First Amendment Commons^™

Newroom: Yelnosky: Future Of Public Sector Union 'Dues' 01-14-2017, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Newsroom: Logan On Trump And Libel Law 01-03-2017, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

"Free Speech, First Amendment, And New Media For Cons And Festivals" From Pop Culture Business Handbook For Cons And Festivals, Jon Garon

Faculty Scholarship

This article is part of a series of book excerpts from The Pop Culture Business Handbook for Cons and Festivals, which provides the business, strategy, and legal reference guide for fan conventions, film festivals, musical festivals, and cultural events.Although most events are organized by private parties, the location of these events in public venues and the crowd management issues involving free speech make First Amendment and free speech issues a critical component of event management. This excerpt provides a framework for understanding the legal and security issues involving free speech at public events.

Beyond The First Amendment: What The Evolution Of Maryland's Constitutional Free-Speech Guarantee Shows About Its Intended Breadth, Anthony W. Kraus

University of Baltimore Law Forum

Most Maryland lawyers are vaguely aware that Maryland's Declaration of Rights contains its own guarantee of free speech that is worded differently from the First Amendment of the United States Constitution. What the Declaration of Rights actually says about free speech, however, and what can be inferred from its distinctive phrasing and legislative history, are not matters that have received much particularized attention. Decisions of Maryland's courts routinely state that Article 40 of the Declaration of Rights - the principal source of state free-speech rights - is construed in pari materia with the First Amendment, which, as a practical matter, …

The Institutional Case For Partisan Gerrymandering Claims, G. Michael Parsons

Cardozo Law Review de•novo

For voters hoping the Supreme Court’s 2017 Term brings relief from partisan gerrymandering, the end of the 2016 Term was inauspicious. In Cooper v. Harris, the majority assumed the legitimacy of “partisan advantage” arguments while the dissent—including Justice Kennedy—warned about the “serious institutional and federalism implications” of judicial intervention in the redistricting process. If past is prologue, this concern for institutional and structural interests does not bode well.

Science As Speech, Natalie Ram

All Faculty Scholarship

In April 2015, researchers in China reported the successful genetic editing of human embryos using a new technology that promised to make gene editing easier and more effective than ever before. In the United States, the announcement drew immediate calls to regulate or prohibit
outright any use of this technology to alter human embryos, even for purely research purposes. The fervent response to the Chinese announcement was, in one respect, unexceptional. Proposals to regulate or prohibit scientific research following a new breakthrough occur with substantial frequency. Innovations in cloning technology and embryonic stem cell research have prompted similar outcries, and …

Sex, Drugs, And Eagle Feathers: An Empirical Study Of Federal Religious Freedom Cases, Luke W. Goodrich

Utah Law Faculty Scholarship

This Article presents one of the first empirical studies of federal religious freedom cases since the Supreme Court’s landmark decision in Hobby Lobby. Critics of Hobby Lobby predicted that it would open the floodgates to a host of novel claims, transforming “religious freedom” from a shield for protecting religious minorities into a sword for imposing Christian values in the areas of abortion, contraception, and gay rights.

Our study finds that this prediction is unsupported. Instead, we find that religious freedom cases remain scarce. Successful cases are even scarcer. Religious minorities remain significantly overrepresented in religious freedom cases; Christians remain significantly …

Postmodern Free Expression: A Philosophical Rationale For The Digital Age, Stephen M. Feldman

Marquette Law Review

Three philosophical rationales--search-for-truth, self-governance, and self-fulfillment--have animated discussions of free expression for decades. Each rationale emerged and attained prominence in American jurisprudence in specific political and cultural circumstances. Moreover, each rationale shares a foundational commitment to the classical liberal (modernist) self. But the three traditional rationales are incompatible with our digital age. IN particular, the idea of the classical liberal self enjoying maximum liberty in a private sphere does not fit in the postmodern information society. The time for a new rationale has arrived. The same sociocultural conditions that undermine the traditional rationales suggest a self-emergence rationale built on the …

Contemplating Masterpiece Cakeshop, Terri R. Day

Faculty Scholarship

No abstract provided.

