First Amendment Commons^™

True Threats And Protected Speech In Counterman V. Colorado, David Crump

University of Cincinnati Law Review

No abstract provided.

Integrating Doctrine & Diversity Speaker Series: Academic Freedom In Polarized Times: A Conversation With Three Law Deans 10-29-2025, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Gay Students Organization V. Bonner: Expressive Conduct And First Amendment Protection, Maine Law Review

Maine Law Review

After the Gay Students Organization, an officially recognized student group at the University of New Hampshire, held a dance on campus on November 9, 1973, the Governor of New Hampshire complained to the university's Board of Trustees about the impropriety of allowing such a "spectacle." The next day the Trustees banned all further G.S.O. social functions until the matter could be legally resolved. In Gay Students Organization v. Bonner, the G.S.O. brought an action for a declaratory judgment on the constitutionality of the university's ban. The court held the ban to be an unconstitutional restriction of the group's freedom of …

Corporate Governance Speech, Sarah C. Haan

Seattle University Law Review

The State has always regulated the intra-firm communications that make corporate governance possible, most commonly by mandating disclosures of information by a corporation to its shareholders. Some such laws are labeled “securities regulation,” but securities regulation is a broad category that extends to speech by actors who are outside the corporate enterprise as well. Also, the conventional securities regulation category does not capture all such laws; other examples, including informationforcing mandates, can be found in state corporate law. This Article uses the term “corporate governance speech” to describe the communications among shareholders, directors, and officers through which corporate governance is …

Free Speech And Anti-Democratic Violence, Andy J. Carr

Washington and Lee Journal of Civil Rights and Social Justice

The resurgence of far-right extremist groups—like “sovereign” militias, white supremacists, and avowedly fascist gangs—has exposed the First Amendment’s vulnerabilities to the “leaderless resistance” model of extremist organizing. This model, first popularized by white supremacist Louis Beam, specifically aims to insulate extremist leaders from liability when their followers engage in violence. It does so through fragmented structures and coded messages: Leaders use indirect references in speaking to disparate followers, without specificity (of targets) or immediacy (of corresponding violence), as required, e.g., for “incitement” under Brandenburg v. Ohio.

This Article makes three contributions. First, it articulates this “gap” with precision, drawing …

“Change Is Inevitable”: How The First Amendment Safety-Valve Theory Can Expand Protections For Student Expression, Leslie Klein, Jonathan Peters

Indiana Journal of Law and Social Equality

This article challenges the traditional notion that the regulation and protection of student expression in public schools should be based primarily or exclusively on the marketplace theory, which often reinforces the status quo. The safety valve theory is more appropriate and should be applied, especially in the current political and social climate, to inspire an expansion of student speech and press rights that would support expressive activities seeking to change the public discourse around important issues. Students who can speak freely will be more willing to accept decisions that go against them, and a school environment in which passionate or …

Individual Academic Freedom And The Current Forces Of Economics And Technology, George R. Wright

FIU Law Review

There are always a number of cultural constraints on higher education institutions. Such cultural constraints always matter. But sometimes, as in our day, such constraints are especially severe. These constraints are broadly economic; more specifically market-based; and technological in nature. They operate on public and private universities and on law schools in particular. Our concern herein is for such constraints in the many cases in which a faculty member’s speech on some matter of public interest arguably impairs a legitimate interest of the employer-university or law school. The weight of the educational institution’s interests in such academic speech cases is, …

The Equal Right To Exclude: Religious Speech And The Road To 303 Creative Llc V. Elenis, Kate Redburn

Faculty Scholarship

This Article explains how speech became the constitutional vehicle for the right to discriminate on religious grounds in places of public accommodation. It argues that cause lawyers for the New Christian Right cobbled together a right to exclude from a surprising doctrinal source: the egalitarian tendencies within the First Amendment. Using extensive original archival research, case materials, and little-known accounts of key figures, I reconstruct the New Christian Right’s legal strategy to obtain speech coverage for service denial. By strategically co-opting the progressive free speech legacy, innovative lawyers in the religious wing of the conservative legal movement convinced liberal jurists …

The Three Elements Of 303 Creative And How They Limit The Decision’S Impact, Dillon J. Richards

University of Miami Law Review

In 303 Creative LLC v. Elenis, the Supreme Court held that a state could not use a public accommodation law to require a wedding website business to create websites for gay weddings. As the Court saw it, the First Amendment shielded the company because its owner did not want to express speech supporting same-sex marriage—and being forced to create websites for same-sex weddings would compel just that.

