First Amendment Commons^™

The Israeli Anti-Boycott Law: Should Artists Be Worried?, Arie Peled

Cardozo Arts & Entertainment Law Journal

Though much has been written about the economic dimension of Arab boycotts against Israel, much less attention has been paid to the implications of wider calls for a cultural boycott against Israel. Part I of this note will outline the scope of Israel's boycott problem by looking to the history of the Palestinian Boycott, Divestment, and Sanctions ("BDS") movement, while focusing in particular on the cultural aspects of this boycott. It will then discuss the current dimensions of the domestic and international cultural boycott campaigns Israel faces. Part II will analyze the Israeli legislative response to the BDS movement through …

Mandatory Ultrasound Statutes And The First Amendment, Shifting The Constitutional Perspective, Cheri D. Smith

Cardozo Journal of Equal Rights & Social Justice

The jurisprudence of abortion law is replete with instances in which the concerns of the woman seeking the procedure have taken a back seat. The newest battleground in abortion regulation involves mandatory ultrasound statutes touted as informed consent regulations. The analysis of courts confronting these statutes has turned on whether the mandatory disclosures violate the physician's First Amendment right to be free from compelled speech. The particular breed of statute at issue in this paper requires a physician not only to perform an ultrasound, but also to make the images visible to the woman, to make audible the heartbeat, and …

Kill Switches, Forum Doctrine, And The First Amendment's Digital Future, Enrique Armijo

Cardozo Arts & Entertainment Law Journal

Governments play a growing role in providing access to digital speech spaces. This development has important consequences for free expression. Communication's migration from physical public spaces to virtual ones has increased the State's capacity for ex ante interference with speech, from targeted blocking of users, websites, and applications on its communications networks to shutting off access to those networks altogether. Contrary to the conclusions of most Speech Clause scholars, the First Amendment's public forum doctrine is ill equipped to solve these problems, in part because the doctrine under-protects speech that is not expressed in shared physical space. Accordingly, this Article …

Borrowed Fiction And The Rightful Copyright Position, Viva R. Moffat

Cardozo Arts & Entertainment Law Journal

Works of "borrowed fiction"-unauthorized sequels or retellings of literary works-have long prompted legal, cultural, and social backlash. With respect to copyright disputes, this is because borrowed fiction entails a range of legitimate but conflicting interests. Copyright law has historically elevated the interests of the "original" author over those of other writers and the reading public. Scholars have offered a range of proposals to counter this tendency, but these reforms have focused on the infringement analysis and the fair use doctrine. Each of those, however, involves a binary decision, one that is not amenable to accommodating the conflicting interests at stake. …

Cross, Crucifix, Culture: An Approach To The Constitutional Meaning Of Confessional Symbols, Frederick Mark Gedicks, Pasquale Annicchino

Faculty Scholarship

In the United States and Europe the constitutionality of government displays of confessional symbols depends on whether the symbols also have nonconfessional secular meaning (in the U.S.) or whether the confessional meaning is at least absent (in Europe). Yet both the United States Supreme Court (USSCt) and the European Court of Human Rights (ECtHR) lack a workable approach to determining whether secular meaning is present or confessional meaning absent.

The problem is that the government can nearly always articulate a possible secular meaning for the confessional symbols that it uses, or argue that the confessional meaning is passive and ineffective. …

The Forgotten Law Of Lobbying, Zephyr Teachout

Faculty Scholarship

For most of American history, until the 1950s, courts treated paid lobbying as a civic wrong, not a protected First Amendment right. Lobbying was presumptively against public policy, and lobbying contracts were not enforced. Paid lobbying threatened the integrity of individuals, legislators, lobbyists, and the integrity of society as a whole. Some states had laws criminalizing lobbying; Georgia had an anti-lobbying provision in its Constitution. Inasmuch as there was a personal right to either petition the government, or share views with officers of the government, this right was not something one could sell -- it was not, in the term …

