Law and Society Commons^™

The Majoritarian Press Clause, Sonja R. West

Scholarly Works

In early 2018, stories began circulating that something troubling was happening at the United States-Mexico border. The reports claimed that the United States government was separating migrant families and then holding children (as well as adults) by the thousands in crowded, possibly inhumane environments. There were alarming accounts of children who were sick, dirty, hungry, neglected, and sleeping on concrete floors.

Americans, of course, demanded answers: What was happening at these migrant detention centers? Why was it happening? What were the official policies involved? Were the government's actions appropriate? Were they legal? In other words, this was a textbook example …

Beyond Unreasonable, John D. Inazu

Scholarship@WashULaw

The concept of “reasonableness” permeates the law: the “reasonable person” determines the outcome of torts and contracts disputes, the criminal burden of proof requires factfinders to reach conclusions “beyond a reasonable doubt,” and claims of self-defense succeed or fail on reasonableness determinations. But as any first-year law student can attest, the line between reasonable and unreasonable is not always clear. Nor is that the only ambiguity. In the realm of the unreasonable, many of us intuit that some actions are not only unreasonable but beyond the pale—we might say they are beyond unreasonable. Playing football, summiting Nanga Parbat, and attempting …

Bitcoin Is Speech: Notes Toward Developing The Conceptual Contours Of Its Protection Under The First Amendment, Justin S. Wales, Richard J. Ovelmen

University of Miami Law Review

Bitcoin permits users to engage in direct expressive activity with one another without the need for centralized intermediaries. It does so by utilizing an open and community-managed global database called a blockchain. While much of the literature about Bitcoin has focused on its use as a form of digital payment, this Article suggests an expanded understanding by demonstrating its use as a protocol network, not unlike the internet, that can be used to extend the possible range of human expression. After developing an appreciation of the technology, this Article recommends a framework for applying the First Amendment to Bitcoin and …

American Legion V. American Humanist Association, Seth T. Bonilla

Public Land & Resources Law Review

The separation of church and state is a key element of American democracy, but its interpretation has been challenged as the country grows more diverse. In American Legion v. American Humanist Association, the Supreme Court adopted a new standard to analyze whether a religious symbol on public land maintained by public funding violated the Constitution’s Establishment Clause.

The Defamation Injunction Meets The Prior Restraint Doctrine, Doug Rendleman

San Diego Law Review

This article maintains that, under defined circumstances, a judge should be able to grant an injunction that forbids the defendant’s proved defamation. It analyzes the common law of defamation, the constitutional prior restraint doctrine, the constitutional protection for defamation that stems from New York Times v. Sullivan, and injunctions and their enforcement.

In Near v. Minnesota, the Supreme Court expanded protection for expression by adding an injunction to executive licensing as a prior restraint. Although the Near court circumscribed the injunction as a prior restraint, it approved criminal sanctions and damages judgment for defamation. An injunction that forbids the defendant’s …

The Post-Truth First Amendment, Sarah Haan

Indiana Law Journal

Post-truthism is widely viewed as a political problem. This Article explores posttruthism as a constitutional law problem, and argues that, because post-truthism offers a normative framework for regulating information, we should take it seriously as a basis for law.

In its exploration of the influence of post-truth ideas on law, the Article focuses on the compelled speech doctrine. When the State mandates disclosure, it pits the interests of unwilling speakers against the interests of listeners. In the twenty-first century, speakers who are targeted by mandatory disclosure laws are often organizational actors with informational advantages, such as corporations. Listeners who stand …

Texas Indian Holocaust And Survival: Mcallen Grace Brethren Church V. Salazar, Milo Colton

The Scholar: St. Mary's Law Review on Race and Social Justice

When the first Europeans entered the land that would one day be called Texas, they found a place that contained more Indian tribes than any other would-be American state at the time. At the turn of the twentieth century, the federal government documented that American Indians in Texas were nearly extinct, decreasing in number from 708 people in 1890 to 470 in 1900. A century later, the U.S. census recorded an explosion in the American Indian population living in Texas at 215,599 people. By 2010, that population jumped to 315,264 people.

