First Amendment Commons^™

Equal Protection And The Male Gaze: An Approach To New Hampshire V. Lilley, Nicholas Mignanelli

Articles

This Article uses New Hampshire v. Lilley, a case recently decided by the New Hampshire Supreme Court, as a starting point for an equal protection analysis of indecent exposure laws that distinguish between women and men. After discussing contemporary equal protection jurisprudence and historicizing these laws, this Article uses the film theorist Laura Mulvey's concept of the "male gaze" to demonstrate how overbroad generalizations about sex and sexuality serve as the foundation for this legal distinction. This Article concludes by emphasizing that municipalities and states may continue to enact and enforce indecent exposure laws that reflect community standards, so …

The Post-Truth First Amendment, Sarah C. Haan

Scholarly Articles

Post-truthism is widely understood as a political problem. In this Article, I argue that post-truthism also presents a constitutional law problem—not a hypothetical concern, but a current influence on First Amendment law. Post-truthism, which teaches that evidence-based reasoning lacks value, offers a normative framework for regulating information. Although post-truthism has become a popular culture trope, I argue that we should take it seriously as a theory of decision making and information use, and as a basis for law.

This Article uses the example of compelled speech to explore how post-truth rhetoric and values are being integrated into law. When the …

Transborder Speech, Ronald J. Krotoszynski Jr.

Notre Dame Law Review

In an increasingly globalized marketplace of ideas, First Amendment law and theory must recognize that the freedom of speech does not end at the water’s edge. Simply put, the locus of expressive activity should not prefigure the government’s ability to engage in censorship. Nevertheless, under current First Amendment law and practice, the accident of geography may serve as a constitutionally acceptable basis for content-based censorship of speech. If, as the Supreme Court argued with such ferocity in Citizens United, the value of speech to an audience does not depend on the speaker’s identity or motive for speaking, then by …

Social Media And Censorship: Rethinking State Action Once Again, Michael Patty

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Commercial Clicks: Advertising Algorithms As Commercial Speech, Kerri A. Thompson

Vanderbilt Journal of Entertainment & Technology Law

Congressional hearings have finally called for the "right regulation" of social media platforms. The First Amendment, however, has shielded internet companies from regulation since the birth of social media. Even if Congress enacts legislation now, internet companies will be able to defend against the "wrong regulation" by claiming the regulation unconstitutionally limits their freedom of speech. This Article uses Facebook's advertising algorithms as a case study of how Congress can properly regulate Facebook by analyzing the advertising algorithms as commercial speech, which receives less protection under First Amendment jurisprudence. In doing so, Congress can protect the strong public interest in …

The Sickness Unto Death Of The First Amendment, Marc O. Degirolami

Scholarly Articles

Part I of this paper describes early American understandings of the purposes and limits of freedom of speech. During this period, the outer bounds of freedom of speech reflected similar limits on the right of religious freedom: both were conceived within an overarching framework of natural rights delimited by legislative judgments about the common political good. Though there is scholarly debate about how much the Fourteenth Amendment may have altered that approach in certain details, the basic legal framework remained intact in the nineteenth century.

Part II traces the replacement of that framework with a very different one in the …

Conversion Therapy: A Brief Reflection On The History Of The Practice And Contemporary Regulatory Efforts, Tiffany C. Graham

Scholarly Works

This brief symposium essay offers a broad-stroke sketch of the history of conversion therapy, its current status as a locus of regulation, and some preliminary questions about the direction the law might take to protect individuals who elect or are forcibly subjected to the practice.

Legalizing Intelligence Sharing: A Consensus Approach, Brian Mund

American University National Security Law Brief

No abstract provided.

"No Person . . . Shall Ever Be Molested On Account Of His Mode Of Worship Or Religious Sentiments . . . .": The Northwest Ordinance Of 1787 And Strader V. Graham, Allan W. Vestal

Marquette Law Review

The Article looks at the first article of compact of the Northwest Ordinance,

the religious liberty guarantee: “No person . . . shall ever be molested on

account of his mode of worship or religious sentiments . . . .” Congress

provided that the Northwest Ordinance articles of compact would “forever

remain unalterable.” But in a fugitive slave case from 1851, Strader v. Graham,

Chief Justice Roger Taney declared the articles of compact to be no longer in

force.

