First Amendment Commons^™

Installations Of Jewish Law In Public Urban Space: An American Eruv Controversy, Charlotte Elisheva Fonrobert

Chicago-Kent Law Review

This article analyzes the ongoing controversy over the installation of an eruv in Westhampton Beach. The author first provides an analytical description of the case with reference to other recent eruv controversies. Similar to arguments advanced in earlier eruv controversies, lawyers in the Westhampton case have taken recourse to the First Amendment, with proponents of the eruv relying on the free exercise clause, and opponents relying on the establishment clause. The article then proceeds to discuss the implications of this controversy for the larger issues of religion in the public sphere, as one of the critical issues emerging in all …

Cracking Open The Classroom Door: Developing A First Amendment Standard For Curricular Speech, Nicholas K. Tygesson

Northwestern University Law Review

Around this country, courts have found that the discharge of public school teachers for their classroom speech does not implicate the First Amendment. Others have protected this speech, but only by importing analytical approaches from other areas of law ill suited to the unique interests at play in America’s public schools. The resulting patchwork of doctrinal approaches provides little clarity for courts and only illusory protection for teachers. This Note will start from scratch, examining the first principles at play in public school classrooms and tailoring a First Amendment approach to respect the needs of government, teachers, and students. When …

Speech And The Truth-Seeking Value, Brian C. Murchison

Scholarly Articles

Courts in First Amendment cases long have invoked the truth-seeking value of speech, but they rarely probe its meaning or significance, and some ignore it altogether. As new cases implicate questions of truth and falsity, thorough assessment of the value is needed. This Article fills the gap by making three claims. First, interest in truth-seeking has resurfaced in journalism, politics, philosophy, and fiction, converging on a concept of provisional or “functional” truth. Second, the appeal of functional truth for the law may be that it clarifies thinking about a range of human priorities—survival, progress, and character—without insisting on truth in …

Effectively Regulating E-Cigarettes And Their Advertising—And The First Amendment, Eric N. Lindblom

O'Neill Institute Papers

If tobacco smoking did not exist in the United States, there would be no reason, from a public health perspective, to allow addictive, nicotine-containing e-cigarettes to be marketed and sold. Because e-cigarette use, by itself, is neither beneficial nor benign to users and nonusers, the only public health justification for allowing e-cigarettes in the existing U.S. market would be if doing so would not sustain or increase existing smoking levels but would help smokers quit completely or provide addicted smokers a less harmful way to obtain the nicotine they crave. Yet e-cigarettes are now pervasive in the U.S. market, being …

Considering Trademark And Speech Rights Through The Lens Of Regulating Tobacco, Christine Farley

Scholarly Articles in Law Reviews & Journals

Many tobacco company trademarks, such as MARLBORO, are extremely valuable. But valuable trademarks are often vulnerable both to copyists and to parodists. Tobacco trademarks face the additional vulnerability of onerous public health regulations, which can limit their appearance and use. When tobacco companies challenge these health regulations they do so on the grounds that the regulations violate their First Amendment speech rights. The law that is applied in these challenges is well developed, clear and predictable. When tobacco companies challenge unauthorized third-party uses of their marks, the speech rights involved are dealt with in a distinctly different manner. Under trademark …

Considering Trademark And Speech Rights Through The Lens Of Regulating Tobacco, Christine Haight Farley, Kavita Devaney

Scholarly Articles in Law Reviews & Journals

Many tobacco company trademarks, such as MARLBORO, are extremely valuable. But valuable trademarks are often vulnerable both to copyists and to parodists. Tobacco trademarks face the additional vulnerability of onerous public health regulations, which can limit their appearance and use. When tobacco companies challenge these health regulations they do so on the grounds that the regulations violate their First Amendment speech rights. The law that is applied in these challenges is well developed, clear and predictable. When tobacco companies challenge unauthorized third-party uses of their marks, the speech rights involved are dealt with in a distinctly different manner. Under trademark …

Religious Freedom: Why States Are Unconstitutionally Burdening Their Own Citizens As They “Lower” The Burden, Jason Goldman

