First Amendment Commons^™

The Effects Of Rejecting Mind-Body Dualism On U.S. Law, Matthew W. Lawrence

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

While neuroscience continues to make it clearer that mental processes, effects, disorders, and states can be described through physical observation, the metaphysical notion of mind-body dualism still pervades the U.S. legal system. In this Article, I discuss many areas where mind-body dualism holds fast, and others where mind-body dualism has already been explicitly or impliedly rejected. I argue that in most areas, the dualist distinction would have little to no impact on the values the law already describes. However, I argue that rejecting dualism would have an impact on fundamental rights analyses. First Amendment free speech rights, fundamental rights, and …

Free-Speech Formalism And Social Injustice, Stephen M. Feldman

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

The Roberts Court has shifted constitutional law in a formalist direction. This Essay explains the Court’s formalism and its causes and consequences in First Amendment free-expression cases. The thesis is that the current conservative justices’ reliance on formalism intertwines with their attitudes toward public and private spheres of activity. Their attitudes toward the public-private dichotomy are, in turn, shaped by their political ideologies as well as by the contemporary practices of democratic government, which have shifted significantly over American history. Formalism contains an inherent political tilt favoring those who already wield power in the private sphere. Formalism favors the wealthy …

Stripped: Speech, Sex, Race, And Secondary Effects, Lisa Crooms-Robinson

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

No abstract provided.

Introduction, Dania Matos

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

No abstract provided.

First Amendment Lochnerism & The Origins Of The Incorporation Doctrine, James Y. Stern

Faculty Publications

The 20th century emergence of the incorporation doctrine is regarded as a critical development in constitutional law, but while issues related to the doctrine's justification have been studied and debated for more than fifty years, the causes and mechanics of its advent have received relatively little academic attention. This Essay, part of a symposium on Judge Jeffrey Sutton's recent book about state constitutional law, examines the doctrinal origins of incorporation, in an effort to help uncover why the incorporation doctrine emerged when it did and the way it did. It concludes that, for these purposes, incorporation is best understood as …

Free Speech Idealism, Timothy Zick

Faculty Publications

No abstract provided.

Trust And Retaliation: The First Amendment And Trump’S Taxes, Timothy Zick

Popular Media

No abstract provided.

The President’S Utterly Un-American Response To Dissent, Timothy Zick

Popular Media

No abstract provided.

Broken Platforms, Broken Communities? Free Speech On Campus, Stephen M. Feldman

William & Mary Bill of Rights Journal

Free speech disputes have broken out on numerous college and university campuses. In several incidents, protesters have attempted to block the presentations of well-known and controversial speakers who threaten the communal status of societal outsiders. These events have sparked not only widespread media coverage but also the publication of multiple scholarly books and articles. None of this scholarship, however, has recognized that the interrelated histories of free expression and democracy can shed considerable light on these matters. This Article takes on that challenge. Specifically, this Article explores the ramifications of the historical interrelationship between free expression and democracy for campus …

Merging Offensive-Speech Cases With Viewpoint-Discrimination Principles: The Immediate Impact Of Matal V. Tam On Two Strands Of First Amendment Jurisprudence, Clay Calvert

William & Mary Bill of Rights Journal

This Article examines flaws with the U.S. Supreme Court’s 2017 decision in Matal v. Tam that equated giving offense with viewpoint discrimination. Already, the Court’s language in Tam that “giving offense is a viewpoint” is being cited by multiple lower courts. This Article argues, however, that giving offense is not synonymous with viewpoint discrimination. This Article contends that the Court in Tam conflated two distinct strands of First Amendment jurisprudence—namely, its offensive-speech cases with principles against viewpoint discrimination. The Article proposes two possible paths forward to help courts better clarify when a case such as Tam should be analyzed as …

Antitrust As Speech Control, Hillary Greene, Dennis A. Yao

William & Mary Law Review

Antitrust law, at times, dictates who, when, and about what people can and cannot speak. It would seem then that the First Amendment might have something to say about those constraints. And it does, though perhaps less directly and to a lesser degree than one might expect. This Article examines the interface between those regimes while recasting antitrust thinking in terms of speech control.

Our review of the antitrust-First Amendment legal landscape focuses on the role of speech control. It reveals that while First Amendment issues are explicitly addressed relatively infrequently within antitrust decisions that is, in part, because certain …

The Itunes Of Downloadable Guns: Firearms As A First Amendment Right, Sandra Sawan Lara

Catholic University Journal of Law and Technology

As society becomes more technology driven, legal issues continue to arise around the world. From privacy to national security, technology develops at a rate the law simply cannot keep up with. In the United States, one of the biggest legal issues is how the new risks technology brings will interfere with our individual liberties.

Technologies like three-dimensional (“3D”) printing have transformed everything from lifesaving surgeries to gun manufacturing. This technology has led to a whole new way of communicating via computer coding, with the online open source movement leading innovation by allowing for the sharing and editing of files freely. …

The Esquire Case: A Lost Free Speech Landmark, Samantha Barbas

William & Mary Bill of Rights Journal

No abstract provided.

Silencing State Courts, Jeffrey Steven Gordon

William & Mary Bill of Rights Journal

In state courts across the Nation, an absolutist conception of the First Amendment is preempting common law speech torts. From intentional infliction of emotional distress and intrusion upon seclusion, to intentional interference with contractual relations and negligent infliction of emotional distress, state courts are dismissing speech tort claims on the pleadings because of the broad First Amendment defense recognized by Snyder v. Phelps in 2011. This Article argues, contrary to the scholarly consensus, that Snyder was a categorical departure from the methodology adopted by New York Times Co. v. Sullivan, the landmark 1964 case that first applied the First …

Locked Up, Shut Up: Why Speech In Prison Matters, Evan Bianchi, David Shapiro

St. John's Law Review

(Excerpt)

This Article proceeds in three Parts. Part I describes the deferential Turner standard that governs First Amendment claims brought by prisoners. Virtually every word uttered or written to a prisoner and virtually every word uttered or written by a prisoner receives extremely limited legal protection. Largely as a result of this legal regime, senseless censorship is all too common in American prisons. Jailers and prison officials seem to have received the message that they can ban speech with impunity.