Some public reaction to the Court’s opinion—perhaps understandably—construed the case as a full-on attack on gay rights, giving businesses a so-called license to discriminate that could not be limited to the wedding …

Constructing Ai Speech, Margot E. Kaminski, Meg Leta Jones

Publications

Artificial Intelligence (AI) systems such as ChatGPT can now produce convincingly human speech, at scale. It is tempting to ask whether such AI-generated content “disrupts” the law. That, we claim, is the wrong question. It characterizes the law as inherently reactive, rather than proactive, and fails to reveal how what may look like “disruption” in one area of the law is business as usual in another. We challenge the prevailing notion that technology inherently disrupts law, proposing instead that law and technology co-construct each other in a dynamic interplay reflective of societal priorities and political power. This Essay instead deploys …

Section 230 As Civil Rights Statute, Enrique Armijo

University of Cincinnati Law Review

Many of our most pressing discussions about justice, progress, and civil rights have moved online. Activists advocating for social change no longer need to be in the same physical space to connect with others who share their challenges and aspirations. But the convergence of mobility, connectivity, and technology is not the only reason why. Thanks to Section 230 of the Communications Decency Act’s (“Section 230”) immunity for online platforms, websites, and their hosts, speakers can engage in speech about protest, equality, and dissent without fear of collateral censorship from governments, authorities, and others in power who hope to silence them. …

Education, The First Amendment, And The Constitution, Erwin Chemerinsky

University of Cincinnati Law Review

No abstract provided.

School Matters, Ronna Greff Schneider

University of Cincinnati Law Review

No abstract provided.

Policing Protest: Speech, Space, Crime, And The Jury, Jenny E. Carroll

Faculty Scholarship

Speech is more than just an individual right—it can serve as a catalyst for democratically driven revolution and reform, particularly for minority or marginalized positions. In the past decade, the nation has experienced a rise in mass protests. However, dissent and disobedience in the form of such protests is not without consequences. While the First Amendment promises broad rights of speech and assembly, these rights are not absolute. Criminal law regularly curtails such rights—either by directly regulating speech as speech or by imposing incidental burdens on speech as it seeks to promote other state interests. This Feature examines how criminal …

Fair Use Failing The First Amendment? How The Parody And Satire Dichotomy May Be Stunting Political Discourse, Megan L. Wheeler

IP Theory

The First Amendment, in certain circumstances, is used as a defense to “protect[] satire and parody as a form of free speech and expression.”2 When it comes to jokes, “[q]uestions . . . have arisen in case law [pertaining to satire typically] concerning libel, emotional distress and copyright infringement.”3 Further, in a right of publicity claim, “[t]he First Amendment clearly protects all but the most intrusive coverage of news, or details of a person’s private life, such as are reported in the tabloid press or talk shows.”4 This demonstrates that humor and satire have a close relationship with the First …

Campbell V. Reisch: The Dangers Of The Campaign Loophole In Social Media Blocking Litigation, Clare R. Norins, Mark Bailey

Scholarly Works

Since 2016, social media blocking by government officials has been a lively battleground for First Amendment rights of free speech and petition. Government officials increasingly rely on social media to communicate with the public while ever greater numbers of private individuals are voicing their opinions and petitioning for change on government officials' interactive social media accounts. Perhaps not surprisingly, this has prompted many government officials to block those users whose comments they deem to be critical or offensive. But such speech regulation by a government actor introduces viewpoint discrimination—a cardinal sin under the First Amendment.