Part One of this Article chronicles the forces contributing …

The Post-Truth First Amendment, Sarah C. Haan

Scholarly Articles

Post-truthism is widely understood as a political problem. In this Article, I argue that post-truthism also presents a constitutional law problem—not a hypothetical concern, but a current influence on First Amendment law. Post-truthism, which teaches that evidence-based reasoning lacks value, offers a normative framework for regulating information. Although post-truthism has become a popular culture trope, I argue that we should take it seriously as a theory of decision making and information use, and as a basis for law.

This Article uses the example of compelled speech to explore how post-truth rhetoric and values are being integrated into law. When the …

The Itunes Of Downloadable Guns: Firearms As A First Amendment Right, Sandra Sawan Lara

Catholic University Journal of Law and Technology

As society becomes more technology driven, legal issues continue to arise around the world. From privacy to national security, technology develops at a rate the law simply cannot keep up with. In the United States, one of the biggest legal issues is how the new risks technology brings will interfere with our individual liberties.

Technologies like three-dimensional (“3D”) printing have transformed everything from lifesaving surgeries to gun manufacturing. This technology has led to a whole new way of communicating via computer coding, with the online open source movement leading innovation by allowing for the sharing and editing of files freely. …

Private Interests, Public Law, And Reconfigured Inequality In Modern Payment Card Networks, Stephen Wilks

Dickinson Law Review (2017-Present)

This Article examines two phenomena contributing to the racial stratification of consumers in credit card markets. The first phenomenon pertains to the longstanding conflict between card issuers and merchants over payment processing cost allocation. If successful, First Amendment challenges to existing statutory surcharge bans will allow merchants to impose an additional fee when consumers use credit cards as a form of payment. The Article relies on the interplay between socioeconomic class and behavioral theory to suggest subsistence borrowers would be more likely to pay surcharge fees than wealthier consumers. This arrangement disfavors the poor to support a hierarchy of borrowers, …

Whose Market Is It Anyway? A Philosophy And Law Critique Of The Supreme Court’S Free-Speech Absolutism, Spencer Bradley

Dickinson Law Review (2017-Present)

In the wake of Charlottesville, the rise of the alt-right, and campus controversies, the First Amendment has fallen into public scrutiny. Historically, the First Amendment’s “marketplace of ideas” has been a driving source of American political identity; since Brandenburg v. Ohio, the First Amendment protects all speech from government interference unless it causes incitement. The marketplace of ideas allows for the good and the bad ideas to enter American society and ultimately allows the people to decide their own course.

Yet, is the First Amendment truly a tool of social progress? Initially, the First Amendment curtailed war-time dissidents and …

Facebook V. Sullivan: Public Figures And Newsworthiness In Online Speech, Thomas E. Kadri, Kate Klonick

Scholarly Works

In the United States, there are now two systems to adjudicate disputes about harmful speech. The first is older and more established: the legal system in which judges apply constitutional law to limit tort claims alleging injuries caused by speech. The second is newer and less familiar: the content-moderation system in which platforms like Facebook implement the rules that govern online speech. These platforms are not bound by the First Amendment. But, as it turns out, they rely on many of the tools used by courts to resolve tensions between regulating harmful speech and preserving free expression—particularly the entangled concepts …

Holmes, Humility, And How Not To Kill Each Other, John D. Inazu

Scholarship@WashULaw

Oliver Wendell Holmes’s dissent in Abrams v. United States is one of the intellectual anchors of modern First Amendment doctrine. In the century since Abrams, we have witnessed changes in society, technology, and politics that have shaped and reshaped the contours of our First Amendment landscape. But not everything has changed — some aspects of our human experience remain remarkably similar to the context in which Holmes wrote. One unchanged aspect of the human condition is our inability to know with certainty. Confronted with this reality in his own day, Holmes at times gestured toward a foundationless relativism. But even …

Laying Siege To The Ivory Tower: Resource Allocation In Response To The Heckler's Veto On University Campuses, Macklin W. Thornton

