First Amendment Commons^™

"Speak, Go Ahead, Speak, Speak": Chamber Of Commerce V. Brown's Effect On Employment Speech Regarding Unionization , Lauren Kadish

Journal of the National Association of Administrative Law Judiciary

This case note examines the analysis of the Supreme Court's holding in Chamber of Commerce. v. Brown and the effect the decision will have on the rights of employers to engage in noncoercive speech regarding unionization. Part II discusses the historical lineage of employer free speech guaranteed under the NLRA. Part III denotes the relevant facts and procedural history of the case and issues presented to the Supreme Court. Part IV analyzes both the majority and dissenting opinions regarding NLRA preemption over state regulations prohibiting the expenditure of state funds by employers to deter union organization. Finally, Part V considers …

Class Actions, Heightened Commonality, And Declining Access To Justice, A. Benjamin Spencer

Scholarly Articles

A prerequisite to being certified as a class under Rule 23 of the Federal Rules of Civil Procedure is that there are "questions of law or fact common to the class." Although this “commonality” requirement had heretofore been regarded as something that was easily satisfied, in Wal-Mart Stores, Inc. v. Dukes the Supreme Court gave it new vitality by reading into it an obligation to identify among the class a common injury and common questions that are "central" to the dispute. Not only is such a reading of Rule 23’s commonality requirement unsupported by the text of the rule, but …

Banning The Hijab In Prisons: Violations Of Incarcerated Muslim Women's Right To Free Exercise Of Religion, Ali Ammoura

Chicago-Kent Law Review

Muslim American women who wear the hijab, or Islamic headscarf, face religious discrimination in nearly every aspect of their public life. They even face it during arrest or incarceration. Law enforcement officials often force Muslim women to remove their hijab while in custody, which both degrades and humiliates them in the process. But prison policies that prohibit incarcerated Muslim women from wearing the hijab violate their right to free exercise of religion. Penal institutions should not prevent incarcerated Muslim women from wearing a hijab without compelling reasons, especially when such policies often arise out of religious discrimination. Courts must …

Balancing Intentional Infliction Of Emotional Distress Claims And First Amendment Protections In Snyder V. Phelps, Douglas Behrens

Cardozo Public Law, Policy & Ethics Journal

The article explores the delicate balance between First Amendment protections and Intentional Infliction of Emotional Distress (IIED) claims, using the Snyder v. Phelps case as a focal point. It argues that while the Supreme Court correctly ruled in favor of Westboro Baptist Church's free speech rights, the current legal framework for balancing these interests is outdated. The author proposes an "enhanced publicity test" to modernize the analysis, ensuring that speech contributing to public discourse is protected while safeguarding individuals from severe emotional harm caused by malicious speech.

Back To The Bad Old Days: President Putin's Hold On Free Speech In The Russian Federation, Rebecca Favret

Law Student Publications

This paper addresses new laws promulgated in Russia that restrict freedom of speech. Each implicitly reflects the Kremlin's hostility toward political dissidence in the aftermath of serious protests following President Putin's reelection and elections to the legislature. Disturbed by the outcry, which took place in cities across Russia but also infiltrated the Internet, the Russian legislature passed strict laws censoring Internet speech, prohibiting behavior and speech deemed "extremist," and curbing the size and type of public gatherings.

The new legislation is examined through the lens of some of the Kremlin's most infamous and recent targets: namely, the Internet blacklist and …

Speech, Intent, And The Chilling Effect, Leslie Kendrick

William & Mary Law Review

Speaker’s intent requirements are a common but unremarked feature of First Amendment law. From the “actual malice” standard for defamation to the specific-intent requirement for incitement, many types of expression are protected or unprotected depending on the state of mind with which they are said. To the extent that courts and commentators have considered why speaker’s intent should determine First Amendment protection, they have relied upon the chilling effect. On this view, imposing strict liability for harmful speech, such as defamatory statements, would overdeter, or chill, valuable speech, such as true political information. Intent requirements are necessary prophylactically to provide …

Protecting Children? The Evolution Of The First Amendment: A Historical Timeline Of Children And Their Access To Pornography And Violence, Nicole Digiose

Pace Law Review

This paper will explore the evolving relationship between children and their access to potentially harmful materials. The timeline will start at Part II.A with the landmark decision of Prince v. Massachusetts, a 1940’s case, wherein children were afforded the most constitutional protection. In Part II.B, this paper will evaluate another landmark decision: Ginsberg v. New York. In this 1968 case, the Supreme Court declared that children shall not have access to harmful, pornographic materials. By the 1990s, there appeared to be a notable shift in how the Supreme Court decided cases pertaining to children and their access to …

Net Neutrality: Preparing For The Future, Jennifer Wong

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Citizens United: A World Of Full Disclosure, Maxfield Marquardt

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Contents, First Amendment Law Review

First Amendment Law Review

No abstract provided.

Yes, Jurors Have A Right To Freedom Of Speech Too - Well, Maybe: Juror Misconduct And Social Networks, Porsha M. Robinson

First Amendment Law Review

No abstract provided.

The Family Smoking Prevention And Tobacco Control Act, Graphic Warning Labels, And The Future Of Compelled Commercial Speech, Anderson Chang

First Amendment Law Review

No abstract provided.

Striking A Balance: Freedom Of The Press Versus Children's Privacy Interests In Juvenile Dependency Hearings, Kelly Crecco

First Amendment Law Review

No abstract provided.

My Way And/Or The Highway: Exploring The Adequacy Of The Alternative Channels Test In Conditional Speech Cases, D. Warren

First Amendment Law Review

No abstract provided.

Defamation Is More Than Just A Tort: A New Constitutional Standard For Internet Student Speech, Reesa Miles

Brigham Young University Education and Law Journal

No abstract provided.

