First Amendment Commons^™

Justice Scalia And Fourth Estate Skepticism, Ronnell Anderson Jones

Utah Law Faculty Scholarship

The about-face in characterization of the press during Justice Scalia's three decades on the Court is worthy of a discussion about its underlying causes and also a discussion about its potential effects. As I have noted elsewhere, both the explanations for the shift and the possible ramifications of it are complex and multifaceted. Scalia's push for a new, less positive depiction of the press came at a time when the institutional press experienced significant change and its reputation among the American public plummeted-suggesting that Justice Scalia (and, ultimately, his colleagues on the Court) were merely being perceptive observers of the …

Sex, Drugs, And Eagle Feathers: An Empirical Study Of Federal Religious Freedom Cases, Luke W. Goodrich

Utah Law Faculty Scholarship

This Article presents one of the first empirical studies of federal religious freedom cases since the Supreme Court’s landmark decision in Hobby Lobby. Critics of Hobby Lobby predicted that it would open the floodgates to a host of novel claims, transforming “religious freedom” from a shield for protecting religious minorities into a sword for imposing Christian values in the areas of abortion, contraception, and gay rights.

Our study finds that this prediction is unsupported. Instead, we find that religious freedom cases remain scarce. Successful cases are even scarcer. Religious minorities remain significantly overrepresented in religious freedom cases; Christians remain significantly …

Postmodern Free Expression: A Philosophical Rationale For The Digital Age, Stephen M. Feldman

Marquette Law Review

Three philosophical rationales--search-for-truth, self-governance, and self-fulfillment--have animated discussions of free expression for decades. Each rationale emerged and attained prominence in American jurisprudence in specific political and cultural circumstances. Moreover, each rationale shares a foundational commitment to the classical liberal (modernist) self. But the three traditional rationales are incompatible with our digital age. IN particular, the idea of the classical liberal self enjoying maximum liberty in a private sphere does not fit in the postmodern information society. The time for a new rationale has arrived. The same sociocultural conditions that undermine the traditional rationales suggest a self-emergence rationale built on the …

Contemplating Masterpiece Cakeshop, Terri R. Day

Faculty Scholarship

No abstract provided.

John Stuart Mill And Political Correctness, Lackland H. Bloom Jr.

Faculty Journal Articles and Book Chapters

This article will examine Mill’s arguments in favor of unrestrained freedom of speech and his objection to the social censorship of speech. It will then discuss the origins and impact of what is now characterized as political correctness. The article will then define the concept of social censorship and attempt to distinguish pure social censorship from private tangible punishment of speech. Next, the article will examine the ways in which social censorship serves important social goals and promotes free speech as well as the ways in which it undermines free speech. It will especially focus on the damage to intellectual …

#Protestersrightsmatter: The Case Against Increased Criminal Penalties For Protesters Blocking Roadways, Caroline M. Moos

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Partisan Judicial Speech And Recusal Procedure, Dmitry Bam

Faculty Publications

This article discusses Associate Professor Appleby’s thoughtful comment criticizing the Supreme Court’s self-recusal procedure in light of Justice Ginsberg’s critical remarks about then-Presidential Candidate Trump.

It’S My Mark, I Can Offend If I Want To! The Waning Of The Government’S Power To Protect Its Citizens From Widespread Discriminatory Marks, 16 J. Marshall Rev. Intell. Prop. L. 505 (2017), Paul Sanders

UIC Review of Intellectual Property Law

There is an inherent tension between the First Amendment and trademark law. For over 100 years the United States Patent and Trademark Office has protected American citizens from Marks of ill repute. In the wake of the In re Tam decision, this may become more difficult if not impossible. This comment analyzes In re Tam, as well as explores the First Amendment guarantee of free speech and trademark law, and how each intersects with each other. Additionally, this comment proposes solutions that will allow the government to continue protecting its citizens from Marks that should have no place in commerce.

