First Amendment Commons^™

The Discipline Of Rudy Giuliani And The Real Fraud Of The 2020 Election, George M. Cohen

Catholic University Law Review

In Matter of Giuliani, the New York Appellate Division held that Rudy Giuliani’s knowingly false statements of fact during the period after the 2020 presidential election violated the Rules of Professional Conduct and warranted interim suspension of his license. This paper argues that the court reached the right result but did not use the best rule and the best rationale. Instead of focusing on Giuliani’s conduct as a series of false statements in support of a “narrative,” the better approach would have been to call it what it was: fraud. Although the fraud was not “transactional,” fraud, Giuliani’s false …

Coin Center V. Yellen Prompts Reconsideration Of The Vast Deference Afforded To The Department Of The Treasury, Emily Arterbury

Catholic University Law Review

This Comment examines the legal implications of the sanctions issued by the Department of the Treasury’s Office of Foreign Asset Control against Tornado Cash, an application that enables user privacy protection in transactions on the Ethereum blockchain. With the rapid expansion of the digital asset revolution, policymakers remained puzzled as to how to best establish a regulatory scheme that protects consumers without chilling innovation and investment in the digital asset market. The Office of Foreign Assets Control’s issuance of sanctions against Tornado Cash was an attempt to regulate an extremely volatile and unpredictable market. These sanctions prohibited all licit activity …

Understanding 303 Creative Llc In A Polycentric Constitutional World, Meg Penrose

Faculty Scholarship

The evolution of rights following Obergefell is not over. Creative 303 LLC marked a new phase in the ongoing legal challenges over the rights and ceremonies attending same-sex marriage. This Essay addresses the anticipated limits of 303 Creative LLC.

The Essay proceeds in three parts. First, how does 303 Creative LLC impact government employees? What rights, if any, should government employees be able to raise in light of 303 Creative LLC? Second, what does 303 Creative LLC mean for private marketplace vendors engaging in expressive commerce? Vendors, particularly wedding vendors, often create unique items for weddings. Will the law focus …

Brief Amicus Curiae Of Professor Matthew Steilen In Support Of Petitioners, Tiktok Inc. V. Garland (D.C. Cir. 2024) (No. 24-1113), Matthew J. Steilen

Other Scholarship

No abstract provided.

Rewriting History: Copyright, Free Speech, And Reimagining Classic Works, Cathay Y. N. Smith

Villanova Law Review (1956 - )

No abstract provided.

Dol Fiduciary Rule 3.0 Strikeout, Base Knock, Or Home Run?, Antolin Reiber

DePaul Business & Commercial Law Journal

No abstract provided.

Money Is Morphing - Cryptocurrency Can Morph To Be An Environmentally And Financially Sustainable Alternative To Traditional Banking, Clovia Hamilton

DePaul Business & Commercial Law Journal

No abstract provided.

Survey Evidence In Trademark Actions, Ioana Vasiu And Lucian Vasiu

DePaul Business & Commercial Law Journal

No abstract provided.

Corporate Governance And Compelled Speech: Do State-Imposed Board Diversity Mandates Violate Free Speech?, Salar Ghahramani

DePaul Business & Commercial Law Journal

No abstract provided.

The Real Persons Are The Corporations We Made Along The Way, Leonard Brahin

DePaul Business & Commercial Law Journal

No abstract provided.

Front Matter

DePaul Business & Commercial Law Journal

No abstract provided.

Is John Stuart Mill's On Liberty Obsolete?, Vincent A. Blasi

Faculty Scholarship

In On Liberty, published in 1859, John Stuart Mill argues for the “absolute” protection of the “liberty of thought and discussion.” Ever the empiricist, he maintains that such uncompromised freedom, not for all communication or self-expression but for the subset of those activities that qualifies as thought and discussion, would generate the best overall consequences for societies such as Great Britain and the United States. The advent of digital technology has altered how thought and discussion is generated, distributed, and received in ways that might problematize some of the empirical assumptions upon which Mill's argument in On Liberty is …

Opening Dialogue, Lee C. Bollinger, Geoffrey R. Stone

Faculty Scholarship

To set the stage for the excellent essays that make up this volume on the future of free speech, let’s begin where we often do when thinking together about the First Amendment: with some basic facts and fundamental observations about the constitutional command that “Congress shall make no law ... abridging the freedom of speech, or of the press.”

