First Amendment Commons^™

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 …

Mad About The First Amendment, Our Beacon For Liberty, Equality And Democracy, Nicholas Allard

Faculty Scholarship

No abstract provided.

The Paradox Of Free Speech In The Digital World: First Amendment Friendly Proposals For Promoting User Agency, Nadine Strossen

Articles & Chapters

The United States Supreme Court has continued a speech-protective trend dating back to the 1960s, safeguarding even the most controversial speech from government regulation, including speech that critics of this trend label with the stigmatizing terms "hate speech," "disinformation," "misinformation," "extremist speech," and "terrorist speech." In contrast, as dominant online platforms have become increasingly important forums for both individual self-expression and democratic discourse, the platforms have been issuing and enforcing increasing restrictions on their users' speech pursuant to each platform's content moderation policies. These restrictions often suppress speech that the U.S. Constitution bars government from suppressing. As private sector entities, …

When Free Speech And Privacy Collide: Why Strict Scrutiny Is A Poor Fit For Nonconsensual Pornography Laws, Leah S. Murphy

Cardozo Law Review

No abstract provided.

Equal Justice Under Law: Navigating The Delicate Balance Between Religious Liberty And Marriage Equality, Meg Penrose

Faculty Scholarship

This Article discusses the current state of the law and offers thoughts on its future. Part Il provides a brief overview of the legal landscape involved in the clash between religious liberty and same-sex marriage From Justice Scalia's seminal religious liberty test to the evolution of same- sex marriage, Part Il describes the current law. Part III introduces the reader to public accommodations laws. After providing this brief history, Part Ill discusses three Supreme Court cases that could have resolved the religious liberty versus marriage equality question. Part IV looks ahead and draws analogies to the 1960s religious liberty objections …

Deceive, Profit, Repeat: Public Deception Schemes To Conceal Product Dangers, Wes Henricksen

Cardozo Law Review

Companies in numerous industries have misled the public by hiding the dangers posed by their products. Sugar manufacturers hid the dangers of high fructose corn syrup and misdirected the public’s attention to fat, causing an epidemic of diabetes, obesity, and heart disease. Opioid manufacturers hid the dangers and addictiveness of opioid painkillers, leading to the opioid crisis. Fossil fuel companies misled the public about the causes, certainty, and effects of global warming, resulting in massive unregulated CO2 emissions and causing one of the greatest threats to humankind. This Article identifies all such schemes as belonging to a category of wrongs …

Rluipa’S Hidden Third-Party Harms On Landowners And Local Governments, Menachem Polishuk

Cardozo Law Review

No abstract provided.

(Anti)-Slapp Happy In Federal Court?: The Applicability Of State Anti-Slapp Statutes In Federal Court And The Need For Federal Protection Against Slapps, Caitlin Daday

Catholic University Law Review

In recent years, lawsuits known as Strategic Lawsuits Against Public Participation, or SLAPPs, have become increasingly common. These suits seek to intimidate and punish people for exercising their First Amendment rights. In response to SLAPPs, over half of the states have enacted anti-SLAPP statutes to protect the targets of SLAPPs. They do so by providing a mechanism for the target to dismiss the lawsuit more quickly than they would normally be able to. In federal courts, the question has arisen as to whether anti-SLAPP statutes should be applied in diversity suits given their close alignment to Federal Rules 8, 12, …

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.

Disinfo V. Democracy, Nadine Strossen

Other Publications

Using accusations of ‘disinformation’ to suppress scientific criticism, steer media coverage, and silence political opponents is not part of the operating system of a free society

Does The Ministerial Exception Protect A Minister's Humiliating Comments?, Yiting Feng

SLU Law Journal Online

The Seventh Circuit case of Demkovich v. St. Andrew the Apostle Parish applied the ministerial exception to bar a fired minister’s claim of a hostile work environment. In this article, Yiting Feng lists the reason why she disagrees with the majority opinion and leans towards the dissenting opinion.

"Recognized Stature" Revisited: Could "Community Standards" Rescue Restrictive "Recognized Stature" Definition In Castillo V. G&M Realty L.P.?, Caitlin M. Mcgrail

Villanova Law Review (1956 - )

No abstract provided.