Too Heavy A Burden: Testing Complicity-Based Claims Under The Religious Freedom Restoration Act, Kaleb Brooks

Indiana Law Journal

This Note argues that courts ought to recognize, in the context of complicity-based claims under the Religious Freedom Restoration Act, a sound distinction between burdens on religious conduct, which enjoy protection, and burdens on mere religious sentiment. In light of the structure of complicity-based claims, such a distinction between conduct and sentiment is the only sound approach that respects the Act’s requirements. The Note reaches this conclusion through a survey of the various complicity-based challenges to the Health and Human Services contraceptive care mandate for religious non-profit employers under the federal Religious Freedom Restoration Act in the period between Burwell …

Privacy And Court Records: Online Access And The Loss Of Practical Obscurity, David S. Ardia

Faculty Publications

Court records present a conundrum for privacy advocates. Public access to the courts has long been a fundamental tenant of American democracy, helping to ensure that our system of justice functions fairly and that citizens can observe the actions of their government. Yet court records contain an astonishing amount of private and sensitive information, ranging from social security numbers to the names of sexual assault victims. Until recently, the privacy harms that attended the public disclosure of court records were generally regarded as insignificant because court files were difficult to search and access. But this “practical obscurity” is rapidly disappearing …

Speech V. Conduct, Surcharges V. Discounts: Testing The Limits Of The First Amendment And Statutory Construction In The Growing Credit Card Quagmire, Clay Calvert, Rich Shumate, Stephanie Mcneff, Stephenson Waters

UF Law Faculty Publications

This article examines First Amendment speech concerns and related issues of statutory construction raised by anti-surcharge statutes that prohibit merchants from imposing "surcharges" on credit card purchases, but allow them to offer "discounts" to cash-paying customers. The article uses the split of authority created by the November 2015 opinion of the U.S. Court of Appeals for the Eleventh Circuit in Dana's Railroad Supply v. Florida and the September 2015 decision by the Second Circuit in Expressions Hair Design v. Schneiderman as a timely springboard for analyzing these issues. In September 2016, the U.S. Supreme Court agreed to hear Expressions Hair …

Intentional Infliction Of Emotional Distress & The Hulk Hogan Sex Tape: Examining A Forgotten Cause Of Action In Bollea V. Gawker Media, The Gap It Reveals In Iied’S Constitutionalization, And A Path Forward For Revenge Porn Victims, Clay Calvert

UF Law Faculty Publications

This Article examines Hulk Hogan's successful, yet largely overlooked, cause of action for intentional infliction of emotional distress (IIED) before a Florida jury in 2016 in Bollea v. Gawker Media, LLC. In doing so, the Article explores critical factual differences between Bollea and the U.S. Supreme Court's two decisions constitutionalizing the IIED tort, Hustler Magazine v. Falwell and Snyder v. Phelps. Despite such distinctions, the Article discusses the trial court's instruction to the jury to consider a First Amendment-­based, public-concern defense - one closely akin to that in Snyder - on Hulk Hogan's IIED claim. The Article also …

Can The Undue-Burden Standard Add Clarity And Rigor To Intermediate Scrutiny In First Amendment Jurisprudence? A Proposal Cutting Across Constitutional Domains For Time, Place & Manner Regulations, Clay Calvert, Minch Minchin

UF Law Faculty Publications

When the government regulates the time, place, or manner of speech, it must satisfy intermediate scrutiny and prove that (1) it has a significant interest, (2) the regulation is narrowly tailored, and (3) ample alternative channels of expression remain open. This article advocates simplifying and improving this test in First Amendment jurisprudence by replacing the often-confused second and third prongs with the far less deferential and much more rigorous undue-burden test embraced by the U.S. Supreme Court in 2016 in the abortion-regulation case of Whole Woman’s Health v. Hellerstedt. Incorporating the undue-burden standard maintains intermediate scrutiny’s balancing framework while …

The Government Speech Doctrine In Walker’S Wake: Early Rifts And Reverberations On Free Speech, Viewpoint Discrimination, And Offensive Expression, Clay Calvert

UF Law Faculty Publications

This Article examines the immediate effects on free expression of the U.S. Supreme Court’s 2015 ruling in Walker v. Texas Division, Sons of Confederate Veterans, Inc. involving the government speech doctrine. In Walker, a sharply—and largely partisanly—divided Court upheld, in the face of a First Amendment challenge, Texas’s decision denying a private organization’s application for a specialty license plate featuring Confederate battle flag imagery. This Article initially reviews the government speech doctrine and Walker. It then analyzes Walker’s impact on cases that, like it, involve specialty license plate programs. Next, this Article explores lower court efforts stretching …

Professional Standards And The First Amendment In Higher Education: When Institutional Academic Freedom Collides With Student Speech Rights, Clay Calvert

UF Law Faculty Publications

This Article examines rising tensions between institutional academic freedom and the First Amendment speech rights of college students. Specifically, the friction addressed here occurs when universities enforce external professional standards on students within their curricula. Initially, Part I provides a primer on institutional academic freedom. Part II then contrasts the vastly deferential Hazelwood approach to professional-standards disputes embraced by the Eighth Circuit in Keefe with the somewhat more rigorous ones adopted by the Ninth Circuit in Oyama and Minnesota’s Supreme Court in Tatro.

