First Amendment Commons^™

Privacy And The Right To Record, Margot E. Kaminski

Publications

Many U.S. laws protect privacy by governing recording. Recently, however, courts have recognized a First Amendment “right to record.” This Article addresses how courts should handle privacy laws in light of the developing First Amendment right to record.

The privacy harms addressed by recording laws are situated harms. Recording changes the way people behave in physical spaces by altering the nature of those spaces. Thus, recording laws can be placed within a long line of First Amendment case law that recognizes a valid government interest in managing the qualities of rivalrous physical space, so as not to allow one person’s …

Testimony On Unmanned Aircraft Systems Rules And Regulations, Stephen Henderson

Other Faculty Publications

Chairman Barrington, Vice Chair Brooks, members of the Committee on Public Safety, Senators, and distinguished guests, I am grateful for the opportunity to speak to you today about unmanned aerial systems, or drones, and more particularly about their federal constitutional implications and what might be the constitutional restrictions on any legislation you might like to enact. I am the Judge Haskell A. Holloman Professor of Law at the University of Oklahoma, where my teaching and research focus on criminal law and procedure and privacy, including the constitutional rights pertaining thereto.My topic is not an easy one. The constitutional law is …

The Wrong Of Publicity, Albert Vetere

Pace Intellectual Property, Sports & Entertainment Law Forum

The right of publicity has been, since at least 1977, a recognized concept. It was used, much like the other areas of intellectual property law to protect what a person had worked hard to create, in this case the concept of themselves. Their creativity in making themselves known and in having an "act" was worth protecting. However, the right of publicity has drastically changed since its conception. What is has become in the past almost forty years is a strange amalgamation of concepts, protected by laws that were never meant to be used to protect it in the first place. …

If You Fly A Drone, So Can Police, Stephen Henderson

Other Faculty Publications

Written for Slate's Future Tense.According to the U.S. Constitution, the more you fly your drone, the more police can fly theirs. “Come on,” you might reply, “that hoary document”—and, yes, sorry to make you the sort who drops words like hoary—“that hoary document surely says nothing about drones.” But in fact it does. At least it does as interpreted by the courts. In particular, it is how they interpret the Fourth Amendment. So, to understand this aspect of drones, we first must understand this provision of the Bill of Rights...

The Calm After The Storm: First Amendment Cases In The Supreme Court’S 2000-2001 Term, Joel Gora

Touro Law Review

No abstract provided.

Protecting The Public From Itself: Paternalism And Irony In Defining Newsworthiness, Clay Calvert

UF Law Faculty Publications

In a speech more than 150 years ago, author and British politician Benjamin Disraeli' proclaimed it "much easier to be critical than to be correct." Viewed in that sagacious light, this article surely traverses the low road, not the high one. It offers, in discussion-sparking spirit, a few slight criticisms of Professor Amy Gajda's conclusions and suggestions in her timely, meticulously researched and example-laden book, The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press.

Specifically, Part I of this Article encapsulates the problems identified by Professor Gajda for journalism today - and, more broadly, troubles for a …

The Right To Be Forgotten: Comparing U.S. And European Approaches, Samuel W. Royston

St. Mary's Law Journal

This Article compares the European and United States stances regarding the right to be forgotten. Within that context, this Article explores the implications of technological advances on constitutional rights, specifically the intersection of the right to free speech and the right to privacy, commonly referred to as the "right to be forgotten" paradox. In the United States, the trend is to favor free speech, while Europe places an emphasis on human rights. Each approach is analyzed based on supporting case law. The consequences of each approach on society, both long- and short-term, are also discussed. This Article argues that a …

When Privacy Almost Won: Time, Inc. V. Hill (1967), Samantha Barbas

Journal Articles

Drawing on previously unexplored and unpublished archival papers of Richard Nixon, the plaintiffs’ lawyer in the case, and the justices of the Warren Court, this article tells the story of the seminal First Amendment case Time, Inc. v. Hill (1967). In Hill, the Supreme Court for the first time addressed the conflict between the right to privacy and freedom of the press. The Court constitutionalized tort liability for invasion of privacy, acknowledging that it raised First Amendment issues and must be governed by constitutional standards. Hill substantially diminished privacy rights; today it is difficult if not impossible to recover against …

Bad News: Privacy Ruling To Increase Press Litigation, The Florida Star V. B.J.F., Mary Ellen Hockwalt

Akron Law Review

This note analyzes the history and precedent upon which the Court relied in reaching Florida Star's "harsh outcome." Next, the note discusses how the Court, by refusing to extend its holding beyond the facts of the case and give broad Constitutional protection to publications of truth, failed to provide lower courts with any guidance in deciding future invasion of privacy actions. Finally, the note examines the Court's balancing test: weighing the privacy interests of a crime victim against the newspaper's freedom to print truthful information.

