First Amendment Commons^™

Trending Now: The Role Of Defamation Law In Remedying Harm From Social Media Backlash, Cory Batza

Pepperdine Law Review

Defamatory comments on social media have become commonplace. When the online community is outraged by some event, social media users often flood the Internet with hateful and false comments about the alleged perpetrator, feeling empowered by their numbers and anonymity. This wave of false and harmful information about an individual’s reputation has caused many individuals to lose their jobs and suffer severe emotional trauma. This Comment explores whether the target of social media backlash can bring a successful defamation claim against the users who have destroyed their reputations on and offline. Notably, one of the biggest hurdles these plaintiffs will …

Terrorist Speech On Social Media, Alexander Tsesis

Vanderbilt Law Review

The presence of terrorist speech on the internet tests the limits of the First Amendment. Widely available cyber terrorist sermons, instructional videos, blogs, and interactive websites raise complex expressive concerns. On the one hand, statements that support nefarious and even violent movements are constitutionally protected against totalitarian-like repressions of civil liberties. The Supreme Court has erected a bulwark of associational and communicative protections to curtail government from stifling debate through overbroad regulations. On the other hand, the protection of free speech has never been an absolute bar against the regulation of low value expressions, such as calls to violence and …

How Many Likes Did It Get? Using Social Media Metrics To Establish Trademark Rights, Caroline Mrohs

Catholic University Journal of Law and Technology

This comment asserts that there is a need for an update to the multifactor test considered by courts in determining the strength of a trademark. Traditional factors include the expenses an entity can afford to pay in advertising, but do not give any weight to the presence of the entity on social media to reach its target consumer group.

#Protected Hashtags, Trademarks, And The First Amendment, Delaram Yousefi

Touro Law Review

No abstract provided.

Is Social Media The New Era’S “Water Cooler”? #Notifyouareagovernmentemployee, Sabrina Niewialkouski

University of Miami Law Review

Current Free Speech doctrine does not sufficiently protect government employees’ First Amendment rights. There are two major flaws in the test implemented by the Supreme Court in order to find whether the First Amendment protects an employee. First, the Garcetti test, where a government employee loses First Amendment protection if her speech is pursuant to her official duty, is inadequate, overbroad, and should be done away with completely – or at the least interpreted more narrowly. Secondly, the Pickering balancing test is less of a balancing and more of a prioritization of the government’s interests and should be interpreted to …

Celebrities’ Expansive “Right Of Publicity” Infringes Upon Advertisers’ First Amendment Rights, Jon Siderits

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

Incitement, Threats, And Constitutional Guarantees: First Amendment Protections Pre- And Post-Elonis, Mark Strasser

The University of New Hampshire Law Review

[Excerpt] "While the First Amendment to the United States Constitution protects the freedom of expression, individuals issuing threats or advocating illegal conduct may be subject to punishment. What constitutes proscribable speech has long been evolving, and the recent jurisprudence suggests that First Amendment protections are more robust for advocacy of illegal conduct than for threats. Elonis v. United States provided the Court with a golden opportunity to clarify First Amendment threat jurisprudence; however, those hoping for an illuminating analysis cannot help but be disappointed. Part I of this Article discusses the developing First Amendment jurisprudence regarding the regulation of incitement, …

The Minefield: Designing And Implementing Human Resource Policies In The Age Of Social Media, Christopher R. Mcmillan

The Graduate Review

Human resource managers have had to navigate a minefield of laws and regulations while continuing to manage the traditional business functions of the employer. Now, human resource departments across the nation are tasked with managing the traditional employee-employer relationship in light of an ever-changing technological and legal landscape. Businesses across the nation have had to adjust to a rise in the use of social-media and have suffered the consequences of instantaneous communication between employees and the media. These same businesses must reconcile the need to protect its goodwill and livelihood, while incorporating the safeguards provided by legislation and regulations in …

The 'Press,' Then & Now, Sonja R. West

Scholarly Works

Does the First Amendment’s protection of freedom of “the press” simply mean that we all have the right to use mass communication technology to disseminate our speech? Or does it provide constitutional safeguards for a particular group of speakers who function as government watchdogs and citizen surrogates? This question defines the current debate over the Press Clause. The Supreme Court’s Citizens United decision, along with recent work by Michael McConnell and Eugene Volokh, suggests the answer is the former. This article pushes back on that view.