In 2019, three United States …

Nonprofits, Taxes, And Speech, Lloyd Hitoshi Mayer

Journal Articles

Federal tax law is of two minds when it comes to speech by nonprofits. The tax benefits provided to nonprofits are justified in significant part because they provide nonprofits great discretion in choosing the specific ends and means to pursue, thereby promoting diversity and pluralism. But current law withholds some of these tax benefits if a nonprofit engages in certain types of political speech. Legislators have also repeatedly, if unsuccessfully, sought to expand these political speech restrictions in various ways. And some commentators have proposed denying tax benefits to groups engaged in other types of disfavored speech, including hate speech …

The Economics Of Information And The Meaning Of Speech, Charles W. Collier

Catholic University Law Review

In common usage the communication of information is not sharply distinguished from the use of language or speech to make factual or propositional statements. So it should come as no surprise that one of the main legal justifications for protecting speech--that it underwrites a “marketplace of ideas” and thereby contributes to the search for truth--has strong parallels in the economic theory of information. “Indeed,” as Kenneth Arrow writes, “the market system as a whole has frequently been considered as an organization for the allocation of resources; the typical argument for its superiority to authoritative central allocation has been the greater …

Beyond Citizens United: Democratizing The Economy In The Wake Of The Small-Dollar Revolution, Jay Hedges

Journal of Civil Rights and Economic Development

(Excerpt)

Citizens United increases the power of corporations over our political process. Under current corporate governance laws, permission for corporations to behave as political actors ignores the consent of a particularly important constituency of these business entities—labor. This neglect of workers reveals three democratic crises resulting from the corporate structure in the United States, which have only intensified following Citizens United. First, while the political speaking-power of corporations has been substantially increased, these entities lack legitimacy to speak on behalf of their labor constituency. Second, the use of corporate profits, generated by the corporation’s labor force, as the means …

Commentary: Divisive Concepts And Regulation By Threat Of Baseless Lawsuit, John M. Greabe

Law Faculty Scholarship

[Excerpt] "At the State House, attention has returned to New Hampshire's so-called 'divisive concepts' law. The law, enacted in 2021, bars public K-12 teachers from engaging in certain forms of instruction on issues of race, gender, and other forms of discrimination. The Legislature is presently considering bills both to repeal the law and to extend it to the higher education context.

Those who support repeal tend to emphasize the vital need for classroom conversations on topics near the periphery of the restraints on speech imposed by law. And rightly so. The law's purpose and effect are to deter teachers and …

Why Arkansas Act 710 Was Upheld, And Will Be Again, Mark Goldfeder

Scholarly Works

The recent Eighth Circuit ruling in Arkansas Times, LP v. Waldrip, a lawsuit revolving around an Arkansas state anti-discrimination bill, has been widely misreported and generally misunderstood. While the decision was actually very narrow, case-specific, and ripe for review, the misleading information presented to the public has led to speculation and fear that similar anti-discrimination legislation in dozens of other states might somehow be constitutionally deficient. This essay will clarify what actually happened in the Arkansas case, and explain why legislators and advocates around the country do not have to worry about this very limited opinion affecting the legality of …

Intragovernmental Speech And Sanction, Katherine A. Shaw

Articles

This Essay, prepared as part of a symposium on Professor Helen Norton’s The Government’s Speech and the Constitution, asks what role, if any, we should understand the Constitution to play in mediating disputes over speech between and among government entities. Focusing on the examples of impeachment and censure, the piece considers scenarios in which one arm of government takes action in response to the speech of another arm or entity of government, exploring what role the Constitution should play in shaping or constraining those responses.

Taking Exception To Assessments Of American Exceptionalism: Why The United States Isn’T Such An Outlier On Free Speech, Evelyn Mary Aswad

Dickinson Law Review (2017-Present)

One of the most significant challenges to human freedom in the digital age involves the sheer power of private companies over speech and the fact that power is untethered to existing free speech principles. Heated debates are ongoing about what standards social media companies should adopt to regulate speech on their platforms. Some have argued that global social media companies, such as Facebook and Twitter, should align their speech codes with the international human rights law standards of the United Nations (“U.N.”). Others have countered that U.S.-based companies should apply First Amendment standards. Much of this debate is premised on …

A Democratic View Of Public Employee Speech Rights, R. George Wright

Catholic University Law Review

The question of the scope of public employee free speech rights is of obvious importance. Such cases are frequently litigated. The speaker's continuing employment is commonly at stake. The appropriate functioning of the government agency may be at issue as well. But government agencies are intended to operate not only with internal efficiency but with proper accountability to the public. And such accountability requires an appropriate degree of agency openness, transparency, and meaningful disclosure on publicly significant matters. Adequately assuring the democratic accountability of government agencies, it turns out, requires greater protection of public employee speech than is currently available.

