First Amendment Commons^™

Let Them Hear It: Peaceful Protests Near The Homes Of Supreme Court Justices, Srikanth Reddy

Lewis & Clark Law Review

All of us—not just attorneys and politicians—need to be more critical and skeptical of the Supreme Court. Criticism by ordinary people is good and appropriate, even if it hurts the Justices’ feelings. That includes public protests. When a case matters enough to them, members of the public can and should criticize the Court and its Justices, including by peacefully gathering and protesting near a Justice’s home, or when a Justice appears out in the world.

Interpreting Anti-Boycott Laws In The Shadow Of The First Amendment, Joseph A. Tomain

Articles by Maurer Faculty

Thirty-eight states have enacted “anti-BDS” laws. These laws require people or entities doing business with the state to certify that they do not participate in the Boycott Divestment Sanction movement against Israel. Typically, these laws define boycott as a “refusal to deal, terminating business, or other actions” that limit commercial relations with Israel or Israeli entities. It is highly contested in the courts and commentary whether these anti-boycott laws violate the First Amendment. Assuming arguendo that the “refusal to deal” and “terminating business” clauses do not implicate the First Amendment, that leaves the residual clause. At least one court and …

The Waiting Is The Hardest Part: The Constitutionality Of Firearm Waiting Periods, F. Lee Francis

Dickinson Law Review (2017-Present)

This Article examines the constitutionality of firearm waiting period laws through the lens of the Supreme Court’s evolving Second Amendment jurisprudence. Although such laws are frequently defended as prudent public safety measures, their validity turns not on legislative purpose but on constitutional principle, particularly as framed in District of Columbia v. Heller and New York State Rifle & Pistol Ass’n v. Bruen.

Under those decisions, the scope of the Second Amendment is determined not by judicial balancing of contemporary interests, but by reference to the Nation’s historical tradition of firearm regulation. The Article surveys that tradition and finds no …

A Supreme Sidestep: The Justices’ Artful Dodge On Platform Immunity, Leslie Garfield Tenzer

Northwestern Journal of Technology and Intellectual Property

The foiled ISIS plot to attack Taylor Swift concerts, coordinated by teens on social media platforms with a significant US presence, illustrates the dangerous consequences of unchecked online content. This incident, coupled with other tragic cases—such as the sexual exploitation of a minor lured through Facebook and Tyler Clementi’s suicide following a privacy violation on Twitter—highlights the urgent need to reassess 47 U.S.C. § 230 of the Communications Decency Act. Enacted in 1996, this law provides broad immunity to interactive computer services, including social media platforms, shielding them from liability for user-generated content. While initially celebrated as a catalyst for …

Understanding Free Speech Values At The Supreme Court, Noah C. Chauvin

Faculty Articles

This essay is a book review of The Supreme Court and the Philosopher: How John Stuart Mill Shaped US Free Speech Protections, by Professors Eric Kasper and Troy Kozma. The book argues that John Stuart Mill had an indelible impact on the Supreme Court's free speech jurisprudence, and that through the power of precedent, we have come to have a "Millian "First Amendment. As I explain in the review, Kasper and Kozma have made a compelling case. However, because Mill offered an expansive defense of freedom of expression, it is not enough to say that the Court's free speech jurisprudence …

Trading Places: The Intersection Of Lgbtq Rights And Zionist Rights Under Federal Civil Rights, Marc A. Greendorfer

Touro Law Review

While antidiscrimination laws have a long history at both the federal and state levels, the scope of coverage for these laws has evolved based on nuanced interpretations of terms that previously had established, static meanings. Many antidiscrimination laws prohibit discrimination on the basis of generic categorizations such as sex, religion or ethnicity but such terms are undergoing a rapid change in the way society understands and uses them. For example, sex, which historically has referred to biological gender at birth, now encompasses gender as well as sexual orientation. This article focuses on a recent Supreme Court decision relating to the …

Unboxing The Box: A Deep Dive Into Solitary Confinement And When It May Violate The First And Eighth Amendments, Madison Scarfaro

Touro Law Review

Solitary confinement has been a practice used for those who are incarcerated in our criminal justice system for hundreds of years. Our nation, as well as our society have evolved and continue to evolve over the course of hundreds of years. However, the use of solitary confinement has not. Even with all of the research and literature surrounding the monstrosities that come about from solitary confinement, it is still used in most of our jails and prisons to this day. The Eighth Amendment to the U.S. Constitution provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel …

