First Amendment Commons^™

Gender Equality And The First Amendment: Foreword, Jeanmarie Fenrich, Benjamin C. Zipursky, Danielle Keats Citron

Fordham Law Review

Gender equality demands equal opportunity to speak and be heard. Yet, in recent years, the clash between equality and free speech in the context of gender has intensified—in the media, the workplace, college campuses, and the political arena, both online and offline. The internet has given rise to novel First Amendment issues that particularly affect women, such as nonconsensual pornography, online harassment, and online privacy. On November 1–2, 2018, the Fordham Law Review brought together scholars and practicing lawyers from around the nation to address many of the pressing challenges facing feminists and free speech advocates today. The Symposium was …

"'Male Chauvinism' Is Under Attack From All Sides At Present": Roberts V. United States Jaycees, Sex Discrimination, And The First Amendment, Linda C. Mcclain

Fordham Law Review

This Article considers the relationship between gender equality and freedom of association. Part I begins with the Supreme Court’s recognition of the freedom of association as first articulated in NAACP v. Alabama. It shows how, in the context of race discrimination, some key civil rights victories have enlisted claims of the freedom of association, while some other victories have prevailed against such claims. Those precedents set the foundation for the Court’s decision in Jaycees, which concerned gender discrimination. Part II focuses on the role of Jaycees in drawing an analogy between the harms of gender discrimination and sexual-orientation …

Free Speech And The Diverse University, Keith E. Whittington

Fordham Law Review

There are those who think that free speech and inclusivity on college campuses are inconsistent. The notion that the two values are in tension with one another has become a common framing for thinking about the modern campus. A Gallup-Knight Foundation poll of college students asked respondents not only whether they valued free speech or diversity but also to choose between them and indicate which was “more important for colleges.” When forced to choose, a substantial minority of students said they would prioritize inclusivity over the freedom to express “viewpoints that are offensive” on campus. Following the Gallup-Knight poll the …

Toxic Misogyny And The Limits Of Counterspeech, Lynne Tirrell

Fordham Law Review

Gender equality, across all the ways that we humans are engendered, is an unrealized ideal of many contemporary Americans. It is not enshrined in the U.S. Constitution, unless one interprets “men” to include women, which the Framers did not. Although passed by Congress in 1972, the Equal Rights Amendment (ERA) failed to gain the necessary thirty-eight state ratifications, and it has never become law. Thirty-five states initially ratified it between 1972 and 1977, then two more in 2017 and 2018. It remains one state short. These ratifications indicate significant social progress for women, but the progress is uneven, even within …

Managing The Misinformation Marketplace: The First Amendment And The Fight Against Fake News, Daniela C. Manzi

Fordham Law Review

In recent years, fake news has overtaken the internet. Fake news publishers are able to disseminate false stories widely and cheaply on social media websites, amassing millions of likes, comments, and shares, with some fake news even “trending” on certain platforms. The ease with which a publisher can create and spread falsehoods has led to a marketplace of misinformation unprecedented in size and power. People’s vulnerability to fake news means that they are far less likely to receive accurate political information and are therefore unable to make informed decisions when voting. Because a democratic system relies on an informed populace …

Modern Misconceptions On The Wall Of Separation: An Analysis On The Influence And Misinterpretation Of Jefferson’S Separation Of Church And State, Marissa Swope

Senior Honors Theses

The symbolic concept of separation between church and state defines the relationship between government and religion. While Jefferson did not author the phrase, the third President of the United States promoted the philosophy of a wall of separation between church and state in his letter to the Danbury Baptists in 1802. Jefferson’s support for a wall of separation stemmed from a strong belief in liberty of conscience and relied heavily upon the conviction to protect religious liberty. Through an analysis on the contextual history of the phrase, the original intent and application of separation of church and state becomes evident. …

The Indecency Of The Communications Decency Act § 230: Unjust Immunity For Monstrous Social Media Platforms, Natalie Annette Pagano

Pace Law Review

The line between First Amendment protection and the innovation of social media platforms is hazy at best. Not only do these platforms increasingly encompass the lives of many individuals, but they provide incredible new opportunities to interact from near and far, through sharing photographs, videos, and memories. The Internet provides countless outlets that are available at the tip of users’ fingers: thriving forums to communicate nearly whenever and wherever desired. Users effortlessly interact on these platforms and are consistently exposed to numerous forms of speech, including messages through posts, chat room discussions, videos, polls, and shared statements. From 2010 to …

