First Amendment Commons^™

You Must Be This Tall To Scroll: California's Questionable Approach To Parenting By Policy, Caroline M. Cuddy

Pace Law Review

This note examines California's Protecting Our Kids from Social Media Addiction Act (SB 976), signed into law in September 2024, which prohibits personalized algorithmic feeds on minors' accounts without pa- rental consent and restricts platform notifications during school hours and nighttime. Drawing on the Supreme Court's decision in Brown v. Entertainment Merchants Association and related federal litigation, this note argues that SB 976 is unconstitutional under the First Amendment. Specifically, SB 976 is underinclusive because it fails to meaning- fully reduce minors' screen time, exempts comparable addictive plat- forms, and permits the very algorithmic feeds it deems harmful upon parental …

Real Promise For False Claims: A Whistleblower Litigation Strategy To Reward Investigative Journalism, Frank D. Lomonte

Washington Law Review

Every year, investigative reporters uncover stories of waste, fraud, and corruption, alerting the government to taxpayer ripoffs that had previously gone undiscovered or ignored. For decades, non-journalists have been reaping windfall rewards—sometimes in the millions—by using false-claims statutes to bring whistleblower actions on the government’s behalf. With news organizations struggling for their economic survival, and efforts to secure alternative financial support through government bailouts faltering, is it time for journalists to seek a share of the money they recoup for taxpayers by becoming plaintiffs?

This Article explores the possibilities, and downside risks, of using the federal False Claims Act, and …

Anti-Allyship And The Indirect Subordination Of Queer People, Richard Luedeman

Washington Law Review

This Article theorizes and interrogates anti-allyship as a central mechanism of modern subordination of queer people. While not new, anti-allyship is expanding rapidly under the second Trump administration. Defined as the deliberate imposition of legal, financial, and reputational costs on those who support queer individuals or institutions, anti-allyship is a strategy of indirect oppression. It targets not queer people directly, but the infrastructure of support on which queer communities rely: clinicians, educators, family members, researchers, and organizations. In doing so, it often evades the formal protections of civil rights law, which remain tethered to anticlassification models and status-based protections that …

"Speech Swept Up"—The Constitutionality Of State Prohibitions Of Conversion Therapy For Lgbtq+ Youth, Lauren A. Chivers

Washington Law Review

Since 2012, individual states have passed laws prohibiting state-licensed mental health professionals from engaging in conversion therapy with minor clients. Despite the breadth of research undermining its efficacy and documenting harms, the practice of conversion therapy persists. State regulation of conversion therapy—and thereby licensed professionals’ conduct with their clients—has emerged as a contentious issue for the judiciary. Most significantly, the U.S. Supreme Court weighed in on the matter for the first time in 2026. In Chiles v. Salazar, the Court addressed a challenge to Colorado’s conversion therapy ban, confronting fundamental questions about this unsettled area of First Amendment law. …

Academic Freedom's Inflection Point, Jerry C. Edwards

Law Faculty Scholarship

Academic freedom faces an existential crisis. The Trump administration, building on a movement that began in the states, is seeking ideological conquest of higher education. Some universities have already surrendered. Others fight on, facing an endless barrage of assaults on their institutional autonomy. Faculty too have chosen to resist, relying on their free expression rights. One of the most potent weapons in higher education’s arsenal is the constitutional academic freedom doctrine, a First Amendment protection that safeguards faculty’s academic expression and universities’ academic judgments. But the Supreme Court’s embrace of history and tradition as a focal point of its individual …

A Qualitative Study Of Journalism Course Syllabi In Relation To The First Amendment, Elizabeth L. Bunnell

Journalism Undergraduate Honors Theses

The goal of this research is to gain more insight into collegiate journalism course syllabi and the First Amendment. The First Amendment is a foundational aspect for a career in journalism, and one way to learn how college journalism students are interacting with the First Amendment is to conduct a qualitative analysis of the syllabi. A syllabus is the contract between professor and student for the course; therefore, it should contain the most important information relating to the course. 47 syllabi were collected from the School of Journalism and Strategic Media from the Spring 2025 semester. After reading through each …

Place, Democracy, Law, And The Necessity Of Local News, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

In 2025, the painter Amy Sherald pulled her show American Sublime from the Smithsonian after the museum considered removing a painting of a transgender Statue of Liberty to avoid angering President Trump. The Baltimore Museum of Art stepped in, and it was important that it did. American Sublime needs to be seen in person. It comprises dozens of portraits of Black Americans—a farmer, a bicyclist, a balloon-holder, a child on a playground slide. The portraits are dignified, beautiful, warm, and alluring. They are, in a word, human.

