of beleaguered correctional budgets. It also considers legal and policy implications related to the disproportionately negative impact of the introduction of tablets on people in poverty, increased dependency …

Forewords To The Inaugural Issue, Njaj Editorial Board, Richard Moberly, Stefanie S. Pearlman, Kala Mueller, Danielle Jefferis, Brooklyn Terrill

Nebraska Journal on Advancing Justice

No abstract provided.

2024-25 Masthead, Njaj Editorial Board

Nebraska Journal on Advancing Justice

No abstract provided.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Re-Imagining Tomorrow: A Technology, Innovation Law, And Ethics Symposium On Addictive Technology And Children, Margaret Chon

Seattle University Law Review

In this Foreword, Professor Margaret Chon introduces Seattle University's Technology, Innovation Law, and Ethics (TILE) program, the 2024 TILE Symposium, and Dr. Gaia Bernstein’s Unwired: Gaining Control Over Addictive Technologies.

Keynote Address: The Movement To Protect Kids From Addictive Technologies, Gaia Bernstein

Seattle University Law Review

In this keynote address, I describe my personal journey starting with a school outreach program I created in 2017 to address technology overuse among kids. While I initially advocated for self-help methods, I grew to recognize that the tech industry bore responsibility. This realization led me to write Unwired: Gaining Control over Addictive Technologies, which focused on collective action to pressure the tech industry to redesign its addictive products.

I then describe the movement to control addictive technologies and protect kids, which has gained momentum since the end of the pandemic. This movement combines grassroots parent activism with legal-political action. …

Moral Panic Or Public Health Crisis? Lessons From Drugs And Gambling For “Addictive” Design, Matthew B. Lawrence, Haomin (Kevin) Yan

Seattle University Law Review

Alcohol, automobiles, guns, lottery, loot boxes, meat, music, opioid painkillers, processed foods, prop bets, slot machines, television, tobacco, violent video games. Over the last century each of these has been subject to concerns—some might even say “moral panics”—from parents and policymakers about avoidable harms to kids and adults. In some cases we look back with the benefit of hindsight and dismiss those concerns as naïve or moralistic. In others we look back at them as justified or as having come too late to check an expanding industry before it did unfathomable harm while growing so powerful that it became all …

Responding To Digital Addiction, Ned Snow

Seattle University Law Review

In Unwired: Gaining Control over Addictive Technologies, Professor Gaia Bernstein calls our attention to the growing problem of digital addiction. Digital addiction may sound like something out of a science-fiction novel or something that does not raise the same sort of real-life practical concerns as are present in a physical health crisis or an economic decline. But as Bernstein presents the evidence, we learn that the consequences of digital addiction can be just as harmful as a serious disease or a financial depression. Cognitive development disorders, anxiety, emotional depression, social isolation, and other mental health ills can be debilitating—as much …

The Ai Doppelgänger Dilemma: Cloned Voices In The Music Industry, Elizabeth Shields

Seattle University Law Review

With the rise of generative artificial intelligence (AI), there has been an influx of “voice clones”—deep-learning algorithms that create synthetic speech to realistically mimic human voices. Celebrities and, in particular, music artists, have been subjected to the proliferation of AI voice clones on social media platforms like TikTok and streaming platforms such as Spotify. Despite music utilizing AI voice clones having amassed much popularity, this technology can be harmful and highly invasive to musicians whose livelihoods often depend on their distinct voices. While legal scholars have attempted to articulate various rights that could protect a person’s voice, individuals are largely …

Let The Sunshine In: Crafting Constitutional Transparency Regulations For Content Moderation, Caitlin Ring Carlson

Seattle University Law Review

In response to public concern about the impact of social media, legislators in some U.S. states have developed laws to regulate the process of content moderation. Many include mandatory transparency and disclosure requirements, some of which courts have already deemed an unconstitutional infringement on social media platforms’ right to free expression. This article explores the parameters for crafting constitutional social media transparency regulations using existing U.S. media policy and insights from recent legal challenges. The resulting analysis identifies content neutral transparency requirements that mandate the disclosure of purely factual, non-controversial information as those most likely to withstand judicial scrutiny. Specifically, …

This Is Not A Game: The Addictive Allure Of Digital Companions, Nizan Geslevich Packin, Karni Chagal-Feferkorn

Seattle University Law Review

Artificial Intelligence (AI) agents have become an inescapable part of modern childhood, reshaping education, leisure activities, entertainment, and social interaction. From AI-powered tutors that adapt to individual learning styles to emotionally responsive chatbots that simulate human companionship, these systems promise unprecedented personalization, cognitive stimulation, and social support. However, these benefits mask significant risks that remain unregulated and inadequately addressed.

Although adults are also susceptible to forming deep emotional bonds with AI companions—often trusting them as if they possessed genuine understanding and empathy—children are particularly vulnerable. Their misplaced trust can more severely distort social development, weaken critical thinking, and foster unhealthy …