First Amendment Commons^™

Addressing Cyber Harassment: An Overview Of Hate Crimes In Cyberspace, Danielle K. Citron

Faculty Scholarship

This short piece will take a step back and give an overhead view of the problem of cyber harassment and the destructive impact it can have on victims’ lives. Then, it will address about what the law can do to combat online harassment and how a legal agenda can be reconciled with the First Amendment. Finally, it will turn to recent changes in social media companies’ treatment of online abuse and what that might mean for our system of free expression.

The Case For Evidence-Based Free Exercise Accommodation: Why The Religious Freedom Restoration Act Is Bad Public Policy, Marci A. Hamilton

Articles

No abstract provided.

Irb Licensing, Philip A. Hamburger

Faculty Scholarship

This chapter examines conflicting norms in the government's licensing of speech and the press on “human-subjects research” through institutional review boards (IRBs). It begins by discussing licensing and why the prohibition of it is so fundamental and prroceeds by providing an overview of the structure of institutional review board licensing. It then highlights the unconstitutionality of IRB laws, arguing that the use of IRBs violates the principles of academic freedom. It asserts that licensing of speech or the press was a method of controlling the press employed by the Inquisition and the Star Chamber, and the First Amendment unequivocally barred …

Supreme Court Amicus Brief Of 19 Corporate Law Professors, Friedrichs V. California Teachers Association, No. 14-915, John C. Coates, Iv, Lucian A. Bebchuk, Bernard S. Black, John C. Coffee Jr., James D. Cox, Ronald J. Gilson, Jeffrey N. Gordon, Lawrence A. Hamermesh, Henry Hansmann, Robert J. Jackson Jr., Marcel Kahan, Vikramaditya S. Khanna, Michael Klausner, Reinier Kraakman, Donald C. Langevoort, Edward B. Rock, Mark J. Roe, Helen S. Scott

Faculty Scholarship

The Supreme Court has looked to the rights of corporate shareholders in determining the rights of union members and non-members to control political spending, and vice versa. The Court sometimes assumes that if shareholders disapprove of corporate political expression, they can easily sell their shares or exercise control over corporate spending. This assumption is mistaken. Because of how capital is saved and invested, most individual shareholders cannot obtain full information about corporate political activities, even after the fact, nor can they prevent their savings from being used to speak in ways with which they disagree. Individual shareholders have no “opt …

A Confident Pluralism, John D. Inazu

Scholarship@WashULaw

The ongoing tension between religious liberty and gay rights is a striking example of our country’s profound and deep differences. But we are also divided over many other issues: immigration, criminal justice, abortion, contraception, poverty, and education, to name a few. Each of these differences pulls at the threads of a purported unity in pursuit of a “common good.” In light of our contemporary situation, this Article argues that we can and must live with deep and irresolvable differences in our beliefs, values, identities, and groups through a “confident pluralism.” A confident pluralism embraces a “right to differ” from state …

Institutions In Context, John D. Inazu

Scholarship@WashULaw

This review of Paul Horwitz’s First Amendment Institutions applauds Horwitz’s call for us to take institutions and their contexts seriously. Horwitz shows why “acontextual” First Amendment thinking and doctrine lead to rigid formalism and missed opportunities. He enhances his argument with four nuanced chapters on specific institutions: universities, presses, churches, and libraries. These chapters bring to life our diverse institutions and their differences. It is less clear whether the descriptive differences that Horwitz highlights warrant the doctrinal differences that he advocates. In other words, even if Horwitz is right to call our attention to institutions, do his observations translate to …

Re-Assembling Labor, John D. Inazu, Marion G. Crain

Scholarship@WashULaw

Organized labor’s judicial, political, and public image is often associated with violence and anarchy. These descriptions are not spun out of whole cloth: violent uprisings that challenged the political and economic order were common in the early days of American labor unionism. But the assumptions underlying past judicial rhetoric and labor law doctrine have outlived their original context. Historical antecedents applied to modern protests like Fast Food Forward, OUR Walmart and the Occupy Movement yield troubling and inconsistent results.