It starts by expanding the scope of the relevant historical evidence. Discussions about the …

Alternative Restrictions Of Sex Offenders' Social Media Use & The Freedom Of Speech, Norah M. Sloss

Catholic University Journal of Law and Technology

No abstract provided.

Here We Are Now, Entertain Us: Defining The Line Between Personal And Professional Context On Social Media, Raizel Liebler, Keidra Chaney

Pace Law Review

Social media platforms such as Facebook, Twitter, and Instagram allow individuals and companies to connect directly and regularly with an audience of peers or with the public at large. These websites combine the audience-building platforms of mass media with the personal data and relationships of in-person social networks. Due to a combination of evolving user activity and frequent updates to functionality and user features, social media tools blur the line of whether a speaker is perceived as speaking to a specific and presumed private audience, a public expression of one’s own personal views, or a representative viewpoint of an entire …

Social Media Thoughtcrimes, Daniel S. Harawa

Pace Law Review

As people live out their lives online, what is protected expression and what is criminal speech? This article begins to explore this fine distinction, and advocates for a shift in the way online speech is protected vis-à-vis the First Amendment. Part I provides examples of criminalized social media activity and explores why people seemingly treat online speech as private communications. Part II looks at existing jurisprudence regarding the criminalization of speech and First Amendment protections. And Part III attempts to determine where to draw the line by advocating for a return to simpler times in First Amendment jurisprudence.

The Constitution And Revenge Porn, John A. Humbach

Pace Law Review

While the Supreme Court has recognized a number of circumstances that justify government impingements on free expression, the Court has been extremely reluctant to permit speech restrictions that discriminate based on a message’s content, its viewpoint, or the speaker. It has nearly always refused to tolerate such discrimination unless the case falls within one of the several historically established exceptions to First Amendment protection. Because of the special place that the modern First Amendment cases accord to content discrimination (and the allied discriminations based on viewpoint and speaker), any statutes designed specifically to outlaw revenge porn as such would seem …

Social Justice, Social Norms And The Governance Of Social Media, Tal Z. Zarsky

Pace Law Review

This article proceeds as follows: Part II briefly addresses the theoretical arguments regarding the pros and cons of various governance strategies, focusing on the advantages, disadvantages and pitfalls of reliance on private parties. In Part III, the article describes, in general terms, the above-mentioned empirical study, explaining its methodology, the specific challenges to its design and implementation, and how these were met. The discussion specifically centers on a survey taken to establish the nature of social norms. Part IV presents a specific test case: whether pseudonymity should be permitted in social media or should “real names” be mandatory. Part V …

Tinkering With Success: College Athletes, Social Media And The First Amendment, Mary Margaret Meg Penrose

Pace Law Review

Good law does not always make good policy. This article seeks to provide a legal assessment, not a policy directive. The policy choices made by individual institutions and athletic departments should be guided by law, but absolutely left to institutional discretion. Many articles written on college student-athletes’ social media usage attempt to urge policy directives clothed in constitutional analysis.

In this author’s opinion, these articles have lost perspective – constitutional perspective. This article seeks primarily to provide a legal and constitutional assessment so that schools and their athletic departments will have ample information to then make their own policy choices.

Abuse And Harassment Diminish Free Speech, Anita Bernstein

Pace Law Review

Owen Fiss focused on “the robustness of public debate” to conclude on his last page: “The autonomy protected by the First Amendment and rightly enjoyed by individuals and the press is not an end in itself, as it might be in some moral code, but is rather a means to further the democratic values underlying the Bill of Rights.”

This article embraces the same values but more conservatively. Whereas Fiss defended state-sponsored coercion, I leave the government mostly outside the descriptions and arguments presented here. Scholars have sought to apply the law—of crimes, torts, intellectual property, and statutory allotments 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.

What You Sign Up For: Public University Restrictions On “Professional” Student Speech After Tatro V. University Of Minnesota, William Bush

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

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.

Journalists, Social Media And Copyright: Demystifing Fair Use In The Emergent Digital Environment, Patricia Aufderheide

Journal of Business & Technology Law

No abstract provided.

