First Amendment Commons^™

Freedom Of Thought In The United States: The First Amendment, Marketplaces Of Ideas, And The Internet, John G. Francis, Leslie Francis

Utah Law Faculty Scholarship

Freedom of thought is not directly protected as a right in the United States. Instead, US First Amendment law protects a range of rights that may allow thoughts to be expressed. Freedom of speech has been granted especially robust protection. US courts have extended this protection to a wide range of commercial activities judged to have expressive content. In protecting these rights, US jurisprudence frequently relies on the image of the marketplace of ideas as furthering the search for truth. This commercial image, however, has increasingly detached expressive rights from the understanding of freedom of thought as a critical forum …

Judges As Superheroes: The Danger Of Confusing Constitutional Decisions With Cosmic Battles, H. Jefferson Powell

South Carolina Law Review

No abstract provided.

Common Law Baselines And Current Free Speech Doctrine, Erica Goldberg

Villanova Law Review (1956 - )

No abstract provided.

When Claims About Lollipops Are Best Kept Under Wraps: Can The Fda Regulate Off-Label Speech?, Emily Moss

Minnesota Journal of Law, Science & Technology

No abstract provided.

Recent Developments, Clinton T. Summers

Arkansas Law Review

In a free speech and free exercise case involving the Business Leaders in Christ at the University of Iowa, the Eighth Circuit Court of Appeals reversed the Southern District of Iowa by holding that University officials should not be granted qualified immunity based on the student organization’s free speech claim.

Changing Counterspeech, G.S. Hans

Cleveland State Law Review

A cornerstone of First Amendment doctrine is that counterspeech — speech that responds to speech, including disfavored, unpopular, or offensive speech — is preferable to government censorship or speech regulation. The counterspeech doctrine is often invoked to justify overturning or limiting legislation, regulation, or other government action. Counterspeech forms part of the rationale for the "marketplace of ideas" that the First Amendment is arguably designed to promote. Yet critics assert that counterspeech is hardly an effective remedy for the harms caused by "hate speech" and other offensive words that are expressed in American society, given the realities of how speech …

How Should We Regulate The Internet? A Proposal, Natalie Petruzelli

The Review: A Journal of Undergraduate Student Research

With the invention of the internet providing newfangled methods of spreading information around the world, misinformation has also found home in these pathways, disrupting the general public’s ability to discern fact from fiction and creating divides in society. Regulation must be enacted to stop the effects of misinformation, but the efforts of technology companies and the general public have been insufficient thus far. Regulatory control of the internet and its content should be the responsibility of the government, based on their constitutional right to intervene under certain circumstances and the fact that previous efforts by other parties to mitigate misinformation …

How Far Will Fara Go? The Foreign Agents Registration Act And The Criminalization Of Global Human Rights Advocacy, Monica Romero

Washington Law Review

The Foreign Agents Registration Act (FARA) was enacted and enforced during World War II to protect the American public from foreign propaganda, especially from the Nazi party. Following the war, FARA was scarcely used for over half a century. But in the past five years, there has been a significant uptick in FARA enforcement, particularly against major political personalities. The revival of FARA has led many legislators and scholars to advocate for expansions of FARA’s scope and enforcement mechanisms in the name of national security. But most have failed to acknowledge the risk and likelihood of politicized enforcement. The United …

“More Than Tangential”: When Does The Public Have A Right To Access Judicial Records?, Jordan Elias

Journal of Law and Policy

 Public accountability requires open proceedings and access to documents filed with the courts. The strong policy favoring access to judicial records creates a presumption against sealing documents without a compelling reason.  The Ninth Circuit Court of Appeals recently held that this presumption of access arises when a proceeding relates “more than tangentially” to the merits. This is a low standard under which many types of motions qualify for the compelling reasons test.  With too much litigation occurring in secret, courts can use the “more than tangential” standard proactively to keep electronic case dockets available to citizens.

The Right To Remain Silent: First Amendment Rights Of Physicians In States With Narrated Ultrasound Laws, Sabrina Jemail

University of Cincinnati Law Review

No abstract provided.