San Diego Law Review

High in the towers of academia, the lofty ideals of free speech are tossed around with a deceptive ease. However, as legal minds grapple with heady legal doctrines, free speech has concrete consequences down at the foot of those towers. At this ivory base, the property line between the university and the community blur. Students and nonstudents assemble and deliver conflicting speech that, at times, foments violence. Molotov cocktails, gun shots, broken windows, disgruntled students. All attempts to trigger the dreaded heckler’s veto—an attempt the government has an obligation to prevent. In addition to the public relations disasters grown from …

Fearless Speech, Mary Anne Franks

Articles

The American conception of free speech is primarily defined as the freedom to say whatever one wants, with little regard for the quality, context, or impact of the speech. Thus, American free speech doctrine is often characterized as neutral with regard to the speaker and the content of speech; in practice, however, it consistently privileges powerful over vulnerable speakers and harmful over critical speech.

From Philadelphia to Skokie to Charlottesville, the First Amendment has been interpreted to protect speech by white men that silences and endangers women and minorities. As free speech doctrine and practice become increasingly concerned with private …

Can Cyber Harassment Laws Encourage Online Speech?, Jonathon Penney

Articles, Book Chapters, & Popular Press

Do laws criminalizing online harassment and cyberbullying "chill" online speech? Critics often argue that they do. However, this article discusses findings from a new empirical legal study that suggests, counter-intuitively, that while such legal interventions likely have some dampening effect, they may also facilitate and encourage more speech, expression, and sharing by those who are most often the targets of online harassment: women. Relevant findings on this point from this first-of-its-kind study are set out and discussed along with their implications.

Government Lies And The Press Clause, Helen Norton

Publications

This essay considers a particular universe of potentially dangerous governmental falsehoods: the government's lies and misrepresentations about and to the press.

Government's efforts to regulate private speakers' lies clearly implicate the First Amendment, as many (but not all) of our own lies are protected by the Free Speech Clause. But because the government does not have First Amendment rights of its own when it speaks, the constitutional limits, if any, on the government's own lies are considerably less clear.

In earlier work I have explored in some detail the Free Speech and Due Process Clauses as possible constraints on certain …

Electronic Social Media: Friend Or Foe For Judges, M. Sue Kurita

St. Mary's Journal on Legal Malpractice & Ethics

The use of electronic social communication has grown at a phenomenal rate. Facebook, the most popular social networking website, has over 1,968,000,000 users—a number that has exponentially grown since its inception in 2004. The number of judges accessing and using electronic social media (ESM) has also increased. However, unlike the general population, judges must consider constitutional, ethical, technical, and evidentiary implications when they use and access ESM. The First Amendment forbids “abridging the freedom of speech” and protects the expression of personal ideas, positions, and views. However, the American Bar Association’s Model Code of Judicial Conduct and the Texas Code …

Newsroom: Representing Private Manning 09-18-2017, Edward Fitzpatrick, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Newsroom: The Violence In Charlottesville 08-14-2017, Michael J. Yelnosky

Life of the Law School (1993- )

No abstract provided.

Today's Porn: Not A Constitutional Right; Not A Human Right, Patrick Trueman

Dignity: A Journal of Analysis of Exploitation and Violence

No abstract provided.

Indecency Four Years After Fox Television Stations: From Big Papi To A Porn Star, An Egregious Mess At The Fcc Continues, Clay Calvert, Minch Minchin, Keran Billaud, Kevin Bruckenstein, Tershone Phillips

University of Richmond Law Review

Using the WDBJ case as an analytical springboard, this article examines the tumultuous state of the FCC's indecency enforcement regime more than three years after the Supreme Court's June 2012 opinion in Fox Television Stations. Part I of this article briefly explores the missed First Amendment opportunities in Fox Television Stations, as well as some possible reasons why the Supreme Court chose to avoid the free-speech questions in that case." Part II addresses the FCC's decision in September 2012 to target only egregious instances of broadcast indecency and, in the process, to jettison hundreds of thousands of complaints that had …

Unlawful Assembly As Social Control, John D. Inazu

Scholarship@WashULaw

Recent public protests from Occupy to Ferguson have highlighted anew the offense of unlawful assembly. This Article advances the simple but important thesis that contemporary approaches to unlawful assembly cede too much discretion to law enforcement. Too many unlawful assembly provisions neglect important elements of earlier statutory formulations. They also ignore constitutional principles meant to constrain the scope and extent of discretionary enforcement of social control by public authorities. In doing so, they fall short of the aspirations of the First Amendment — stifling dissent, muting expression, and ultimately weakening the democratic experiment. We can do better. We can start …