America’S Turning Point: Religious & Free Speech Rights Transcend The Authority Public School Districts Think They Possess, Robert L. Coleman

Touro Law Review

What is the first thing that comes to mind when thinking about the First Amendment? I would argue that most people either say “Religion” or “Free Speech.” Arguably two of the most important and humane values inherent in a functioning democratic society are safeguarded by the First Amendment. But are they? Imagine this situation. You and your spouse have a child and send him to the local public school. One day, he comes home and says that his fourth grade teacher instructed the class that each student must refer to classmates by the pronouns of that student’s choice. Your child …

The Necessary Opportunism Of The Common Law First Amendment, Chris Stangl

Tennessee Journal of Law and Policy

The First Amendment historically has been interpreted to provide greater and greater protection to more and more forms of expression. The notion of an originalist First Amendment has never commanded a majority of the Supreme Court and is unlikely to do so. Instead the development of the First Amendment has followed a common law trajectory. As the reach of its protections expands, so to do its attractiveness for arguments that may be more accurately located elsewhere in the Constitution's text. Such opportunism is a predictable, even necessary consequence of the First Amendment's common law development, and the Supreme Court tacitly …

Speaking Collectively: The First Amendment, The Public Sector, And The Right To Bargain And Strike, Kate Andrias

Faculty Scholarship

How is it that the Supreme Court has not understood collective bargaining and strikes among public sector workers to fall within the First Amendment’s ambit? Public sector union activity involves expression, assembly, association, and petitioning. Workers’ ability to form unions and to engage in concerted action in support of their shared goals is an important part of democratic governance. Through unions, workers engage in active citizenship; through association with one another, they express their views collectively and engage the government and the public on issues of public concern. Indeed, in the context of protecting the putative speech rights of union …

Opening Dialogue, Lee C. Bollinger, Geoffrey R. Stone

Faculty Scholarship

To set the stage for the excellent essays that make up this volume on the future of free speech, let’s begin where we often do when thinking together about the First Amendment: with some basic facts and fundamental observations about the constitutional command that “Congress shall make no law ... abridging the freedom of speech, or of the press.”

Of course, in the United States, “free speech” is not only part of the constitutional Bill of Rights; it is also a cultural and social norm by which we choose to live. Several of the essays in this volume therefore take …

Anti-Press Bias: A Response To Andersen Jones And West's Presuming Trustworthiness, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

Professors RonNell Andersen Jones and Sonja R. West’s Presuming Trustworthiness is a deeply depressing read. That is what makes it so good. The article is a clear-eyed, data-driven approach to assessing just how endangered the legal status of the free press is. Given the universality of the agreement that a free press is central to democracy, Andersen Jones and West’s message is vital. Presuming Trustworthiness should raise alarms.

In response, I hope this essay can serve as a bullhorn. I want to amplify what Andersen Jones and West’s research and data bear out. Not only has the Supreme Court ceased …

A License To Discriminate? 303 Creative V. Elenis And Where The Supreme Court May Go, Christopher J. Manettas

Touro Law Review

No abstract provided.

The Pioneers, Waves, And Random Walks Of Securities Law In The Supreme Court, Elizabeth Pollman

Seattle University Law Review

After the pioneers, waves, and random walks that have animated the history of securities laws in the U.S. Supreme Court, we might now be on the precipice of a new chapter. Pritchard and Thompson’s superb book, A History of Securities Law in the Supreme Court, illuminates with rich archival detail how the Court’s view of the securities laws and the SEC have changed over time and how individuals have influenced this history. The book provides an invaluable resource for understanding nearly a century’s worth of Supreme Court jurisprudence in the area of securities law and much needed context for …

Three Stories: A Comment On Pritchard & Thompson’S A History Of Securities Laws In The Supreme Court, Harwell Wells

Seattle University Law Review

Adam Pritchard and Robert Thompson’s A History of Securities Laws in the Supreme Court should stand for decades as the definitive work on the Federal securities laws’ career in the Supreme Court across the twentieth century.1 Like all good histories, it both tells a story and makes an argument. The story recounts how the Court dealt with the major securities laws, as well the agency charged with enforcing them, the Securities and Exchange Commission (SEC), and the rules it promulgated, from the 1930s into the twenty-first century. But the book does not just string together a series of events, “one …

Corporate Takeover: A New Clash In The Old Struggle Between Corporate Rights And Public Health, John J. Locurto, Rachel Radke, Xyruz Villariz, Jasmine Ann Castillejos

Faculty Articles

Corporations have used the federal courts to secure many of the same constitu­tional rights as individuals. As corporate rights proliferate so does corporate power to influence and resist laws that protect the public. One such law is the Patient Protection and Affordable Care Act—legislation that reformed health insurance coverage with important implications for public health.