In the gallery, the paintings were hung low on the walls to increase …

The Final Edit: Strategies For Legislative Success Of The Press Act And Strengthening The Protections Of Freedom Of The Press, Tess Theisen

Barry Law Review

No abstract provided.

Dignity And The Free Press, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

As American institutions wither and die, those who believe in their importance must reflect and rebuild. One institution worthy of sustained attention is the free press. Divorced from government by design, the press can benefit from efforts to reinvigorate and reinvent it in ways that institutions more directly under the federal government’s thumb cannot. To best undertake these efforts, we need a richer understanding of why a free press is vital. Articulating the values that underlie the need for this institution is necessary not only to build the most robust free press, but also to best exercise our freedoms as …

A Constitutional Black Box: Critically Assessing The Constitutional And Algorithmic Implications Of The Netchoice Cases, Sam Merkatz

Bates College Undergraduate Law Review

In 2024, the Supreme Court of the United States jointly heard Moody v. NetChoice, LLC and NetChoice, LLC v. Paxton, cases challenging Florida and Texas statutes that restricted the capacity of social media platforms to moderate content. While remanding the cases, the Court reaffirmed that content moderation and curation qualify as protected expression under the First Amendment. This paper critically assesses the Court's majority opinion and its nonbinding dicta regarding the expressive nature of algorithmic moderation.

Specifically, drawing on Justice Alito’s concurrence in judgement only, this paper argues that the Court fails to account for fundamental differences between traditional …

Las Vegas Review-Journal, Inc V. Eighth Judicial Dist. Ct., 142 Nev. Adv. Op. 31 (April 23, 2026), Randolph Anderson

Nevada Supreme Court Summaries

Prior restraints or gag orders may be imposed only if they are narrowly tailored and the least restrictive means available to prevent a clear and present danger.

Trademark’S Parody Problem, Christine Haight Farley

Research Reports & White Papers

This Article challenges the Supreme Court's recent assurance that trademark parody is adequately protected under ordinary infringement doctrine without the need for special speech safeguards. In Jack Daniel's Properties, Inc. v. VIP Products LLC, the Court curtailed the principal First Amendment defense for expressive trademark uses while predicting that parodies would nonetheless prevail under the likelihood of confusion test. This Article shows why that prediction is mistaken. Drawing on recent case law and trademark doctrine, it identifies four structural vulnerabilities that now confront parody: the expansion of "trademark use" as a gatekeeping device that excludes parodists from speech-protective …

In Defense Of The Ten Commandments In Public Spaces: An Analysis Based On The Supreme Court’S New Judicial Standard, Songfeng Li

Arkansas Law Review

On June 19, 2024, Louisiana Governor Jeff Landry signed legislation mandating the display of the Ten Commandments in all public K-12 schools and colleges in the state. On June 21, 2024, Texas Lieutenant Governor Dan Patrick announced his intention to introduce a similar bill in the next legislative session that would require the display of the Ten Commandments in schools. Immediately after the Louisiana law’s enactment, a group of local parents with the help of multiple organizations filed a federal lawsuit seeking to block its implementation. As of today, the district court and appellate court have issued differing rulings. The …

“You Can’T Post That!”: Constitutionality Of Non-Disparagement Orders Barring Divorced Parents’ Social Media Posts, Kaitlyn B. Hammond

Vanderbilt Law Review

When a marriage goes wrong, a court may use a non-disparagement order to prevent a party from speaking negatively about another in some way, either permanently or temporarily. Family courts often use non-disparagement orders to protect parties or their children from psychological harm during divorce or child-custody proceedings. In such cases, non-disparagement orders forbid parents from denigrating one another in front of their children and/or third parties. To protect the child, non-disparagement orders are often imposed upon both parents by the court. But courts do not always protect children and other parties from disparagement in this way. Although non-disparagement orders …

Lawyers’, Law Professors’ And Law Students’ Free Speech: The Rule Of Law, Civility, And Informed Engagement, Eli Wald

Journal of Civil Rights and Economic Development

(Excerpt)

The Article is organized as follows. Part I summarizes the traditional doctrine governing lawyers’ free speech, as well as the related doctrines of free speech, academic freedom, and tenure on college campuses. Part II explores twenty-first century developments that have thrown these old established doctrines into a state of flux.