Although these tensions have not gone unnoticed, scholarly commentary to date has overlooked the important connection between the collective, group-based nature …

There Are No Racists Here: The Rise Of Racial Extremism, When No One Is Racist, Jeannine Bell

Articles by Maurer Faculty

At first glance hate murders appear wholly anachronistic in post-racial America. This Article suggests otherwise. The Article begins by analyzing the periodic expansions of the Supreme Court’s interpretation of the protection for racist expression in First Amendment doctrine. The Article then contextualizes the case law by providing evidence of how the First Amendment works on the ground in two separate areas — the enforcement of hate crime law and on university campuses that enact speech codes. In these areas, those using racist expression receive full protection for their beliefs. Part III describes social spaces — social media and employment where …

Digital Medicine, The Fda, And The First Amendment, Adam Candeub

Georgia Law Review

Digital medicine might transform healthcare more fundamentally than the introduction of anesthesia or germ basis theory of disease. Already, tens of thousands of "medical apps" are available for smartphones. These computer applications can measure blood pressure, pulse, lung function, oxygenation level, sugar level, breathing rate and body temperature-and can even diagnose skin cancer, analyze urine, and take an echocardiogram. In fall 2013, the Federal Drug Administration (FDA) asserted regulatory authority over mobile medical applications and other digital medical services, threatening to chill, if not, destroy this innovation. This Article argues that the FDA stands on firm legal ground regulating medical …

Land Use Law Update: Reed V. Town Of Gilbert Redux, Sarah Adams-Schoen

Scholarly Works

The Winter 2015 Land Use Law Update asked whether the Supreme Court’s decision in Reed v. Town of Gilbert would require municipalities throughout the country to rewrite their sign codes. The short answer is “yes.”

At a minimum, following the Supreme Court’s decision that the Town of Gilbert’s temporary directional sign regulations violated petitioners Good News Community Church’s and Pastor Clyde Reed’s First Amendment rights, municipalities will want to act quickly to amend their sign codes if they regulate different categories of signs differently. A code that places fewer restrictions on political or ideological signs than on directional signs likely …

Defending American Religious Neutrality, Mark Goldfeder

Scholarly Works

Scholars who write about the US Supreme Court's religious liberty jurisprudence typically lambaste the Court for its supposedly secularist or allegedly religious sympathies, or for inconsistencies in its rulings and norms. Andrew Koppelman takes a different approach in this aging but still timely book about the tradition and enduring relevance of religious "neutrality" in American constitutional law.

Court Of Appeals Of New York, Watson V. State Commission On Judicial Conduct, Denise Shanley

Touro Law Review

No abstract provided.

First Amendment Decisions - 2002 Term, Joel Gora

Touro Law Review

No abstract provided.

Supreme Court, Appellate Term, First Department, People V. Bull, Randi Schwartz

Touro Law Review

No abstract provided.

The Aba Model Code Revisions And Judicial Campaign Speech: Constitutional And Practical Implications, Howland W. Abramson, Gary Lee

Touro Law Review

No abstract provided.

2003-2004 Supreme Court Term: Another Losing Season For The First Amendment, Joel M. Gora

Touro Law Review

No abstract provided.

First Amendment Cases In The October 2004 Term, Joel M. Gora

Touro Law Review

No abstract provided.

Sharing Stupid $H*T With Friends And Followers: The First Amendment Rights Of College Athletes To Use Social Media, Meg Penrose

Faculty Scholarship

This paper takes a closer look at the First Amendment rights of college athletes to access social media while simultaneously participating in intercollegiate athletics. The question posed is quite simple: can a coach or athletic department at a public university legally restrict a student-athlete's use of social media? If so, does the First Amendment provide any restraints on the type or length of restrictions that can be imposed? Thus far, neither question has been presented to a court for resolution. However, the answers are vital, as college coaches and athletic directors seek to regulate their athletes in a constitutional manner.

The Cost To Carry: New York State’S Regulation On Firearm Registration, David D. Pelaez

Touro Law Review

No abstract provided.

Defining The Line Between Constitutionally Protected Speech And True Threats: Can I Be Arrested For Being Annoying?, Allison E. Dolzani

Touro Law Review

No abstract provided.

Neutral Discrimination – Selective Enforcement Of Religiously Neutral Laws And The First Amendment, Jeffrey Gautsche

Touro Law Review

No abstract provided.

Two Tests Unite To Resolve The Tension Between The First Amendment And The Right Of Publicity, Dora Georgescu

Fordham Law Review

    The right of publicity is an established legal doctrine that grants individuals the exclusive right to control the commercial use of their image. Though it has many important and laudable uses, one unfortunate consequence of the right of publicity is that it restricts artists’ abilities to portray real persons in their works. In so doing, the right of publicity directly conflicts with the First Amendment protections of an individual’s freedom of expression.

