First Amendment Commons^™

Keynote Address, Orrin G. Hatch

BYU Law Review

No abstract provided.

Free Speech And Public Order Exceptions: A Case For The U.S. Standard, Asma T. Uddin

BYU Law Review

No abstract provided.

Commandments, Crosses, & Prayers: The Roberts Court’S Approach To Public Religion, Zachary D. Smith

BYU Law Review

No abstract provided.

Cross-Racial Misidentification: A Call To Action In Washington State And Beyond, Taki V, Flevaris, Ellie F. Chapman

Seattle University Law Review

Research indicates eyewitness identifications are incorrect approximately one-third of the time in criminal investigations. For years, this phenomenon has significantly contributed to wrongful convictions all over the country, including in Washington State. But jurors, attorneys, and police remain unaware of the nature and extent of the problem and continue to give undue weight to eyewitness evidence. Experts have estimated that approximately 5,000–10,000 felony convictions in the United States each year are wrongful, and research suggests that approximately 75% of wrongful convictions involve eyewitness misidentification. The phenomenon of eyewitness misidentification is also amplified and most troublesome in the context of cross-racial …

A Presumption Of Disclosure: Towards Greater Transparency In Asylum Proceedings, Rose Linton

Seattle University Law Review

Every day, Asylum Officers (AOs) and Immigration Judges (IJs) hear cases to determine if the asylum seeker has a genuine claim to protection under the Refugee Act, which prohibits returning a refugee to a country where her life or freedom is threatened due to race, religion, political opinion, nationality, or membership in a particular social group. AOs and IJs are aware that their decision may mean life or death for an asylum seeker. They are also aware that false claims are “distressingly common,” that unscrupulous attorneys and unauthorized practitioners of immigration law have perpetrated fraudulent asylum schemes, and that granting …

Neither Tinker, Nor Hazelwood, Nor Fraser, Nor Morse: Why Violent Student Assignments Represent A Unique First Amendment Challenge, William C. Nevin

William & Mary Bill of Rights Journal

This Article will both (1) explore a subset of violent student speech cases that could rightly be considered under Hazelwood if only the student expression bore the sign of official school sponsorship and (2) argue for the creation of a new standard based on Hazelwood to govern non-sponsored curricular speech. Furthermore, this new standard would operate much like the current Hazelwood analysis with one key distinction: where student speech is curricular and non-sponsored in nature, the only options available to school administrators would be those representing pedagogical counter-speech. Punitive discipline, such as the suspension seen in Cuff, would not be …

Snap: How The Moral Elasticity Of The Denaturalization Statute Goes Too Far, Aram A. Gavoor, Daniel Miktus

William & Mary Bill of Rights Journal

Comprehensive immigration reform is a popular topic in Congress. While many reform bills have been offered, none have addressed the significant substantive and procedural issues surrounding denaturalization, the process where the federal government may seek to have a naturalized person’s citizenship revoked in federal court if his citizenship was unlawfully or fraudulently procured.Though denaturalization serves public policy as a final check on naturalization fraud, existing law also permits the government to denaturalize an individual solely for speech and expressive association that occurs after one acquires citizenship. This provision, 8 U.S.C. § 1451(c), violates naturalized citizens’ First Amendment rights to free …

The Empirical Irony Of The Conflict Between Antidiscrimination And Religious Freedom, Nathan B. Oman

Popular Media

No abstract provided.

The (Hoped For) Shallowness Of Progressive Skepticism Towards Religious Freedom, Nathan B. Oman

Popular Media

No abstract provided.

District Court, Nassau County, People V. Zedner, Jonathan Kirchner

Touro Law Review

No abstract provided.

The Odyssey Of A Supreme Court Decision About The Sanctity Of Opinions Under The First Amendment, Richard H.W. Maloy

Touro Law Review

No abstract provided.

A Balanced Diet Of First Amendment Cases, Joel Gora

Touro Law Review

No abstract provided.

