First Amendment Commons^™

Sounds Of Science: Copyright Infringement In Ai Music Generator Outputs, Eric Sunray

Catholic University Journal of Law and Technology

The music business is no stranger to disruptive technology. The industry’s apparent comeback from the devastating downturn caused by illegal file sharing seems to have arrived just in time for what may be an even more disruptive technological phenomenon: artificial intelligence (“AI”). Much has been said about the implications of AI-generated music, ranging from issues of ownership, to rights of publicity. However, there has been surprisingly little discussion of infringement in the AI systems’ outputs. By examining the functionality of AI music generators through the lens of de minimis use case law, this paper will explain how the outputs of …

No Ifs, Ands, Or Juuls About It: Why Influencers Must Be Held Accountable, Krystina Dorta

Catholic University Journal of Law and Technology

This article analyzes how the FTC’s Endorsement Guide regulating the advertising of e-cigarette products should be applied to social media influencers. The struggle to regulate e-cigarettes by the FDA and the FTC has led to different advertising methods, which either comply with or neglect the FTC’s Endorsement Guide. This article evaluates the federal government’s reaction to the e-cigarette health crisis, followed by a review of the FTC’s previous actions addressing Endorsement Guide violations, along with the consequences on other companies’ marketing strategies. Finally, this article reviews influencer liability standards for Endorsement Guide violations and develops recommendations to improve those standards.

Mahanoy Area School District V. B.L.: The Court Protects Student Social Media But Leaves Unanswered Questions, David L. Hudson Jr.

Law Faculty Scholarship

In Mahanoy Area School District v. B.L.: The Court Protects Student Social Media but Leaves Unanswered Questions, published in the Cato Supreme Court Review, David L. Hudson Jr. analyzes the U.S. Supreme Court’s landmark decision addressing the scope of public schools’ authority over off-campus student speech on social media. Situating Mahanoy within the Court’s broader K–12 student speech jurisprudence—from Barnette and Tinker to Fraser, Hazelwood, and Morse—the Article explains how the Court declined to adopt a categorical rule excluding off-campus speech from regulation while nevertheless ruling in favor of the student. The majority recognized diminished school …

“A Kind Of Continuing Dialogue”: Reexamining The Audience’S Role In Exempting Academic Freedom From Garcetti’S Employee Speech Doctrine, Michael A. Sloman

Georgia Law Review

The U.S. Supreme Court’s decision in Garcetti v. Ceballos
put further restraints on public employee speech by exempting
from First Amendment protection speech made pursuant to the
“official duties” of public employees. This limitation, if applied
to the speech of college professors, would constrain their
academic freedom of instruction and scholarship by permitting
overbearing institutional oversight. This constraint would be
detrimental not only to the employed professors, but also to
their students and the post-secondary educational system as a
whole. Courts should not apply Garcetti to academic freedom
in the post-secondary education context, and they should avoid
further limitations on …

The Classic Arguments For Free Speech 1644-1927, Vincent A. Blasi

Faculty Scholarship

This chapter examines the classic arguments for freedom of speech. It traces the first comprehensive argument for freedom of speech as a limiting principle of government to John Milton’s Areopagitica, a polemic against censorship by a requirement of prior licensing in which Milton develops an argument for the pursuit of truth through exposure to false and heretical ideas rather than the passive reception of orthodoxy. Despite Milton’s belief in the advancement of understanding through free inquiry, he was far from liberal in the modern sense of that term and he did not, for instance, extend the tolerance he advocated to …

Panel One: Classification And Access To National Security Information, Mary-Rose Papandrea, Margaret Kwoka, David Pozen, Stephen I. Vladeck

Faculty Scholarship

This article is a transcript of the first panel of First Amendment Law Review’s 2021 Symposium on National Security, Whistleblowers, and the First Amendment, discussing classification and access to national security information.

