First Amendment Commons^™

The Arms Dealer Who Cries, :“First Amendment”, Gustave Passanante

Touro Law Review

No abstract provided.

Gillis V. Miller, Anna Tichy

NYLS Law Review

No abstract provided.

Hargis V. Bevin, Gabriella Castellano

NYLS Law Review

No abstract provided.

Facebook's Speech Code And Policies: How They Suppress Speech And Distort Democratic Deliberation, Joseph Thai

Faculty Articles

With nearly two and a half billion users-a third of the world's population- Facebook far and away hosts the largest speech platform in the history of humanity. In the United States, seven out of ten adults use it, and nearly half get news from it. It is therefore no exaggeration to observe that Facebook's self-promulgated rules for "what is and is not allowed on Facebook," its content-based Community Standards, rival if not exceed the First Amendment's importance in shaping discourse in the United States. Yet, unlike the First Amendment, which only protects against government censorship, no scholarship has scrutinized the …

Deep Fakes: A Looming Challenge For Privacy, Democracy, And National Security, Robert Chesney, Danielle K. Citron

Faculty Scholarship

Harmful lies are nothing new. But the ability to distort reality has taken an exponential leap forward with “deep fake” technology. This capability makes it possible to create audio and video of real people saying and doing things they never said or did. Machine learning techniques are escalating the technology’s sophistication, making deep fakes ever more realistic and increasingly resistant to detection. Deep-fake technology has characteristics that enable rapid and widespread diffusion, putting it into the hands of both sophisticated and unsophisticated actors. While deep-fake technology will bring with it certain benefits, it also will introduce many harms. The marketplace …

The Post-Truth First Amendment, Sarah Haan

Indiana Law Journal

Post-truthism is widely viewed as a political problem. This Article explores posttruthism as a constitutional law problem, and argues that, because post-truthism offers a normative framework for regulating information, we should take it seriously as a basis for law.

In its exploration of the influence of post-truth ideas on law, the Article focuses on the compelled speech doctrine. When the State mandates disclosure, it pits the interests of unwilling speakers against the interests of listeners. In the twenty-first century, speakers who are targeted by mandatory disclosure laws are often organizational actors with informational advantages, such as corporations. Listeners who stand …

Augmenting Our Reality: The (Un)Official Strategy Guide To Providing First Amendment Protection For Players And Designers Of Location-Based Augmented Reality Video Games, Colleen Signorelli

St. John's Law Review

(Excerpt)

Specifically, this Note will argue that the First Amendment applies to location-based augmented reality games in public forums, and, furthermore, the First Amendment protects designers and players of location-based augmented reality games in public forums. This Note will not discuss these location-based games within the context of privacy rights or trespassing, issues that have been written about elsewhere. Part I of this Note will explore the law regarding freedom of speech and freedom of assembly in public forums, and permissible regulations of speech and assembly, including time, place, and manner restrictions and prior restraints, such as permits. Part II …

“It Ain’T So Much The Things We Don’T Know That Get Us In Trouble. It’S The Things We Know That Ain’T So”: The Dubious Intellectual Foundations Of The Claim That “Hate Speech” Causes Political Violence, Gordon Danning

Pepperdine Law Review

The United States is an outlier in its legal protection for what is commonly termed “hate speech.” Proponents of bringing American jurisprudence closer to the international norm often argue that hate speech causes violence, particularly political violence. However, such claims largely rest on assumptions which are inconsistent with social scientists’ understanding of the causes of political violence, including that ethnic identity and ideological salience are more often the result of violence than a cause thereof; that violence during conflict is generally unrelated to the conflict’s ostensible central cleavage; and that violence is generally instrumental and elite-driven, rather than spontaneous and …

Free Speech, Public Safety, & Controversial Speakers: Balancing Universities' Dual Roles After Charlottesville, Elisabeth E. Constantino

St. John's Law Review

(Excerpt)