A Quantum Congress, Jorge R. Roig

Chicago-Kent Law Review

This article tries to address the problem of a corrupt and broken electoral system that has been captured by special interests through big money spending in political campaigns, while at the same time preserving the spirit of the Free Speech Clause of our Constitution. In doing so, this article first reviews and summarizes the different alternatives proposed as potential fixes for the campaign finance problem. It then explains why none of the proposed alternatives can accomplish the dual goals set out above. Finally, the article briefly sketches a proposal for a fundamental reworking of our representative democracy by substituting legislative …

Speaker Discrimination: The Next Frontier Of Free Speech, Michael Kagan

Florida State University Law Review

Citizens United v. FEC articulated a pillar of free speech doctrine that is independent from the well-known controversies about corporate personhood and the role of money in elections. For the first time, the Supreme Court clearly said that discrimination on the basis of the identity of the speaker offends the First Amendment. Previously, the focus of free speech doctrine had been on the content and forum of speech, not on the identity of the speaker. It is possible that protection from speaker identity discrimination had long been implicit in free speech case law, but has now been given more full-throated …

#Academicfreedom: Twitter And First Amendment Rights For Professors, Michael H. Leroy

Notre Dame Law Review Reflection

This Essay asks: is every tweet from a professor protected as a form of academic freedom by the First Amendment? Professor Salaita’s watershed case poses sharply conflicting positions on academic freedom for faculty members. In support of Professor Salaita, a faculty committee at the University of Illinois asserts: “Regardless of the tweets’ tone and content, they are political speech—part of the robust free play of ideas in the political realm that the [University] Statutes insulate from institutional sanction, even in the case of ideas we may detest.”

To answer my research question, I explore how courts rule on First Amendment …

Compelled Commercial Speech, Robert Post

West Virginia Law Review

No abstract provided.

The Uneasy And Often Unhelpful Interaction Of Tort Law And Constitutional Law In First Amendment Litigation, George C. Christie

Marquette Law Review

There are increasing tensions between the First Amendment and the common law torts of intentional infliction of emotional distress, defamation, and privacy. This Article discusses the conflicting interactions among the three models that are competing for primacy as the tort law governing expressive activities evolves to accommodate the requirements of the First Amendment. At one extreme there is the model that expression containing information which has been lawfully obtained that contains neither intentional falsehoods nor incitements to immediate violence can only be sanctioned in narrowly defined exceptional circumstances, even if that expression involves matters that are universally regarded as being …

The Original Meaning Of "God": Using The Language Of The Framing Generation To Create A Coherent Establishment Clause Jurisprudence, Michael I. Meyerson

Marquette Law Review

The Supreme Court’s attempt to create a standard for evaluating whether the Establishment Clause is violated by religious governmental speech, such as the public display of the Ten Commandments or the Pledge of Allegiance, is a total failure. The Court’s Establishment Clause jurisprudence has been termed “convoluted,” “a muddled mess,” and “a polite lie.” Unwilling to either allow all governmental religious speech or ban it entirely, the Court is in need of a coherent standard for distinguishing the permissible from the unconstitutional. Thus far, no Justice has offered such a standard.

A careful reading of the history of the framing …

George Washington. Elena Kagan, And The Town Of Greece, New York: The First Amendment And Religious Minorities, Kermit V. Lipez

The Journal of Appellate Practice and Process

No abstract provided.

High Court Pretense, Lower Court Candor: Judicial Impartiality After Caperton V. Massey Coal Co., Lynne H. Rambo

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Unlocked And Loaded: Government Censorship Of 3d-Printed Firearms And A Proposal For More Reasonable Regulation Of 3d-Printed Goods, Danton L. Bryans

Indiana Law Journal

This Comment analyzes the regulations in place on 3D-printed firearms and proposes a new standard for regulating 3D-printed goods. Part I provides a brief primer on 3D printing and 3D-printed firearms. Part II turns to the events surrounding Defense Distributed’s creation of the world’s first 3D-printed firearm and the subsequent government censorship of the corresponding CAD files. Part III discusses the regulations affecting 3D-printed firearms and why these regulations are ill-suited for CAD files and 3D-printed goods. Part IV analyzes the implications of treating CAD files and 3D-printed goods as equivalents of traditional goods. Finally, Part V offers a proposal …

A Cautionary Tale About Policing Peaceful Protests: First Amendment Rights Still Reign Supreme, Kia H. Vernon

North Carolina Central Law Review

No abstract provided.