Part II argues that the combination of Turner deference and mass incarceration divests prisoners of expressive power, thereby distorting public …

Managing Dissent, Timothy Zick

Faculty Publications

In his insightful new book, Managed Speech: The Roberts Court's First Amendment (2017), Professor Greg Magarian criticizes the Roberts Court for adopting a "managed speech" approach in its First Amendment cases. According to Professor Magarian, that approach gives too much power to private and governmental actors to manage public discourse, constrain dissident speakers, and instill social and political stability. This Article argues that at least insofar as it relates to many forms of public dissent, the managed speech approach is both deeply rooted in First Amendment jurisprudence and culturally prevalent. Historically, First Amendment jurisprudence has expressed support for narrowly managed …

Beyond Headlines & Holdings: Exploring Some Less Obvious Ramifications Of The Supreme Court’S 2017 Free-Speech Rulings, Clay Calvert

William & Mary Bill of Rights Journal

Digging behind the holdings, this Article analyzes less conspicuous, yet highly consequential aspects of the United States Supreme Court’s First Amendment rulings during the opening half of 2017. The four facets of the opinions addressed here—items both within individual cases and cutting across them—hold vast significance for future free-speech battles. Nuances of the justices’ splintering in Matal v. Tam, Packingham v. North Carolina, and Expressions Hair Design v. Schneiderman are examined, as is the immediate impact of Justice Anthony Kennedy’s Packingham dicta regarding online social networks. Furthermore, Justice Sonia Sotomayor’s solo concurrence in the threats case of Perez …

Not Today, Satan: Re-Examining Viewpoint Discrimination In The Limited Public Forum, Daniel Cutler

William & Mary Bill of Rights Journal

No abstract provided.

Group Defamation, Power, And A New Test For Determining Plaintiff Eligibility, Jeffrey Greenwood

Fordham Intellectual Property, Media and Entertainment Law Journal

In the fall of 2014, Rolling Stone Magazine published an article describing the rape of a woman at a University of Virginia fraternity house. The story turned out to be false, and members of the fraternity sued for defamation. The suit raises an interesting question: under what circumstances may anonymous individual members of the fraternity recover? This Note describes the case, related common and constitutional law, as well as differences in group defamation doctrine across jurisdictions. After detailing problems with the existing paradigm, the Note proposes a new method for performing the analysis.

Defamation And Privacy In The Social Media Age: What Would Justice Brennan Think?, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The New Governors: The People, Rules And Processes Governing Online Speech, Kate Klonick

Faculty Publications

Private online platforms have an increasingly essential role in free speech and participation in democratic culture. But while it might appear that any internet user can publish freely and instantly online, many platforms actively curate the content posted by their users. How and why these platforms operate to moderate speech is largely opaque.

This Article provides the first analysis of what these platforms are actually doing to moderate online speech under a regulatory and First Amendment framework. Drawing from original interviews, archived materials, and internal documents, this Article describes how three major online platforms — Facebook, Twitter, and YouTube — …

Talk Isn't Cheap: Protecting Freedom Of Speech In Light Of Georgia's Anti-Boycott Legislation, Maria Kachniarz

Georgia Law Review

Historically,political boycotts have occupied a central
place in American tradition, going as far back as the
Founding. However, the years of 2016 and 2017 have
marked a sudden influx of state anti-boycott legislation.
Georgia was no exception, passing a statute in 2016
prohibiting those who boycott Israel from contracting
with the state. This statue violates the FirstAmendment
guaranteesof freedom of speech. First, boycotts of Israel,
or BDS as they are collectively called, are protected
political speech. The Supreme Court has repeatedly
protected politically motivated boycotts, despite their
detrimental economic effects. Further, Georgia's anti-
boycott legislation impermissibly stifles that protected
speech …

Protecting The Silence Of Speech: Academic Safe Spaces, The Free Speech Critique, And The Solution Of Free Association, Trevor N. Ward

William & Mary Bill of Rights Journal

No abstract provided.

Protests In Peril, Timothy Zick

Faculty Publications

No abstract provided.

All Employers Must Wash Their Speech Before Returning To Work: The First Amendment & Compelled Use Of Employees’ Preferred Gender Pronouns, Tyler Sherman

William & Mary Bill of Rights Journal

No abstract provided.

Section 1: Moot Court: Masterpiece Cakeshop, Ltd., Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Restroom Use, Civil Rights, And Free Speech "Opportunism", Timothy Zick

Faculty Publications

Commentators have expressed concerns that litigants are invoking the First Amendment's Free Speech Clause strategically, in order to compensate for the weakness or futility of other constitutional claims. The phenomenon has been given a label- "opportunism "-and scholars have examined some of its causes and consequences. This Article takes a closer and somewhat skeptical look at the concept offree speech "opportunism." It imagines that the Free Speech Clause will be invoked in challenges to laws or policies that restrict public restroom use based on a person's gender. Would such challenges be "opportunistic, " as the term has been defined? What …

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

William & Mary Bill of Rights Journal

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 …

Rights Dynamism, Timothy Zick

Faculty Publications

No abstract provided.

Justice Scalia And Abortion Speech, Timothy Zick

Faculty Publications

No abstract provided.