Not Lol: Legal Issues Encountered During One High School's Response To Sexting, R. Stewart Mayers Ph.D., Mike F. Desiderio Ph.D.

Brigham Young University Education and Law Journal

No abstract provided.

A Tale Of Two Greenmoss Builders, Robert M. O'Neil

Washington Law Review

If ever a pending Supreme Court case deserved the merciful disposition of “improvidently granted,” it would seem to be Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. Many factors seem to warrant such interment for an elusive and wholly unsatisfying controversy. Arguably, by any objective standard, this case should never have gone beyond a routine and little noted denial of certioriari. Against this unhappy background, let me offer several countervailing and compelling factors that seem to warrant an alternative disposition.

The Gospel According To The Warden: Rluipa, The First Amendment, And Prisoners' Religious Liberty Requests, Ethridge B. Ricks

First Amendment Law Review

No abstract provided.

The Landmark That Wasn't: A First Amendment Play In Five Acts, Lee Levine, Stephen Wermiel

Washington Law Review

What follows is an original case study of our First Amendment law of free expression and how it is created by the Supreme Court. Drawing heavily on heretofore unpublished internal papers from the chambers of Justice William Brennan and other Justices, this Article reveals how the 1964 landmark decision in New York Times Co. v. Sullivan was once in serious jeopardy of being overruled. In the course of this discussion, and in their examination of the evolution of the Court’s decision in Dun & Bradstreet v. Greenmoss Builders (1985), the authors describe and analyze: (1) how and to what extent …

Dun & Bradstreet V. Greenmoss Builders As An Example Of Justice Powell's Approach To Constitutional Jurisprudence, Paul M. Smith

Washington Law Review

Given this welcome opportunity to comment on the Levine and Wermiel account, I thought I would use it to offer some thoughts about Justice Powell’s approach to constitutional jurisprudence, particularly in First Amendment cases—an approach well illustrated by the story of Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.

Dun And Bradstreet Revisited—A Comment On Levine And Wermiel, Scott L. Nelson

Washington Law Review

Lee Levine and Stephen Wermiel’s account of the internal history of the Supreme Court’s decision in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. convincingly demonstrates the utility of the papers of retired Justices in facilitating a painstaking reconstruction of the Court’s deliberations. As someone who clerked for Justice Byron White in the October 1984 and 1985 Terms and was thus present during the second of the two years in which the Court considered Dun & Bradstreet, I will not comment on the accuracy of the particular details the Article reports or add any inside information about the Court’s …

The Supreme Court's Theory Of Private Law, Nathan B. Oman, Jason M. Solomon

Faculty Publications

In this Article, we revisit the clash between private law and the First Amendment in the Supreme Court’s recent case, Snyder v. Phelps, using a private-law lens. We are scholars who write about private law as individual justice, a perspective that has been lost in recent years but is currently enjoying something of a revival.

Our argument is that the Supreme Court’s theory of private law has led it down a path that has distorted its doctrine in several areas, including the First Amendment–tort clash in Snyder. In areas that range from punitive damages to preemption, the Supreme Court has …

Policeman, Citizen, Or Both? A Civilian Analogue Exception To Garcetti V. Ceballos, Caroline A. Flynn

Michigan Law Review

The First Amendment prohibits the government from leveraging its employment relationship with a public employee in order to silence the employee's speech. But the Supreme Court dramatically curtailed this right in Garcetti v. Ceballos by installing a categorical bar: if the public employee spoke "pursuant to her official duties," her First Amendment retaliation claim cannot proceed. Garcetti requires the employee to show that she was speaking entirely "as a citizen" and not at all "as an employee." But this is a false dichotomy - especially because the value of the employee's speech to the public is no less if she …

Religions As Sovereigns: Why Religion Is "Special", Elizabeth Clark

Faculty Scholarship

Commentators increasingly challenge religion’s privileged legal status, arguing that it is not “special” or distinct from other associations or philosophical or conscientious claims. I propose that religion is “special” because it functions metaphorically as a legal sovereign, asserting supreme authority over a realm of human life. Under a religion-as-sovereign theory, religious freedom can be understood as at least partial deference to a religious sovereign in a system of shared or overlapping sovereignty. This Article suggests that federalism, which also involves shared sovereignty, can provide a useful heuristic device for examining religious freedom. Specifically, the Article examines a range of federalism …

The First Amendment’S Global Dimension, Timothy Zick

Popular Media

No abstract provided.

Deceptive Advertising And The Federal Trade Commission: A Perspective, Larry T. Pleiss

Pepperdine Law Review

No abstract provided.

The Making Of The Moral Child: Legal Implications Of Values Education, Joel S. Moskowitz

Pepperdine Law Review

No abstract provided.

(No) State Interests In Regulating Gender: How Suppression Of Gender Nonconformity Violates Freedom Of Speech, Jeffrey Kosbie

William & Mary Journal of Race, Gender, and Social Justice

Despite limited growth in legal protections for transgender people, dress and appearance are largely treated as unprotected matters of personal preference. In response, lawyers and scholars argue that dress and appearance are intimately connected to the expression of identity. Nonetheless, courts have generally deferred to the government’s proffered justifications for these laws.

This article refocuses on the government’s alleged interests in regulating gender nonconformity. Using a First Amendment analysis, the article reveals how seemingly neutral government interests are used to single out conduct because it expresses messages of gender nonconformity. This approach avoids impossible questions about the subjective intent of …

Piercing The Religious Veil Of The So-Called Cults , Joey Peter Moore

Pepperdine Law Review

No abstract provided.

Government Entanglement With Religion: What Degree Of Proof Is Required? , Lee Boothby

Pepperdine Law Review

No abstract provided.