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Fake News And The First Amendment: Reconciling A Disconnect Between Theory And Doctrine, Clay Calvert, Stephanie McNeff, Austin Vining, Sebastian Zarate 2018 University of Florida Levin College of Law

Fake News And The First Amendment: Reconciling A Disconnect Between Theory And Doctrine, Clay Calvert, Stephanie Mcneff, Austin Vining, Sebastian Zarate

UF Law Faculty Publications

This Article analyzes calls for regulating so-called “fake news” through the lens of both traditional theories of free expression – namely, the marketplace of ideas and democratic self-governance – and two well-established First Amendment doctrines, strict scrutiny and underinclusivity. The Article argues there is, at first glance, a seeming disconnect between theory and doctrine when it comes to either censoring or safeguarding fake news. The Article contends, however, that a structural rights interpretation of the First Amendment offers a viable means of reconciling theory and doctrine. A structural rights approach focuses on the dangers of collective power in defining the …


Gag Clauses And The Right To Gripe: The Consumer Review Fairness Act Of 2016 & State Efforts To Protect Online Reviews From Contractual Censorship, Clay Calvert 2018 University of Florida Levin College of Law

Gag Clauses And The Right To Gripe: The Consumer Review Fairness Act Of 2016 & State Efforts To Protect Online Reviews From Contractual Censorship, Clay Calvert

UF Law Faculty Publications

This article examines new legislation, including the federal Consumer Review Fairness Act, signed into law in December 2016, targeting non-disparagement clauses in consumer contracts. Such “gag clauses” typically prohibit or punish the posting of negative reviews of businesses on websites, such as Yelp and TripAdvisor. This article asserts that state and federal statutes provide the best means, from a pro-free-expression perspective, of attacking such clauses, given the disturbingly real possibility that the First Amendment has no bearing on contractual obligations between private parties.


Filtering Fake News Through A Lens Of Supreme Court Observations And Adages, Clay Calvert, Austin Vining 2018 University of Florida Levin College of Law

Filtering Fake News Through A Lens Of Supreme Court Observations And Adages, Clay Calvert, Austin Vining

UF Law Faculty Publications

This Essay analyzes multiple issues affecting fake news. It does so through a prism of seven observations by the U.S. Supreme Court concerning the First Amendment, free speech, and other matters. The Court's wisdom in these quotations provides propitious points of entree for exploring how to address and remedy problems many fear fake news causes. The Essay concludes that because fake news will never be eradicated from the metaphorical marketplace of ideas, greater effort must be spent making real news - fake news's constructive flipside - more appetizing to the public.


Beyond Headlines & Holdings: Exploring Some Less Obvious Ramifications Of The Supreme Court's 2017 Free-Speech Rulings, Clay Calvert 2018 University of Florida Levin College of Law

Beyond Headlines & Holdings: Exploring Some Less Obvious Ramifications Of The Supreme Court's 2017 Free-Speech Rulings, Clay Calvert

UF Law Faculty Publications

Digging behind the holdings, this Article analyzes less conspicuous, yet highly consequential aspects of the United States Supreme Court’s First Amendment rulings during the opening half of 2017. The four facets of the opinions addressed here— items both within individual cases and cutting across them—hold vast significance for future free-speech battles. Nuances of the justices’ splintering in Matal v. Tam, Packingham v. North Carolina, and Expressions Hair Design v. Schneiderman are examined, as is the immediate impact of Justice Anthony Kennedy’s Packingham dicta regarding online social networks. Furthermore, Justice Sonia Sotomayor’s solo concurrence in the threats case of …


First Amendment Envelope Pushers: Revisiting The Incitement-To-Violence Test With Messrs. Brandenburg, Trump, & Spencer, Clay Calvert 2018 University of Florida Levin College of Law

First Amendment Envelope Pushers: Revisiting The Incitement-To-Violence Test With Messrs. Brandenburg, Trump, & Spencer, Clay Calvert