Brief Of Amici Curiae Benedictine College And Franciscan University Of Steubenville In Support Of Petitioners, Richard W. Garnett Iv, Nicole Stelle Garnett, John A. Meiser

Court Briefs

No. 21-145
Gordon College v. Margaret DeWeese-Boyd

On Petition for Writ of Certiorari to the Supreme Judicial Court of Massachusetts

From the Summary of Argument

This Court should grant certiorari to make clear that the First Amendment guarantees religious colleges and universities the same vital protections that safeguard a religious grade school’s freedom to select the teachers who personify and teach its faith. Despite this Court’s recent admonition that such protections apply to a religious school’s selection of “any ‘employee’ . . . who serves as a messenger or teacher of its faith,” Our Lady of Guadalupe Sch. v. …

Virginia Court Reinstates Teacher Suspended For Opposing Trans Inclusion Policy, Arthur S. Leonard

Other Publications

No abstract provided.

Scrutiny-Determination Avoidance In First Amendment Cases: Laudable Minimalism Or Condemnable Evasion?, Clay Calvert

Nevada Law Journal

No abstract provided.

When Two Rights Make A Wrong: Armed Assembly Under The First And Second Amendments, Michael C. Dorf

Northwestern University Law Review

No abstract provided.

A “License To Kale”—Free Speech Challenges To Occupational Licensing Of Nutrition And Dietetics, Taylor J. Newman, Angela E. Surrett

St. Mary's Law Journal

State licensing of medical professions has occurred for over a century. Recently, these licensure statutes have been subject to First Amendment challenges, alleging occupational licensure impermissibly restricts freedom of speech. This Comment addresses these free speech challenges, arguing occupational licensure statutes, at least for medical professions, only incidentally impacts free speech—if at all—by permissibly regulating medical professional conduct necessarily requiring speech. Within, the authors ultimately describe, demonstrate, and recommend a legal framework, the other factor/personal nexus approach. This approach helps determine the point at which speech becomes regulable professional conduct subject to licensing, utilizing the nutrition and dietetics profession, and …

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

Law Faculty Scholarship

[Excerpt] "Much Critical commentary concerning the so-called "divisive concepts" provisions in this year's budget legislation has focused on their restrictions on speech. These restrictions, among other things, forbid public K-12 teachers from instructing that some 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, mental or physical disability, religion, or national origin."

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 …

Penises, Nipples, And Bums, Oh My!: An Examination Of How Freedom Of Expression Applies To Public Nudity, Clara Gutwein

Indiana Journal of Global Legal Studies

How do you solve a problem like the nipple? A woman's nipples are both erotic and utilitarian, obscene and maternal. She must never show them in public. She must show them to feed her child. Nipples are for men. Nipples are for babies. Nipples, it seems, are for everyone except a woman herself. The law, too, has something to say about nipples. It is completely constitutional for the government to prevent women from publicly showing their nipples in order to protect morality and public order. Thus, the law assumes an inversely proportional relationship between the number of publicly exposed nipples …

Court Rejects Web Designer’S Challenge To Colorado Anti-Discrimination Law, Arthur S. Leonard

Other Publications

No abstract provided.

A Case Against School Choice: Carson Ex Rel. O.C. V. Makin And The Future Of Maine's Nonsectarian Requirement, Blake E. Mccartney

Maine Law Review

School choice advocates, such as the nonprofit libertarian law firm, The Institute for Justice, have spent decades arguing that states violate the Free Exercise Clause when they exclude private religious schools from public programs that otherwise provide public dollars to non-religious private schools. Recently, in Espinoza v. Montana Department of Revenue, the Supreme Court effectively agreed with that sentiment. After this victory, the Institute for Justice returned to the state of Maine to represent three sets of parents in a renewed effort to defeat Maine’s nonsectarian requirement in federal court. Maine’s nonsectarian requirement provides that private religious schools may not …