The ACA has been a frequent target of litigation. Recent corporate lawsuits have invoked the Religious Freedom Restoration Act to challenge the ACA’s preventive care mandate, which requires health plans to cover preventive services without cost sharing. In Braidwood Management, Inc. v. Becerra, a …

Blunt Speech Rights, Nicholas Almendares

Articles by Maurer Faculty

There is a lot to be said about the Supreme Court’s decision in 303 Creative LLC. In the wake of the decision there will be a range of commentaries like those presented in this Issue. I want to draw attention to a particular aspect of the opinion, part of a broader trend in the Court’s First Amendment jurisprudence, towards blunt, sweeping rules. By a blunt rule, I mean a simple, coarse one that lacks nuance or distinctions. Blunt rules, by their nature, tend to be sweeping: nuance, that is, distinguishing cases based on various factors, limits the scope of a …

A New Great Awakening Of Religious Freedom In America, John Witte Jr.

Faculty Articles

While loud criticisms of religion continue to clatter in the media and the law reviews, the U.S. Supreme Court has led a great awakening of American religious freedom. In more than two dozen cases since 2011, the Court has used both the First Amendment and federal statutes to strengthen the rights of religious organizations to make their own internal decisions about employment and employee benefits. The Court has held that some forms of government aid to religion and religious education are not only permissible under the Establishment Clause, but also required under the Free Exercise and Free Speech Clauses. The …

The Worst Choice For School Choice: Tuition Tax Credits Are A Bad Idea And Direct Funding Is Wiser, Michael J. Broyde, Anna G. Gabianelli

Faculty Articles

School choice is on the rise, and states use various mechanisms to implement it. One prevalent mechanism is also a uniquely problematic one: the tax credit. Tax credits are deficient at equitably distributing a benefit like school choice; they are costly, and they invite fraud. Instead of using tax credits, states opting for school choice programs should use direct funding. Direct funding will more efficiently achieve the goals of school choice because it can be regulated like any other government benefit, even if it ends up subsidizing religious private schools.

Tax credits’ prevalence is not inexplicable, of course. It is …

Public Accommodations Laws, Free Speech Challenges, And Limiting Principles In The Wake Of 303 Creative, Michael L. Smith

Faculty Articles

In 303 Creative LLC v. Elenis, the United States Supreme Court ruled that Colorado's Anti-Discrimination Act's prohibition of discrimination on the basis of sexual orientation violated the First Amendment rights of Lorie Smith, a website designer who refused to make wedding websites for same-sex couples. This Article argues that the Court's ruling rested on a vision of state control over speech that was divorced from the law before it. Using this framing of the law to conjure up inapplicable hypothetical scenarios of state-mandated expression, the Court found in Smith's favor. And yet, in responding to the dissent's concerns that the …

Interpreting Religious Doctrine: The Third Rail That Wags The Dog In Religion Clause Jurisprudence, Samuel J. Levine

Scholarly Works

This Article is part of a broader project exploring and assessing the United States Supreme Court’s hands-off approach to interpreting religious doctrine. The mixed metaphor that constitutes the title of this Article incorporates various aspects of the project’s interrelated themes and claims. First, as a descriptive matter, the Supreme Court has repeatedly and increasingly refused to adjudicate issues that require the interpretation, evaluation, and resolution of substantive areas of religious practice and belief. Thus, like the third rail of train tracks, interpreting religious doctrine is deemed off-limits and better left untouched. Indeed, the Court’s justifications for the hands-off approach rely …

Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez

Seattle University Law Review

The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater …

Originalism’S Age Of Ironies, Sherif Girgis

Journal Articles

From the Article

Guns, abortion, religious establishments, Presidential power: While today’s Supreme Court identifies as originalist, it has settled constitutional questions on these and many other issues using history and tradition, not just original meaning. Scholars debate whether this trend can be squared with originalism. Last Term, the originalist Justices joined the fray. A close look at their dueling opinions reveals the divergent paths that originalists take when the method is pressed to its limits. It turns out that the purer one’s originalism at the level of theory, the less it constrains judges in practice. That is especially true for …