The Small-Er Screen: Youtube Vlogging And The Unequipped Child Entertainment Labor Laws, Amanda G. Riggio

Seattle University Law Review

Family vloggers are among the millions of content creators on YouTube. In general, vloggers frequently upload recorded videos of their daily lives. Family vloggers are unique because they focus their content around their familial relationships and the lives of their children. One set of family vloggers, the Ace Family, has recorded their children’s lives from the day they were born and continue to upload videos of each milestone, including “Elle Cries on Her First Rollercoaster Ride” and “Elle and Alaïa Get Caught Doing What!! **Hidden Camera**.” Another vlogging couple, Cole and Savannah LaBrant, post similar content, including videos titled “Baby …

Why Do The Poor Not Have A Constitutional Right To File Civil Claims In Court Under Their First Amendment Right To Petition The Government For A Redress Of Grievances?, Henry Rose

Seattle University Law Review

Since 1963, the United States Supreme Court has recognized a constitutional right for American groups, organizations, and persons to pursue civil litigation under the First Amendment right to petition the government for redress of grievances. However, in three cases involving poor plaintiffs decided by the Supreme Court in the early 1970s—Boddie v. Connecticut,2 United States v. Kras,3 and Ortwein v. Schwab4—the Supreme Court rejected arguments that all persons have a constitutional right to access courts to pursue their civil legal claims.5 In the latter two cases, Kras and Ortwein, the Supreme Court concluded that poor persons were properly barred from …

“Ooh It Makes Me Wonder”: Do The Courts Finally Understand The Problems With Copyright Infringement And Pop Music?, Kate Camarata

Seattle University Law Review

The interaction between music and law is unique to copyright litigation. Music is “commonly regarded as a rule-free zone,” whereas the law is structured and, in essence, the “origin for rules.” This Note explores the inherent weaknesses with the substantial similarity test for copyright infringement as it relates to popular music through the lens of the recent Ninth Circuit case, Skidmore v. Led Zeppelin.

Part I of this Note reviews the history and purpose of copyright protection as well as explains the current tests utilized by courts in copyright infringement cases. Additionally, it will also show the difficulties of …

Distribution, Bars, And Arcade Stars: Joe Anthony’S Entrepreneurial Expansion In Houston’S Gay Media Industries, Finley Freibert

Faculty and Staff Scholarship

This article develops the concept of "gay useful media" to explore a case study of gay entrepreneurship in Houston, Texas, of the 1970s. A father and son developed a gay media empire in the city, which spanned bars, bookstores, distribution, and vending. One of the pair's key establishments was Houston's legendary gay bar Mary's at 1022 Westheimer (also known as Mary's Lounge, Mary's, Naturally, and Mary's…Naturally).

The Evolution And Jurisprudence Of The Foreign Intelligence Surveillance Court And Foreign Intelligence Surveillance Court Of Review, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The past eight years have witnessed an explosion in the number of publicly-available opinions and orders issued by the Foreign Intelligence Surveillance Court and Foreign Intelligence Surveillance Court of Review. From only six opinions in the public domain 1978–2012, by early 2021, eighty-eight opinions had been released. The sharp departure is even more pronounced in relation to orders: from only one order declassified during 1978–2012, since 2013, 288 have been formally released. These documents highlight how the courts’s roles have evolved since 2004 and reveal four key areas that dominate the courts’ jurisprudence: its position as a specialized, Article III …

Restoring Student Press Freedoms: Why Every State Needs A 'New Voices' Law, Clare R. Norins, Taran Harmon-Walker, Navroz Tharani

Scholarly Works

Scholastic journalists across America have long provided vital reporting, commentary, and fresh perspective on issues of public concern to their readers. Never has this been more true than in the current age of dwindling print media, where scholastic journalists at both the high school and post-secondary levels are stepping in to populate what would otherwise be news deserts. Yet the Supreme Court’s decision in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), allows school officials to censor both the content and style of school-sponsored media without offending the First Amendment. This essay traces the history of student speech rights …

How Journalists Think About The First Amendment Vis-À-Vis Their Coverage Of Hate Groups, Gregory Perreault, Jonathan Peters, Brett Johnson, Leslie Klein

Scholarly Works

This study, based on in-depth interviews with U.S.-based journalists (n = 18), explores the increasingly fraught circumstances of reporting on hate groups. We examine how journalists think about the First Amendment vis-à-vis their coverage of such groups. Through the lens of media ecology and First Amendment principles and theories, we argue ultimately that journalists who cover hate groups use the First Amendment to identify their place in the journalistic environment.