The Stealth Press Clause, Sonja R. West

Scholarly Works

In this piece, however, I pause to push back on the conventional wisdom that the Court actually has refused to view the press as constitutionally special. Contrary to what we have been told, I contend the Supreme Court has indeed recognized the press as constitutionally unique from nonpress speakers. The justices have done so implicitly and often in dicta, but nonetheless they have continually and repeatedly treated the press differently. While rarely acknowledged explicitly, this "Stealth Press Clause" has been hard at work carving out special protections for the press,guiding the Court's analysis and offering valuable insights into how we …

Sugary Drinks, Happy Meals, Social Norms, And The Law, Lindsay Wiley

Scholarly Articles in Law Reviews & Journals

What role should government play in discouraging harmful overconsumption? What modes of government intervention best strike the balance between effectiveness and political acceptability? It is well established that government has a legitimate interest in protecting the health and safety of the people, even from their own choices and actions. Furthermore, there is no fundamental right to sell or purchase particular services or products in particular configurations. The appropriate question, then, is not what government may do to prevent non- communicable diseases that are associated with individual behavior choices, but rather what government should do. This comment on David Friedman's Public …

Federally Recognized Rights Of Lgbtq Students To Form Gay-Straight Alliance Organizations (Gsas), Jerry Foxhoven

Cardozo Law Review de•novo

The purpose of this article is to explore the various avenues that have been used in the federal courts to ensure the right to organize Gay Straight Alliances (GSAs), and to detail the use of the federal courts by students who assert the right to express contrary views on sexual orientation issues.

College Students’ Online Speech: Searching For The Appropriate Standards Within First Amendment Case Principles, Jeffrey C. Sun, Neal H. Hutchens

Cardozo Law Review de•novo

College student free speech cases, particularly as applied to student online speech challenges, suffer from conflicting legal principles. This paper highlights empirically noted problems in resolving disputes between a college student’s free speech rights and a public college’s authority to maintain order and campus safety. In Part I of this paper, the authors present the established legal principles from two foundational cases addressing issues of student speech in the educational context. In Part II, the authors demonstrate how courts have used PK12 education cases and public employment cases as sources that address legal principles for college student speech cases—particularly to …

The Basic Logic Of Post-Tinker Jurisprudence, R. George Wright

Cardozo Law Review de•novo

Tinker v. Des Moines Independent Community School District is rightly regarded as a landmark student speech case. At this point, however, it is fair and important to ask about the likely consequences of radically abandoning Tinker and the succeeding case law. What might it mean, at this historical point, to abandon Tinker along with its qualifying and limiting cases? The discussion briefly pursues this question and endorses a radical abandonment of Tinker and the succeeding cases as binding case law.

Zombies Among Us: Injunctions In Defamation Cases Come Back From The Dead, Jim Stewart, Leonard M. Niehoff

Articles

Here's a scary thought: an individual, unhappy with negative statements that have been made about him, sues for defamation and persuades the trial court to issue an injunction prohibiting the speaker from engaging in that speech again. An appellate court reviews the injunction and, in large measure, upholds it. This creepy scenario brings shudders to free speech and media advocates, who have long viewed such injunctions as prior restraints that the First Amendment forbids in all but the most extreme and extraordinary cases. As a recent decision from the Michigan Court of Appeals demonstrates, however, decades of United States Supreme …

The Unrelenting Libertarian Challenge To Public Accommodations Law, Samuel R. Bagenstos

Articles

There seems to be a broad consensus that Title II of the Civil Rights Act of 1964, which prohibits race discrimination in “place[s] of public accommodation,” was a remarkable success. But the consensus is illusory. Laws prohibiting discrimination by public accommodations currently exist under a significant legal threat. And this threat is merely the latest iteration in the controversy over public accommodations laws that began as early as Reconstruction. This Article begins by discussing the controversy in the Reconstruction and Civil Rights Eras over the penetration of antidiscrimination principles into the realm of private businesses’ choice of customers. Although the …

The End Of Religious Freedom: What Is At Stake?, Nelson Tebbe

Cornell Law Faculty Publications

In recent work, Steven Smith argues that the American tradition of religious freedom is newly imperiled and may even be nearing exhaustion. This Review puts to one side the substance of that argument and focuses instead on what the stakes might be, should it turn out to be correct. It concludes that the consequences would not be as severe as many people fear.