Of course, in the United States, “free speech” is not only part of the constitutional Bill of Rights; it is also a cultural and social norm by which we choose to live. Several of the essays in this volume therefore take …

Tightrope Walking: Balancing Theatre Teachers’ Academic Freedom Of Expression With The Implementation Of Florida’S Stop Woke Act And Don’T Say Gay Bill, Kimberly Adams

Barry Law Review

Florida’s Individual Freedom Act (IFA) and Education Equality Act (EEA), better known as the Stop Woke Act and the Don’t Say Gay bill, respectively, are contentious topics in the United States today. One side argues that parents have the ultimate right to choose what their child learns and how a teacher should deliver that instruction while believing that lessons that address systemic racism divide children and make them feel uncomfortable. The other side argues that our students will be unprepared when they graduate high school to contribute to our multi-racial society and will suffer from a limited worldview. From the …

The Long Shadow Of Food Lion, Knight First Amend. Inst. (May 31, 2024), Alan K. Chen

Sturm College of Law: Faculty Scholarship

This essay discusses the continuing shadow of Food Lion, Inc. v. Capital Cities/ABC, Inc., which looms over the efforts of journalists and, increasingly of other citizens, to engage in undercover investigations to discover and disseminate truthful information on matters of profound public concern. At a time when many impediments to freedom of the press have emerged, legal barriers to undercover investigations suppress a key newsgathering tool that was once an important part of the news media ecosystem. After describing the extensive litigation battle in the case, the essay argues that the decision continues to cast a chilling effect over journalists …

Where's The Beef? The Fifth Circuit's Attempt To Clarify Plant-Based Food Labeling Laws In Turtle Island Foods S.P.C. V. Strain, Andrew J. Kash

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Defendant St. Isidore Of Seville Catholic Virtual School's Reply Brief In Support Of Motion To Dismiss, Michael H. Mcginley, Steven A. Engel, M. Scott Proctor, John A. Meiser, Michael R. Perri, Socorro Adams Dooley

Court Briefs

No. CV-2023-1857
OKPLAC, Inc. v. Statewide Virtual Charter School Board

From the Introduction

Plaintiffs' opposition to the motions to dismiss distills their challenge to the State's approval of St. Isidore of Seville Catholic Virtual School to its essence: Plaintiffs believe that Oklahoma may never allow a religious organization to operate a charter school because (they contend) any faith-based school would violate the Charter Schools Act and the Oklahoma Constitution. Their other arguments-alleging technical errors in the State's decision to contract with St. Isidore and baseless speculation about how they predict the school might one day violate the law-grow from this …

Democracy, Discourse, And The Artificially Intelligent Corporation, Michael R. Siebecker

Sturm College of Law: Faculty Scholarship

Does the ascendance of the artificially intelligent corporation threaten the integrity and legitimacy of democracy? The question seems particularly important as the 2024 presidential election approaches. Hardly a day passes without a new report regarding the disruptive impact of harnessing artificial intelligence (“AI”) technologies. A cascading cadre of academics, business leaders, and politicians warn that unchecked development and dissemination of AI could irreparably damage vital institutions of civil society. Despite the warnings about existential threats AI poses to human agency and democratic processes, reliance on AI technologies proliferates at break-neck speed.

The concern about AI’s destructive impact gets exacerbated by …

Secrecy On Steroids: How Overzealous State Confidentiality Laws Expose Leakers And Whistleblowers To Retaliatory Prosecution, Frank D. Lomonte, Anne Marie Tamburro

University of Miami Law Review

It is well-documented that the federal government has a secrecy problem. Thousands of times a year, inconsequential documents are needlessly stamped “classified,” which can mean prison for anyone who leaks them. But the addiction to secrecy doesn’t stop with the Pentagon. State public-records statutes are riddled with their own local version of “classified information” that puts people at risk of prosecution even for well-intentioned whistleblowing.

The problem is particularly acute in Florida, where one of the state’s highest-ranking elected officials spent almost two years as the target of a criminal investigation for releasing records about an unresolved sexual harassment complaint …

Obtaining Trademark Registration For Marks Containing Political Commentary: A Look Into Vidal V. Elster, Annick Runyon

University of Miami Law Review

For decades, courts have struggled with balancing trademark law with the First Amendment—specifically with cases challenging the denial of trademark registration of certain marks. Congress codified trademark registration through the Lanham Act, also known as the Trademark Act of 1946. This statute outlines the registration process and expands the rights of trademark owners. In recent years, a string of cases have ruled certain provisions of the Lanham Act that bar certain marks from registration unconstitutional.

Currently under review by the Supreme Court, the case Vidal v. Elster involves an applicant who was denied trademark registration for his mark “Trump Too …

Is Florida At War With The Mouse Or Free Speech: Understanding The Dissolution Of Disney’S Reedy Creek And The Threat To Corporate First Amendment Rights, Julia Gibson

University of Miami Business Law Review

On April 22, 2022, Florida Governor Ron DeSantis signed Florida Senate Bill 4C, which stripped Walt Disney World of its status as an “independent special district,” with its Reedy Creek Improvement District. The legislation was passed in response to the corporation’s public criticism of the Parental Rights in Education Act. After months of speculation regarding the solution to the grave tax and debt consequences of the bill, the Governor signed Florida House Bill 9B to reinstate the district under a State elected board and under a new name—the Central Florida Tourism Oversight District.