Rethinking Protections For Indigenous Sacred Sites, Stephanie H. Barclay, Michalyn Steele

Journal Articles

Meaningful access to sacred sites is among the most important principles to the religious exercise of Indigenous peoples, yet tribes have been repeatedly thwarted by the federal government in their efforts to vindicate this practice of their religion. The colonial, state, and federal governments of this Nation have been desecrating and destroying Native American sacred sites since before the Republic was formed. Unfortunately, the callous destruction of Indigenous sacred sites is not just a troubling relic of the past. Rather, the threat to sacred sites and cultural resources continues today in the form of spoliation from development, as well as …

The First Amendment And Algorithms, Stuart M. Benjamin

Faculty Scholarship

No abstract provided.

How Cheap Speech Underserves And Overheats Democracy, Gregory P. Magarian

Scholarship@WashULaw

A quarter century ago, Eugene Volokh’s article Cheap Speech and What It Will Do foretold a new regime of technologically driven “cheap speech” that would fundamentally change how people communicated with one another and navigated the information ecosystem. Professor Volokh’s vision was mainly descriptive, and his normative assessment of cheap speech sounded some circumspect notes of warning. Fundamentally, though, he painted an optimistic picture. In particular, he made the important claim that emerging technologies would democratize and diversify our society by giving many more speakers access to the tools of mass communication and audiences access to many more ideas.

Kent State And The Failure Of First Amendment Law, Gregory P. Magarian

Scholarship@WashULaw

Since the U.S. Supreme Court decided its first free speech case 100 years ago, two very different eras have defined First Amendment law. For a half century, before 1970, the Supreme Court focused on protecting the expressive freedom of political dissidents and social reformers. In 1970, amid protests against the Vietnam War, the Ohio National Guard senselessly gunned down four students at Kent State University. The Kent State massacre exposed the fragility in our country of political protest, free speech, and democracy itself. That atrocity should have inspired First Amendment law to affirm and enhance its protection of dissenters and …

The Fossil Fuel Industry’S Push To Target Climate Protesters In The U.S., Grace Nosek

Pace Environmental Law Review

At the very moment when the United Nations has called for profound shifts in social and economic systems to avert climate catastrophe, state and non-state actors in the United States (U.S.) are using a series of tactics to target and stifle climate protesters. Although the move to stifle climate protesters is often framed as a government effort, this Article argues it is critical to draw out the role of the fossil fuel industry in initiating, amplifying, and supporting such tactics.

This Article highlights the role the fossil fuel industry has played in supporting the targeting and restricting of climate protesters …

Fulton V. City Of Philadelphia, And The Rights Of Faith-Based Adoption And Foster Care Agencies, William G. Mcgrath

The Arkansas Journal of Social Change and Public Service

No abstract provided.

Strategic Lawsuits Against Public Participation In The Age Of Online Speech: The Relevance Of Anti-Slapp And Anti-Cyberslapp Legislation, Lauren Merk

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

Brief Of Religious Liberty Scholars As Amici Curiae In Support Of Defendants-Appellants, Michael Francisco, Richard W. Garnett

Court Briefs

No. SJC-12988
Margaret DeWeese-Boyd v. Gordon College

On Appeal from a Judgment of the Essex County Superior Court

From the Introduction

In the decision below, the trial court adopted a miserly understanding of the ministerial exception. It refused to apply it to a professor who taught social work at Gordon College, a Christian liberal arts school founded in 1889 which has a mission stating a "commitment to integrating faith and learning" and to "provide instruction in the Bible and other subjects" to prepare students "for the duties of the Christian ministry and other special forms of Christian work." RA/144,215. The …

Brief Of Amici Curiae Professors Katherine Mims Crocker And Brandon Hasbrouck In Support Of Neither Party With Respect To Defendant's Motion To Dismiss: Dyer V. Smith, Brandon Hasbrouck, Katherine Mims Crocker