A Tale Of Two Rights, Robin West

Georgetown Law Faculty Publications and Other Works

In part I of this article the author identifies and criticizes a cluster of constitutional rights, which she argues does tremendous and generally unreckoned harm to civil society, and does so for reasons poorly articulated in earlier critiques. At the heart of the new paradigm of constitutional rights that the author believes these rights exemplify is a “right to exit.” On this conception of individual rights, a constitutional right is a right to “opt out” of some central public or civic project. This understanding of what it means to have a constitutional right hit the scene a good two decades …

From Google To Tolstoy Bot: Should The First Amendment Protect Speech Generated By Algorithms?, Margot Kaminski

Publications

No abstract provided.

Invisible Women: Why An Exemption For Hobby Lobby Would Violate The Establishment Clause, Frederick Mark Gedicks, Andrew Koppelman

Faculty Scholarship

Can an employer make his employees foot the bill for his religious beliefs? Merely to ask this question is to answer it. “Religious liberty” does not and cannot include the right to impose the costs of observing one's religion on someone else. Indeed, the Supreme Court has consistently interpreted the Free Exercise Clause, the Establishment Clause, and Title VII of the Civil Rights Act of 1964 to forbid permissive accommodations of religion in the for-profit workplace when they impose significant burdens on identifiable and discrete third parties.

In Sebelius v. Hobby Lobby Stores, Inc., however, an employer is claiming that …

Rfra Exemptions From The Contraception Mandate: An Unconstitutional Accommodation Of Religion, Frederick Mark Gedicks, Rebecca G. Van Tassell

Faculty Scholarship

Litigation surrounding use of the Religious Freedom Restoration Act to exempt employers from the Affordable Care Act’s “contraception mandate” is moving steadily towards resolution in the U.S. Supreme Court. Both opponents and supporters of the mandate, however, have overlooked the Establishment Clause limits on such exemptions.

The heated religious-liberty rhetoric aimed at the mandate has obscured that RFRA is a “permissive” rather than “mandatory” accommodation of religion — a government concession to religious belief and practice that is not required by the Free Exercise Clause. Permissive accommodations must satisfy Establishment Clause constraints, notably the requirement that the accommodation not impose …

Too Strict?, Richard B. Collins

Publications

Should the strict scrutiny standard govern judicial review of claims that government has burdened religious freedom? American law’s patchwork of rules applies that demanding standard to some claims but denies any meaningful review to others. A major difficulty is that most claims alleging denial of religious freedom depend on beliefs that cannot be reviewed by secular courts. Claims based on allegations alone shift the burden to the defending government. Strict scrutiny purports to make justification very difficult; governments are supposed to lose most cases. A second defect of the test in religious freedom cases is its failure to consider harm …

Copyright Crime And Punishment: The First Amendment's Proportionality Puzzle, Margot Kaminski

Publications

The United States is often considered to be the most speech-protective country in the world. Paradoxically, the features that have led to this reputation have created areas in which the United States is in fact less speech protective than other countries. The Supreme Court's increasing use of a categorical approach to the First Amendment has created a growing divide between the US. approach to reconciling copyright and free expression and the proportionality analysis adopted by most of the rest of the world.

In practice, the U.S. categorical approach to the First Amendment minimizes opportunities for judicial oversight of copyright. Consequently, …

Knight V. Thompson: The Eleventh Circuit's Perpetuation Of Historical Practices Of Colonization, Randi Dawn Gardner Hardin

American Indian Law Review

No abstract provided.

"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 A. Keller

Vanderbilt Journal of Entertainment & Technology Law

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 …

The Institutional Progress Clause, Jake Linford

Vanderbilt Journal of Entertainment & Technology Law

There is a curious anomaly at the intersection of copyright and free speech. In cases like Citizens United v. Federal Election Commission, the United States Supreme Court has exhibited a profound distaste for tailoring free speech rights and restrictions based on the identity of the speaker. The Copyright Act, however, is full of such tailoring, extending special rights to some classes of copyright owners and special defenses to some classes of users. A Supreme Court serious about maintaining speaker neutrality would be appalled.