Charting The Course For Use Of Small Unmanned Aerial Systems In Newsgathering, Mickey H. Osterreicher

Pepperdine Law Review

News organizations and individual journalists eagerly anticipate safely utilizing Small Unmanned Aerial Systems (sUAS) for newsgathering purposes as lawmakers integrate sUAS into the National Air Space (NAS). For now, these potential users may be flying over an "unchartered" regulatory landscape while the FAA struggles to complete its administrative rulemaking. In order to better understand how media organizations and individual journalists intend to use sUAS for newsgathering purposes, the National Press Photographers Association (NPPA) developed a survey consisting of twenty-one multiple choice questions, with space for elaboration, and three questions seeking narrative responses. The survey was distributed via email to approximately …

Balancing Disclosure And Privacy Interests In Campaign Finance, Sarah Harding

Loyola of Los Angeles Law Review

The law of campaign finance pits two important First Amendment interests against each other: disclosure and privacy. The Supreme Court has recognized the need to balance these two interests to allow for effective elections and to safeguard individual rights. However, through the years the Court has failed to balance these interests equally, resulting in vacillating decisions that unfairly sacrifice one for the other. From Burroughs v. United States in 1934 to Citizens United v. FEC in 2010, the Court has failed to provide a workable roadmap for legislatures in the creation of campaign finance disclosure laws and for lower courts …

The Uneasy And Often Unhelpful Interaction Of Tort Law And Constitutional Law In First Amendment Litigation, George C. Christie

Marquette Law Review

There are increasing tensions between the First Amendment and the common law torts of intentional infliction of emotional distress, defamation, and privacy. This Article discusses the conflicting interactions among the three models that are competing for primacy as the tort law governing expressive activities evolves to accommodate the requirements of the First Amendment. At one extreme there is the model that expression containing information which has been lawfully obtained that contains neither intentional falsehoods nor incitements to immediate violence can only be sanctioned in narrowly defined exceptional circumstances, even if that expression involves matters that are universally regarded as being …

Tort, Speech, And The Dubious Alchemy Of State Action, Cristina Carmody Tilley

Faculty Publications

Plaintiffs have historically used private law torts like defamation, privacy, and intentional infliction of emotional distress to vindicate their dignitary interests. But fifty years ago in New York Times v. Sullivan, the Supreme Court took an unprecedented approach to state action doctrine in order to recast these causes of action as public-private law hybrids that explicitly privileged speech over dignity. In constitutional challenges to private law disputes, the Court had for decades defined the state action under review to include just the contested verdict at issue. In Sullivan, it broke with that practice and defined the relevant state action to …

Reconciling Privacy And Speech In The Era Of Big Data: A Comparative Legal Analysis, Ronald J. Krotoszynski Jr.

William & Mary Law Review

In both the United States and the nations of Western Europe, significant constitutional commitments safeguard both expressive freedom (including freedom of speech and of the press) and also a generalized constitutional right of privacy. With some regularity, however, these rights will come into conflict, as the protection of one right can be achieved only at the cost of abridging or denying the other. When a government official or public figure objects to the publication of an embarrassing photograph, perhaps taken by an invasive paparazzo, it is simply not possible to fully vindicate both a newspaper’s interest in publishing the photograph …

Why Data Privacy Law Is (Mostly) Constitutional, Neil M. Richards

William & Mary Law Review

Laws regulating the collection, use, and disclosure of personal data are (mostly) constitutional, and critics who suggest otherwise are wrong. Since the New Deal, American law has rested on the wise judgment that, by and large, commercial regulation should be made on the basis of economic and social policy, rather than blunt constitutional rules. This has become one of the basic principles of American constitutional law. Although some observers have suggested that the United States Supreme Court’s recent decision in Sorrell v. IMS Health Inc. changes this state of affairs, such readings are incorrect. Sorrell involved a challenge to a …

The Need To Criminalize Revenge Porn: How A Law Protecting Victims Can Avoid Running Afoul Of The First Amendment, Adrienne N. Kitchen

Chicago-Kent Law Review

Revenge porn occurs when someone posts sexually explicit images of their former paramour on the web, often with contact information for the victim’s work and home. There are thousands, perhaps tens of thousands, of victims. Victims lose or quit their jobs; they are harassed by strangers; some change their name or alter their appearance. Some victims resort to suicide; others are stalked, assaulted, or killed. Civil suits fail to remove the images or deter perpetrators. Current criminal laws are insufficient in several common instances. These shortcomings mean there is a need to criminalize revenge porn.

