First Amendment Commons^™

Rescinding Admission Offers In Higher Education: The Clash Between Free Speech And Institutional Academic Freedom When Prospective Students' Racist Posts Are Exposed, Clay Calvert

UF Law Faculty Publications

This Article examines the tension between a prospective college student's First Amendment freedom of speech and a public university's unenumerated, inchoate right of institutional academic freedom. The friction between these interests was cast in high relief in 2020 when several schools confronted dual issues: (1) whether to rescind offers of admission to individuals who later were discovered to have engaged in offensive speech, and (2) whether revoking admission offers because of odious, hateful messages would violate the constitutional right of free expression. The Article argues that the right of institutional academic freedom-albeit maddeningly amorphous-encompasses a public institution's ability to choose …

Troll Storms And Tort Liability For Speech Urging Action By Others: A First Amendment Analysis And An Initial Step Toward A Federal Rule, Clay Calvert

UF Law Faculty Publications

This Commentary examines when, consistent with First Amendment principles of free expression, speakers can be held tortiously responsible for the actions of others with whom they have no contractual or employer-employee relationship. It argues that recent lawsuits against Daily Stormer publisher Andrew Anglin for sparking “troll storms” provide a timely analytical springboard into the issue of vicarious tort liability. Furthermore, such liability is particularly problematic when a speaker’s message urging action does not fall into an unprotected category of expression, such as incitement or true threats, and thus, were it not for tort law, would be fully protected. In examining …

Escaping Doctrinal Lockboxes In First Amendment Jurisprudence: Workarounds For Strict Scrutiny For Low-Value Speech In The Face Of Stevens And Reed, Clay Calvert

UF Law Faculty Publications

The United States Supreme Court’s 2010 opinion in the crush-video case of United States v. Stevens made it extremely difficult to declare new varieties of low-value speech unprotected by the First Amendment. Five years later, the Court’s sign-ordinance ruling in Reed v. Town of Gilbert made it exceedingly tough for facially content-based regulations imposed on presumptively protected speech to be analyzed by any standard of judicial review less rigorous than the demanding strict scrutiny test. This Article examines how some courts today, despite being hemmed in by the strictures of both Stevens and Reed, are creatively unearthing novel ways to …

Testing The First Amendment Validity Of Laws Banning Sexual Orientation Change Efforts On Minors: What Level Of Scrutiny Applies After Becerra And Does A Proportionality Approach Provide A Solution?, Clay Calvert

UF Law Faculty Publications

This Article examines the standard of scrutiny courts should apply when testing the validity of laws banning speech-based sexual orientation change efforts (SOCE) against First Amendment challenges. Justice Clarence Thomas’s 2018 opinion for a five-justice conservative majority of the United States Supreme Court in National Institute of Family and Life Advocates v. Becerra casts considerable doubt on whether a level of inquiry less stringent than strict scrutiny applies. The article analyzes how lower courts after Becerra that have reviewed anti-SOCE laws disagree on the issue. And yet, as the Article explains, the Supreme Court refuses to clarify the muddle. First, …

How The Internet Unmakes Law, Mary Anne Franks

Articles

No abstract provided.

Section 230 Immunity: How The Trump Era Has Exposed The Current Conflict Between The First Amendment And The Good Samaritan Clause In The Modern Public Square, Brandon Salter, Dhillon Ramkhelawn

University of Arkansas at Little Rock Law Review

No abstract provided.

Constitutional Law—Where Does It Fit? Solving The School Board Prayer Puzzle, Austin Reed

University of Arkansas at Little Rock Law Review

No abstract provided.

Constitutional Law—The Erosion Of Political Anonymity And Its Chilling Effect On Freedom Of Association: Reconsidering The Constitutionality Of The Mandated Public Disclosure Of Individuals’ Political Donations, Scout Snowden

University of Arkansas at Little Rock Law Review

No abstract provided.