Cardozo Law Review de•novo

Part I of this Note traces the development of the Supreme Court’s First Amendment precedent, including a discussion of Congress’s enactment of Federal RFRA. Part II introduces the states’ legislative efforts with regard to free exercise statutes, culminating with the problematic “burden” RFRA movement. Part III outlines a brief history of both the Establishment Clause and Separation of Powers doctrine, and analyzes how “burden” RFRAs are unconstitutional in light of each, respectively. Part IV discusses the implications of this progressive trend, specifically focusing on the boundless government litigation, civil rights concerns, and the health and safety issues that have resulted. …

Are Physician-Patient Communications Protected By The First Amendment?, Martha Swartz

Cardozo Law Review de•novo

In the past several years, a number of states have enacted laws restricting physicians’ rights to speak freely with their patients. These laws go beyond informed consent laws enacted in most states in the 1960s and 1970s. While the informed consent laws require physicians to provide certain categories of information to patients prior to invasive treatment—such as the nature of the risks and benefits entailed—these new laws either prohibit physicians from discussing certain topics or mandate that they provide specific information to their patients that is only questionably supported by medical evidence. In the past several years, a number of …

Protest, Policing, And The Petition Clause: A Review Of Ronald Krotoszynski's Reclaiming The Petition Clause, Christina E. Wells

Faculty Publications

This essay, a short book review of Ronald Krotoszynski Jr.'s book, Reclaiming the Petition Clause Seditious Libel, "Offensive" Protest, and the Right to Petition the Government for Redress of Grievances, examines the variety of restrictions that actually affect protestors in the modern landscape. Professor Krotoszynski effectively argues that the Supreme Court's current use of content neutral time place and manner restrictions allows government officials to engage in surreptitious content censorship and also revives the defunct crime of seditious libel. His proposal to locate protestors' rights in the petition clause of the First Amendment is both historically grounded and attempts to …

Student Press Law: Past, Present, And Future, David R. Wheeler

Theses and Dissertations--Communication

This dissertation will identify and describe the state of the law regarding student speech and press freedom. The following questions will be explored: What rights do young people have? What standards have state and federal courts established? To what extent and how clearly have state statutes defined student expressive rights? What do state laws say about this topic? What issues have yet to be addressed, either because a case has not raised certain issues or because the issue does not lend itself to compromise or a clear solution? How does the capacity of social media for widespread and rapid dissemination …

The Jekyll And Hyde Of First Amendment Limits On The Regulation Of Judicial Campaign Speech, Charles G. Geyh

Articles by Maurer Faculty

No abstract provided.

Citizens Disunited: Mccutcheon V. Federal Election Commission, Adam Lamparello

Indiana Law Journal

The wealthy are democracy’s darlings, the middle class are its stepchildren, and the poor are its orphans. Corporate giants line the pockets of senatorial candidates—and purchase influence—while average citizens walk into a polling station and cast a largely symbolic vote. Stated simply, money creates a soft inequality by dominating the political process. Like the “soft bigotry of low expectations,”69 the soft inequality embedded in our political system has created a liberty gap between the prosperous and the poor. McCutcheon was an opportunity to bridge this gap. Instead, the Court enshrined the status quo by holding that Congress could only regulate …

Dystopian Constitutionalism, Thomas P. Crocker

Faculty Publications

This article describes and defends the distinctive role and rich tradition of using contrastive dystopian states in constitutional theory and practice. As constitutional tradition going back to the founding, U.S. constitutional analysis was replete with arguments about what practices would lead to an undesirable state of tyranny. In more recent constitutional history, the use of contrasting examples of the “police state,” totalitarianism, or Orwellian references have been prevalent in Supreme Court opinions across doctrinal domains, most recently making a prominent appearance at oral argument in the Fourth Amendment case, United States v. Jones. In contrast to more comprehensive constitutional theories, …

A Word Of Warning From A Woman: Arbitrary, Categorical, And Hidden Religious Exemptions Threaten Lgbt Rights, Leslie C. Griffin

Scholarly Works

Religious exemptions have already undermined women’s rights. Now exemptions threaten gays and lesbians. The Constitution protected women’s equality and liberty until religious exemptions eroded them. Today, as gays and lesbians stand on the threshold of marriage equality, religious exemptions threaten to diminish their hard-earned constitutional right. For this reason, I argue it is past time to reject the religious exemption theory of religious liberty, which privileges religion over civil and constitutional rights, in favor of neutral laws that govern all. Religious exemptions pervade American law in numerous ways that are harmful to civil rights.