    While the U.S. Supreme Court addressed this tension in Zacchini v. Scripps-Howard Broadcasting Co., the Court did not create a clear standard for balancing the interests of …

Financing Elections And "Appearance Of Corruption": Citizen Attitudes And Behavior In 2012, Molly J. Walker Wilson

Catholic University Law Review

As political spending reaches new highs in the 2012 election cycle, and as the controversy surrounding wealthy donors and interest groups grows, polls demonstrate a surge of cynicism among Americans who profess a belief that the American political system is corrupt. The Supreme Court’s 2010 decision in Citizens United made possible the most recent expansion of political spending. In this case, the question was whether allowing corporations and unions to spend unlimited amounts of money on political advertising would result in corruption or the appearance of corruption. The majority on the Court determined that it would not. Many observers have …

Toward A Federal Constitutional Right To Employment, R. George Wright

Seattle University Law Review

This Article outlines an argument for a federal constitutional right to employment. The Article begins by examining the harms and costs of involuntary long-term unemployment. It then discusses the historical contributions to our understanding of the value of work, before drawing on several well-established jurisprudential distinctions to explain why, and to justify initial optimism regarding a constitutional employment right.

Partitioning And Rights: The Supreme Court's Accidental Jurisprudence Of Democratic Process, James A. Gardner

Florida State University Law Review

In democracies that allocate to a court responsibility for interpreting and enforcing the constitutional ground rules of democratic politics, the sheer importance of the task would seem to oblige such courts to guide their rulings by developing an account of the nature and prominent features of the constitutional commitment to democracy. The U.S. Supreme Court, however, has from the beginning refused to develop a general account—a theory—of how the U.S. Constitution establishes and structures democratic politics. The Court’s diffidence left a vacuum at the heart of its constitutional jurisprudence of democratic process, and like most vacuums, this one was almost …

Beyond The Schoolhouse Gates: The Unprecedented Expansion Of School Surveillance Authority Under Cyberbulling Laws, Emily Suski

Faculty Publications

For several years, states have grappled with the problem of cyberbullying and its sometimes devastating effects. Because cyberbullying often occurs between students, most states have understandably looked to schools to help address the problem. To that end, schools in forty-six states have the authority to intervene when students engage in cyberbullying. This solution seems all to the good unless a close examination of the cyberbullying laws and their implications is made. This Article explores some of the problematic implications of the cyberbullying laws. More specifically, it focuses on how the cyberbullying laws allow schools unprecedented surveillance authority over students. This …

Sacred Cows, Holy Wars: Exploring The Limits Of Law In The Regulation Of Raw Milk And Kosher Meat, Kenneth Lasson

All Faculty Scholarship

In a free society law and religion seldom coincide comfortably, tending instead to reflect the inherent tension that often resides between the two. This is nowhere more apparent than in America, where the underlying principle upon which the first freedom enunciated by the Constitution's Bill of Rights is based ‒ the separation of church and state – is conceptually at odds with the pragmatic compromises that may be reached. But our adherence to the primacy of individual rights and civil liberties ‒ that any activity must be permitted if it is not imposed upon others without their consent, and if …

An Examination Of University Speech Codes’ Constitutionality And Their Impact On High-Level Discourse, Benjamin Welch

College of Journalism and Mass Communications: Theses

The First Amendment – which guarantees the right to freedom of religion, of the press, to assemble, and petition to the government for redress of grievances – is under attack at institutions of higher learning in the United States of America. Beginning in the late 1980s, universities have crafted “speech codes” or “codes of conduct” that prohibit on campus certain forms of expression that would otherwise be constitutionally guaranteed. Examples of such polices could include prohibiting “telling a joke that conveys sexism,” or “content that may negatively affect an individual’s self-esteem.” Despite the alarming number of institutions that employ such …

Finding The Lost Involuntary Public Figure, Jeffrey Omar Usman

Utah Law Review

This Article follows Aristotle’s guidance that “[i]f you would understand anything, observe its beginning and its development.” That is precisely how the discussion in this Article begins in Part I, through observation of the beginning and development of the Supreme Court’s jurisprudence on the constitutional limitations imposed upon defamation actions under the First Amendment to the United States Constitution. Part II of the Article then briefly sets forth the constitutional framework that the Supreme Court imposed in 1974 on defamation actions in Gertz v. Robert Welch, Inc. The Article then addresses in Part III how the pressures of the First …

Graphic Labels, Dire Warnings And The Facile Assumption Of Factual Content In Compelled Commercial Speech, Nat Stern

Scholarly Publications

No abstract provided.