"The Only Thing We Have To Fear Is Fear Itself": The Constitutional Infirmities With Felon Disenfranchisement And Citing Fear As The Rationale For Depriving Felons Of Their Right To Vote, Erika Stern

Loyola of Los Angeles Law Review

Felon disenfranchisement, a mechanism by which felons and former felons are deprived of their right to vote, is a widespread practice that has been challenged on many grounds. However, felon disenfranchisement has not yet been properly challenged under the First Amendment. This Article argues that states implicate felons’ First Amendment rights through felon disenfranchisement without citing adequate or compelling rationales to justify this severe intrusion. In fact, at least one rationale, a rationale based on the fear of the way felons might vote, is itself inconsistent with First Amendment principles. Disenfranchising felons based on a fear of the way that …

When Rhetoric Obscures Reality: The Definition Of Corruption And Its Shortcomings, Jessica Medina

Loyola of Los Angeles Law Review

Due to public scorn after the unraveling of the Watergate scandal, the Supreme Court considered the constitutionality of the Federal Election Campaign Act’s restrictions on political contributions and expenditures. Buckley v. Valeo established that no legitimate government interest existed to justify restrictions on campaign expenditures, and only the prevention of corruption or the appearance of corruption could justify restrictions on campaign contributions. Since then, the Court has struggled to articulate a definition of corruption that balances First Amendment protections with the potential for improper influence. This Article argues that the Court’s current definition of corruption is too narrow, and proposes …

Clark Memorandum: Spring 2015, J. Reuben Clark Law School, Byu Law School Alumni Association, J. Reuben Clark Law Society

The Clark Memorandum

• Watchmen on the Tower (Elder D. Todd Christofferson)
• Studying Law in the Light (Brett G. Scharffs)
• On Becoming a Spiritual Athlete (Steve Young)
• The Copyright Predicament (Clark D. Asay)
• The Case Against the Supreme Court (Erwin Chemerinsky)

In All Fairness: Using Political Broadcast Access Doctrine To Tailor Public Campaign Fund Matching, Andrew V. Moshirnia, Aaron T. Dozeman

University of Michigan Journal of Law Reform

Recent United States Supreme Court decisions have undermined the viability of campaign public financing systems, a vital tool for fighting political corruption. First, Citizens United v. FEC allowed privately financed candidates and independent groups to spend unlimited amounts of money on campaigning. Publicly financed candidates now risk being vastly outspent. Second, Arizona Free Enterprise Club’s Freedom PAC v. Bennett invalidated a proportional fund matching system whereby privately financed candidates’ or independent groups’ spending triggered funds to publicly funded candidates. These decisions effectuate a libertarian speech doctrine: all speakers, individual or corporate, must be absolutely unburdened. To comply with this approach, …

Verbal Speech Versus Visual Art: Evidence Of Unequal First Amendment Protection In Right Of Publicity Jurisprudence, Daniel Forman

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Why Can't I Know How The Sausage Is Made?: How Ag-Gag Statutes Threaten Animal Welfare Groups And The First Amendment, Daniel L. Sternberg

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Paths Of Resistance To Our Imperial First Amendment, Bertrall L. Ross Ii

Michigan Law Review

In the campaign finance realm, we are in the age of the imperial First Amendment. Over the past nine years, litigants bringing First Amendment claims against campaign finance regulations have prevailed in every case in the Supreme Court. A conservative core of five justices has developed virtually categorical protections for campaign speech and has continued to expand those protections into domains that states once had the authority to regulate. As the First Amendment’s empire expands, other values give way. Four key cases from this era illustrate the reach of this imperial First Amendment. In Wisconsin Right to Life, Inc. v. …

The Original Meaning Of "God": Using The Language Of The Framing Generation To Create A Coherent Establishment Clause Jurisprudence, Michael I. Meyerson

All Faculty Scholarship

The Supreme Court’s attempt to create a standard for evaluating whether the Establishment Clause is violated by religious governmental speech, such as the public display of the Ten Commandments or the Pledge of Allegiance, is a total failure. The Court’s Establishment Clause jurisprudence has been termed “convoluted,” “a muddled mess,” and “a polite lie.” Unwilling to either allow all governmental religious speech or ban it entirely, the Court is in need of a coherent standard for distinguishing the permissible from the unconstitutional. Thus far, no Justice has offered such a standard.

A careful reading of the history of the framing …