First Amendment Commons^™

First Amendment Right To A Remedy, Benjamin Plener Cover

Articles

Scholars and jurists agree that the First Amendment right “to petition the Government for a redress of grievances” includes a right of court access, but narrowly define this right as the right to file a lawsuit. This dominant view fails to meaningfully differentiate between the right to petition, the freedom of speech, and due process, missing the distinct significance of the Petition Clause when individuals petition courts. The most significant threats to court access today occur after the filing stage, when courts deny or limit remedies to legally injured persons — by enforcing a mandatory arbitration provision or an exhaustion …

God And State Preambles, Peter J. Smith, Robert W. Tuttle

Marquette Law Review

Those who question the permissibility of official acknowledgements of God might be surprised to learn that the preambles of forty-five of the fifty state constitutions expressly invoke God. The practice is common in both liberal and conservative states and is equally prevalent in all regions of the country. Virtually all of those preambles give thanks to God, and many also seek God's blessing n the state's endeavors. Yet there has been no detailed assessment of the preambles' history or significance. This paper seeks to remedy that gap.

The preambles complicate the claim that official acknowledgements of God are incompatible with …

A Free Speech Tale Of Two County Clerk Refusals, Caroline Mala Corbin

Articles

The ever-expanding Free Speech Clause has made possible claims that would have been unthinkable until recently. This symposium Essay examines the compelled speech claims of two hypothetical county clerks who believe that marriage should be limited to unions between one man and one woman, and who argue that forcing them to issue marriage licenses to gay and lesbian couples compels them to speak in favor of same-sex marriage in violation of the Free Speech Clause.

When a government employee such as a county clerk speaks, she may not be speaking as just a private individual. She may also be speaking …

Science As Speech, Natalie Ram

All Faculty Scholarship

In April 2015, researchers in China reported the successful genetic editing of human embryos using a new technology that promised to make gene editing easier and more effective than ever before. In the United States, the announcement drew immediate calls to regulate or prohibit
outright any use of this technology to alter human embryos, even for purely research purposes. The fervent response to the Chinese announcement was, in one respect, unexceptional. Proposals to regulate or prohibit scientific research following a new breakthrough occur with substantial frequency. Innovations in cloning technology and embryonic stem cell research have prompted similar outcries, and …

The Price Of Free Mobile Apps Under The Video Privacy Protection Act, Suzanne L. Riopel

American University Business Law Review

No abstract provided.

The Corporation In The Marketplace Of Ideas, 51 J. Marshall L. Rev. 19 (2017), Matthew Telleen

UIC Law Review

No abstract provided.

Reconciling The History Of The Hangman’S Noose And Its Severity Within Hostile Work Environment Claims, 51 J. Marshall L. Rev. 137 (2017), Tess Godhardt

UIC Law Review

No abstract provided.

Postmodern Free Expression: A Philosophical Rationale For The Digital Age, Stephen M. Feldman

Marquette Law Review

Three philosophical rationales--search-for-truth, self-governance, and self-fulfillment--have animated discussions of free expression for decades. Each rationale emerged and attained prominence in American jurisprudence in specific political and cultural circumstances. Moreover, each rationale shares a foundational commitment to the classical liberal (modernist) self. But the three traditional rationales are incompatible with our digital age. IN particular, the idea of the classical liberal self enjoying maximum liberty in a private sphere does not fit in the postmodern information society. The time for a new rationale has arrived. The same sociocultural conditions that undermine the traditional rationales suggest a self-emergence rationale built on the …

Government Identity Speech Programs: Understanding And Applying The New Walker Test, Leslie Gielow Jacobs

McGeorge School of Law Scholarly Articles

In Walker v. Texas Division, Sons of Confederate Veterans, Inc., the Court extended its previous holding in Pleasant Grove City, Utah v.Summum that a city’s donated park monuments were government speech to the privately proposed designs that Texas accepts and stamps onto its specialty license plates. The placement of the program into the new doctrinal category is significant because the selection criteria for government–private speech combinations that produce government speech are “exempt from First Amendment scrutiny.” By contrast, when the government selects private speakers to participate in a private speech forum, its criteria must be reasonable in light of the …

Contemplating Masterpiece Cakeshop, Terri R. Day

Faculty Scholarship

No abstract provided.

