First Amendment Commons^™

Auer Deference Should Be Dead; Long Live Seminole Rock Deference, John B. Meisel

Catholic University Journal of Law and Technology

Deference doctrines should be understood in light of the Administrative Procedures Act’s distinction between legislative rules and interpretive rules and should be based on a solid theoretical foundation. Modern Auer deference calls for categorical deference for an agency’s regulatory interpretation of an ambiguous regulation. This is inconsistent with the APA’s characterization of the purpose of an interpretive rule. Properly construed, interpretive rules clarify the meaning of a legal text which should be justified by use of expository reasoning. These rules deserve a lesser form of deference (Skidmore deference), based on an agency’s unique understanding of its own regulations which …

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. …

The Trouble With Tinker: An Examination Of Student Free Speech Rights In The Digital Age, Allison N. Sweeney

Fordham Intellectual Property, Media and Entertainment Law Journal

The boundaries of the schoolyard were once clearly delineated by the physical grounds of the school. In those days, it was relatively easy to determine what sort of student behavior fell within an educator’s purview, and what lay beyond the school’s control. Technological developments have all but erased these confines and extended the boundaries of the school environment somewhat infinitely, as the internet and social media allow students to interact seemingly everywhere and at all times. As these physical boundaries of the schoolyard have disappeared, so too has the certainty with which an educator might supervise a student’s behavior.

Because …

How To Evaluate The Constitutional Legitimacy Of Regulating Speech Intermediaries: Lessons From A Century-Long Experience Of Media Regulation, Asaf Wiener

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article aims to supply policymakers and jurists with an ideologically-neutral framework for evaluating the legitimacy of imposing public interest duties on today’s dominant communicative technologies, such as Netflix, YouTube, or Facebook. In contrast to current literature, which often advocates for adopting either a libertarian or a distributive position about communication policies and free speech values, this Article suggests an ideologically-neutral, fact-based examination for evaluating the various sources of legitimacy with regard to both “old” and “new” media regulation.

The first Part of the Article begins by adopting a sociohistorical perspective to taxonomize consensual sources for legitimizing media regulation within …

Constitutional Moral Hazard And Campus Speech, Jamal Greene

Faculty Scholarship

One underappreciated cost of constitutional rights enforcement is moral hazard. In economics, moral hazard refers to the increased propensity of insured individuals to engage in costly behavior. This Essay concerns what I call “constitutional moral hazard,” defined as the use of constitutional rights (or their conspicuous absence) to shield potentially destructive behavior from moral or pragmatic assessment. What I have in mind here is not simply the risk that people will make poor decisions when they have a right to do so, but that people may, at times, make poor decisions because they have a right. Moral hazard is not …

Coming Down The Pipeline: First Amendment Challenges To State-Level "Critical Infrastructure" Trespass Laws, Jenna Ruddock

American University Law Review

No abstract provided.

Rethinking Religious Objections (Old-Testament Based) To Same-Sex Marriage, Doron M. Kalir

Law Faculty Articles and Essays

In Obergefell v. Hodges, the Supreme Court closed the door on one issue only to open the floodgates to another. While recognizing a constitutional right for same-sex marriage, the Court also legitimized religious objections to such unions, practically inviting complex legal challenges to its doors. In doing so, the Court also called for an "open and searching debate" on the issue. This Article seeks to trigger such debate.

For millennia, objections to same-sex marriage were cast in religious and moral terms. The Jewish Bible ("Old Testament"), conventional wisdom argues, provided three demonstrable proofs of the Bible's abhorrence of same-sex …

Invasion Of The Content-Neutrality Rule, William D. Araiza

Faculty Scholarship

No abstract provided.

Antitrust As Speech Control, Hillary Greene, Dennis A. Yao

Faculty Articles and Papers

Antitrust law, at times, dictates who, when, and about what people can and cannot speak. It would seem then that the First Amendment might have something to say about those constraints. And it does, though perhaps less directly and to a lesser degree than one might expect. This Article examines the interface between those regimes while recasting antitrust thinking in terms of speech control.

Our review of the antitrust-First Amendment legal landscape focuses on the role of speech control. It reveals that while First Amendment issues are explicitly addressed relatively infrequently within antitrust decisions that is, in part, because certain …

Changing Faces: Morphed Child Pornography Images And The First Amendment, Stacey B. Steinberg

UF Law Faculty Publications

Technology has changed the face of child pornography. The Supreme Court has held that child pornography harms a child both in the creation of the image and the circulation of the image, and thus has ruled that the possession and distribution of child pornography falls outside the realm of First Amendment protections. However, today’s images depicting child pornography do not always depict an actual child engaged in a pornographic act. Instead, some images depicting child pornography are “morphed images.”