Tinker Takes On Tatro: The Minnesota Supreme Court's Missed Opportunity, Tracey Wirmani

Oklahoma Law Review

No abstract provided.

Public Forum 2.1: Public Higher Education Institutions And Social Media, Robert H. Jerry Ii, Lyrissa Lidsky

Faculty Publications

Public colleges and universities increasingly are using Facebook, Second Life, YouTube, Twitter, and other social media communications tools. Yet public colleges and universities are government actors, and their creation and maintenance of social media sites or forums create difficult constitutional and administrative challenges. Our separate experiences, both theoretical and practical, have convinced us of the value of providing guidance for public higher education institutions wishing to engage with their constituents-including prospective, current, and former students and many others-through social media.

Together, we seek to guide public university officials through the complex body of law governing their social media use and …

Public Forum 2.1: Public Higher Education Institutions And Social Media, Robert H. Jerry Ii, Lyrissa Barnett Lidsky

UF Law Faculty Publications

Like most of us, public colleges and universities increasingly are communicating via Facebook, Second Life, YouTube, Twitter and other social media. Unlike most of us, public colleges and universities are government actors, and their social media communications present complex administrative and First Amendment challenges. The authors of this article — one the dean of a major public university law school responsible for directing its social media strategies, the other a scholar of social media and the First Amendment — have combined their expertise to help public university officials address these challenges. To that end, this article first examines current and …

Not A Free Press Court?, Lyrissa Barnett Lidsky

UF Law Faculty Publications

The last decade has been tumultuous for print and broadcast media. Daily newspaper circulation continues to fall precipitously, magazines struggle to survive, and network television audiences keep shrinking. In the meanwhile, cable news is prospering, mobile devices are contributing to increased news consumption, and many new media outlets appear to be thriving. Despite the dynamism in the media industry, the Supreme Court under Chief Justice John Roberts has taken up relatively few First Amendment cases directly involving the media. The Court has addressed a number of important free speech cases since 2005, but thus far the only Roberts Court decisions …

Beyond The Water Cooler: Speech And The Workplace In An Era Of Social Media, Ann C. Mcginley

Scholarly Works

No abstract provided.

Incitement To Riot In The Age Of Flash Mobs, Margot E. Kaminski

Publications

As people increasingly use social media to organize both protests and robberies, government will try to regulate these calls to action. With an eye to this intensifying dynamic, this Article reviews First Amendment jurisprudence on incitement and applies it to existing statutes on incitement to riot at a common law, state, and federal level. The article suggests that First Amendment jurisprudence has a particularly tortuous relationship with regulating speech directed to crowds. It examines current crowd psychology to suggest which crowd behavior, if any, should as a matter of policy be subject to regulation. It concludes that many existing incitement-to-riot …

Incendiary Speech And Social Media, Lyrissa Barnett Lidsky

UF Law Faculty Publications

Incidents illustrating the incendiary capacity of social media have rekindled concerns about the "mismatch" between existing doctrinal categories and new types of dangerous speech. This Essay examines two such incidents, one in which an offensive tweet and YouTube video led a hostile audience to riot and murder, and the other in which a blogger urged his nameless, faceless audience to murder federal judges. One incident resulted in liability for the speaker, even though no violence occurred; the other did not lead to liability for the speaker even though at least thirty people died as a result of his words. An …

Government Sponsored Social Media And Public Forum Doctrine Under The First Amendment: Perils And Pitfalls, Lyrissa Lidsky

Faculty Publications

Between the extremes of no interactivity and complete interactivity, it is difficult to predict whether courts will label a government sponsored social media site a public forum or not. But it is precisely "in between" where government actors are likely to wish to engage citizens and where citizens are most likely to benefit from government social media initiatives. The goal of this article, therefore, is to provide guidance to lawyers trying to navigate the morass that is the U.S. Supreme Court's public forum jurisprudence in order to advise government actors wishing to establish social media forums.

Government Sponsored Social Media And Public Forum Doctrine Under The First Amendment: Perils And Pitfalls, Lyrissa Barnett Lidsky

UF Law Faculty Publications

The goal of this article is to provide guidance to lawyers trying to navigate the morass that is the U.S. Supreme Court’s public forum jurisprudence in order to advise government actors wishing to establish social media forums.