UF Law Faculty Publications

This Article examines weaknesses with the United States Supreme Court’s Brandenburg v. Ohio incitement test as its fiftieth anniversary approaches. A lawsuit targeting Donald Trump, as well as multiple cases pitting white nationalist Richard Spencer against public universities, provide timely springboards for analysis. Specifically, In re Trump: 1) illustrates difficulties in proving Brandenburg’s intent requirement via circumstantial evidence; and 2) exposes problems regarding the extent to which past violent responses to a person’s words satisfy Brandenburg’s likelihood element. Additionally, the Spencer lawsuits raise concerns about: 1) whether Brandenburg should serve as a prior restraint mechanism for blocking potential speakers …


Reconsidering Incitement, Tinker And The Heckler’S Veto On College Campuses: Richard Spencer And The Charlottesville Factor, Clay Calvert 2018 University of Florida Levin College of Law

Reconsidering Incitement, Tinker And The Heckler’S Veto On College Campuses: Richard Spencer And The Charlottesville Factor, Clay Calvert

UF Law Faculty Publications

This Essay analyzes key First Amendment issues surrounding Richard Spencer and Milo Yiannopoulos speaking on public university campuses. Some institutions (Ohio State University, Michigan State University and Pennsylvania State University) have flatly banned Spencer, citing fears of incitement to violence but also sparking federal lawsuits. Other schools have permitted Spencer to speak, but at massive security costs, in an attempt to prevent a so-called heckler’s veto. This Essay examines the tension between providing a public platform for controversial speakers and the costs associated with doing so, including the relevance of the Supreme Court’s aging incitement test created in Brandenburg v. …


A First Amendment Right To Corrupt Your Politician, Eugene Temchenko 2018 Cornell Law School

A First Amendment Right To Corrupt Your Politician, Eugene Temchenko

Cornell Law Review

Are you dealing with state or federal agencies, to no avail? Do you need someone on top to advocate for you? You may have a right to buy your Governor’s help. It is well-established that the Constitution protects the right of political association, which includes contributions to candidates in return for ingratiation and access. Nonetheless, courts and scholars have generally limited this right to contributions to campaigns for public office. After McDonnell v. United States, that may change. Reading the McDonnell opinion in light of McCutcheon, this Note and other commentators conclude that the Supreme Court may have inadvertently created …


Hating Hate Speech: Why Current First Amendment Doctrine Does Not Condemn A Careful Ban, Rory Little 2018 University of California Hastings College of Law

Hating Hate Speech: Why Current First Amendment Doctrine Does Not Condemn A Careful Ban, Rory Little

Faculty Scholarship

No abstract provided.


First Amendment Electronic Speech: Ex Parte Reece, A Missed Opportunity To Narrow Texas’S Unconstitutionally Overbroad Anti-Harassment Statute, Brian Long 2018 Southern Methodist University

First Amendment Electronic Speech: Ex Parte Reece, A Missed Opportunity To Narrow Texas’S Unconstitutionally Overbroad Anti-Harassment Statute, Brian Long

SMU Law Review

No abstract provided.


What Did The First Amendment Originally Mean?, Jud Campbell 2018 University of Richmond

What Did The First Amendment Originally Mean?, Jud Campbell

Law Faculty Publications

The First Amendment says that “Congress shall make no law … abridging the freedom of speech, or of the press.” For Americans, this language is familiar. But what exactly does it mean? How far do the speech and press clauses restrict governmental power? The founders, as we will see, answered these questions very differently than we typically do today. And the reasons why highlight fundamental shifts in American constitutional thought.


Preserving Film Preservation From The Right Of Publicity, Christopher J. Buccafusco, Jared Vasconcellos Grubow, Ian J. Postman 2018 Duke Law School

Preserving Film Preservation From The Right Of Publicity, Christopher J. Buccafusco, Jared Vasconcellos Grubow, Ian J. Postman

Faculty Scholarship

No abstract provided.


Categorizing Student Speech, Alexander Tsesis 2018 Loyola University Chicago, School of Law

Categorizing Student Speech, Alexander Tsesis

Faculty Publications & Other Works

No abstract provided.