Morphed child pornography is created when the innocent image of a child is combined with a separate, sexually explicit image, usually …

Is Everything A Full-Blown First Amendment Case After Becerra And Janus? Sorting Out Standards Of Scrutiny And Untangling "Speech As Speech" Cases From Disputes Incidentally Affecting Expression, Clay Calvert

UF Law Faculty Publications

This Article examines the U.S. Supreme Court’s 2018 First Amendment-based decisions in both National Institute of Family and Life Advocates v. Becerra and Janus v. American Federation of State, County, and Municipal Employees. The Article illustrates how the rulings in these right-not-to-speak cases deepen the divide on today’s Court over when a case affecting speech merits heightened First Amendment analysis (be it strict or intermediate scrutiny) and when it only deserves rational basis review as an economic or social regulation. The cases nudge to the breaking point a dangerous game of push-and-pull between the Court’s conservative and liberal justices …

Certifying Questions In First Amendment Cases: Free Speech, Statutory Ambiguity, And Definitive Interpretations, Clay Calvert

UF Law Faculty Publications

In the First Amendment-based speech cases of both Minnesota Voters Alliance v. Mansky in 2018 and Expressions Hair Design v. Schneiderman in 2017, Justice Sonia Sotomayor forcefully contended that the United States Supreme Court should have certified questions about statutory meaning to the highest relevant state court. This Article examines certification—its purposes, its pros, and its cons—in cases pivoting on whether ambiguous state statutes violate the First Amendment. Mansky and Expressions Hair Design provide timely analytical springboards. The Article argues that certification carries heightened importance today. That is because the justices now frequently fracture along perceived political lines over when …

Merging Offensive-Speech Cases With Viewpoint-Discrimination Principles: The Immediate Impact Of Matal V. Tam On Two Strands Of First Amendment Jurisprudence, Clay Calvert

UF Law Faculty Publications

This Article examines flaws with the U.S. Supreme Court’s 2017 decision in Matal v. Tam that equated giving offense with viewpoint discrimination. Already, the Court’s language in Tam that “giving offense is a viewpoint” is being cited by multiple lower courts. This Article argues, however, that giving offense is not synonymous with viewpoint discrimination. This Article contends that the Court in Tam conflated two distinct strands of First Amendment jurisprudence—namely, its offensive-speech cases with principles against viewpoint discrimination. The Article proposes two possible paths forward to help courts better clarify when a case such as Tam should be analyzed as …

The Fcc And Profane Language: The Lugubrious Legacy Of A Moral Panic And A Grossly Offensive Definition That Must Be Jettisoned, Clay Calvert

UF Law Faculty Publications

This Article examines the Federal Communications Commission’s (“FCC”) regulation of profane language since 2004. That year is when the FCC, facing a moral panic, radically altered its profanity tack. Unlike obscenity and indecency, profanity—a third content category over which the Commission holds statutory authority—is seldom analyzed.

This Article argues that the FCC’s current definition of profane language not only strips its meaning from its religious roots, but also: (1) is both unconstitutionally vague and overbroad; and (2) violates core First Amendment principles against censoring speech that merely offends. The U.S. Supreme Court’s reinvigorated emphasis on safeguarding offensive expression in cases …

Christian Legislative Prayers And Christian Nationalism, Caroline Mala Corbin

Articles

No abstract provided.

Who Tells Your Story: The Legality Of And Shift In Racial Preferences Within Casting Practices, Nicole Ligon

Scholarly Works

No abstract provided.

A Hollow History Test: Why Establishment Clause Cases Should Not Be Decided Through Comparisons With Historical Practices, Alex J. Luchenitser, Sarah R. Goetz

Catholic University Law Review

Some judges, scholars, and advocates have criticized the Supreme Court’s Establishment Clause jurisprudence, arguing that existing Establishment Clause tests give courts too little guidance and too much discretion, and calling on the Court to replace those tests with a test that compares challenged practices to long-standing historically accepted ones. But such a historical-practice test would be much more difficult to apply than the Court’s current jurisprudence and would engender greater confusion among lower courts than there is now.

That’s because there are very few long-standing historical practices that are legitimate candidates for serving as evidence of the intent of the …

Mastering Masterpiece, Kristen K. Waggoner

Catholic University Law Review

Religious freedom ensures that every person has the right to explore life’s deepest questions and to live out their religious convictions in public life. Free speech similarly ensures that all have the liberty to express their views and pursue truth without fear of government punishment. Free exercise of religion and free speech are durable rights that do not turn on cultural popularity or political power; these freedoms enable us to coexist peacefully with each other despite deep differences. Yet these freedoms are being sorely tested today by government efforts to suppress the rights of creative professionals—painters, filmmakers, printers, and many …

Race-Conscious Admissions, Diversity, And Academic Freedom, Vinay Harpalani

Faculty Scholarship

This Essay examines the First Amendment component to race-conscious admissions policies. It argues that these policies reflect a core First Amendment value: academic freedom. It illustrates that race-conscious admissions policies promote academic freedom in two ways. One aspect of a university’s academic freedom is the selection of its own student body. Justice Felix Frankfurter stated this explicitly in his concurrence in Sweezy v. New Hampshire (1957), which was later cited in Justice Lewis Powell's influential concurrence in Regents of the University of California v. Bakke (1978). Additionally, the compelling interest in diversity has roots in the First Amendment. By …

Applying The First Amendment To The Internal Revenue Code: Minnesota Voters Alliance And The Tax Law’S Regulation Of Nonprofit Organizations’ Political Speech, Edward A. Zelinsky

Articles

On its face, Minnesota Voters Alliance v. Mansky is about which T-shirts, hats and buttons voters can wear at the polls. However, the U.S. Supreme Court’s First Amendment analysis in Minnesota Voters Alliance extends beyond apparel at polling places. That decision impacts the ongoing debate about the Johnson Amendment, the now controversial provision of the Internal Revenue Code which forbids Section 501(c)(3) organizations from intervening in political campaigns. Minnesota Voters Alliance also affects the proper construction of Section 501(c)(3)’s ban on lobbying by tax-exempt entities as well as other provisions of the tax law taxing and precluding campaign intervention by …