This Comment delves into the longstanding history …

The Right To Refuse To Deal, The Essential Facilities Doctrine, And The Digital Economy, George Sakkopoulos

St. Mary's Law Journal

Various commentators, as well as the 2020 report on competition in digital markets by the majority staff of the House Judiciary Committee, have advocated for the revival of the essential facilities doctrine, especially in the context of the digital economy. This Article examines the three phases in the development of the essential facilities doctrine and the right to refuse to deal—the foundations in the early twentieth century, the contraction of the right to refuse to deal and the expansion of the essential facilities doctrine in the mid-twentieth century, and the revival of the right to refuse to deal and the …

Parental Rights Or Political Ploys? Unraveling The Deceptive Threads Of Modern “Parental Rights” Legislation, Cecilia Giles

University of Cincinnati Law Review

No abstract provided.

Constitutional Rights And Retrenchment: The Elusive Promise Of Equal Citizenship, Deborah L. Brake

University of Cincinnati Law Review

No abstract provided.

Systemic Racism Transformed To Shalom Justice., Bobby West

Doctor of Ministry Projects and Theses

ABSTRACT

April 27, 2024

SYSTEMIC RACISM TRANSFORMED TO SHALOM JUSTICE

This study examines the pervasive culture of systemic racism in the church and non-church communities and its impact on America. It argues how culture and systemic racism impact marginalized people (particularly African Americans and brown people) through policies and systems related to money, employment, education, health care, etc. Providing a description or argument for systemic racism formation offers a historical context of changes to shalom justice (society race in the image of God), relational and unilateral power with, power to, power within transformation from injustice to Shalom justice. An exploration …

The Social Experiment: How The First Amendment Influences Private Social Media Companies, Collyn J. Kim

Helms School of Government Undergraduate Law Review

Social media has become one of the biggest mediums by which people communicate, socialize, and interact with each other. People follow political figures, cultural icons, and news outlets, among others, to gain knowledge on current events or the hot topic of the day. Many users, regardless of the platform, use their medium of choice to speak their own opinions and comment on the world’s issues. From prime ministers to popular memes, social media is a never-ending timeline of speech. With the constant speech and expression exhibited on social media, two important questions must be asked. First, does the First Amendment …

When Life Takes Your Lemons: Resolving The Legislative Prayer Debate In School Board Settings In Light Of Kennedy V. Bremerton School District, Jordan Halper

Brooklyn Law Review

The COVID-19 pandemic fanned the flames of a fire that had been slowly but steadily burning since 2016, arming the loudest warriors of America’s endless culture war with a slew of new divisive issues. Virtually overnight, parental rights groups began capitalizing on the frustration in their communities in order to spur political change, training their ire toward public schools. What began as a crusade against mask mandates and vaccines manifested into a well-funded effort by ultraconservative groups to undermine the public education system as a whole. Against this backdrop, the legislative prayer exception—which was meant to sanction the practice of …

Creative Jurisprudence: The Paradox Of Free Speech Absolutism, R. George Wright, Chris Rowley

University of Colorado Law Review Forum

Governments often seek to restrict speech on the basis of its content, navigating the ever-complex terrain between constitutional freedoms and regulatory interests. While the United States judiciary has historically endeavored to balance competing constitutional questions and government interests when scrutinizing content-based speech regulations, recent trends signify a troubling shift. The judiciary has recently embraced what this Article refers to as free speech absolutism, whereby it sidesteps the longstanding, intricate process of balancing constitutional values and public interests, in favor of an unequivocal endorsement of speech rights. This simplified judicial strategy proceeds first with an acknowledgment of the paramount importance of …

First Amendment Defenses To Alien Transportation Crimes, Charquia Wright

Scholarly Publications

Florida law now prohibits the transportation of undocumented aliens into the state. Briefings characterize these laws as unconstitutionally preempting federal immigration law and federal due process rights. Despite this emphasis on due process, field, and conflict preemption unconstitutionality, few have addressed the First Amendment implications of human smuggling prosecutions of natural and some corporate persons. The Supreme Court's Free Exercise precedent protects the religious freedoms of natural persons and some corporations. Under state alien transportation laws, these freedoms cease to exist. Because the Supreme Court has extended these religious protections to some corporations, they too are entitled to First Amendment …

Waiting For Mahanoy: Examining The Still-Unsettled Jurisprudence Of Online Student Speech, Emily Erickson, Matthew D. Bunker

William & Mary Bill of Rights Journal

This Article first explores the constitutional background of student speech rights, beginning with the Tinker decision and continuing through early court attempts to analyze online, off-campus cases. Next, it examines Mahanoy itself, unpacking the frustratingly murky majority opinion written by Justice Stephen Breyer. The Article then breaks new ground by exploring court decisions in the years since Mahanoy, as jurists continue trying to identify First Amendment boundaries in student speech cases involving bullying, threats, and otherwise offensive speech. A concluding section synthesizes the state of the law and offers perspectives on this vital area of constitutional concern.

This abstract …