The Common Law And First Amendment Qualified Right Of Public Access To Foreign Intelligence Law, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

For millennia, public access to the law has been the hallmark of rule of law. To be legally and morally binding, rules must be promulgated. Citizens’ knowledge of the law, in turn, serves as the lynchpin for democratic governance. In common law countries, it is more than just the statutory provisions and their execution that matters: how courts rule, and the reasoning behind their determination, proves central. Accordingly, in the United States, both common law and the right to petition incorporated in the First Amendment have long enshrined a presumed right of public right of access to Article III opinions …

The News Media Engagement Principle: Why Social Media Has Not Actually Overrun The Limited Purpose Public Figure Category, Zachary R. Cormier

University of Miami Law Review

Has the rise of social media ruined the limited purpose public figure category of the First Amendment’s actual malice privilege? Justice Gorsuch believes so—and he has recently invited courts to get rid of it. He argues that the category now includes vast numbers of otherwise private citizens that have “become ‘public figures’ on social media overnight.” With so many people qualifying as limited purpose public figures (and having to overcome the actual malice standard to prevail on a defamation claim), he claims that the category has evolved to provide an unjustified shield for the masses of misinformation-peddlers on social media. …

For Freedom Or Full Of It? State Attempts To Silence Social Media, Grace Slicklen

University of Miami Law Review

Freedom of speech is, unsurprisingly, foundational to the “land of the free.” However, the “land of the free” has undergone some changes since the First Amendment’s ratification. Unprecedented technological evolution has ushered in a digital forum in which the volume, speed, and reach of words transcend the Framers’ visions of the First Amendment’s aims. Social media platforms have become central spaces for public discourse, where opportunities to create—and repress—speech are endless. From enabling individuals to freely express their views, to allowing state actors to limit open exchanges, it is about time that the Supreme Court tackles this complex issue of …

Advancing America’S Emblematic Right: Doctrinal Bases For The Fundamental Constitutional Right To Vote Per Se, Susan H. Bitensky

University of Miami Law Review

This Article identifies and examines the Supreme Court’s longstanding unintelligibility with respect to recognition of a fundamental right to vote per se under the Constitution. In a host of equal protection cases, the Court’s refusal to “say what the law is” in this regard has produced a chaotic jurisprudence on the status of the right. Because ours is a constitutional schema consisting of multiple types of rights to vote, the refusal manifests as judicial reliance on and acclamation of some unspecified right to vote. It is refusal by lack of clarity. The unsorted right has led some scholars to conclude …

Foreword: New Supreme Court Cases: Duquesne Law Faculty Explains, Wilson Huhn

Law Faculty Publications

On September 30, 2022, several members of the faculty of the Thomas R. Kline School of Law of Duquesne University presented a Continuing Legal Education program, New Supreme Court Cases: Duquesne Law Faculty Explains, reviewing these developments. Duquesne Law Review graciously invited the faculty panel to contribute their analysis of these cases from the Supreme Court's 2021- 2022 term for inclusion in this symposium issue of the Law Review.

Using Bruen To Overturn New York Times V. Sullivan, Michael L. Smith, Alexander S. Hiland

Pepperdine Law Review

While New York Times Co. v. Sullivan is a foundational, well-regarded First Amendment case, Justice Clarence Thomas has repeatedly called on the Court to revisit it. Sullivan, Thomas claims, is policy masquerading as constitutional law, and it makes almost no effort to ground itself in the original meaning of the First and Fourteenth Amendments. Thomas argues that at the time of the founding, libelous statements were routinely subject to criminal prosecution—including libel of public figures and public officials. This Essay connects Justice Thomas’s calls to revisit Sullivan to his recent opinion for the Court in New York State Rifle & …

A 180 On Section 230: State Efforts To Erode Social Media Immunity, Leslie Y. Garfield Tenzer, Hayley Margulis

Pepperdine Law Review

The turmoil of the 2020 presidential election renewed controversy surrounding 47 U.S.C § 230. The law, adopted as part of the 1996 Communications Decency Act (CDA), shields Interactive Computer Services (ICS) from civil liability for third-party material posted on their Platforms—no matter how heinous and regardless of whether the material enjoys constitutional protection. Consequently, any ICS, which is broadly defined to include Internet service providers (ISPs) and social media platforms (Platforms), can police its own postings but remains free from government intervention or retribution. In 2022, members of the Texas and Florida legislatures passed laws aiming to limit the scope …