A set of compromises at the heart of the Copyright Act reflects interest-group lobbying rather than a …

Meta Rights, Charlotte Garden

Faculty Articles

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 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 …

Fumbling The First Amendment: The Right Of Publicity Goes 2-0 Against Freedom Of Expression, Thomas E. Kadri

Michigan Law Review

Two circuits in one summer found in favor of college athletes in right-of-publicity suits filed against the makers of the NCAA Football videogame. Both panels split 2–1; both applied the transformative use test; both dissenters predicted chilling consequences. By insisting that the likeness of each player be “transformed,” the Third and Ninth Circuits employed a test that imperils the use of realistic depictions of public figures in expressive works. This standard could have frosty implications for artists in a range of media: docudramas, biographies, and works of historical fiction may be at risk. This Comment examines the tension between the …

First Amendment Neighbors, Sonja R. West

Scholarly Works

An abdication of the Press Clause reflects the most basic of analytical errors: It treats the text of the Press Clause as redundant and ignores the specialized functions that the Framers meant for the Press Clause to play. Failing to give the Press Clause constitutional recognition by declaring it too difficult to interpret or by dismissing it as "mere surplusage" is utterly at odds with our constitutional traditions. The Religion Clauses provide an example on how to give the text of the Press Clause true meaning.

In interpreting the Religion Clauses, the Supreme Court has taken a different attitude than …

Steubenville And Beyond: The Constitutional Case For Comprehensive Sex Education, Kelly E. Mannion

Cardozo Journal of Equal Rights & Social Justice

The article argues that states are constitutionally required to provide comprehensive sex education to minors, as it is essential for their ability to exercise their constitutional rights to privacy, liberty, and autonomy. The denial of adequate sex education constitutes an undue burden on these rights and fails to meet legal standards for rationality and pedagogical interest. The right to receive information under the First Amendment, combined with the liberty right in sexual and reproductive choice under the Fourteenth Amendment, compels recognition of a state duty to provide such education.

Give Me Internet Or Give Me Death: Analyzing The Constitutionality Of Internet Restrictions As A Condition Of Supervised Release For Child Pornography Offenders, Laura Tatelman

Cardozo Journal of Equal Rights & Social Justice

The note argues that blanket bans on internet and internet-capable devices as a condition of supervised release for child pornography offenders are unconstitutional under the doctrine of unconstitutional conditions. These bans infringe on fundamental liberties such as speech, association, and access to information, disproportionately affecting offenders’ ability to reintegrate into society. The analysis advocates for a balanced approach that prioritizes public safety while respecting constitutional rights, suggesting alternatives like supervised release rather than outright internet prohibition.

In The Name Of The Son: The Strategic Importance Of Prenatal Personhood In Abortion Law, Alejandro Madrazo

Cardozo Journal of Equal Rights & Social Justice

Prenatal personhood has been used as a vehicle for restricting abortion rights and other reproductive rights. This Article explores how, through narrative, the question of the status of prenatal life shapes the structure of debates over abortion law and reproductive rights. Whether prenatal hfe is deemed a person or not determines the narrative structures that can be deployed around abortion and, in consequence, strategically orients these debates by determining the key questions that must be addressed and the scope of answers that can be provided. By carrying out a comparative analysis of opinions of local, national and international courts from …

The Stealth Press Clause, Sonja R. West

Georgia Law Review

As we reflect on the 50th anniversary of New York Times Co. v. Sullivan, there will likely be many tributes to Sullivan as one of the Supreme Court's most significant press cases. Yet Sullivan was not really a "press" case. The Supreme Court, in its opinion, granted all speakers greater protection against defamation liability regardless of whether they were a member of the press. Sullivan is not the only famous so-called "press" case that was not just about the press. Several more "not-just-the-press" victories followed in Sullivan's wake. New York Times Co. v. United States (the "Pentagon Papers case"), for …