Platforms, The First Amendment And Online Speech: Regulating The Filters, Sofia Grafanaki

Pace Law Review

In recent years, online platforms have given rise to multiple discussions about what their role is, what their role should be, and whether they should be regulated. The complex nature of these private entities makes it very challenging to place them in a single descriptive category with existing rules. In today’s information environment, social media platforms have become a platform press by providing hosting as well as navigation and delivery of public expression, much of which is done through machine learning algorithms. This article argues that there is a subset of algorithms that social media platforms use to filter public …

Comrades Or Foes: Did The Russians Break The Law Or New Ground For The First Amendment?, Artem M. Joukov, Samantha M. Caspar

Pace Law Review

This Article discusses the recent decision by the United States Federal Government to indict more than a dozen Russian nationals for conspiracy to defraud the United States of America. The Government accused the Russians of staging protests, distributing false propaganda, and spreading political messages and ideologies online in an effort to affect the outcome of the 2016 Presidential Election. We argue that while the Defendants violated several other laws, the majority of the acts the Government classifies as a conspiracy to defraud the United States should not be considered criminal. Rather, these acts are protected political speech under the First …

Freedom Of Religion And Belief In India And Australia: An Introductory Comparative Assessment Of Two Federal Constitutional Democracies, Paul T. Babie, Arvind P. Bhanu

Pace Law Review

This article considers the freedom of religion and belief (“free exercise”) in two secular federal constitutional democracies: India and Australia. Both constitutional systems emerged from the former British Empire and both continue in membership of the Commonwealth of Nations, which succeeded it. However, the similarities end there, for while both separate church and state, and protect free exercise, they do so in very different ways. On the one hand, the Indian Constitution contains express provisions which comprehensively deal with free exercise. On the other hand, while one finds what might appear a protection for free exercise in the Australian Constitution, …

A Call Of Duty To Counterstrike: Cyberharassment And The Toxic Gaming Culture Plaguing Female Gamers And Developers, Natasha N. Phidd

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

The frequency with which female gamers and game developers experience sexual harassment and threats of violence online is significant enough to warrant concern about a section of our society— female gamers and game developers—having their sexuality and gender identity used against them, both as weapons and as barriers blocking them from access to a lucrative economic venture. An examination of the 2014 Gamergate controversy and various other instances of cyberharassment against female gamers and developers, as well as a look into the realm of eSports and an analysis of cyberharassment and the concept of true threats, indicate that this particular …

#Metoo Meets The Ministerial Exception: Sexual Harassment Claims By Clergy And The First Amendment's Religion Clauses, Ira C. Lupu, Robert W. Tuttle

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

No abstract provided.

“It Ain’T So Much The Things We Don’T Know That Get Us In Trouble. It’S The Things We Know That Ain’T So”: The Dubious Intellectual Foundations Of The Claim That “Hate Speech” Causes Political Violence, Gordon Danning

Pepperdine Law Review

The United States is an outlier in its legal protection for what is commonly termed “hate speech.” Proponents of bringing American jurisprudence closer to the international norm often argue that hate speech causes violence, particularly political violence. However, such claims largely rest on assumptions which are inconsistent with social scientists’ understanding of the causes of political violence, including that ethnic identity and ideological salience are more often the result of violence than a cause thereof; that violence during conflict is generally unrelated to the conflict’s ostensible central cleavage; and that violence is generally instrumental and elite-driven, rather than spontaneous and …

When The First And Second Amendments Collide: The Free Speech Implications Of West Virginia's Business Liability Protection Act Of 2018, Alex A. Tsiatsos

West Virginia Law Review

No abstract provided.

Trademarks & The First Amendment After Matal V. Tam, Gary Myers

Faculty Publications

The United States Supreme Court's unanimous ruling in Mata! v. Tam is a landmark decision regarding the intersection between free speech and trademark law. Addressing whether trademarks can legitimately be barred from federal trademark protection under the Lanham Act based solely on their possible disparaging content, the litigation involving an Asian-American band that sought to register the name, "The Slants," brought this important interplay into stark relief. Writing in bold strokes, Justice Alito's opinion holds that the Lanham Act's prohibition on disparaging marks, 15 U.S.C. §1052(a), violates the Free Speech Clause of the First Amendment. "It offends a bedrock First …

Reflections On The Church/State Puzzle, Kermit V. Lipez

The Journal of Appellate Practice and Process

No abstract provided.