Examining The Anomalies, Explaining The Value: Should The Usa Freedom Act’S Metadata Program Be Extended?, Susan Landau, Asaf Lubin

Articles by Maurer Faculty

Edward Snowden’s disclosure of National Security Agency (“NSA”) bulk collection of communications metadata was a highly disturbing shock to the American public. The intelligence community was surprised by the response, as it had largely not anticipated a strong negative public reaction to this surveillance program. Controversy over the bulk metadata collection led to the 2015 passage of the USA FREEDOM Act. The law mandated that the intelligence community would collect the Call Detail Records (“CDR”) from telephone service providers in strictly limited ways, not in bulk, and only under order from the Foreign Intelligence Surveillance Court. The new program initially …

The Law Of Obscenity In Comic Books, Rachel Silverstein

Touro Law Review

No abstract provided.

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

Touro Law Review

No abstract provided.

Fosta: A Necessary Step In Advancement Of The Women’S Rights Movement, Alexandra Sanchez

Touro Law Review

No abstract provided.

Speech Inequality After Janus V. Afscme, Charlotte Garden

Indiana Law Journal

This Article explores the growing divide between the Roberts Court’s treatment of the free speech rights of wealthy individuals and corporations in campaign finance cases as compared to its treatment of the rights of public-sector labor unions and their members. First, it highlights some internal contradictions in the Janus Court’s analysis. Then, it discusses the growing—yet mostly ignored—divergence in the Court’s treatment of corporate and labor speakers with respect to the use of market influence to achieve political influence.

The Article has two Parts. In Part I, I explain how the Court reached its decision in Janus before critiquing the …

Why A Data Disclosure Law Is (Likely) Unconstitutional, Max I. Fiest

Kernochan Center for Law, Media, and the Arts

Social media platforms have changed the very structure of communication. These platforms exert significant influence over how we get our news, how we form and join political movements, and how we connect with friends and family. But social media platforms are black boxes. Moderation algorithms are opaque--even to the platforms themselves — and attempts by third parties to research these algorithms are often frustrated. Because platforms withhold data necessary for public interest research, Congress might step in and mandate data access for certain researchers and journalists. I conclude that any such effort would (likely) be unconstitutional under the First Amendment. …

The Freedom Of Speech-Conduct, John Fee

Kentucky Law Journal

No abstract provided.

Legal Interpretation, Mykaila Ashlynn Berry

Undergraduate Theses, Professional Papers, and Capstone Artifacts

The purpose of this project is to provide a fresh and in-depth analysis of legal jurisprudence through the use of two of the most important legal theorists of our time, H. L. A. Hart and Ronald Dworkin. This project focuses on how Dworkin’s position in his famous paper “Hard Cases”, helps us understand an important Supreme Court case, Cohen v. California. Cohen will be the main focus of my project. The project will discuss the case and the possible ways of deciding the case. Then the project explains both Dworkin’s and Hart’s positions. Finally, the project will analyze how Dworkin’s …

Merging The Social And The Public: How Social Media Platforms Could Be A New Public Forum, Amélie P. Heldt

Mitchell Hamline Law Review

No abstract provided.

The Chilling Effect Claims In ‘Zeran V. Aol’, Jonathon W. Penney

Articles & Book Chapters

No abstract provided.

Obvious But Not Clear: The Right To Refuse To Cooperate With The Police During A Terry Stop, Sam Kamin, Zachary Shiffler

American University Law Review

No abstract provided.

Employing Smith To Prevent A Constitutional Right To Discriminate Based On Faith: Why The Supreme Court Should Affirm The Third Circuit In Fulton V. City Of Philadelphia, Margaret Smiley Chavez

American University Law Review

In the interest of the children in the Philadelphia foster care system, the City of Philadelphia prohibits its contracting foster care agencies from discriminating against prospective foster care parents on account of race, religion, and sexual orientation, among other things. Despite this requirement, in 2018, two foster care agencies—Catholic Social Services (CSS) and Bethany Christian Services— that have annual contracts with Philadelphia refused to certify same-sex couples as foster parents for religious reasons. While Bethany Christian Services reached an agreement with the city, CSS did not. As a result, the city froze foster care placement referrals to CSS and did …

Facebook's Speech Code And Policies: How They Suppress Speech And Distort Democratic Deliberation, Joseph T. Thai

American University Law Review

No abstract provided.

