First Amendment Commons^™

Free Speech Hypocrisy: Campus Free Speech Conflicts And The Sub-Legal First Amendment, Christina E. Wells

Faculty Publications

This Article is modest in scope. It seeks primarily to illuminate the role of free speech conflicts, especially those involving contentious speech, within the Court's jurisprudence, and to illustrate how arguments characterizing the protestors' speech as censorship misperceive the important role such conflicts play. Using both the Court's doctrinal framework and conflict resolution literature, this article attempts to bring deeper understanding to the purposes for the Court's approach, the context underlying the current conflicts, and the flaws underlying the argument that the protestors' actions are censorial. Part I briefly reviews three illustrative free speech conflicts at the University of Missouri, …

A Penny For Your Thoughts: Free Speech And Paying Fines With Coins, Peter C. Alexander

University of Arkansas at Little Rock Law Review

No abstract provided.

The Resilient Foundation Of Democracy: The Legal Deconstruction Of The Washington Posts's Condemnation Of Edward Snowden, Hanna Kim

Indiana Law Journal

On September 17, 2016, The Washington Post (“the Post”) made history by being the first paper to ever call for the criminal prosecution of its own source —Edward Snowden. Yet, two years prior to this editorial, the Post accepted the 2014 Pulitzer Prize in Public Service for its “revelation of widespread secret surveillance by the National Security Agency”—an honor which would not have been bestowed had Snowden not leaked the documents through this news outlet. The other three major media outlets that received and published Snowden’s documents and findings—The Guardian, The New York Times, and The Intercept—all have taken the …

Whistleblowing Speech And The First Amendment, Ronald J. Krotoszynski Jr.

Indiana Law Journal

Alexander Meiklejohn, the iconic First Amendment scholar who expounded the democratic self-government theory of the freedom of speech, posited that for demo-cratic self-government to function, the voters themselves must possess the infor-mation necessary to hold the government accountable. Yet, the information neces-sary for the citizenry to render wise electoral verdicts not uncommonly belongs to the government itself, and government officials often prove highly reluctant to share information that reflects badly on them and their work. The lack of critically im-portant information about the government’s performance makes it difficult, if not impossible, for voters to hold government accountable on Election Day. …

The First Amendment And Content Restrictions In State Film Incentive Programs, Dr. Joel Timmer

Loyola of Los Angeles Entertainment Law Review

In recent years, many states have offered incentive programs to lure film production and its associated economic benefits—increased jobs, spending, and tourism—to their states. Several of these programs have restrictions that deny incentives based on a film’s content. For example, Texas denies film incentives to projects that have “inappropriate content” or portray “Texas or Texans in a negative way.” This article concludes that these restrictions do not violate the First Amendment. Two key considerations factor into this conclusion: First, in granting subsidies, the government may apply criteria that would be impermissible in a regulatory context. Second, the denial of a …

Defending University Speech Codes: An Essay On Why Universities Speech Codes Make Sense, Daniel Alexander Schultz 18

Honor Scholar Theses

No abstract provided.

Rfra As Legislative Entrenchment, Branden Lewiston

Pepperdine Law Review

When there is a conflict between two federal statutes, the more recent statute overrides the past statute. However, courts have used the Religious Freedom Restoration Act (RFRA) to preempt federal laws passed after it. Normally that is the role of constitutional provisions, not statutes. RFRA has been subject to much constitutional criticism, but its attempt to control subsequent federal law has drawn little attention. Courts use RFRA to trump subsequent federal statutes without second thought. This Essay draws on legislative entrenchment doctrine to argue that this feature of RFRA is unconstitutional. RFRA should be used to strike down prior laws …

Rwu First Amendment Blog: David Logan's Blog: Weather Forecast For March 25: Stormy On 60 Minutes? 03-18-2018, David A. Logan

Law School Blogs

No abstract provided.

The Bergdahl Block: How The Military Limits Public Access To Preliminary Hearings And What We Can Do About It, Eric R. Carpenter

William & Mary Bill of Rights Journal

Sergeant Bowe Bergdahl and Private First Class Bradley (now Chelsea) Manning have something in common. Military officials unlawfully closed all or portions of their preliminary hearings to the public. When doing so, military officials exploited two unusual features of the military justice system, thereby denying the accused and the media of their respective Sixth Amendment and First Amendment rights to a public hearing.

The first feature is that the military justice system does not include a standing trial-level court. If there is a problem at the preliminary hearing, the accused and media have nowhere to go for help. The accused …

Maine's "Act To Protect Traditional Marriage And Prohibit Same-Sex Marriages": Questions Of Constitutionality Under State And Federal Law, Jennifer B. Wriggins

Maine Law Review

In 1997, Maine's Legislature passed “An Act to Protect Traditional Marriage and Prohibit Same-Sex Marriages” (Act). The summary attached to the bill states that the bill “prohibits persons of the same sex from contracting marriage.” The bill was the verbatim text of an initiative petition. Civil marriage in Maine and other states is regulated by state statute, and marriage regulation is generally considered to be within the state's police power. However, the state's power to regulate marriage is subject to constitutional limitations. I maintain that “heightened scrutiny” should be applied to the Act because the Act creates a gender-based classification, …

Losing The Spirit Of Tinker V. Des Moines And The Urgent Need To Protect Student Speech, David L. Hudson, Jr.

Et Cetera

Although the United States Supreme Court has held that public school students maintain freedom of speech and expression in school, courts have continued to restrict these Constitutional rights for these students. The speech protective standard from Tinker has gone from being speech protective to a test that favors and is deferential to school officials embroiled in students’ free-speech controversies. We need to regain the attitude of gratitude for students and their rights.