John Stuart Mill And Political Correctness, Lackland H. Bloom Jr.

Faculty Journal Articles and Book Chapters

This article will examine Mill’s arguments in favor of unrestrained freedom of speech and his objection to the social censorship of speech. It will then discuss the origins and impact of what is now characterized as political correctness. The article will then define the concept of social censorship and attempt to distinguish pure social censorship from private tangible punishment of speech. Next, the article will examine the ways in which social censorship serves important social goals and promotes free speech as well as the ways in which it undermines free speech. It will especially focus on the damage to intellectual …

#Protestersrightsmatter: The Case Against Increased Criminal Penalties For Protesters Blocking Roadways, Caroline M. Moos

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Can The Undue-Burden Standard Add Clarity And Rigor To Intermediate Scrutiny In First Amendment Jurisprudence? A Proposal Cutting Across Constitutional Domains For Time, Place & Manner Regulations, Clay Calvert, Minch Minchin

UF Law Faculty Publications

When the government regulates the time, place, or manner of speech, it must satisfy intermediate scrutiny and prove that (1) it has a significant interest, (2) the regulation is narrowly tailored, and (3) ample alternative channels of expression remain open. This article advocates simplifying and improving this test in First Amendment jurisprudence by replacing the often-confused second and third prongs with the far less deferential and much more rigorous undue-burden test embraced by the U.S. Supreme Court in 2016 in the abortion-regulation case of Whole Woman’s Health v. Hellerstedt. Incorporating the undue-burden standard maintains intermediate scrutiny’s balancing framework while …

The Government Speech Doctrine In Walker’S Wake: Early Rifts And Reverberations On Free Speech, Viewpoint Discrimination, And Offensive Expression, Clay Calvert

UF Law Faculty Publications

This Article examines the immediate effects on free expression of the U.S. Supreme Court’s 2015 ruling in Walker v. Texas Division, Sons of Confederate Veterans, Inc. involving the government speech doctrine. In Walker, a sharply—and largely partisanly—divided Court upheld, in the face of a First Amendment challenge, Texas’s decision denying a private organization’s application for a specialty license plate featuring Confederate battle flag imagery. This Article initially reviews the government speech doctrine and Walker. It then analyzes Walker’s impact on cases that, like it, involve specialty license plate programs. Next, this Article explores lower court efforts stretching …

Legislating The First Amendment: A Trio Of Recommendations For Lawmakers Targeting Free Expression, Clay Calvert

UF Law Faculty Publications

This Article offers three recommendations for lawmakers attempting to restrict expression that is presumptively protected by the First Amendment. The proposals include: (1) embracing a ''prism of protection" through which all potential laws affecting expression are filtered prior to drafting; (2) mandating inclusion of sunset clauses in all statutes that may detrimentally impact free expression; and (3) adopting a comprehensive legislative oversight and review process for determining if an expired statute should be renewed, revised or abandoned. Although far from creating what Dean Roscoe Pound more than 100 years ago called a "science of legislation, " the proposals here nonetheless …

Beyond Trademarks And Offense: Tam And The Justices’ Evolution On Free Speech, Clay Calvert

UF Law Faculty Publications

In Matal v. Tam , the Supreme Court threw out the “disparagement clause” of the Lanham Act, the federal trademark law, because trademarks are private speech and thus regulating them based on government determinations of offensiveness violates the First Amendment. The solid outcome here contrasts with the narrow, incremental results in some other recent First Amendment cases that reached the Court.

Ending The Pursuit: Releasing Attorney Advertising Regulations At The Intersection Of Technology And The First Amendment, Jan L. Jacobowitz

Articles

No abstract provided.