Revenge porn is obscene and …

Book Review. Balancing Privacy And Free Speech: Unwanted Attention In The Age Of Social Media By Mark Tunick, Kimberly Mattioli

Articles by Maurer Faculty

No abstract provided.

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 …

The Conforming Effect: First Amendment Implications Of Surveillance, Beyond Chilling Speech, Margot E. Kaminski, Shane Witnov

University of Richmond Law Review

No abstract provided.

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 …

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 …

Criminal Procedure Decisions From The October 2006 Term, Susan N. Herman

Touro Law Review

No abstract provided.

Globally Speaking—Honoring The Victims' Stories: Matsuda's Human Rights Praxis, Berta Esperanza Hernández-Truyol

Michigan Law Review First Impressions

Globally speaking, international law and the vast majority of domestic legal systems strive to protect the right to freedom of expression. The United States' First Amendment provides an early historical protection of speech-a safeguard now embraced around the world. The extent of this protection, however, varies among states. The United States stands alone in excluding countervailing considerations of equality, dignitary, or privacy interests that would favor restrictions on speech. The gravamen of the argument supporting such American exceptionalism is that free expression is necessary in a democracy. Totalitarianism, the libertarian narrative goes, thrives on government control of information to the …

The Tools Of Political Dissent: A First Amendment Guide To Gun Registries, Thomas E. Kadri

Michigan Law Review First Impressions

On December 23, 2012, a newspaper in upstate New York published a provocative map. On it appeared the names and addresses of thousands of gun owners in nearby counties, all precisely pinpointed for the world to browse. The source of this information: publicly available data drawn from the state’s gun registry. Legislators were quick to respond. Within a month, a new law offered gun owners the chance to permanently remove their identities from the registry with a simple call to their county clerk. The map raised interesting questions about broadcasting personal information, but a more fundamental question remains: Are these …

The Post-Tsa Airport: A Constitution Free Zone?, Daniel S. Harawa

Pepperdine Law Review

No abstract provided.

In Quest Of The Arbitration Trifecta, Or Closed Door Litigation?: The Delaware Arbitration Program , Thomas J. Stipanowich

The Journal of Business, Entrepreneurship & the Law

The Delaware Arbitration Program established a procedure by which businesses can agree to have their disputes heard in an arbitration proceeding before a sitting judge of the state’s highly regarded Chancery Court. The Program arguably offers a veritable trifecta of procedural advantages for commercial parties, including expert adjudication, efficient case management and short cycle time and, above all, a proceeding cloaked in secrecy. It also may enhance the reputation of Delaware as the forum of choice for businesses. But the Program’s ambitious intermingling of public and private forums brings into play the longstanding tug-of-war between the traditional view of court …

Facebook Is Not Your Friend: Protecting A Private Employee's Expectation Of Privacy In Social Networking Content In The Twenty-First Century Workplace, Cara Magatelli

The Journal of Business, Entrepreneurship & the Law

This Comment explores the implications SNS postings have on private employers concerning the off-duty, non-work related conduct of their employees. This argument recognizes that an employee is entitled to engage in whatever legal off-duty conduct he chooses, so long as the behavior does not damage his employer's legitimate business interests. An employer should not be able to use information gleaned from an employee's SNS postings, unrelated to an employer's business interests, to punish an employee for her choices outside the work place. Disciplining or terminating an employee for his off-duty lifestyle choices permits the morals and standards of the employer …

Policing The Social Media Water Cooler: Recent Nlrb Decisions Should Make Employers Think Twice Before Terminating An Employee For Comments Posted On Social Media Sites, Eric Raphan, Sean Kirby

Journal of Business & Technology Law

No abstract provided.

Online Privacy And The First Amendment: An Opt-In Approach To Data Processing, Joseph A. Tomain

Articles by Maurer Faculty

An individual has little to no ability to prevent online commercial actors from collecting, using, or disclosing data about her. This lack of individual choice is problematic in the Big Data era because individual privacy interests are threatened by the ever increasing number of actors processing data, as well as the ever increasing amount and types of data being processed. This Article argues that online commercial actors should be required to receive an individual’s opt-in consent prior to data processing as a way of protecting individual privacy. I analyze whether an opt-in requirement is constitutionally permissible under the First Amendment …

Electronic Privacy Information Center V. National Security Agency: How Glomar Responses Benefit Businesses And Provide An Epic Blow To Individuals, Joshua R. Chazen

Journal of Business & Technology Law

No abstract provided.