In evaluating Chief Justice Taney’s reasoning, the question posed at the

dawn of the 20th Century by historian Professor Andrew McLaughlin …

Ventura V. Kyle And American Sniper; The Anatomy Of A Public Figure’S Lawsuit, Michael K. Steenson

Faculty Scholarship

Chris Kyle's book, American Sniper, detailed his exploits as a prolific Navy SEAL sniper. In a book subchapter Kyle detailed an encounter with a "Mr. Scruff Face" in a San Diego Bar. The book states that Ventura made certain statements that were demeaning of the United States and the Navy SEALS. Scruff Face was subsequently identified by Chris Kyle as Jesse Ventura, former governor of Minnesota. Ventura sued Chris Kyle for defamation, appropriation, and unjust enrichment. Relying on trial court documents, briefs, and the opinions in the case, this article probes those theories of recovery with an emphasis on the …

"Enough's Enough": Protest Law And The Tradition Of Chilling Indigenous Free Speech, Alix H. Bruce

Celebrating WCL Student Authors

Indigenous peoples in the United States were not granted the full scope of their rights as citizens under the Constitution until the enactment of the Indian Citizenship Act of 1924. Before that—and after—several state and federal campaigns worked to stifle the civil rights of Indigenous peoples. Many of those unjust and unconstitutional policies were upheld by the Supreme Court. In the current era, the anti-pipeline protests on the edge of the Standing Rock Sioux Reservation in North Dakota sparked a new recognition of Indigenous resistance under the First Amendment—and vicious state and federal backlash against Indigenous free speech via the …

Thoughts On Hayden C. Covington And The Paucity Of Litigation Scholarship, Ronald K.L. Collins

FIU Law Review

No abstract provided.

Not Such A Fixed Star After All: West Virginia State Board Of Education V. Barnette, And The Changing Meaning Of The First Amendment Right Not To Speak, Genevieve Lakier

FIU Law Review

No abstract provided.

“Good Orthodoxy” And The Legacy Of Barnette, Erica Goldberg

FIU Law Review

No abstract provided.

“Fixed Star” Or Twin Star?: The Ambiguity Of Barnette, Steven D. Smith

FIU Law Review

No abstract provided.

Deconstitutionalizing Dewey, Aaron Saiger

FIU Law Review

No abstract provided.

Reynolds V. United States, Rewritten, Laura T. Kessler

Utah Law Faculty Scholarship

In Reynolds v. United States, 98 U.S. 145 (1878), Chief Justice Morrison Waite, writing for a unanimous Supreme Court, upheld the federal Morrill Anti-Bigamy Act outlawing polygamy in the federal territories and providing criminal penalties for it. This is a re-writing of that opinion, presented in the form of a dissent, available in Feminist Judgments: Family Law Opinions Rewritten (Cambridge University Press, forthcoming 2020). Unlike the Court’s opinion, this dissent concludes that religious practice, as well as belief, is protected by the First Amendment. It therefore holds that a religious duty to engage in an unlawful practice may be a …

The Department Of Justice Versus Apple Inc. -- The Great Encryption Debate Between Privacy And National Security, Julia P. Eckart

Catholic University Journal of Law and Technology

This article is an attempt to objectively examine and assess legal arguments made by Apple Inc. (Apple) and the Department of Justice (DOJ) concerning the DOJ’s use of the All Writs Act[1] (AWA) to require Apple to provide technical assistance to the DOJ so that it could access the encrypted data from the locked iPhone of Syed Rizwan Farook, commonly referred to as the San Bernardino shooter. The DOJ’s initial ex parte application focused on meeting the requirements of United States v. New York Telephone Co.[2] concluding the court order was authorized and appropriate. Apple not only argued …

Auer Deference Should Be Dead; Long Live Seminole Rock Deference, John B. Meisel

Catholic University Journal of Law and Technology

Deference doctrines should be understood in light of the Administrative Procedures Act’s distinction between legislative rules and interpretive rules and should be based on a solid theoretical foundation. Modern Auer deference calls for categorical deference for an agency’s regulatory interpretation of an ambiguous regulation. This is inconsistent with the APA’s characterization of the purpose of an interpretive rule. Properly construed, interpretive rules clarify the meaning of a legal text which should be justified by use of expository reasoning. These rules deserve a lesser form of deference (Skidmore deference), based on an agency’s unique understanding of its own regulations which …

The Itunes Of Downloadable Guns: Firearms As A First Amendment Right, Sandra Sawan Lara

Catholic University Journal of Law and Technology

As society becomes more technology driven, legal issues continue to arise around the world. From privacy to national security, technology develops at a rate the law simply cannot keep up with. In the United States, one of the biggest legal issues is how the new risks technology brings will interfere with our individual liberties.

