First Amendment Commons^™

Volume 49 Masthead

Seattle University Law Review

Volume 49 Masthead

Esg Investing Breaches Erisa Fiduciary Duties? A Closer Look At Spence V. American Airlines, Inc., Eric Chin-Ru Chang

Seattle University Law Review

In Spence v. American Airlines, Inc., the U.S. District Court for the Northern District of Texas found that American Airlines breached its fiduciary duties due to BlackRock’s ESG investing practices. Contrary to some reports suggesting that the ruling prohibits ESG investing under ERISA, a closer look at the ruling shows that the court only targeted American Airlines’ failure to manage conflicts of interest appropriately, rather than the legality of ESG investing itself. In light of the intensifying ESG backlash in the United States, this Article cautions against further restrictive measures on ESG investing. Such measures would exacerbate the widening …

Mandating Fluoride: A Constitutional Exercise Of Police Power, Anita Jahangiri

Seattle University Law Review

This Note addresses the ongoing debate over fluoridation: the regulation of fluoride levels in public water systems. Extensive research indicates fluoridation, when regulated at the recommended concentration, is both safe and highly effective in preventing dental caries. Better known as cavities, dental caries is a preventable yet widespread health issue that disproportionately affects low-income populations. Reducing dental health disparities among economic classes is a pressing public health issue. Fluoridation is not merely a policy option, but a critical, proven tool to address such disparities and uphold the collective welfare of Washingtonians. This Note focuses on fluoridation as a public health …

Neurodiversity In The Courtroom: Expanding Jury Service Accessibility Beyond Physical Disability, Samantha L. Mabe

Seattle University Law Review

The Americans with Disabilities Act has required equal access to jury service for decades; however, efforts to accommodate jurors with disabilities have been slow to develop beyond some minor accommodations for physical disabilities. While neurodivergent people frequently struggle to navigate a world catered toward neurotypical people, jury service remains inaccessible for many neurodivergent people who need accommodations to attend trial and engage in jury deliberations. If courts and advocates do not consider how to develop accommodations to secure the service of neurodivergent jurors, they will miss out on the unique skillsets that neurodivergent people can bring to resolving disputes.

Disabled …

Integrating Doctrine & Diversity Speaker Series: Academic Freedom In Polarized Times: A Conversation With Three Law Deans 10-29-2025, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Brief Of Amicus Curiae Lindsay And Matt Moroun Religious Liberty Clinic In Support Of Plaintiff-Appellant, John A. Meiser, Meredith Holland Kessler

Court Briefs

No. 25-5641
Roderick E. Theis, II v. InterMountain Education Service District Board of Directors

On Appeal from the United States District Court for the District of Oregon
No. 2:25-cv-00865-HL

From the Introduction

The First Amendment promises religious believers, of all faiths, the right “to participate on equal terms” in public life. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 852–53 (1995) (Thomas, J., concurring). The Supreme Court has repeatedly rejected the idea that individuals sacrifice those rights by accepting government employment. See, e.g., Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, …

Promising The First Amendment: (De)Regulating Speech In Higher Education, Max M. Schanzenbach, Kimberly A. Yuracko

Northwestern University Law Review

The war between Hamas and Israel has caused havoc in higher education. Amid student unrest, alumni pressure, congressional hearings, civil rights investigations, and student lawsuits, universities stand at a crossroads. The current situation, in which most private universities unevenly regulate student speech under ambiguous student codes, is not sustainable politically or legally. A tsunami of litigation and regulatory actions has already begun. One increasingly favored response is for private universities to more vigorously enforce existing codes or expand their scope. An alternative is for private universities to deregulate student expression and commit by contract to the First Amendment. This Article …

Regulating Deception To Protect Democracy: Global Election Misinformation Regulations Analyzed Under U.S. First Amendment Doctrine, Stephanie Hoke

William & Mary Bill of Rights Journal

This Note argues that the marketplace of ideas may not always be a workable theory for the election misinformation that pervades social media platforms. Social media is a unique medium because it does not have the same safeguards as television, radio, and newspapers that are used to filter out false claims and information. Due to the lack of safeguards and the algorithms that promote misinformed posts, social media platforms provide a thriving environment for election misinformation. In addition, the presence of online “echo chambers” and the speed at which misinformation can spread calls for some form of government regulation. In …

The Racialized Retaliatory State: Weaponizing Immigration Law To Criminalize Dissent, Karla Mckanders

William & Mary Journal of Race, Gender, and Social Justice

This Essay examines how systemic racism impacts the ways immigration laws operate to retaliate and criminalize immigrants who dissent. Criminalizing dissent—which recently has become more widespread—is one tool within the immigration system that reinforces America’s racialized caste system. This Essay frames immigration exceptionalism as a continual state that excludes nonconforming bodies and ideologies to instill fear as a means of authoritarian governance. This Essay challenges the history of immigration exceptionalism as an objectively neutral system of governance, arguing that it has historically criminalized racialized migrants to suppress dissent and ideological viewpoints that are not aligned with America’s racialized project. Immigration …

Forbidden Knowledge: School Libraries, The First Amendment, And The Right To Receive Information, Natalie H. Berg

Washington Law Review

In the past five years, numerous Republican legislators and conservative parental groups have aggressively pushed to restrict sexual content in public schools. Many school districts have adopted policies that limit what topics are covered in class, and several statewide laws have legitimized and mandated these policies. Consequently, books featuring queer themes or characters are rapidly disappearing from public school libraries. These library restrictions, or book bans, have sparked substantial controversy and litigation.