The Impact Of Technological Developments On The Rules Of Attorney Ethics Regarding Attorney–Client Privilege, Confidentiality, And Social Media, Pamela A. Bresnahan, Lucian T. Pera

St. Mary's Journal on Legal Malpractice & Ethics

This article focuses on the development of the law of ethics and technology. Emphasis is placed on how technological developments have affected the rules and means by which lawyers practice law and certain ethical pitfalls that have developed hand-in-hand with technological advancements. Topics examined include: (1) the ways by which electronic communication has increased the potential for the attorney–client privilege to be waived and the resulting impact on the present-day practice of law; (2) the effect of social media on lawyers’ ethical obligations, including counseling clients regarding the client’s use of social media and the lawyer’s own use of social …

A Free Speech Response To The Gay Rights/Religious Liberty Conflict, Andrew Koppelman

Northwestern University Law Review

The most sensible reconciliation of the tension between religious liberty and public accommodations law, in the recent cases involving merchants with religious objections to same-sex marriage, would permit business owners to present their views to the world, but forbid them either to threaten to discriminate or to treat any individual customer worse than others. Even if such businesses have no statutory right to refuse to facilitate ceremonies they regard as immoral, they are unlikely to be asked to participate in those ceremonies. This solution may, however, be forbidden by the law of hostile environment harassment. That raises a severe free …

Cultural Democracy And The First Amendment, Jack M. Balkin

Northwestern University Law Review

Freedom of speech secures cultural democracy as well as political democracy. Just as it is important to make state power accountable to citizens, it is also important to give people a say over the development of forms of cultural power that transcend the state. In a free society, people should have the right to participate in the forms of meaning-making that shape who they are and that help constitute them as individuals.

The digital age shows the advantages of a cultural theory over purely democracy-based theories. First, the cultural account offers a more convincing explanation of why expression that seems …

Human Rights Law And Racial Hate Speech Regulation In Australia: Reform And Replace?, Dr. Alan Berman

Georgia Journal of International & Comparative Law

No abstract provided.

Prosecuting Online Threats After Elonis, Michael Pierce

Northwestern University Law Review

In Elonis v. United States, decided last term, the Supreme Court vacated a conviction for online threats on the ground that the lower court erred in its instructions to the jury regarding mens rea. In doing so, however, the Court declined to articulate which mens rea standard would have sustained a conviction. It is thus currently uncertain which mens rea the government must prove when prosecuting online threats under 18 U.S.C. § 875(c). The Elonis Court discussed three potential mens rea standards; as universal standards for online threats, each leaves something to be desired. Fortunately, federal courts need not …

Gay Rights Versus Religious Freedom, And The Influence Of Obergefell V. Hodges On Distinguishing The Dividing Line, Kathleen Rainey Mcstravick

St. Mary's Law Journal

Obergefell v. Hodges, a United States Supreme Court case, added more fuel to the fire, leaving many to wonder how to voice religious opposition to same-sex marriages, and what are the second order effects for religious opposition in light of the new rule. The Court held the Equal Protection Clause in the Fourteenth Amendment of the United States Constitution guarantees protection against discrimination based on sexual orientation. Obergefell, brings the conflict between freedom of religion and LGBT rights to a new level by questioning how far freedom of religion can be used to refuse anti-discrimination statutes regarding sexual …

The Right To Be Forgotten: Comparing U.S. And European Approaches, Samuel W. Royston

St. Mary's Law Journal

This Article compares the European and United States stances regarding the right to be forgotten. Within that context, this Article explores the implications of technological advances on constitutional rights, specifically the intersection of the right to free speech and the right to privacy, commonly referred to as the "right to be forgotten" paradox. In the United States, the trend is to favor free speech, while Europe places an emphasis on human rights. Each approach is analyzed based on supporting case law. The consequences of each approach on society, both long- and short-term, are also discussed. This Article argues that a …