In this essay, I identify three …

Speaker Discrimination: The Next Frontier Of Free Speech, Michael Kagan

Scholarly Works

Citizens United v. FEC articulated a new pillar of free speech doctrine that is independent from the well-known controversies about corporate personhood and the role of money in elections. For the first time, the Supreme Court clearly said that discrimination on the basis of the identity of the speaker offends the First Amendment. Previously, the focus of free speech doctrine had been on the content and forum of speech, not on the identity of the speaker. This new doctrine has the potential to reshape free speech law far beyond the corporate speech and campaign finance contexts. This article explores the …

Do Immigrants Have Freedom Of Speech?, Michael Kagan

Scholarly Works

The Department of Justice recently argued that immigrants who have not been legally admitted to the United States have no right to claim protections under the First Amendment. If the DOJ argument is right, then most of the 11 million unauthorized immigrants in the U.S. could be censored or punished for speaking their minds – as many of them have in support of comprehensive immigration reform and the Dream Act. This Essay explores the complicated and conflicted case law governing immigrants’ free speech rights, and argues that, contrary to the DOJ position, all people in the United States are protected …

Outing Privacy, Scott Skinner-Thompson

Publications

The government regularly outs information concerning people's sexuality, gender identity, and HIV status. Notwithstanding the implications of such outings, the Supreme Court has yet to resolve whether the Constitution contains a right to informational privacy - a right to limit the government's ability to collect and disseminate personal information.

This Article probes informational privacy theory and jurisprudence to better understand the judiciary's reluctance to fully embrace a constitutional right to informational privacy. The Article argues that while existing scholarly theories of informational privacy encourage us to broadly imagine the right and its possibilities, often focusing on informational privacy's ability to …

How Do We Know When Speech Is Of Low Value?, Helen Norton

Publications

No abstract provided.

Government Speech And Political Courage, Helen Norton

Publications

This short essay addresses Walker v. Texas Div., Sons of Confederate Veterans, Inc., in which a divided Court upheld Texas's rejection of the Sons of Confederate Veterans' request for a specialty license plate that featured the Confederate flag. Although it agrees with the majority that specialty license plates can -- and often do -- reflect the government's own expression that the government should remain free to control without running afoul of the First Amendment, it argues that the Walker Court missed an important opportunity to refine its government speech doctrine. Not only has the Court yet to settle on a …

Lane V. Franks: The Supreme Court Clarifies Public Employees’ Free Speech Rights, Thomas A. Schweitzer

Touro Law Review

No abstract provided.

Ties That Bind? The Questionable Consent Justification For Hosanna-Tabor, Jessie Hill

Northwestern University Law Review

Arguments in favor of religious sovereignty often emphasize the benefits of autonomy for religious institutions while ignoring the civil rights of individuals who belong to or work for those institutions. To justify intrusions on individual civil rights, proponents of strong religious autonomy generally rely on the concept of implied consent. According to this rationale, individuals willingly give up the protection of civil rights laws when they voluntarily join religious organizations. This Essay responds to one scholar’s account of the consent rationale as undergirding the Supreme Court’s recognition of the ministerial exception: Christopher Lund’s excellent article, Free Exercise Reconceived: The Logic …

Apple Pie Propaganda? The Smith–Mundt Act Before And After The Repeal Of The Domestic Dissemination Ban, Weston R. Sager

Northwestern University Law Review

For over sixty years, the Smith–Mundt Act prohibited the U.S. Department of State and the Broadcasting Board of Governors (BBG) from disseminating government-produced programming within the United States over fears that these agencies would “propagandize” the American people. However, in 2013, Congress abolished the domestic dissemination ban, which has led to a heated debate about the role of the federal government in free public discourse. Although the 2013 repeal of the domestic dissemination ban promotes greater government transparency and may help counter anti-American sentiment at home, it also gives the federal government great power to covertly influence public opinion. To …