This Note seeks to develop an approach to hateful and controversial speech that protects First Amendment values and students alike. Part I discusses the legal backdrop and First Amendment tradition that underlies a permissive view of hateful speech on university campuses. Part I also discusses the roots of time, place, and manner regulations and the public forum doctrine, both of which recent legislation invokes. Part II provides a timeline of events that have highlighted the tension between free speech and public safety on campuses. Part II also discusses the eruption of legislation that these events inspired. Finally, Part III …

Graffiti, Speech, And Crime, Jenny E. Carroll

Faculty Scholarship

Graffiti resides at the uncomfortable intersection of criminal law and free speech rhetoric. It is not the shout of revolution to the gathered, protesting masses, or the political pamphlet flung from a 1920s window. Graffiti is not the obscene-rendered-political-jacketed protest of war, or a flag set aflame in the name of reclaiming patriotism. It is an illicit scrawl. It is damage and defiance rolled into one from the moment of its creation. Graffiti is a crime.

Unlike more celebrated examples of free speech, graffiti earns no safe harbor from the First Amendment. When asked to choose between the tag that …

Rwu First Amendement Blog: Jared Goldstein's Blog: The First Amendment And The Foxy Lady 01-08-2019, Jared A. Goldstein

Law School Blogs

No abstract provided.

Justice Jackson In The Jehovah’S Witnesses’ Cases, John Q. Barrett

FIU Law Review

No abstract provided.

Facebook V. Sullivan: Public Figures And Newsworthiness In Online Speech, Thomas E. Kadri, Kate Klonick

Faculty Publications

In the United States, there are now two systems to adjudicate disputes about harmful speech. The first is older and more established: the legal system in which judges apply constitutional law to limit tort claims alleging injuries caused by speech. The second is newer and less familiar: the content-moderation system in which platforms like Facebook implement the rules that govern online speech. These platforms are not bound by the First Amendment. But, as it turns out, they rely on many of the tools used by courts to resolve tensions between regulating harmful speech and preserving free expression—particularly the entangled concepts …

Return Of The Campus Speech Wars, Thomas Healy

Michigan Law Review

Review of Erwin Chemerinsky and Howard Gillman's Free Speech on Campus.

Privacy, Property, And Publicity, Mark A. Lemley

Michigan Law Review

Review of Jennifer E. Rothman's The Right of Publicity: Privacy Reimagined for a Public World.

Regulating Bot Speech, Madeline Lamo, Ryan Calo

Articles

We live in a world of artificial speakers with real impact. So-called “bots” foment political strife, skew online discourse, and manipulate the marketplace. Concerns over bot speech have led prominent figures in the world of technology to call for regulations in response to the unique threats bots pose. Recently, legislators have begun to heed these calls, drafting laws that would require online bots to clearly indicate that they are not human.

This work is the first to consider how efforts to regulate bots might run afoul of the First Amendment. At first blush, requiring a bot to self-disclose raises little …

Global Platform Governance: Private Power In The Shadow Of The State, Hannah Bloch-Wehba

Faculty Scholarship

Online intermediaries—search engines, social media platforms, even e-commerce businesses—are increasingly required to make critical decisions about free expression, individual privacy, and property rights under domestic law. These requirements arise in contexts that include the right to be forgotten, hate speech, “terrorist” speech, and copyright and intellectual property. At the same time, these disputes about online speech are increasingly borderless. Many laws targeting online speech and privacy are explicitly extraterritorial in scope. Even when not, some courts have ruled that they have jurisdiction to enforce compliance on a global scale. And governments are also demanding that platforms remove content—on a global …

Rwu First Amendment Blog: Jenna Wims Hashway's Blog: First Amendment Lets Officials Mute But Not Block Twitter Critics 10/09/2018, Jenna Wims Hashway

Law School Blogs

No abstract provided.

Robotic Speakers And Human Listeners, Helen Norton

Seattle University Law Review

This article discusses protected First Amendment speech and how this protection should be applied to robotic speech. Robotic speech is that created by automated means, currently “bots” but the producers of automated speech are evolving. The article further differentiates between rights of the producers of this speech and listeners or consumers of the speech, and the impact of First Amendment protections on each group.

