First Amendment Commons^™

Religion Without God And The Future Of Free Exercise, R. George Wright

Cleveland State Law Review

In Religion Without God Ronald Dworkin offers a distinctive moral reading of, primarily, the Free Exercise Clause, rather than an historical or precedent-based reading of that clause. Professor Dworkin’s reading apparently seeks to expand the class of persons whose beliefs might fall within the potential coverage of the Free Exercise Clause. But Dworkin’s recommended class of covered persons is, we shall suggest, controversial in both its inclusions and exclusions. Dworkin’s criteria for the revised class of those covered by the Free Exercise Clause would likely be unstable, with significant further consequences for the substance of free exercise jurisprudence in general. …

The Heroic Corporation And First Amendment Romanticism: A Response To Professors Redish And Neuborne, Tamara R. Piety

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Meta Rights, Charlotte Garden

Fordham Law Review

Are individuals entitled to notice of their constitutional rights or assistance in exercising those rights? In most contexts, the answer is no. Yet, there are some important exceptions, in which the U.S. Supreme Court has held that special circumstances call for notice and procedural protections designed to facilitate rights invocations. This Article refers to these entitlements as “meta rights”—rights that protect rights. The most famous of these is the Miranda warning, which notifies suspects of their Fifth Amendment rights to silence and an attorney. There are others as well—among them, the First Amendment right of individuals represented by public sector …

Compelled Disclosures, Caroline Mala Corbin

Articles

Courts have faced a wave of compelled disclosure cases recently. By government mandate, tobacco manufacturers must include graphic warnings on their cigarette packages, doctors must show and describe ultrasound images of fetuses to women seeking to abort them, and crisis pregnancy centers must disclose that they do not provide contraception or abortion services. Although applying the same compelled speech doctrine to similar issues, appeals courts have reached very different results in challenges to these laws. Drawing from First Amendment theory, this Article first identifies why compelled disclosures undermine free speech values. It then applies those insights to the specific examples …

Emotional Compelled Disclosures, Caroline Mala Corbin

Articles

No abstract provided.

Immaculate Defamation: The Case Of The Alton Telegraph, Alan M. Weinberger

All Faculty Scholarship

At the confluence of three major rivers, Madison County, Illinois, was also the intersection of the nation’s struggle for a free press and the right of access to appellate review in the historic case of the Alton Telegraph. The newspaper, which helps perpetuate the memory of Elijah Lovejoy, the first martyr to the cause of a free press, found itself on the losing side of the largest judgment for defamation in U.S. history as a result of a story that was never published in the paper—a case of immaculate defamation. Because it could not afford to post an appeal bond …

Liability For Massive Online Leaks Of National Defense Information, Rodney A. Smolla

Georgia Law Review

Imagine that a group of activist American journalists and lawyers launch a new Internet site called "AmeriLeaks." The site is incorporated as a nonprofit organization with its principal place of business in Washington, D.C. The announced purpose of the site is to provide an American alternative to the WikiLeaks site led by Julian Assange. AmeriLeaks encourages whistleblowers across the United States to post documents on the site exposing corruption and crime in government, with an emphasis on American foreign policy and national security issues. "American universities have launched Moocs-Massive Open Online Courses-and we are now launching a site for American …

Online Privacy And The First Amendment: An Opt-In Approach To Data Processing, Joseph A. Tomain

Articles by Maurer Faculty

An individual has little to no ability to prevent online commercial actors from collecting, using, or disclosing data about her. This lack of individual choice is problematic in the Big Data era because individual privacy interests are threatened by the ever increasing number of actors processing data, as well as the ever increasing amount and types of data being processed. This Article argues that online commercial actors should be required to receive an individual’s opt-in consent prior to data processing as a way of protecting individual privacy. I analyze whether an opt-in requirement is constitutionally permissible under the First Amendment …

Government Endorsement: A Reply To Nelson Tebbe's Government Nonendorsement, Abner S. Greene

Faculty Scholarship

In this response to Nelson Tebbe’s Government Nonendorsement, Abner Greene continues to develop his “thick perfectionist” view of government speech, arguing that the state may use its speech powers to advance various views of the good, from left, center,

Electronic Privacy Information Center V. National Security Agency: How Glomar Responses Benefit Businesses And Provide An Epic Blow To Individuals, Joshua R. Chazen

Journal of Business & Technology Law

No abstract provided.

Not My Job: Determining The Bounds Of Public Employee Protected Speech, Stephen Allred

Law Faculty Publications

This article reviews the Supreme Court’s rulings in public employee free speech cases, discusses the significant departure from precedent that Garcetti made to those cases, summarizes the Court’s most recent ruling in Lane, and argues that the Court should return to the broader standard the Court originally announced in Pickering.

Individual Academic Freedom: An Ordinary Concern Of The First Amendment, Scott R. Bauries

Law Faculty Scholarly Articles

Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us, and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.