A Contract Theory Of Academic Freedom, Philip Lee

Faculty Publications

(Excerpt)

Academic freedom is central to the core role of professors in a free society. Yet, current First Amendment protections exist to protect academic institutions, not the academics themselves. For example, in Urofsky v. Gilmore, six professors employed by various public colleges and universities in Virginia challenged a law restricting state employees from accessing sexually explicit material on computers owned or leased by the state. The professors claimed, in part, that such a restriction was in violation of their First Amendment academic freedom rights to conduct scholarly research. The Fourth Circuit upheld the law and noted that “to the …

Ex Post Modernism: How The First Amendment Framed Nonrepresentational Art, Sonya G. Bonneau

Georgetown Law Faculty Publications and Other Works

Nonrepresentational art repeatedly surfaces in legal discourse as an example of highly valued First Amendment speech. It is also systematically described in constitutionally valueless terms: nonlinguistic, noncognitive, and apolitical. Why does law talk about nonrepresentational art at all, much less treat it as a constitutional precept? What are the implications for conceptualizing artistic expression as free speech?

This article contends that the source of nonrepresentational art’s presumptive First Amendment value is the same source of its utter lack thereof: modernism. Specifically, a symbolic alliance between abstraction and freedom of expression was forged in the mid-twentieth century, informed by social and …

Student Press Exceptionalism, Sonja R. West

Scholarly Works

Constitutional protection for student speakers is an issue that has been hotly contested for almost 50 years. Several commentators have made powerful arguments that theCourt has failed to sufficiently protect the First Amendment rights of all students. But this debate has overlooked an even more troubling reality about the current state ofexpressive protection for student — the especially harmful effect of the Court’s precedents on student journalists. Under the Court’s jurisprudence, schools may regulate with far greater breadth and ease the speech of student journalists than of their non-press classmates. Schools are essentially free to censor the student press even …

Regulating Real-World Surveillance, Margot E. Kaminski

Publications

A number of laws govern information gathering, or surveillance, by private parties in the physical world. But we lack a compelling theory of privacy harm that accounts for the state's interest in enacting these laws. Without a theory of privacy harm, these laws will be enacted piecemeal. Legislators will have a difficult time justifying the laws to constituents; the laws will not be adequately tailored to legislative interest; and courts will find it challenging to weigh privacy harms against other strong values, such as freedom of expression.

This Article identifies the government interest in enacting laws governing surveillance by private …

A Few Thoughts On Free Speech Constitutionalism, Helen Norton

Publications

No abstract provided.

The Government's Lies And The Constitution, Helen Norton

Publications

Governments lie. They do so for many different reasons to a wide range of audiences on a variety of topics. Although courts and commentators have extensively explored whether and when the First Amendment permits the government to regulate lies told by private speakers, relatively little attention has yet been paid to the constitutional implications of the government's intentional falsehoods. This Article helps fill that gap by exploring when, if ever, the Constitution prohibits our government from lying to us.

The government’s lies can be devastating. This is the case, for example, of its lies told to resist legal and political …

An Immovable Object And An Unstoppable Force: Reconciling The First Amendment And Antidiscrimination Laws In The Claybrooks Court, Erin A. Shackelford

Vanderbilt Journal of Entertainment & Technology Law

This Note broadly addresses the problem of racial stereotyping and racial roles in the media. It is viewed through the lens of Claybrooks v. ABC, Inc., a recent federal district court decision of first impression. In Claybrooks, the court dismissed the plaintiffs discrimination claims, ruling that casting decisions were protected under the First Amendment. This Note will address the problem of racial discrimination by focusing on racial misrepresentations in the media and the role of reality television programs in that landscape. Specifically, this Note will propose a new solution for the Claybrooks court. This analysis will assert that cast members …

No Religious Out For Firefighters Staffing Engine In Pride Parade, Arthur S. Leonard

Other Publications

No abstract provided.