Is Freedom Of Expression A Tool Of Oppression And Harm? A Study On Hate Speech And Its Harms In Case Law And Doctrine Of The Us And European Court Of Human Rights, Mohamed Hassan

Theses and Dissertations

Many societies now face the problem of hate speech. It has reached the level of a global problem. Many groups use freedom of expression to oppress other groups through using hate speech. The problem of hate speech represents a complex topic because it is interwind with the right of freedom of expression. However, international human rights law tries to combat the hate speech law in some treaties, such as the ICCPR and CERD, by offering rules to guide states constitutional courts in adjudicating these cases by limiting some of their absolute discretionary power in deciding these cases. These efforts have …

The Constitution, Covid-19, And Civil Disobedience: Federalism In Flames And The Slippery Slope To Socialism, Savannah Snyder

Helm's School of Government Conference - 2021-2024

Our Constitution has been devastatingly corrupted from its original design and vision amid the COVID-19 pandemic. Governors usurped authority in the name of crisis mitigation. Our unalienable rights have been macerated and pulverized by droves of executive orders, each delivering a calamitous blow to the integrity of the American republican framework. Socialized medicine is on the horizon as our compliance is coerced. Conventional civil disobedience has been regulatorily revoked. We have succumbed to the decrees of depraved men who maintain that education, religious expression, and pursuits of happiness can be invalidated by whatever transgressions the state deems necessary. For the …

2-4-6-8 Who Do We Appreciate? The Third Circuit Scores A Touchdown For Student-Athlete Free Speech Rights, Nicolas Burnosky

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Incidental Burdens On First Amendment Freedoms, Charles F. Capps

Notre Dame Law Review Reflection

The Supreme Court is currently reconsidering the question when, if ever, the Free Exercise Clause requires exemptions to neutral laws of general applicability. This Essay proposes an answer that is based on the idea—which this Essay labels the “Principle of Consistency”—that the First Amendment requires comparable levels of protection for speech and religious exercise. Other scholars applying the Principle of Consistency have discussed the implications of United States v. O’Brien, which prescribed intermediate scrutiny for incidental burdens on speech, for the problem of exemptions under the Free Exercise Clause. But no one has discussed the implications of two lines …

Law School News: Lynette Labinger: Doctor Of Laws, Honoris Causa 05-16-2021, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Marriage Mandates: Compelled Disclosures Of Race, Sex, And Gender Data In Marriage Licensing Schemes, Mikaela A. Phillips

William & Mary Journal of Race, Gender, and Social Justice

This Note argues that mandatory disclosures of personal information—specifically race, sex, and gender—on a marriage license application constitute compelled speech under the First Amendment and should be subject to heightened scrutiny. Disclosing one’s race, sex, or gender on a marriage license application is an affirmative act, and individuals may wish to have their identity remain anonymous. These mandatory disclosures send a message that this information is still relevant to marriage regulation. Neither race nor gender is based in science; rather they are historical and social constructs created to uphold a system of white supremacy and heteronormativity. Thus, such statements are …

Getting Away With Murder: How California State Law Determined Recovery In First Roundup Cancer Case Johnson V. Monsato Co., Eliza L. Quattlebaum

Villanova Environmental Law Journal (1991 - )

No abstract provided.

First Amendment Knowledge And Competence In United States Residents, Cynthia J. Najdowski, Kimberly M. Bernstein

Psychology Faculty Scholarship

Lacking adequate knowledge about one's rights could inhibit the likelihood of exercising one's rights or lead one to unwittingly violate laws that place legitimate limits on these rights. Thus, the present research examines First Amendment knowledge as well as competence to apply this knowledge in relevant circumstances. Results revealed that one-quarter of participants failed a test of objective knowledge on First Amendment rights. Furthermore, participants' belief in their ability varied depending on their level of knowledge, in line with the Dunning–Kruger effect. Participants also failed to transfer their limited objective knowledge to “real-world” situations, exhibiting impaired First Amendment competence. These …

Political Fair Use, Cathay Y. N. Smith

William & Mary Law Review

No abstract provided.

Campus Free Speech In The Mirror Of Rising Anti-Semitism, Harry G. Hutchison

St. Mary's Law Journal

Abstract forthcoming.

Deeply Fake, Deeply Disturbing, Deeply Constitutional: Why The First Amendment Likely Protects The Creation Of Pornographic Deepfakes, Bradley Waldstreicher

Cardozo Law Review

No abstract provided.