Panel 3: Free Speech And Freedom Of Religion

Georgia State University Law Review

Moderator: Eric Segall

Panelists: Mike Dorf and Eugene Volokh

Will Conservative Justices Sound The Death Knell Of State Action? Be Careful For What You Wish, Anne M. Lofaso

Law Faculty Scholarship

No abstract provided.

The Democracy Ratchet, Derek T. Muller

Indiana Law Journal

This Article proceeds in five Parts. Part I identifies recent instances in which federal courts have invoked a version of the Democracy Ratchet. It identifies the salient traits of the Democracy Ratchet in these cases. Part II describes why the Democracy Ratchet has gained attention, primarily as a tactic of litigants and as a convenient benchmark in preliminary injunction cases. Part III examines the history of the major federal causes of action concerning election administration—Section 2 of the Voting Rights Act, the Burdick balancing test, and the Equal Protection Clause. In each, it traces the path of the doctrine to …

Devotion ̶T̶O̶ And The Rule Of Law: Acknowledging The Role Of Religious Values In Judicial Decision-Making, Priya Purohit

Indiana Law Journal

This Comment advocates for the acknowledgment of religious values in judicial decision-making in three parts. Part I explores the role of religion in American politics, and more specifically, the role of religion in federal judicial confirmation hearings and state-level judicial elections. Membership to an institutionalized religion often performs an essential gatekeeping function when it comes to assessing the background or personal values of a candidate for political or judicial office. The initially positive role of religion in judicial selection processes suggests that the practice of refusing to acknowledge the role that religion likely already plays in judicial decision-making is wholly …

Standing For Standing Rock?: Vindicating Native American Religious And Land Rights By Adapting New Zealand's Te Awa Tupua Act To American Soil, Malcolm Mcdermond

Dickinson Law Review (2017-Present)

On February 23, 2017, the Standing Rock Sioux Tribe (“Tribe”) was forced to disband its nearly year-long protest against the construction of the Dakota Access Pipeline, which threatened the integrity of its ancestral lands. The Tribe sought declaratory and injunctive relief in the United States District Court for the District of Columbia, but the court ruled against the Tribe and failed to protect its interests. While the United States was forcibly removing Indigenous protesters, other countries were taking steps to protect Indigenous populations. In unprecedented legislative action, New Zealand took radical steps to protect the land and cultural rights of …

Deception, Professional Speech, And Cpcs: On Becerra, Abortion, And The First Amendment, Mark Strasser

Buffalo Law Review

In National Institute of Family & Life Advocates v. Becerra, the United States Supreme Court struck down a California law requiring crisis pregnancy centers to post certain signs.1 The Court implied that the case involved a relatively straightforward example of governmental overreaching, with the government allegedly attempting to commandeer private entities and force them to convey the government’s message.2 Yet, the Court omitted important background information when discussing the state’s implicated interests,3 and the Court’s analyses and rationales may have important First Amendment implications. While the Court may have reached the right result, its analyses bode poorly for a reasoned …

Rights On Publicity As Remarkably Insignificant, R. George Wright

Cleveland State Law Review

This Article introduces the right of publicity through a brief consideration of high-profile cases involving, respectively, Paris Hilton, human cannonball Hugo Zacchini, and the famous actress Olivia de Havilland. With this background understanding, the Article considers the supposed risks to freedom of speech posed by recognizing rights of publicity in a private party. From there, the Article addresses the nagging concern that the publicity rights cases promote a harmful "celebrification" of culture. Finally, the Article considers whether allowing for meaningful damage recoveries in publicity rights cases appropriately compensates victims in ways promoting the broad public interest.