There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court's customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same …

The Adoption Of Children In Judaism And In Israel; A Conceptual And Practical Review, Mark Goldfeder

Cardozo Journal of International and Comparative Law

Religion has played a fairly significant role in the history of adoption law, both in the U.S. and internationally. Although there are plenty of questions raised by religion in the context of adoption, one particular issue revolves around whether or not religion should factor into a "best interests of the child" placement determination. Whether or not it should factor into the determination, in practice religion often plays a part in the legal determination of which home will provide the best and most supportive environment for an adopted child. While much has been written about the legal aspect of putting a …

A Restatement Of Health Care Law, David Orentlicher

Scholarly Works

No abstract provided.

Citizenship At Work: How The Supreme Court Politically Marginalized Public Employees, Ruben J. Garcia

Scholarly Works

Collective bargaining by public sector employees has been the subject of recent heated debates in the state legislatures of Wisconsin, Michigan, Ohio, and Indiana. The right of public sector employees to freedom of association, collective bargaining, and the right to participate in politics are among the “citizenship rights” of public employees. In many states, however, the citizenship rights of public employees are under threat both in state legislatures and in the courts. Paradoxically, the ability of public sector employees to change legislation has been hampered over the years by Supreme Court decisions, making it more difficult to organize politically by …

The Curious Case Of Legislative Prayer: Town Of Greece V. Galloway, Ian C. Bartrum

Scholarly Works

This essay explores the Supreme Court's decision to reenter the debate over legislative prayers, and the Solicitor General's curious decision to enter the case in defense of Greece, New York's (somewhat dubious) practice. I suggest that the Court's decision, and the Solicitor's brief, can best be understood as part of larger conflict over Establishment Clause doctrine moving forward.

“Kill The Sea Turtles” And Other Things You Can’T Make The Government Say , Scott W. Gaylord

Washington and Lee Law Review

In Pleasant Grove City v. Summum, the Supreme Court confirmed that there is no heckler’s veto under the government speech doctrine. When speaking, the government has the right to speak for itself and to select the views that it wants to express. But the Court acknowledged that sometimes it is difficult to determine whether the government is actually speaking. Specialty license plates have proven to be one of those difficult situations, raising novel and important First Amendment issues. Six circuits have reached four separate conclusions regarding the status of messages on specialty license plates. Three circuits have held that specialty …

How Many Wrongs Make A Copyright?, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Derek Bambauer’s provocative paper argues that, because the remedies available to people who suffer unconsented distribution of intimate images of themselves are insufficient, we should amend copyright law to fill the gap. Bambauer’s proposal requires significant changes to every part of copyright—what copyright seeks to encourage, who counts as an author/owner, what counts as an exclusive right, what qualifies as infringement, what suffices as a defense, and what remedies are available. These differences are not mere details. Among other things, incentivizing intimacy is not the same thing as incentivizing creativity. Bambauer’s argument that copyright is normatively empty and already full …

All Of This Has Happened Before And All Of This Will Happen Again: Innovation In Copyright Licensing, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Claims that copyright licensing can substitute for fair use have a long history. This article focuses on a new cycle of the copyright licensing debate, which has brought revised arguments in favor of universal copyright licensing. First, the new arrangements offered by large copyright owners often purport to sanction the large-scale creation of derivative works, rather than mere reproductions, which were the focus of earlier blanket licensing efforts. Second, the new licenses are often free. Rather than demanding royalties as in the past, copyright owners just want a piece of the action—along with the right to claim that unlicensed uses …

The Trickle-Down War, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

The history of the European nation-state, wrote political sociologist Charles Tilly, is inextricably bound up with the history of warfare. To oversimplify Tilly’s nuanced and complex arguments, the story goes something like this: As power-holders (originally bandits and local strongmen) sought to expand their power, they needed capital to pay for weapons, soldiers and supplies. The need for capital and new recruits drove the creation of taxation systems and census mechanisms, and the need for more effective systems of taxation and recruitment necessitated better roads, better communications and better record keeping. This in turn enabled the creation of larger and …

It's Time For Revenge Porn To Get A Taste Of Its Own Medicine: An Argument For The Federal Criminalization Of Revenge Porn, Taylor Linkous

Law Student Publications

This comment analyzes the various potential legal approaches to dealing with revenge porn and posits that a federal law criminalizing the dissemination of revenge porn is necessary to combat this growing trend. Part II provides background information on revenge porn and further analyzes how the successful relationship between technology and pornography led to the rise of revenge porn. Part III analyzes the different civil remedies currently available to revenge porn victims and argues these are not practicable solutions. Part IV discusses the current state laws criminalizing revenge porn and the legal challenges faced by those affected by revenge porn and …

Setting The Tipping Point For Disclosing The Identity Of Anonymous Online Speakers: Lessons From Other Disclosure Contexts, Helen Norton