Part III consists of three sections. The first suggests a new understanding of lawyers’ free speech, arguing that unprecedented twenty-first-century attacks on the rule of law justify recognizing a third, narrowly tailored restriction on lawyers’ free speech. In addition to the traditional restrictions grounded in protecting clients from lawyers’ …

Some Thoughts About Free Speech And Hostile Environment Discrimination On College Campuses, Mark Tushnet

Journal of Civil Rights and Economic Development

(Excerpt)

Section I examines which kinds of utterances may be considered in determining whether a hostile environment exists, and how those utterances may be taken into account. After distinguishing between targeted utterances directed at an identifiable individual and general statements that disparage a racial or nation-origin group, this Section focuses on targeted utterances.

Section II then turns to general statements, typically of a more clearly political sort. After describing the quite limited nature under which individuals can be held liable for general statements, the Section argues that such statements can be part of the “dossier” relevant to hostile environment discrimination, …

The First Amendment, Student Protest On Campus And The Law, Gene Policinski

Journal of Civil Rights and Economic Development

(Excerpt)

After a brief background on the history of student protest and free expression, this Article examines campus speech policies developed in response to student protests in the 1960s, and present examples of how these codes and regulations recently have been reviewed and revised in light of campus protests and disruptions, with many involving the Israeli-Palestinian conflict.

Next, this Article also examines the ongoing impact of federal legislation—specifically Titles VI and IX of the Civil Rights Act of 1964—on campus speech. In addition, this section addresses public attitudes regarding campus protests and related on campus issues, as well as an …

Free Speech, The University, And The Wrong Turn In The Road, Donald Downs

Journal of Civil Rights and Economic Development

(Excerpt)

I introduce this Article by examining the present state of campus free speech policy and politics. I pose questions raised by the demonstrations that erupted in the wake of the war between Israeli and Iranian proxies on October 7, 2023. I then present a skeletal model of the liberal university, followed by a discussion of how illiberal forms of free speech logic have influenced and shaped thinking in higher education and elsewhere since the 1960s. I conclude with a critique of higher education’s turn turning away from a liberal model of discourse.

The Ministerial Exception And Defamation: Navigating Churches’ Autonomy And Their Communications, Zachary Runge

Pepperdine Law Review

In two recent cases, the Supreme Court has adopted what scholars and lower courts have called the “ministerial exception.” The Court only addressed the ministerial exception’s application to employment discrimination claims. But the Court did not foreclose the possibility of its application to other claims. This Comment argues that the ministerial exception applies to defamation claims arising out of a minister’s termination. After providing the background for the ministerial exception, this Comment explains the current state of the law. Then, this Comment argues that the ministerial exception, as a form of the church autonomy doctrine, applies to the defamation claims …

True Threats And Protected Speech In Counterman V. Colorado, David Crump

University of Cincinnati Law Review

No abstract provided.

Brief Of First Amendment Scholars As Amici Curiae Supporting Petitioner, Joseph M. Terry, Stephen J. Fuzesi, James N. Sasso, Langston E. Ward, Richard W. Garnett

Court Briefs

No. 25-927
Richard Lowery v. Lillian Mills

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

From the Summary of Argument

The suppression of constitutionally protected speech violates the First Amendment. A speaker need not be punished to be able to state a cause of action if the government has suppressed or threatens to suppress his or her speech through other means. This Court, across decades, and in a range of contexts, repeatedly has reaffirmed that principle. It has done so in cases affirming that a party may challenge a criminal statute …

The Authoritarian Semiotics Of The New Campus Mask Bans, Rob Kahn

St. John's Law Review

(Excerpt)

In 2024, students took part in protests for and against Israel’s military actions in Gaza. Some protests were disruptive and violent— most were not. In response, calls arose across the country to ban masks. In New York, a broad organization of civil rights groups called for a statewide mask ban under the hashtag #UnmaskHateNY, while New York Governor Kathy Hochul—with the support of New York City Mayor Eric Adams—called for a mask ban on the New York City subways. There were also calls in North Carolina and Los Angeles for new, or enhanced, mask bans. Meanwhile, Ohio’s Attorney General …

What’S History Without Tradition?, Richard C. Osborne Iii

Catholic University Law Review

For many decades, the Establishment Clause had been a thorn in the Supreme Court’s side. Indeed, no other constitutional provision in recent memory has provided the Court with more trouble than the Establishment Clause. In its efforts to decide whether government conduct violated the Establishment Clause, the Court had applied no less than six tests. And as if that were not bad enough, many of these tests co-existed with one another, leaving government actors left to guess at their own peril which one controlled their fate.