Rwu First Amendment Blog: Michael J. Yelnosky's Blog: Janus V. Afscme And "Weaponizing The First Amendment 06-30-2018, Michael J. Yelnosky

Law School Blogs

No abstract provided.

Use Your Words: On The "Speech" In "Freedom Of Speech", Leslie Kendrick

Michigan Law Review

Freedom of speech occupies a special place in American society. But what counts as “speech” is a contentious issue. In countless cases, courts struggle to distinguish highly protected speech from easily regulated economic activity. Skeptics view this struggle as evidence that speech is, in fact, not distinguishable from other forms of activity.

This Article refutes that view. It argues that speech is indeed distinct from other forms of activity, and that even accounts that deny this distinction actually admit it. It then argues that the features that make speech distinctive as a phenomenon also make it distinctive as a normative …

When Should Rights "Trump"? An Examination Of Speech And Property, Laura S. Underkuffler

Maine Law Review

In his well-known article, Property, Speech, and the Politics of Distrust, Professor Richard Epstein—a leading contemporary voice in the fields of property theory and constitutional law—makes a simple but compelling argument. There has been, he argues, a mistake in “the dominant mode of thinking about property rights during the past fifty years [that] has been ... of constitutional dimensions.” This mistake, in Professor Epstein's view, is the refusal of the federal courts to accord to individual property rights the same kind of protection from government regulation that is accorded to other constitutional rights. Using free speech as his example, Professor …

Rwu First Amendment Blog: Diana Hassel's Blog: How Will Supreme Court Slice Wedding Cake Case 01-11-2018, Diana Hassel

Law School Blogs

No abstract provided.

Is The First Amendment Obsolete?, Tim Wu

Michigan Law Review

The First Amendment was brought to life in a period, the twentieth century, when the political speech environment was markedly different than today’s. With respect to any given issue, speech was scarce and limited to a few newspapers, pamphlets or magazines. The law was embedded, therefore, with the presumption that the greatest threat to free speech was direct punishment of speakers by government.

Today, in the internet and social media age, it is no longer speech that is scarce—rather, it is the attention of listeners. And those who seek to control speech use new methods that rely on the weaponization …

Confident Pluralism: Surviving And Thriving Through Deep Difference, John D. Inazu

Scholarship@WashULaw

In the three years since Donald Trump first announced his plans to run for president, the United States seems to become more dramatically polarized and divided with each passing month. There are seemingly irresolvable differences in the beliefs, values, and identities of citizens across the country that too often play out in our legal system in clashes on a range of topics such as the tensions between law enforcement and minority communities. How can we possibly argue for civic aspirations like tolerance, humility, and patience in our current moment?

In Confident Pluralism, John D. Inazu analyzes the current state …

The Audacity Of Protecting Racist Speech Under The National Labor Relations Act, Michael Z. Green

Faculty Scholarship

This Article, written for a symposium hosted by the University of Chicago Legal Forum on the Disruptive Workplace, analyzes the most recent failures of the National Labor Relations Board (NLRB) to determine a thoughtful and balanced approach in addressing racist speech. Imagine two employees in the private sector workplace are discussing the possibility of selecting a union to represent their interests regarding wages and working conditions. During this conversation, a black employee notes the importance of using their collective voices to improve working conditions and compares the activity of selecting a union with the Black Lives Matter protests aimed at …

Rwu First Amendment Blog: Jared A. Goldstein's Blog: Ri's Conversion Therapy Ban Protects Lgbtq Youth And It's Constitutional 08-09-2017, Jared A. Goldstein

Law School Blogs

No abstract provided.

Newsroom: Donald Trump Vs. Roger Williams 05-09-2017, David Logan

Life of the Law School (1993- )

No abstract provided.

Newsroom: Trump: Full Employment For Lawyers 04-04-2017, David Logan

Life of the Law School (1993- )

No abstract provided.

Rwu First Amendment Blog: David Logan's Blog: Donald Trump And The Full-Employment-For-Lawyers Presidency, David A. Logan

Law School Blogs

No abstract provided.