Recent Development: Mitchell V. Md. Motor Vehicle Admin.: Vanity Licence Plates Constitute Private Speech In A Nonpublic Forum, Which Require Restrictions To Be Reasonable And Viewpoint Neutral, Sarah J. Jentilet

University of Baltimore Law Forum

The Court of Appeals of Maryland held that the Motor Vehicle Administration acted within constitutional boundaries when it recalled a vanity license plate displaying the word "MIERDA." Mitchell v. Md. Motor Vehicle Admin., 450 Md. 282, 288, 148 A.3d 319, 323 (2016). The court found that the message on a vanity plate is considered private speech in a nonpublic forum, and accordingly government speech restrictions must be reasonable and viewpoint neutral. Id.

In 2009, the Motor Vehicle Administration ("MVA") issued vanity plates with the term "MIERDA" to John T. Mitchell ("Mitchell"). Two years later, Mitchell renewed the plates. Thereafter, the …

Justifying Perceptions In First And Second Amendment Doctrine, Eric Ruben

Faculty Journal Articles and Book Chapters

Public perceptions often motivate policymakers. But what is the role of perceptions in defending regulations challenged as violating constitutional rights? This article explores how First and Second Amendment doctrine answer that question.

First Amendment free speech doctrine deploys categorical rules and balancing tests to determine the constitutionality of speech restrictions seeking to shape various perceptions. The resulting discrepancies, the article contends, can be explained by motive-based theories of First Amendment doctrine.

In the Second Amendment context, how to handle perception-based regulations remains an open question. Some courts have held that firearm restrictions can pass muster if they preserve the public’s …

Church, State & The Trump Administration, Public Rights/Private Conscience Project

Center for Gender & Sexuality Law

President Donald Trump has repeatedly pledged to be a staunch defender of religious liberties. Nevertheless, his campaign promises, as well as statements made by him and his cabinet appointees, suggest that Trump holds a limited and deeply flawed understanding of religious freedom, among other constitutional rights and guarantees. While members of the new administration will act quickly and aggressively to advance certain conservative Christian religious tenets by limiting the rights of LGBTQ communities and curtailing access to reproductive health care, the President has promised to significantly restrain the rights of religious minorities by imposing a Muslim immigration ban, increase profiling …

Trump And Cabinet Nominees Seek To Restrict Muslim Rights, Break Down The Wall Between Church And State, Public Rights/Private Conscience Project

Center for Gender & Sexuality Law

A new document issued by the Public Rights/Private Conscience Project (PRPCP) at Columbia Law School outlines the numerous areas in which the Trump administration will seek to advance particular conservative Christian tenets, restrict the rights of religious minorities, and break down the barrier between church and state. Enactment of the administration’s policy priorities would call into question the careful balance that currently exists between the First Amendment and other fundamental rights guaranteed under the Constitution. The report, entitled Church, State & the Trump Administration, highlights the ways in which the new administration’s early executive actions and cabinet nominations, as …

Natural Rights And The First Amendment, Jud Campbell

Law Faculty Publications

The Supreme Court often claims that the First Amendment reflects an original judgment about the proper scope of expressive freedom. After a century of academic debate, however, the meanings of speech and press freedoms at the Founding remain remarkably hazy. Many scholars, often pointing to Founding Era sedition prosecutions, emphasize the limited scope of these rights. Others focus on the libertarian ideas that helped shape opposition to the Sedition Act of 1798. Still more claim that speech and press freedoms lacked any commonly accepted meaning. The relationship between speech and press freedoms is contested, too. Most scholars view these freedoms …

A Right To Know How You'll Die: A First Amendment Challenge To State Secrecy Statutes Regarding Lethal Injection Drugs, Kelly A. Mennemeier

Journal of Criminal Law and Criminology

In the years since 2008, when the Supreme Court upheld the constitutionality of a commonly used lethal injection protocol in Baze v. Rees, states have shifted away from the approved protocol and turned towards new drugs, drug protocols, and drug sources to carry out state-sponsored executions by lethal injection. Even as states have shifted to new, untested protocols and less-regulated sources than they used in pre-Baze years, state legislatures have enacted and amended secrecy statutes that hide information about the drug protocols and sources of lethal injection drugs from the press, the public, and condemned prisoners. Meanwhile, a …

Campus Speech And Harassment, Alexander Tsesis

Faculty Publications & Other Works

No abstract provided.