Constitutional Law: Protecting Our Youth: A Necessary Limit On The First Amendment—State V. Muccio, Richard A. Podvin 2018 Mitchell Hamline School of Law

Constitutional Law: Protecting Our Youth: A Necessary Limit On The First Amendment—State V. Muccio, Richard A. Podvin

Mitchell Hamline Law Review

No abstract provided.


The Question Of Speech On Private Campuses And The Answer Nobody Wants To Hear, Steven P. Aggergaard 2018 Mitchell Hamline School of Law

The Question Of Speech On Private Campuses And The Answer Nobody Wants To Hear, Steven P. Aggergaard

Mitchell Hamline Law Review

No abstract provided.


Incredible Lies, Catherine J. Ross 2018 University of Colorado Law School

Incredible Lies, Catherine J. Ross

University of Colorado Law Review

No abstract provided.


When Should The First Amendment Protect Judges From Their Unethical Speech?, Lynne H. Rambo 2018 Texas A&M University School of Law

When Should The First Amendment Protect Judges From Their Unethical Speech?, Lynne H. Rambo

Faculty Scholarship

Judges harm the judicial institution when they engage in inflammatory or overtly political extrajudicial speech. The judiciary can be effective only when it has the trust of the citizenry, and judicial statements of that sort render it impossible for citizens to see judges as neutral and contemplative arbiters. This lack of confidence would seem especially dangerous in times like these, when the citizenry is as polarized as it has ever been.

Ethical codes across the country (based on the Model Code of Judicial Conduct) prohibit judges from making these partisan, prejudicial or otherwise improper remarks. Any discipline can be undone, …


"Enemy Of The People": Negotiating News At The White House, Carol Pauli 2018 Texas A&M University School of Law

"Enemy Of The People": Negotiating News At The White House, Carol Pauli

Faculty Scholarship

How can the press serve as a check on executive power when the president calls it “fake” and the White House denies facts? As journalists debate the right response, this article offers advice from the perspective of a journalist who is now in the legal academy. Drawing on legal scholarship in the field of conflict resolution — as well as literature in journalism and political science — this article analyzes the White House press briefing as a negotiation over both the content of news and the relationship of the press and president. It aims to help the press fulfill the …


When Free Speech Disrupts Diversity Initiatives: What We Value And What We Do Not, Reshmi Dutt-Ballerstadt 2018 Linfield College

When Free Speech Disrupts Diversity Initiatives: What We Value And What We Do Not, Reshmi Dutt-Ballerstadt

Faculty Publications

In this essay, I argue that the debate on free speech as pushed by the conservative right is a strategic apparatus to undermine the various diversity initiatives on college and university campuses. While supporters of the right wing extremists around the globe have pushed for various modes of exclusions (social, racial, ethnic, cultural, religious and sexual), here in the United States, such exclusions are most evident in the collapse of academic freedom and the rise of civility codes as students and educators use the platform of free speech to promote various forms of injustices and exclusions. Our neoliberal college and …


The Formulary Fix Buries Fritz & Harvey: Drug Promotion Escapes Its Past Constraints, James T. O'Reilly 2018 University of Cincinnati College of Medicine

The Formulary Fix Buries Fritz & Harvey: Drug Promotion Escapes Its Past Constraints, James T. O'Reilly

Washington and Lee Law Review

No abstract provided.


The State Department Can Gun Down 3-D Printed Firearms, Derk Westermeyer 2018 University of Washington School of Law

The State Department Can Gun Down 3-D Printed Firearms, Derk Westermeyer

Washington Journal of Law, Technology & Arts

In 1976, Congress enacted the Arms Export Control Act (“AECA”), giving the President broad power to control imports and exports of defense articles. At the time, defense articles included any “technical data” relating to weapons, such as the manufacturing blueprints of a firearm. Generally, this technical data was only in the hands of weapon manufacturers. After forty years of technological advances, however, this “technical data” can now be accessed by anyone in the world in a matter of seconds. Thanks to 3-D printing, a person can use this data to personally manufacture a fully functional plastic weapon within a few …


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