Freedom Of Speech At Ursinus College, Benjamin Henwood

Business and Economics Summer Fellows

Freedom of speech is a hot topic issue on many college campuses across the United States. My research project’s goal is to find out how our community at Ursinus College feels about freedom of speech. My project is going to explore how well Ursinus holds itself to its standards of free and open inquiry and how the students on campus feel about free and open inquiry. In order to understand how the community feels about free speech on our campus, we borrowed a survey from the Foundation of Individual Rights in Education and distributed it to roughly half of the …

Defending A Religious Institution Using The Charitable Immunity And Ecclesiastical Doctrine Defenses To Tort Liability, Michael M. Harrison

Arkansas Law Notes

Defense attorneys in Arkansas are, not infrequently, called upon to defend religious institutions from tort suits brought against them for a variety of reasons. Such claims may arise out of a motor vehicle accident involving a church bus, a slip and fall accident on church premises, a claim of sexual molestation on the part of a church employee, or another type of claim. In defending claims against religious institutions, it is imperative that the defense of charitable immunity and, where applicable, the Ecclesiastical doctrine, be raised in the first responsive pleading to the Complaint, be that an Answer and/or a …

Fixing False Truths: Rethinking Truth Assumptions And Free-Expression Rationales In The Networked Era, Jared Schroeder

William & Mary Bill of Rights Journal

The First Amendment makes no mention of truth. Assumptions about truth, however, have become the foundations for free-expression rationales, the very bases for such freedoms in a democratic society. The Supreme Court gradually, over time, wedded Enlightenment assumptions about truth to the marketplace of ideas rationale for free expression. This Article examines, in light of massive, widespread adoption of networked technologies and AI and Supreme Court decisions that have undermined the distinctive role of truth, whether truth should be removed or replaced as a crucial, justifying concept in freedom of expression. The Article examines the marketplace approach’s history and assumptions, …

No Aid, No Agency, Steven K. Green

William & Mary Bill of Rights Journal

Over the past three decades, members of the Supreme Court have demonstrated increasing hostility to the Establishment Clause’s rule against funding religion, first enunciated in 1947. Over the years, the Court has not only narrowed the rule to allow for government aid to flow to religious schools and faith-based charities, it has more recently declared that to enforce that rule may amount to discrimination against religion. This Article argues that a key reason for the decline in the no-aid principle rests on the weakness of the rationale underlying that rule: that funding of religion coerces the conscience of taxpayers. The …

Law School News: Logan Article Central To Scotus Dissent, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

The New Editors: Refining First Amendment Protections For Internet Platforms, Mailyn Fidler

Notre Dame Journal on Emerging Technologies

This Article envisions what it would look like to tailor the First Amendment editorial privilege to the multifaceted nature of the internet, just as courts have done with media in the offline world. It reviews the law of editorial judgment offline, where protections for editorial judgment are strong but not absolute, and its nascent application online. It then analyzes whether the diversity of internet platforms and their functions alter how the Constitution should be applied in this new setting. First Amendment editorial privilege, as applied to internet platforms, is often treated by courts and platforms themselves as monolithic and equally …

Charting The Skies: Where Does Facial Recognition Technology "Fit" In The Data Privacy Cosmos?, Steven D. Zansberg

Notre Dame Journal on Emerging Technologies

What I offer below is a theoretical framework for evaluating competing societal interests: the value our society assigns to the free-flow of information to the public, including highly sophisticated computergenerated analyses of gargantuan data sets—information that helps inform better individual and collective decision-making; and on the other hand, the value we place on privacy even in the context of technological advances. One’s most personal actions and thoughts—what we type into search engines, which videos we watch, for how long or how often, which books or articles we read, with whom we communicate and the contents of those communications—should not be …

Note: Facial Recognition Technology And The Constitution, Mark Simonitis

Notre Dame Journal on Emerging Technologies

Over the past several years, we have seen an increase in the adoption and use of facial recognition technology (FRT). Both private corporations and government organizations have increasingly used this technology over the past several years, and law enforcement agencies have been just as eager to utilize FRT in their operations. The potential uses for this technology in a law enforcement capacity are numerous. For example, FRT could be used to identify criminals whose faces were caught on surveillance footage, or it could be used to help identify citizens during border crossings. However, it is easy to imagine how an …