Indecency Four Years After Fox Television Stations: From Big Papi To A Porn Star, An Egregious Mess At The Fcc Continues, Clay Calvert, Minch Minchin, Keran Billaud, Kevin Bruckenstein, Tershone Phillips

UF Law Faculty Publications

Using the WDBJ case as an analytical springboard, this article examines the tumultuous state of the FCC's indecency enforcement regime more than three years after the Supreme Court's June 2012 opinion in Fox Television Stations. Part I of this article briefly explores the missed First Amendment opportunities in Fox Television Stations, as well as some possible reasons why the Supreme Court chose to avoid the free-speech questions in that case." Part II addresses the FCC's decision in September 2012 to target only egregious instances of broadcast indecency and, in the process, to jettison hundreds of thousands of complaints that had …

Legislating The First Amendment: A Trio Of Recommendations For Lawmakers Targeting Free Expression, Clay Calvert

UF Law Faculty Publications

This Article offers three recommendations for lawmakers attempting to restrict expression that is presumptively protected by the First Amendment. The proposals include: (1) embracing a ''prism of protection" through which all potential laws affecting expression are filtered prior to drafting; (2) mandating inclusion of sunset clauses in all statutes that may detrimentally impact free expression; and (3) adopting a comprehensive legislative oversight and review process for determining if an expired statute should be renewed, revised or abandoned. Although far from creating what Dean Roscoe Pound more than 100 years ago called a "science of legislation, " the proposals here nonetheless …

Beyond Trademarks And Offense: Tam And The Justices’ Evolution On Free Speech, Clay Calvert

UF Law Faculty Publications

In Matal v. Tam , the Supreme Court threw out the “disparagement clause” of the Lanham Act, the federal trademark law, because trademarks are private speech and thus regulating them based on government determinations of offensiveness violates the First Amendment. The solid outcome here contrasts with the narrow, incremental results in some other recent First Amendment cases that reached the Court.

Government Employee Religion, Caroline Mala Corbin

Articles

Picture a county clerk who refuses to issue a marriage license to an LGBT couple or a city bus driver who insists on wearing a hijab. The clerk is fired for failing to fulfill job responsibilities and the bus driver for violating official dress codes. Both claim that their termination violates the First Amendment speech and religion clauses.

There is a well-developed First Amendment government employee speech jurisprudence. Less developed is the doctrine and literature for First Amendment government employee religion. The existing Free Exercise Clause jurisprudence usually does not specifically account for the government employee context. This Article attempts …

The Weaponized Lawsuit Against The Media: Litigation Funding As A New Threat To Journalism, Lili Levi

Articles

This Article identifies a new front in the current war against the media one in which billionaire private actors clandestinely fund other people's lawsuits in an attempt to censor press entities. The use of strategic litigation to shutter media outlets constitutes a major threat to the expressive order. And the current climate of press failures, institutional disaggregation, decreasing accountability journalism, and declining public trust-the very vulnerability of the press today-significantly amplifies the chilling impact of strategic third party funding. It does so whether the strategy is death-by-a-thousand litigations or titanic, bankruptcy-inducing damage verdicts.

Still, contrary to the assertions of both …

Free Speech, The Search For Truth, And The Problem Of Collective Knowledge, Frederick Schauer

SMU Law Review

No abstract provided.

Reining In Internet-Age Expansion Of Exemption 7(C): Towards A Tort Law Approach For Ferreting Out Legitimate Privacy Concerns And Unwarranted Intrusions Under Foia, Clay Calvert, Austin Vining, Sebastian Zarate

UF Law Faculty Publications

Using the July 2016 federal appellate court decision in Detroit Free Press, Inc. v. U.S. Department of Justice as an analytical springboard, this article explores the expansion of Freedom of Information Act (FOIA) Exemption 7(C) in the Internet era. In Detroit Free Press, the Sixth Circuit recognized a privacy interest in mug shots under Exemption 7(C). The practical impact of the decision is to uphold the general policy of the U.S. Marshals Service not to release mug shots. This article illustrates the yawning gap between tort law, which this article argues would deny recovery for the Internet posting of …