Child Entertainers And Their Limited Protections: A Call For An Interstate Compact, Tabetha Bennett

Child and Family Law Journal

No abstract provided.

Deepfakes: A New Content Category For A Digital Age, Anna Pesetski

William & Mary Bill of Rights Journal

Technology has advanced rapidly in recent years, greatly benefitting society. One such benefit is people’s ability to have quick and easy access to information through news and social media. A recent concern, however, is that manipulated media, otherwise known as “deepfakes,” are being released and passed off as truth. These videos are crafted with technology that allows the creator to carefully change details of the video’s subject to make him appear to do or say things that he never did. Deepfakes are often depictions of political candidates or leaders and have the potential to influence voter choice, thereby altering the …

The Pure-Hearted Abrams Case, Andres Yoder

William & Mary Bill of Rights Journal

One hundred years ago, Justice Oliver Wendell Holmes changed his mind about the right to free speech and wound up splitting the history of free speech law into two. In his dissent in Abrams v. United States, he called for the end of the old order—in which courts often ignored or rejected free speech claims—and set the stage for the current order—in which the right to free speech is of central constitutional importance. However, a century on, scholars have been unable to identify a specific reason for Holmes’s Abrams transformation, and have instead pointed to more diffuse influences. By …

Why Liberalism Persists: The Neglected Life Of The Law In The Story Of Liberalism's Decline, Kenneth L. Townsend

St. John's Law Review

(Excerpt)

Liberalism is in decline in the West. Past political divides that pitted classically liberal conservatives against moderate to progressive political liberals are giving way to a new landscape in which a liberal consensus simply cannot be assumed. From the left, socialist and identity-based critiques of liberalism have called into question core liberal assumptions regarding procedural justice, the division between public and private realms, and the rights of individuals. From the right, an increasingly vocal group of conservatives is questioning classical liberalism’s commitment to limited government, a free market, and individual rights in favor of a vision of political community …

Let’S Go To The Beach: Gender Segregation As A Tool To Accommodate Religious Minorities, Sarah Gibbons

Chicago-Kent Law Review

No abstract provided.

Unmuted: Solutions To Safeguard Constitutional Rights In Virtual Courtrooms And How Technology Can Expand Access To Quality Counsel And Transparency In The Criminal Justice System, Matthew Bender

Villanova Law Review (1956 - )

No abstract provided.

Unfriending Tinker : The Third Circuit Holds Schools Cannot Regulate Off-Campus Social Media Speech, Amanda N. Harding

Villanova Law Review (1956 - )

No abstract provided.

Brief Of Amicus Curiae Professors Elizabeth A. Clark, Robert F. Cochran, Jr., Carl H. Esbeck, David F. Forte, Richard W. Garnett, Christopher C. Lund, Michael W. Mcconnell, Michael P. Moreland, Robert J. Pushaw, And David A., Skeel, Supporting Petitioners, David Forte, Elizabeth A. Clark, Robert F. Cochran Jr., Carl H. Esbeck, Richard W. Garnett, Christopher C. Lund, Michael W. Mcconnell, Michael P. Moreland, Robert J. Pushaw, David A. Skeel

Law Faculty Briefs and Court Documents

The case concerns the "church autonomy doctrine" based on the Free Exercise Clause of the First Amendment, which declares that courts may not inquire into matters of church government or into disputes of faith and doctrine. Will McRaney was fired from a leadership position in the Southern Baptist Convention because of a conflict over policies relating to the expansion of the Baptist faith. He sued the Southern Baptist Convention in tort.

The district court dismissed the suit on the grounds of the church autonomy doctrine. The Fifth Circuit reversed the district court's dismissal as "premature," asserting that there were possible …

Corruption In Capsules: How It Is Legal For Companies To Put Harmful Ingredients In Vitamins And Dietary Supplements, Emily Leggiero

English Department: Research for Change - Wicked Problems in Our World

The vitamin and supplement industry has increased exponentially in profits as well as potential products on the market since the turn of the century. However, these products are not regulated, nor do they undergo any premarket clinical research or testing. Public health is compromised by vitamins and supplements that are available for American consumption that is disproportionately unregulated to their chemically similar counterparts. This wicked problem is facilitated through the combination of historical legislative definitions that has since been distorted for corrupt administrative gain through the allotment of corporate expenditures. Company disbursements are made to the same policymakers that create …