This abstract was written after publication by 2023-2024 Et Cetera Editor-in-Chief Philip Shipman

Extremist Speech, Compelled Conformity, And Censorship Creep, Danielle Keats Citron

Notre Dame Law Review

Silicon Valley has long been viewed as a full-throated champion of First Amendment values. The dominant online platforms, however, have recently adopted speech policies and processes that depart from the U.S. model. In an agreement with the European Commission, the dominant tech companies have pledged to respond to reports of hate speech within twenty-four hours, a hasty process that may trade valuable expression for speedy results. Plans have been announced for an industry database that will allow the same companies to share hashed images of banned extremist content for review and removal elsewhere. These changes are less the result of …

Snake Oil Speech, Jane R. Bambauer

Washington Law Review

Snake oil is dangerous only by way of the claims that are made about its healing powers. It is a speech problem, and its remedy involves speech restrictions. But First Amendment doctrine has struggled to find equilibrium in the balance between free speech and the reduction of junk science. Regulation requires the government to take an authoritative position about which factual claims are “true” and “false,” which is anathema to open inquiry. As a result, free speech jurisprudence overprotects factual claims made in public discourse out of respect for any remote possibility that the scientific consensus might be wrong but …

A Constitutional Counterpunch To Georgia's Anti-Slapp Statute, Nick Phillips, Ryan Pumpian

Mercer Law Review

A "Strategic Lawsuit Against Public Participation"-commonly referred to as a "SLAPP-is a lawsuit intended to chill free speech and healthy public debate and to otherwise intimidate people from speaking out on issues of public concern. True SLAPP suits strike at the heart of the United States and Georgia Constitutions, specifically the rights to free speech and to petition the government enshrined therein. In recent years, state legislatures, including the Georgia General Assembly, have attempted to ward off SLAPP suits through legislation-commonly referred to as "anti-SLAPP" statutes-aimed at the early dismissal of SLAPPs and the award of attorney's fees and costs …

Exposing Secret Searches: A First Amendment Right Of Access To Electronic Surveillance Orders, Hannah Bloch-Wehba

Washington Law Review

Although, as a rule, court proceedings and judicial records are presumptively open to the public, electronic surveillance documents are exceptions. Like ordinary search warrants, surveillance applications are considered ex parte. But court orders frequently remain sealed indefinitely, even when there is no basis for continued secrecy. Indeed, secrecy—in the form of gag orders, local judicial rules, and even clerical filing and docketing practices—is built into the laws that regulate electronic surveillance. This Article argues that this widespread secrecy violates the First Amendment right of access to court proceedings and documents. The history of search and seizure shows that, far from …

Zombie Religious Institutions, Elizabeth Sepper

Northwestern University Law Review

This Article uncovers and names a phenomenon of pressing importance for healthcare policy and religious liberty law: the rise of zombie religious institutions—organizations that have contractual commitments to religious identity but lack actual attachments to churches or associations of religious people. Contracts create religion—sometimes in perpetuity—for institutions that are not, or never have been, religious and for providers who do not share the institution’s religious precepts. This Article details religion’s spread across healthcare through affiliations, mergers, and—most surprisingly—sales of hospitals that continue religious practice after their connection to a church ends. These contracts require hospitals—secular and religious, public and private, …

The Public Defender's Pin: Untangling Free Speech Regulation In The Courtroom, Michael Kagan

Northwestern University Law Review

Recent disputes in Ohio and Nevada about whether lawyers should be allowed to wear “Black Lives Matter” pins in open court expose a fault line in First Amendment law. Lower courts have generally been unsympathetic to lawyers who display political symbols in court. But it would go too far suggest that free speech has no relevance in courtrooms. This Essay argues for a way to strike a balance.

Privacy, Press, And The Right To Be Forgotten In The United States, Amy Gajda

Washington Law Review

When the European Court of Justice in effect accepted a Right to Be Forgotten in 2014, ruling that a man had a right to privacy in his past economic troubles, many suggested that a similar right would be neither welcomed nor constitutional in the United States given the Right’s impact on First Amendment-related freedoms. Even so, a number of state and federal courts have recently used language that embraces in a normative sense the appropriateness of such a Right. These court decisions protect an individual’s personal history in a press-relevant way: they balance individual privacy rights against the public value …

“First Amendment Defense Act” (Fada) Is Reintroduced In The Senate, Public Rights/Private Conscience Project

Center for Gender & Sexuality Law

New York, March 8, 2018–The Public Rights/Private Conscience Project is dismayed that the deceptively named “First Amendment Defense Act” (FADA) was reintroduced into the U.S. Senate today by Sen. Mike Lee (R-Utah) and 21 Republican co-sponsors, including Sens. Marco Rubio (Fla.), Ted Cruz (Texas) and Orrin Hatch (Utah). Not only is this bill unnecessary to the protection of religious liberty in the United States, its language would be harmful to the constitutional rights of millions of Americans.

"Fake News," No News, And The Needs Of Local Communities, Carol Pauli

Faculty Scholarship

The Quaker authors had in mind an ancient truth - that "love endures and overcomes" - and they were convinced that this truth is accessible to all. This article addresses truth at a more immediate and mundane level. It is concerned with the accurate information that local communities need in order to thrive.

The article proceeds in three steps. Part I reviews one way community needs were addressed when the first large-scale electronic communication technology entered individual homes in the form of radio and television. In those days, broadcasters had an affirmative duty to ascertain the problems of the communities …