But that officially changed when the Supreme Court decided Kennedy v. Bremerton School District …

Standing In The Shadows: Member Anonymity In Associational Standing Cases, Mitchell Brost

Pepperdine Law Review

Associational standing serves several benefits for plaintiff members: associations often have expertise in a certain field that guides the representation of their members, they have greater resources that allow them to bring lawsuits in the first place, and they can serve as the public face of the lawsuit to shield the plaintiff member from serious retaliation that may result from bringing the claim. But due to some imprecise language in Justice Scalia’s majority opinion in Summers v. Earth Island Institute, circuit courts are divided over whether associational members can remain anonymous at all. Thus, individuals who have legitimate legal claims, …

Social Media’S Death Toll: Who Should Be Held Liable?, Sara Fradi

Seattle Journal of Technology, Environmental, & Innovation Law

No abstract provided.

Brief Of Notre Dame Education Law Project, Notre Dame Program On Church, State & Society, And Lindsay And Matt Moroun Religious Liberty Clinic Amici Curiae In Support Of Petitioners, Richard W. Garnett, Nicole Stelle Garnett, John A. Meiser

Court Briefs

No. 25-802
Foothills Christian Ministries v. Kim Johnson

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

From the Summary of Argument

The First Amendment guarantees religious institutions the power to conduct their internal affairs. Our Lady of Guadalupe School v. Morrissey- Berru, 591 U.S. 732, 746 (2020). See also Cath. Charities Bureau, Inc. v. Wisconsin Lab. & Indus. Review Comm'n, 605 U.S. 238, 249 (2025); id. at 255 (Thomas, J., concurring). This principle of self-governance, known as the church autonomy doctrine, is an essential feature of the Constitution’s …

The Comstock Act: Will The First Amendment Finally Bury This Zombie Law’S Speech Restrictions?, Morgan Garces

University of Miami Law Review

The Comstock Act of 1873 is a federal anti-obscenity law that, along with lascivious and filthy literature, explicitly restricts the sending of anything that can be used to procure an abortion—including writing. However, since the decision of Roe v. Wade, the law’s abortion-speech provisions had been considered long-dead—although never officially being overturned. Now that Dobbs v. Jackson Women’s Health Organization has rescinded the right to an abortion, the law appears to be reaching out from its grave. Anti-abortion activists are currently looking to the Comstock Act as a federal abortion ban already on the books because of its ban …

Mitigating Data Privacy Risks In Political Micro-Targeting Through Gdpr-Compliant Federated Learning: Lessons From The Cambridge Analytica Controversy, Jingfan (Serena) Xiao

Marquette Intellectual Property & Innovation Law Review

Political micro-targeting employs granular data analytics to deliver hyper- personalized political messaging, raising fundamental tensions between electoral strategy, data privacy, and democratic accountability. The Facebook- Cambridge Analytica scandal exposed significant gaps in pre-GDPR data protection laws, highlighting the risks of unchecked algorithmic profiling in shaping voter behavior. However, as micro-targeting evolves under more sophisticated AI-driven systems, a pressing question emerges: should AI- generated political messaging qualify for First Amendment protection? This Article introduces the concept of speech certainty, arguing that speech must be intentional and cognitively understood by the speaker at the moment of articulation to warrant constitutional protection. Under …

When The “Public Interest” Violates The First Amendment: Jimmy Kimmel And Fcc Chair Brendan Carr, Joel Timmer

Fordham Intellectual Property, Media and Entertainment Law Journal

Following the assassination of conservative political activist Charlie Kirk, comments made by late-night ABC host Jimmy Kimmel sparked controversy after some interpreted his remarks as implying conservative responsibility for the crime. The backlash intensified when Federal Communications Commission Chair Brendan Carr publicly suggested that Kimmel’s statements were misleading and potentially inconsistent with FCC policy, warning that broadcast stations airing the program should address the matter or risk regulatory consequences, including fines or license revocation. Shortly thereafter, major broadcast groups suspended the program, followed by ABC’s temporary suspension of the show. These events raised serious concerns about whether the FCC Chair’s …

Let Them Hear It: Peaceful Protests Near The Homes Of Supreme Court Justices, Srikanth Reddy

Lewis & Clark Law Review

All of us—not just attorneys and politicians—need to be more critical and skeptical of the Supreme Court. Criticism by ordinary people is good and appropriate, even if it hurts the Justices’ feelings. That includes public protests. When a case matters enough to them, members of the public can and should criticize the Court and its Justices, including by peacefully gathering and protesting near a Justice’s home, or when a Justice appears out in the world.