Speech As Speech: “Professional Speech” And Missouri’S Informed Consent For Abortion Statute, Michael J. Essma

Missouri Law Review

Does life begin at conception? Do women need to see a sonogram to make an informed decision about whether they want an abortion? Some state legislatures believe so. Laws mandating politically driven doctor-patient dialogue affect one of the hallmarks of the physician-patient relationship: a patient’s trust in the physician’s expertise. The common law and statutory requirement that a patient provide informed consent for a medical procedure facilitates the development of trust between patient and physician by allowing the patient to understand the procedure and discuss her options with her physician. However, provisions of abortion-specific informed consent statutes that require physicians …

Transformative Variations: The Uses And Abuses Of The Transformative Use Doctrine In Right Of Publicity Law, Matthew D. Bunker, Emily Erickson

Washington Journal of Law, Technology & Arts

In 2001, the California Supreme Court embarked upon a novel experiment in its right of publicity jurisprudence. The court imported a single element from copyright's fair use analysis. That element—transformative use—has since become an enormously important defense for publicity defendants. Unfortunately, the transformative use doctrine is notoriously protean, and has resulted in significant confusion in publicity law that almost certainly chills protected speech. Many courts seem to lack a clear idea of what a sophisticated transformative use analysis should even look like. This article unpacks these issues and proposes improvements to this difficult legal area.

Fosta: A Hostile Law With A Human Cost, Lura Chamberlain

Fordham Law Review

The Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (“FOSTA”) rescinded legal immunity for websites that intentionally host user-generated advertisements for sex trafficking. However, Congress’s mechanism of choice to protect sex-trafficking victims has faced critique and backlash from advocates for those involved in commercial sex, who argue that FOSTA’s broad legislative language does far more to harm sex workers—a group distinct from sex-trafficking victims—than it does to end sex trafficking, chilling significant protected speech in the process. These critics posit that FOSTA’s results toward eradicating sex trafficking have been negligible and that its chief outcome has …

Straight Actors In Lgbt Roles: Creative Casting Or Employment Discrimination?, Erica Ruff

Cardozo Journal of Equal Rights & Social Justice

The note examines the trend of casting straight actors in LGBT roles, termed "gay face," and explores its implications as a form of employment discrimination. It argues that this practice limits opportunities for LGBT actors and discusses the legal challenges in addressing this issue under Title VII of the Civil Rights Act of 1964, which does not explicitly cover sexual orientation. The note highlights the tension between anti-discrimination laws and First Amendment protections for artistic expression, noting that courts often favor the latter.

Sexual Ageplay In Virtual Reality: Practicing Free Speech Or Producing Child Pornography?, Lillian Esposito

Cardozo Law Review

A man's thoughts are his own; he may sit in his armchair and think salacious thoughts, murderous thoughts, discriminatory thoughts, whatever thoughts he chooses, free from the "thought police." It is only when the man gets out of his armchair and acts upon his thoughts that the law may intervene

In my ignorance, I have to accept the possibility that if we had to decide today just what the First Amendment should mean in cyberspace, we would get it fundamentally wrong.

Merging Offensive-Speech Cases With Viewpoint-Discrimination Principles: The Immediate Impact Of Matal V. Tam On Two Strands Of First Amendment Jurisprudence, Clay Calvert

William & Mary Bill of Rights Journal

This Article examines flaws with the U.S. Supreme Court’s 2017 decision in Matal v. Tam that equated giving offense with viewpoint discrimination. Already, the Court’s language in Tam that “giving offense is a viewpoint” is being cited by multiple lower courts. This Article argues, however, that giving offense is not synonymous with viewpoint discrimination. This Article contends that the Court in Tam conflated two distinct strands of First Amendment jurisprudence—namely, its offensive-speech cases with principles against viewpoint discrimination. The Article proposes two possible paths forward to help courts better clarify when a case such as Tam should be analyzed as …

Religious Freedom Through Market Freedom: The Sherman Act And The Marketplace For Religion, Barak D. Richman

William & Mary Law Review

In prior work, I examined certain restraints by private religious organizations and concluded that the First Amendment did not immunize these organizations from antitrust liability. In short, the First Amendment did not preempt enforcing the Sherman Act against certain religious monopolies or cartels.

This Article offers a stronger argument: First Amendment values demand antitrust enforcement. Because American religious freedoms, enshrined in the Constitution and reflected in American history, are quintessentially exercised when decentralized communities create their own religious expression, the First Amendment’s religion clauses are best exemplified by a proverbial marketplace for religions. Any effort to stifle a market organization …