Platforms And The Fall Of The Fourth Estate: Looking Beyond The First Amendment To Protect Watchdog Journalism, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

Journalists see the First Amendment as an amulet, and with good reason. It has long protected the Fourth Estate—an independent institutional press—in its exercise of editorial discretion to check government power. This protection helped the Fourth Estate flourish in the second half of the twentieth century and ably perform its constitutional watchdog role.

But in the last two decades, the media ecology has changed. The Fourth Estate has been subsumed by a Networked Press in which journalists are joined by engineers, algorithms, audience, and other human and non-human actors in creating and distributing news. The Networked Press’s most powerful members …

How Can We End #Cancelculture—Tort Liability Or Thumper’S Rule?, Nanci K. Carr

Catholic University Journal of Law and Technology

In the Disney film Bambi, when the young rabbit Thumper says that Bambi “is kinda wobbly” and “doesn’t walk too good,” Thumper’s mother tells him “if you can’t say something nice, don’t say anything at all.” The Des Moines Register seems to have forgotten Thumper’s Rule when it uncovered Carson King’s teenage tweets and canceled the relationship he had built with Busch Light while raising $3 million for the Stead Family Children’s Hospital. #CancelCulture is a social media phenomenon, where some people use their voices to cancel the platform enjoyed by others. It is the 2019 equivalent of the …

The Survival Of Critical Infrastructure: How Do We Stop Ransomware Attacks On Hospitals?, Helena Roland

Catholic University Journal of Law and Technology

Our nation’s infrastructure is under an emerging new threat: ransomware attacks. These attacks can cause anything from individual laptops, to entire cities to shut down for a period of time until the victim pays a ransom to the attacker. Unfortunately, these attacks are on the rise and the attackers have a new target: hospitals. Ransomware attacks on hospitals can temporarily shut down operating room technology and limit physician access to patient files, ultimately threatening the safety of hospital patients and the surrounding community. This paper examines how the threat of ransomware attacks on hospitals is on the rise and what …

‘‘Appearance Of Corruption’’: Linking Public Opinion And Campaign Finance Reform, Douglas M. Spencer, Alexander G. Theodoridis

Publications

At present, campaign finance regulations may only be justified if their primary purpose is to prevent quid pro quo corruption or the appearance of corruption. References to the ‘‘appearance of corruption’’ are ubiquitous in campaign finance decisions, yet courts have provided very little guidance about what the phrase means. In this article, we report findings from a broadly representative national survey in which we (1) directly ask respondents to identify behaviors that appear politically corrupt, and (2) indirectly measure perceptions of corruption using a novel paired-choice conjoint experiment asking respondents to choose which of two randomly generated candidates are more …

Saving The Space: How Free Speech Zones On College Campuses Advance Free Speech Values, Troy Lange

Roger Williams University Law Review

No abstract provided.

United States Supreme Court Survey: 2018 Term: Iancu V. Brunetti: Free Speech Meets "Immoral And Scandalous" Trademarks In The Supreme Court, Niki Kuckes

Roger Williams University Law Review

No abstract provided.

United States Supreme Court Survey: 2018 Term: Iancu V. Brunetti: Free Speech Meets "Immoral And Scandalous" Trademarks In The Supreme Court, Niki Kuckes

Law Faculty Scholarship

No abstract provided.

Rescuing Our Democracy By Rethinking New York Times Co. V. Sullivan, David A. Logan

Law Faculty Scholarship

No abstract provided.

Schrodinger's Corporation: The Paradox Of Religious Sincerity In Heterogeneous Corporations, Catherine A. Hardee

Faculty Scholarship

Consider a corporation where one group of shareholders holds sincere religious beliefs and another group of shareholders does not share those beliefs but, for a price, will allow the religious shareholders to request a religious exemption to a neutrally applicable law on behalf of the corporation. The corporation is potentially both religiously sincere and insincere at the same time. A claim by the corporation for a religious accommodation requires the court to solve the paradox created by this duality and to declare the corporation, as a whole, either sincere or insincere in its beliefs. Although the Supreme Court and scholars …