First Amendment Commons^™

"Tinkering" With Student Rights: School Walkouts And The Implications Of Discipline Practice And Policy On Students' Right To Protest, Hannah Weissler

Scripps Senior Theses

In this study, I examine the extent to which students’ rights to free speech and expression were violated in response to the nationwide school walkouts that took place during the spring of 2018. Students hold the right to political speech and expression under the landmark Supreme Court Case, Tinker v. Des Moines (1969). However, the rights students maintain to participate in protest during school hours is somewhat unclear. Using a two-pronged case study analysis, I explore the question of student rights and potential violations in the face of protest through examining school disciplinary responses alongside disciplinary policy and disciplinary policy …

Warrantless Searches Of Electronic Devices At U.S. Borders: Securing The Nation Or Violating Digital Liberty?, Ahad Khilji

Catholic University Journal of Law and Technology

The steady increase of U.S. citizens traveling with smart phones and other electronic devices has been met with the rise of searches and seizures by CBP officers at U.S borders. Although only less than 0.1% of all travelers may actually be subjected to a search while entering the United States, when comparing the statistics between a six month period in 2016 with the same period in 2017, electronic device searches have almost doubled from 8,383 to 14,993. Approximately one million travelers to the U.S. are inspected by the CBP every day. Out of this population, nearly 2,500 electronic devices are …

An Incomplete Masterpiece, Chad Flanders, Sean Oliveira

All Faculty Scholarship

The recent wave of popular and academic commentary on Masterpiece Cakeshop sounded a common theme: disappointment, even frustration. Masterpiece was held out as a case that was finally going to explain and resolve the conflicts between free expression, free exercise, and discrimination that were coming up again and again in the lower courts. But Justice Kennedy, the critical consensus went, avoided reaching many of the main First Amendment issues in the case and had instead ruled narrowly, giving us a prime example of"judicial minimalism:•

This assessment may be far too generous. In our short Article, we make the case that …

The Political Party System As A Public Forum: The Incoherence Of Parties As Free Speech Associations And A Proposed Correction, Wayne Batchis

University of Michigan Journal of Law Reform

The Supreme Court’s jurisprudence addressing the associational rights of political parties is both highly consequential and deeply inconsistent. It dates back at least as far as the Court’s White Primary decisions more than a half-century ago. In recent decades, the Court has imposed an arguably ad hoc formula, striking down regulations on political parties on First Amendment grounds in some cases, while upholding them in others. From a jurisprudential perspective, critics might point to insufficiently principled distinctions between these cases. From a normative perspective, the very expansion of First Amendment rights to political parties, like the parallel extension to corporations …

Public Policy Limitations On Trademark Subject Matter: A U.S. Perspective, Christine Farley

Contributions to Books

This chapter provides an overview of the public policy limitations on trademark subject matter under U.S. law. This is an area of law that had been fairly stable until recently. The U.S. Supreme Court’s 2017 decision striking down the prohibition on registering disparaging marks and its 2019 decision striking down the prohibition on registering immoral and scandalous marks may prompt a larger reexamination of the policy justifications for denying trademark registration.

Facebook Nudes And Constitutional Feuds: How One State's Law Threatens The First Amendment, Bryan M. Kelly

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

A Masterpiece Of Simplicity: Toward A Yoderian Free Exercise Framework For Wedding-Vendor Cases, Austin Rogers

Marquette Law Review

The Free Exercise Clause was enacted to protect diverse modes of religious

practice. Yet certain expressions of free exercise have entailed concomitant

harm to those outside the religious community, especially LGBTQ persons.

This trend has been acutely present in the recent onslaught of wedding-vendor

cases: LGBTQ persons seek the enforcement of statutorily protected rights,

while religious objectors seek refuge from state intrusion under constitutional

shelter. Consequently, wedding-vendor cases present an area of law in which

free-exercise jurisprudence and anti-discrimination jurisprudence have been

clashing.

However, despite the primacy of religious freedom and equal protection in

American jurisprudence, courts analyze wedding-vendor cases …

Return Of The Campus Speech Wars, Thomas Healy

Michigan Law Review

Review of Erwin Chemerinsky and Howard Gillman's Free Speech on Campus.

Privacy, Property, And Publicity, Mark A. Lemley

Michigan Law Review

Review of Jennifer E. Rothman's The Right of Publicity: Privacy Reimagined for a Public World.

Putting Accessible Expression To Bed, Jamila A. Odeh

Michigan Law Review

In 2011, the Occupy movement began. Occupiers seized space in dozens of public parks and in the American imagination, providing a compelling illustration of an inclusive format of political expression. In the courtroom, protesters sought injunctive relief on First Amendment grounds to protect the tent encampments where Occupiers slept. In 2017, the last of the Occupy litigation ended; but the ramifications the Occupy cases hold for the First Amendment and expressive conduct remain unexamined.