New Hampshire's 'Divisive Concepts' Law And The Big Chill, John M. Greabe

Law Faculty Scholarship

[Excerpt] "

Much critical commentary on the so-called “divisive concepts” provisions in this year’s budget legislation – the label comes from language in an earlier version of the bill – has focused on their content- and viewpoint-based restraints on speech. These speech restrictions prohibit state public employers, including public K-12 school teachers, from (among other things) instructing that persons are “inherently superior or inferior to [others]” “inherently racist or sexist,” “should be discriminated against,” or “should not attempt to treat others equally” because of their “age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or …

Self-Determination In American Discourse: The Supreme Court’S Historical Indoctrination Of Free Speech And Expression, Jarred Williams

Honors Program: Senior Projects (Public)

Within the American criminal legal system, it is a well-established practice to presume the innocence of those charged with criminal offenses unless proven guilty beyond a reasonable doubt. Such a judicial framework-like approach, called a legal maxim, is utilized in order to ensure that the law is applied and interpreted in ways that legislative bodies originally intended.

The central aim of this piece in relation to the First Amendment of the United States Constitution is to investigate whether the Supreme Court of the United States has utilized a specific legal maxim within cases that dispute government speech or expression regulation. …

Defining Antisemitism, Mark Goldfeder

Scholarly Works

Antisemitic harassment is illegal, but without a standard definition of what ‘antisemitism’ includes, that idea is almost meaningless. That is why state legislatures and university administrators across the country are debating enacting policies that adopt the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism. This Article will illustrate precisely how a state bill or a university policy utilizing the IHRA definition for assessing motivation when analyzing discriminatory conduct claims would actually function, so that critics can no longer vaguely claim that such policies would somehow offend the First Amendment. It will also explain the difference between protected political speech and …

FacebookʼS Latest Attempt To Address Vaccine Misinformation — And Why ItʼS Not Enough, Ana Santos Rutschman

All Faculty Scholarship

On October 13, 2020 Facebook announced the adoption of a series of measures to promote vaccine trust “while prohibiting ads with misinformation that could harm public health efforts.” In the post written by Kang-Xing Jin (head of health) and Rob Leathern (director of product management), the company explained that the new measures were designed with an emphasis on encouraging widespread use of this yearʼs flu vaccine, as well as in anticipation of potential COVID-19 vaccines becoming available in the near future.

The changes focus mainly on the establishment of a multiprong informational campaign about the seasonal flu vaccine, which includes …

International Megan's Law As Compelled Speech, Alexandra R. Genord

Michigan Law Review

“The bearer was convicted of a sex offense against a minor, and is a covered sex offender pursuant to 22 United States Code Section 212b(c)(l).” International Megan’s Law (IML), passed in 2016, prohibits the State Department from issuing passports to individuals convicted of a sex offense against a minor unless those passports are branded with this phrase. The federal government's decision to brand its citizens’ passports with this stigmatizing message is novel and jarring, but the sole federal district court to consider a constitutional challenge to the passport identifier dismissed the plaintiffs’ First Amendment claim, deeming the provision government speech. …

Government Speech Doctrine—Legislator-Led Prayer's Saving Grace, Daniel M. Vitagliano

St. John's Law Review

(Excerpt)

This Note argues that Lund was decided incorrectly in part because the Fourth Circuit failed to analyze the type of speech at issue before assessing the constitutionality of the prayer practice. This Note is composed of four parts. Part I surveys the Supreme Court’s legislative prayer jurisprudence—Marsh and Town of Greece. Part II outlines Lund and Bormuth, and the Fourth and Sixth Circuits’ dissimilar applications of the Supreme Court’s precedent. Part III argues that courts must first classify legislative prayers as either government or private speech before assessing whether a prayer practice violates the Establishment Clause. It further argues …