This Comment examines state laws restricting public school libraries in Texas, Florida, and Iowa, arguing that these library restrictions violate the First Amendment on multiple grounds. Additionally, it …

Beyond Democracy: How A Free Press Supports The Rule Of Law, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

Widespread agreement has existed for centuries that a free press is essential to democracy. But legal scholars have spent almost no effort thinking about why else we might need a free press. This article attempts to widen the aperture. It argues that as the free press is essential to democracy, it is just as essential to a separate value: the rule of law.

Recognizing and investigating the connections between the free press and the rule of law is essential right now. It can help us discern how the press can create friction against the erosion of both rule of law …

The Persistence Of The Unconstitutional Status/Use Distinction In Federal Grants To Religious Nonprofits, Nicole Stelle Garnett, Cameron Grinnell

Books

Manhattan Institute Memo

The First Amendment & Censorship: Is This A New Era?, Cardozo Center For Rights And Justice, David Rudenstine, Olivier Sylvain

2025 Event Invitations

Professors David Rudenstine (Cardozo) and Olivier Sylvain (Fordham) will discuss censorship both historically and today, and the role that the First Amendment plays in limiting government suppression of speech. Professor Alex Reinert will moderate the discussion.

Dignity And Deepfakes, Michael Goodyear

Articles & Chapters

Today, we face a dangerous technosocial combination: AI-generated deepfakes and the Internet. Believable and accessible, these deepfakes have already spread sex, lies, and false advertisements across the Internet and targeted everyone from Taylor Swift to middle school students. Dissemination of deepfakes inflicts multifarious dignitary harms against their victims—especially women and LGBTQ+ persons—stripping them of control over their own identities, harming their reputations, and ostracizing them from society through shame.

Yet this is not the first time a new technology for capturing one’s likeness and a method for disseminating images threatened individuals’ dignity. In the late nineteenth century, the right of …

Can The Free Speech Clause Protect Transgender Expression From The Trump Administration?, Daniel Cooper

Cardozo Journal of Equal Rights & Social Justice

This Article explores how the Free Speech Clause can provide protection to speakers implicated by the Trump administration's executive orders restricting gender-related speech. Part I will provide an overview of how the Trump administration has directed executive authority to stifle gender-non-conforming identity and expression, how those efforts fit within the larger context of right-wing efforts to marginalize transgender people, and why the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution is not currently a useful tool for the protection of trans rights. Part II will examine efforts to regulate government employees' pronoun usage, focusing on whether …

The Resurgence Of The Rap Act: Why Industry Professionals Enthusiastically Support This Bill, Ansley Henderson

Cardozo Arts & Entertainment Law Journal (AELJ) Blog

Artists release music and write songs to create art, not to offer any sort of criminal confession. Yet, dating back to a 1996 criminal trial involving Snoop Dogg, artists’ lyrics have been admissible as evidence in criminal and civil trials. Most recently, rapper Young Thug, was accused of being the head of a violent gang based solely on lyrics from his songs as evidence. His case sparked nationwide controversy regarding the constitutionality of his lyrics being admitted as key evidence at trial. The rapper’s popular music collective known as “Young Stoner Life,” was posited by prosecutors to actually be a …

303 Creative For Everyone?, Mark Satta

West Virginia Law Review

Does the holding in 303 Creative v. Elenis give businesses open to the public a constitutional right to refuse to provide expressive services for interracial couples’ weddings, interfaith couples’ weddings, or for couples’ weddings in which one or both partners are disabled? As indicated by questions raised during oral arguments, this is one of the troubling new legal questions created by the Supreme Court’s 303 Creative decision where the Court held that a Colorado web design business had a First Amendment free speech right to refuse to provide wedding website services for same-sex couples’ weddings. Understandably, both the Court’s conservative …

Reconciling Tenure And Faculty Accountability, Stuart Chinn

West Virginia Law Review

Part of the very identity of the American university is its insulation from society—a crucial contributor, at least in some instances, toward facilitating the search for knowledge and the disruption of established orthodoxies. Yet American higher education does not exist and cannot function separately from societal pressures. This is most obviously true in the context of public institutions that directly rely on state governmental entities for financial support and that may be subject to some mechanisms of control by governmental actors or their appointees. But it is also obviously true in the context of private institutions that may rely on …

The Defamation-To-Bankruptcy Pipeline In The United States And Around The World, Christopher D. Hampson

UF Law Faculty Publications

It has never been easier to ‘go viral’. With nothing more than a microphone, a smartphone, and some computer software, an influencer in today’s media landscape can reach millions. But that ease comes with risk: defamation lawsuits are on the rise, sending content creators to bankruptcy courts with judgments that far exceed everything they own. Last year, I analysed this trend in American law, which I call the ‘defamation-to-bankruptcy pipeline’, in Defamation, Bankruptcy & the First Amendment, published in the Journal of Free Speech Law.

Time’S Up: Limiting Employer Retaliation Over K-12 Teachers’ Speech In An Internet That Never Forgets, Megan Listenbee

University of Arkansas at Little Rock Law Review

No abstract provided.