Technologies like three-dimensional (“3D”) printing have transformed everything from lifesaving surgeries to gun manufacturing. This technology has led to a whole new way of communicating via computer coding, with the online open source movement leading innovation by allowing for the sharing and editing of files freely. …

The Trouble With Tinker: An Examination Of Student Free Speech Rights In The Digital Age, Allison N. Sweeney

Fordham Intellectual Property, Media and Entertainment Law Journal

The boundaries of the schoolyard were once clearly delineated by the physical grounds of the school. In those days, it was relatively easy to determine what sort of student behavior fell within an educator’s purview, and what lay beyond the school’s control. Technological developments have all but erased these confines and extended the boundaries of the school environment somewhat infinitely, as the internet and social media allow students to interact seemingly everywhere and at all times. As these physical boundaries of the schoolyard have disappeared, so too has the certainty with which an educator might supervise a student’s behavior.

Because …

How To Evaluate The Constitutional Legitimacy Of Regulating Speech Intermediaries: Lessons From A Century-Long Experience Of Media Regulation, Asaf Wiener

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article aims to supply policymakers and jurists with an ideologically-neutral framework for evaluating the legitimacy of imposing public interest duties on today’s dominant communicative technologies, such as Netflix, YouTube, or Facebook. In contrast to current literature, which often advocates for adopting either a libertarian or a distributive position about communication policies and free speech values, this Article suggests an ideologically-neutral, fact-based examination for evaluating the various sources of legitimacy with regard to both “old” and “new” media regulation.

The first Part of the Article begins by adopting a sociohistorical perspective to taxonomize consensual sources for legitimizing media regulation within …

Barnette And Masterpiece Cakeshop: Some Unanswered Questions, Abner S. Greene

FIU Law Review

No abstract provided.

Law, Religion, And Secular Order, Zachary R. Calo

Scholarly Works

This article compares the law and religion jurisprudence of the US Supreme Court and the European Court of Human Rights across three legal areas: religious symbols and religion-state relations, individual religious freedom, and institutional religious freedom or freedom of the church. Particular focus is given to the manner in which this jurisprudence reveals the underlying structure and meaning of the secular. Although there continues to be significant jurisprudential diversity between these two courts and across these legal areas, there is also emerging a shared accounting of religion, secularity, and moral order in the late modern West.

Coming Down The Pipeline: First Amendment Challenges To State-Level "Critical Infrastructure" Trespass Laws, Jenna Ruddock

American University Law Review

No abstract provided.

Rethinking Religious Objections (Old-Testament Based) To Same-Sex Marriage, Doron M. Kalir

Law Faculty Articles and Essays

In Obergefell v. Hodges, the Supreme Court closed the door on one issue only to open the floodgates to another. While recognizing a constitutional right for same-sex marriage, the Court also legitimized religious objections to such unions, practically inviting complex legal challenges to its doors. In doing so, the Court also called for an "open and searching debate" on the issue. This Article seeks to trigger such debate.

For millennia, objections to same-sex marriage were cast in religious and moral terms. The Jewish Bible ("Old Testament"), conventional wisdom argues, provided three demonstrable proofs of the Bible's abhorrence of same-sex …

The Macguffin And The Net: Taking Internet Listeners Seriously, Derek E. Bambauer

University of Colorado Law Review

To date, listeners and readers play little more than bit parts in First Amendment jurisprudence. The advent of digital networked communication over the Internet supports moving these interests to center stage in free speech doctrine and offers new empirical data to evaluate the regulation of online information. Such a shift will have important and unexpected consequences for other areas, including ones seemingly orthogonal to First Amendment concerns. This Essay explores likely shifts in areas that include intellectual property, tort, and civil procedure, all of which have been able to neglect certain free speech issues because of the lack of listener …

Commercial Speech Protection As Consumer Protection, Felix T. Wu

University of Colorado Law Review

No abstract provided.

Shackled Speech: How President Trump's Treatment Of The Press And The Citizen-Critic Undermines The Central Meaning Of The First Amendment, Terri R. Day, Danielle Weatherby

Lewis & Clark Law Review

Just recently, the Southern District of New York in Knight First Amendment, Inc. v. Trump applied existing First Amendment doctrine to President Trump’s @realDonaldTrump Twitter account in considering whether he violated the First Amendment when he blocked citizens from accessing his tweets. After concluding that the interactive space associated with each of the President’s tweets is a designated public forum, the District Court held that President Trump’s act of blocking users who criticize him constituted viewpoint-based discrimination, which violates the First Amendment. This Article is one of the first of its kind to analyze the question considered by the Knight …

Invasion Of The Content-Neutrality Rule, William D. Araiza

Faculty Scholarship

No abstract provided.