The Tip Of The Iceberg: A First Amendment Right To Promote Drugs Off-Label, Christopher Robertson

Faculty Scholarship

Scholars, advocates, and courts have begun to recognize a First Amendment right for the makers of drugs and medical devices to promote their products “off-label,” without proving safety and efficacy of new intended uses. Yet, so far, this debate has occurred in a vacuum of peculiar cases, where convoluted commercial speech doctrine underdetermines the outcome. Juxtaposing these cases against other routine prosecutions of those who peddle unapproved drugs reveals the common legal regime at issue. Review of the seven arguments deployed in the off-label domain finds that, if they were valid, they would undermine the FDA’s entire premarket approval regime. …

A License To Infringe: The Tenth Circuit's Reliance On The Reasonable Observer Test To Determine Symbolic Speech Protection Of License Plates, Hayley Stillwell

Faculty Articles

No abstract provided.

With The Best Of Intentions: First Amendment Pitfalls For Government Regulation Of Signage And Noise, Kara Consalo

Journal Publications

A basic tenant of American jurisprudence is the protection of speech under the First, Fifth, and Fourteenth Amendments to the United States Constitution, as well as sections 4 and 9 of Article I of the Florida Constitution. While the extent of free speech is not limitless, this Article demonstrates that government attempts to regulate speech through regulation of signage and noise has been significantly curtailed by both federal and state courts in recent years. Further, a constitutional challenge to a government regulation will often be reviewed de novo as a pure question of law and is therefore subject to a …

Government Speech And The War On Terror, Helen Norton

Publications

The government is unique among speakers because of its coercive power, its substantial resources, its privileged access to national security and intelligence information, and its wide variety of expressive roles as commander-in-chief, policymaker, educator, employer, property owner, and more. Precisely because of this power, variety, and ubiquity, the government's speech can both provide great value and inflict great harm to the public. In wartime, more specifically, the government can affirmatively choose to use its voice to inform, inspire, heal, and unite -- or instead to deceive, divide, bully, and silence.

In this essay, I examine the U.S. government's role as …

Indecency Four Years After Fox Television Stations: From Big Papi To A Porn Star, An Egregious Mess At The Fcc Continues, Clay Calvert, Minch Minchin, Keran Billaud, Kevin Bruckenstein, Tershone Phillips

University of Richmond Law Review

Using the WDBJ case as an analytical springboard, this article examines the tumultuous state of the FCC's indecency enforcement regime more than three years after the Supreme Court's June 2012 opinion in Fox Television Stations. Part I of this article briefly explores the missed First Amendment opportunities in Fox Television Stations, as well as some possible reasons why the Supreme Court chose to avoid the free-speech questions in that case." Part II addresses the FCC's decision in September 2012 to target only egregious instances of broadcast indecency and, in the process, to jettison hundreds of thousands of complaints that had …

Making News: Balancing Newsworthiness And Privacy In The Age Of Algorithms, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

In deciding privacy lawsuits against media defendants, courts have for decades deferred to the media. They have given it wide berth to determine what is newsworthy and so, what is protected under the First Amendment. And in doing so, they have often spoken reverently of the editorial process and journalistic decision-making.

Yet, in just the last several years, news production and consumption has changed dramatically. As we get more of our news from digital and social media sites, the role of information gatekeeper is shifting from journalists to computer engineers, programmers, and app designers. The algorithms that the latter write …

A Progressive Mind: Louis D. Brandeis And The Origins Of Free Speech, Elizabeth Todd Byron

Touro Law Review

No abstract provided.