Scholarly Articles

This case illustrates how the First Amendment functions as an essential backstop to Fourth Amendment freedoms—and vice versa. As revealed by the national response to the killing of George Floyd and so many similar injustices, the ability to record encounters with government representatives is critical to preserving civil rights, and especially the right to avoid excessive force. The public only “became aware of the circumstances surrounding George Floyd’s death because citizens standing on a sidewalk exercised their First Amendment rights and filmed a police officer kneeling on Floyd’s neck until he died.” Index Newspapers LLC v. U.S. Marshals Serv., …

Brief Of Amici Curiae Professors Katherine Mims Crocker And Brandon Hasbrouck In Support Of Neither Party With Respect To Defendant's Motion To Dismiss, Katherine Mims Crocker, Brandon Hasbrouk

Briefs

No abstract provided.

Preserving Fabled Amateurism: The Benefits Of The Ncaa’S Adoption Of The Olympic Amateurism Model, John Kealey

Journal of Law and Policy

After a century of denying student-athletes from receiving compensation outside the cost of attendance for their athletic contributions to their respective universities, the NCAA finally announced it would change its amateurism rule. The change came in response to multiple class action lawsuits and, more recently, legislation from many states, namely California and New York, which would have mandated that universities do not interfere with student-athletes desire to commercially exploit their own names, image, and likenesses. However, these statutes are potentially flawed in that each could exacerbate or perpetuate the anti-trust and first amendment issues inherent to the current amateurism rule. …

Content, Context, What's Next? A Garcetti-Pickering Analysis For Public Employees In Court, Austin Longnecker

West Virginia Law Review

No abstract provided.

Rwu Law News: The Newsletter Of Roger Williams University School Of Law 12-2020, Barry Bridges, Michael M. Bowden, Nicole Dyszlewski, Louisa Fredey

Life of the Law School (1993- )

No abstract provided.

The Regulation Of Commercial Speech: Can Alternative Meat Companies Have Their Beef And Speak It Too?, Eryn Terry

Vanderbilt Journal of Entertainment & Technology Law

Would you eat a hamburger that was made in a petri dish? Consumers may have this option soon as laboratory-grown meat begins to hit supermarket shelves. Laboratory-grown meat is made from animal stem cells that eventually transform into primitive fibers and tissue within the confines of a petri dish. Although a lot remains unknown about laboratory-grown meat, consumers can think of it as meat production without the farm. How might consumers react to meat labels indicating that their products were made in a petri dish? Laboratory-grown meat companies have yet to find out, as some states have passed laws that …

A History Of United States Cannabis Law, David V. Patton

Journal of Law and Health

Perhaps the best way to understand early-Twenty-First Century state and federal cannabis law in the United States is to examine the relevant history. Justice Oliver Wendell Holmes, Jr.’s statement is apropos: "[A] page of history is worth a volume of logic." This article begins by discussing the early history of cannabis and its uses. Next, the article examines the first state and federal marijuana laws. After a brief comparison of alcohol prohibition to cannabis prohibition, this article addresses cannabis laws from the 1920s to the early 1950s. Then, the article takes up the reorganization of the federal drug regulatory bureaucracy …

Buckeyes Against The Boycott: Why Ohio's Law Opposing Bds Is Protected Under The First Amendment, Hannah Kraus

Cleveland State Law Review

In 2016, Ohio became the fourteenth state to enact legislation denouncing the Boycott, Divestment, and Sanctions movement against Israel. Codified as § 9.76 of the Ohio Revised Code, this legislation prohibits any state agency from contracting with a company that boycotts Israel during the contractual period. While the constitutionality of § 9.76 has not been challenged, anti-BDS statutes passed by other state legislatures have faced First Amendment challenges. This Note argues that § 9.76 of the Ohio Revised Code complies with the First Amendment under the government speech doctrine. In 1991, the Supreme Court applied the government speech doctrine in …

Law School News: 'Law Isn't A Foreign Language Anymore' 11/24/2020, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.