This Comment takes an in-depth look at the adjudication of Occupiers’ First Amendment interest in sleeping in public parks. It analyzes the adjudication of the Occupy …

Prosecuting Fatal Speech: What Minnesota’S State V. Final Exit Network Means For Assisted-Suicide Laws Across The Country, Anthony W. Joyce

Oklahoma Law Review

No abstract provided.

Is President Trump Violating The First Amendment When Blocking Citizens On Twitter?: Exploring Multi-Party Negotiation As A Way To Protect Citizens' Rights In The Wake Of The New Digital Age, Ashley B. Mongiello

Cardozo Journal of Conflict Resolution

This Note seeks to answer the following question: How Twitter, its users, and the President can participate in a multi-party negotiation to decide on terms to enact into a user agreement for Twitter for the purposes of ensuring citizens' First Amendment rights are not violated if the President blocks them on Twitter. Part II of this Note discusses the role of the government when they suppress speech on public forums. It additionally addresses how Trump's actions of blocking citizens were declared a violation of their First Amendment rights. Part III raises the issues citizens face when naming the President as …

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 …

Reynolds V. United States, Rewritten, Laura T. Kessler

Utah Law Faculty Scholarship

In Reynolds v. United States, 98 U.S. 145 (1878), Chief Justice Morrison Waite, writing for a unanimous Supreme Court, upheld the federal Morrill Anti-Bigamy Act outlawing polygamy in the federal territories and providing criminal penalties for it. This is a re-writing of that opinion, presented in the form of a dissent, available in Feminist Judgments: Family Law Opinions Rewritten (Cambridge University Press, forthcoming 2020). Unlike the Court’s opinion, this dissent concludes that religious practice, as well as belief, is protected by the First Amendment. It therefore holds that a religious duty to engage in an unlawful practice may be a …

I Now Pronoun-Ce You: A Proposal For Pronoun Protections For Transgender People, Erin E. Clawson

Penn State Law Review (2003 - Present)

Title VII of the Civil Rights Act protects employees from discrimination “because of sex,” which the Supreme Court found includes gender and sex/gender stereotyping. The circuit courts, however, are split on whether discrimination against transgender people is “because of sex.” In the circuits that extend Title VII’s protection to transgender people, the courts differ as to whether a claim must be based on sex stereotyping or based on a person’s status as transgender or transitioning alone. This issue was recently granted certiorari by the Supreme Court.

Not only do the circuit courts conflict but government agencies disagree on this matter …

Did Five Supreme Court Justices Go "Completely Bonkers"?: Saul Goodman, Legal Advertising, And The First Amendment Since Bates V. State Bar Of Arizona, Eric T. Kasper, Troy A. Kozma

Cardozo Arts & Entertainment Law Journal

In Bates v. State Bar of Arizona (1977), the U.S. Supreme Court held for the first time that the First and Fourteenth Amendments' protection of the freedom of speech extends to truthful advertising of attorneys' services. The ruling set aside decades of ethics rules that had prohibited lawyers from engaging in this type of marketing that bar associations had deemed predatory and beneath the stature of the profession. Saul Goodman from Breaking Bad and Better Call Saul is a pop culture representation of what legal advertising has become, both reflecting and shaping public perception of legal commercial publicity. But are …

Commercial Speech Protection As Consumer Protection, Felix T. Wu

Articles

The Supreme Court has long said that “the extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides.” In other words, consumers—the recipients or listeners of commercial speech—are the ones the doctrine is meant to protect. In previous work, I explored the implications of taking this view seriously in three contexts: compelled speech, speech among commercial entities, and unwanted marketing. In each of those contexts, adopting a listener-oriented approach leads to the conclusion that many forms of commercial speech regulation should receive far less First Amendment scrutiny than …

Justice Jackson In The Jehovah's Witnesses' Cases, John Q. Barrett

Faculty Publications

(Excerpt)

I will address Justice Jackson and Jehovah’s Witnesses in four parts. First, I will begin with Robert Jackson himself, introducing the man who became a Supreme Court Justice, and who came to author Barnette and at least one other very notable opinion in a Jehovah’s Witness case. Second, I will turn to the Barnette case in its Supreme Court legal context, which turns out to be two Court terms, 1941–42 and 1942–43, of many Jehovah’s Witnesses cases. These cases produced a run of Court decisions that are a framework surrounding Barnette, and thus understanding them is important to …

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

Faculty Publications

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 …

Bad Actors And The Communications Decency Act Of 1996: Lessons Learned From Our Nation's Battle With Online Human Trafficking, Peter Polack

Cardozo Arts & Entertainment Law Journal

No abstract provided.