Publications

At what point should anonymous online speakers alleged to have engaged in defamatory, threatening, or other unprotected and illegal speech be required to “unmask” themselves – i.e., to disclose their identities? Courts confronted with such questions have proposed a variety of tests that seek to determine the point – I’ll call this the tipping point – at which they become sufficiently confident that disclosure’s accountability gains justify the unmasking of an anonymous online speaker. This essay suggests that an intradisciplinary approach may be helpful when choosing among these alternative tests. To this end, it recalls parallel disclosure challenges in campaign, …

“What He Said.” The Transformative Potential Of The Use Of Copyrighted Content In Political Campaigns —Or— How A Win For Mitt Romney Might Have Been A Victory For Free Speech, Deidre Keller

Journal Publications

In January 2012 Mitt Romney’s campaign received a cease-and-desist letter charging, among other things, that its use of news footage concerning Newt Gingrich’s ethics problems in the House of Representatives constituted a violation of NBC’s copyright. This is just the latest such charge and came amidst similar allegations against the Gingrich and Bachmann campaigns and in the wake of similar allegations against both the McCain and Obama campaigns in 2008. Such allegations have plagued political campaigns as far back as Reagan’s in 1984. The existing literature is nearly devoid of a consideration of such uses as political speech protected by …

Nonprofits, Speech, And Unconstitutional Conditions, Lloyd Hitoshi Mayer

Journal Articles

This Article proposes a new constitutional framework for approaching the issue of speech-related conditions on government funding received by nonprofits and demonstrates the application of this framework by applying it to the disputes that have reached the Supreme Court in this area. It argues that speech rights are generally inalienable as against the government under the First Amendment, and therefore any abridgement of such rights by the government – whether direct or indirect – is subject to strict scrutiny. As a result, the government is not permitted to buy an organization’s speech (or silence) absent a compelling governmental interest in …

Institutional Autonomy And Constitutional Structure, Randy J. Kozel

Journal Articles

This Review makes two claims. The first is that Paul Horwitz’s excellent book, "First Amendment Institutions," depicts the institutionalist movement in robust and provocative form. The second is that it would be a mistake to assume from its immersion in First Amendment jurisprudence (not to mention its title) that the book's implications are limited to the First Amendment. Professor Horwitz presents First Amendment institutionalism as a wide-ranging theory of constitutional structure whose focus is as much on constraining the authority of political government as it is on facilitating expression. These are the terms on which the book's argument — and, …

“I’M A Lawyer, Not An Ethnographer, Jim”: Textual Poachers And Fair Use, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

This short article, written for a festschrift for Henry Jenkins, discusses the influence of his work on media fandom in legal scholarship and advocacy around fair use.

Fast Forward Fifty Years: Protecting Uninhibited, Robust, And Wide-Open Debate After New York Times Co. V. Sullivan, Amy K. Sanders

Georgia Law Review

In September 2013, California Governor Jerry Brown signed into law SB 606, criminalizing attempts to photograph or videotape a child if the reason for doing so was because the child's parent is a celebrity or public official. Not surprisingly, the measure garnered significant support from Hollywood's elite, including legislative testimony from actress-moms Halle Berry and Jennifer Garner. Against the outcry of the California Broadcasters Association and the California Newspaper Publishers Association, the California Legislature approved the measure, which raises current penalties for first-time offenders to one year of incarceration and/or a $10,000 fine (up from a maximum of six months …

In New York Times Co. V. Sullivan, The Supreme Court Got It Right Then- And Now, David G. Savage

Georgia Law Review

On April 5, 1960, Ray Jenkins, a city editor for the Alabama Journal,the afternoon paper in Montgomery, was having lunch at his desk and skimming through the old papers that had piled up. They included a week-old copy of the New York Times. He spotted an item that had a local angle, and he wrote a thirteen-paragraph story for that day's paper. "Sixty prominent liberals, including [former First Lady] Eleanor Roosevelt, have signed a full page advertisement in the New York Times appealing for contributions to 'The Committee to Defend Martin Luther King and the Struggle for Freedom in the …

Religious Exceptionalism And Human Rights, Laura S. Underkuffler

Cornell Law Faculty Publications

The liberal-democratic governmental compact assures that citizenship, political power, and civic participation in all of its forms will be afforded to all citizens on an equal basis. In particular, simple identity—as a presumptive matter—cannot be the basis for the denial of human rights. It is on this simple yet elegant principle that all civil-rights laws are founded.

Freedom of religion presents a particularly complex problem in this context. On the one hand, it is—itself—a universally recognized member of the human rights family, and is protected under civil-rights laws. On the other hand, it is— because of its possible invocation by …

Compelled Commercial Speech As Compelled Consent Speech, Leslie Gielow Jacobs

McGeorge School of Law Scholarly Articles

No abstract provided.