The Free Exercise Of Religious Identity, Lauren Sudeall Lucas

Faculty Publications By Year

In recent years, a particular strain of argument has arisen in response to decisions by courts or the government to extend certain rights to others. Grounded in religious freedom, these arguments suggest that individuals have a right to operate businesses or conduct their professional roles in a manner that conforms to their religious identity. For example, as courts and legislatures have extended the right to marry to same-sex couples, court clerks have refused to issue marriage certificates to such couples, claiming that to do so would violate their religious beliefs. Similarly, corporations have refused, for reasons grounded in religious identity, …

Ending The Pursuit: Releasing Attorney Advertising Regulations At The Intersection Of Technology And The First Amendment, Jan L. Jacobowitz

Articles

No abstract provided.

Recent Development: Mitchell V. Md. Motor Vehicle Admin.: Vanity Licence Plates Constitute Private Speech In A Nonpublic Forum, Which Require Restrictions To Be Reasonable And Viewpoint Neutral, Sarah J. Jentilet

University of Baltimore Law Forum

The Court of Appeals of Maryland held that the Motor Vehicle Administration acted within constitutional boundaries when it recalled a vanity license plate displaying the word "MIERDA." Mitchell v. Md. Motor Vehicle Admin., 450 Md. 282, 288, 148 A.3d 319, 323 (2016). The court found that the message on a vanity plate is considered private speech in a nonpublic forum, and accordingly government speech restrictions must be reasonable and viewpoint neutral. Id.

In 2009, the Motor Vehicle Administration ("MVA") issued vanity plates with the term "MIERDA" to John T. Mitchell ("Mitchell"). Two years later, Mitchell renewed the plates. Thereafter, the …

Justifying Perceptions In First And Second Amendment Doctrine, Eric Ruben

Faculty Journal Articles and Book Chapters

Public perceptions often motivate policymakers. But what is the role of perceptions in defending regulations challenged as violating constitutional rights? This article explores how First and Second Amendment doctrine answer that question.

First Amendment free speech doctrine deploys categorical rules and balancing tests to determine the constitutionality of speech restrictions seeking to shape various perceptions. The resulting discrepancies, the article contends, can be explained by motive-based theories of First Amendment doctrine.

In the Second Amendment context, how to handle perception-based regulations remains an open question. Some courts have held that firearm restrictions can pass muster if they preserve the public’s …

Ethical Decision Making: Balancing The Rights And Needs Of Stakeholders, Sarah Becker

Richard T. Schellhase Essay Prize in Ethics

No abstract provided.

Church, State & The Trump Administration, Public Rights/Private Conscience Project

Center for Gender & Sexuality Law

President Donald Trump has repeatedly pledged to be a staunch defender of religious liberties. Nevertheless, his campaign promises, as well as statements made by him and his cabinet appointees, suggest that Trump holds a limited and deeply flawed understanding of religious freedom, among other constitutional rights and guarantees. While members of the new administration will act quickly and aggressively to advance certain conservative Christian religious tenets by limiting the rights of LGBTQ communities and curtailing access to reproductive health care, the President has promised to significantly restrain the rights of religious minorities by imposing a Muslim immigration ban, increase profiling …

Trump And Cabinet Nominees Seek To Restrict Muslim Rights, Break Down The Wall Between Church And State, Public Rights/Private Conscience Project

Center for Gender & Sexuality Law

A new document issued by the Public Rights/Private Conscience Project (PRPCP) at Columbia Law School outlines the numerous areas in which the Trump administration will seek to advance particular conservative Christian tenets, restrict the rights of religious minorities, and break down the barrier between church and state. Enactment of the administration’s policy priorities would call into question the careful balance that currently exists between the First Amendment and other fundamental rights guaranteed under the Constitution. The report, entitled Church, State & the Trump Administration, highlights the ways in which the new administration’s early executive actions and cabinet nominations, as …

Natural Rights And The First Amendment, Jud Campbell

Law Faculty Publications

The Supreme Court often claims that the First Amendment reflects an original judgment about the proper scope of expressive freedom. After a century of academic debate, however, the meanings of speech and press freedoms at the Founding remain remarkably hazy. Many scholars, often pointing to Founding Era sedition prosecutions, emphasize the limited scope of these rights. Others focus on the libertarian ideas that helped shape opposition to the Sedition Act of 1798. Still more claim that speech and press freedoms lacked any commonly accepted meaning. The relationship between speech and press freedoms is contested, too. Most scholars view these freedoms …