#Protestersrightsmatter: The Case Against Increased Criminal Penalties For Protesters Blocking Roadways, Caroline M. Moos

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Partisan Judicial Speech And Recusal Procedure, Dmitry Bam

Faculty Publications

This article discusses Associate Professor Appleby’s thoughtful comment criticizing the Supreme Court’s self-recusal procedure in light of Justice Ginsberg’s critical remarks about then-Presidential Candidate Trump.

It’S My Mark, I Can Offend If I Want To! The Waning Of The Government’S Power To Protect Its Citizens From Widespread Discriminatory Marks, 16 J. Marshall Rev. Intell. Prop. L. 505 (2017), Paul Sanders

UIC Review of Intellectual Property Law

There is an inherent tension between the First Amendment and trademark law. For over 100 years the United States Patent and Trademark Office has protected American citizens from Marks of ill repute. In the wake of the In re Tam decision, this may become more difficult if not impossible. This comment analyzes In re Tam, as well as explores the First Amendment guarantee of free speech and trademark law, and how each intersects with each other. Additionally, this comment proposes solutions that will allow the government to continue protecting its citizens from Marks that should have no place in commerce.

Seen And Heard: A Defense Of Judicial Speech, Dmitry Bam

Faculty Publications

Judicial ethics largely prohibits judges from engaging in political activities, including endorsing or opposing candidates for public office. These restrictions on judicial politicking, intended to preserve both the reality and the appearance of judicial integrity, independence, and impartiality, have been in place for decades. Although the Code of Conduct for United States Judges does not apply to the Supreme Court, Supreme Court Justices have long followed the norm that they do not take sides, at least publicly, in partisan political elections. And while elected state judges have some leeway to engage in limited political activities associated with their own candidacy," …

Too Heavy A Burden: Testing Complicity-Based Claims Under The Religious Freedom Restoration Act, Kaleb Brooks

Indiana Law Journal

This Note argues that courts ought to recognize, in the context of complicity-based claims under the Religious Freedom Restoration Act, a sound distinction between burdens on religious conduct, which enjoy protection, and burdens on mere religious sentiment. In light of the structure of complicity-based claims, such a distinction between conduct and sentiment is the only sound approach that respects the Act’s requirements. The Note reaches this conclusion through a survey of the various complicity-based challenges to the Health and Human Services contraceptive care mandate for religious non-profit employers under the federal Religious Freedom Restoration Act in the period between Burwell …

Speech V. Conduct, Surcharges V. Discounts: Testing The Limits Of The First Amendment And Statutory Construction In The Growing Credit Card Quagmire, Clay Calvert, Rich Shumate, Stephanie Mcneff, Stephenson Waters

UF Law Faculty Publications

This article examines First Amendment speech concerns and related issues of statutory construction raised by anti-surcharge statutes that prohibit merchants from imposing "surcharges" on credit card purchases, but allow them to offer "discounts" to cash-paying customers. The article uses the split of authority created by the November 2015 opinion of the U.S. Court of Appeals for the Eleventh Circuit in Dana's Railroad Supply v. Florida and the September 2015 decision by the Second Circuit in Expressions Hair Design v. Schneiderman as a timely springboard for analyzing these issues. In September 2016, the U.S. Supreme Court agreed to hear Expressions Hair …

Intentional Infliction Of Emotional Distress & The Hulk Hogan Sex Tape: Examining A Forgotten Cause Of Action In Bollea V. Gawker Media, The Gap It Reveals In Iied’S Constitutionalization, And A Path Forward For Revenge Porn Victims, Clay Calvert

UF Law Faculty Publications

This Article examines Hulk Hogan's successful, yet largely overlooked, cause of action for intentional infliction of emotional distress (IIED) before a Florida jury in 2016 in Bollea v. Gawker Media, LLC. In doing so, the Article explores critical factual differences between Bollea and the U.S. Supreme Court's two decisions constitutionalizing the IIED tort, Hustler Magazine v. Falwell and Snyder v. Phelps. Despite such distinctions, the Article discusses the trial court's instruction to the jury to consider a First Amendment-­based, public-concern defense - one closely akin to that in Snyder - on Hulk Hogan's IIED claim. The Article also …

Can The Undue-Burden Standard Add Clarity And Rigor To Intermediate Scrutiny In First Amendment Jurisprudence? A Proposal Cutting Across Constitutional Domains For Time, Place & Manner Regulations, Clay Calvert, Minch Minchin

UF Law Faculty Publications

When the government regulates the time, place, or manner of speech, it must satisfy intermediate scrutiny and prove that (1) it has a significant interest, (2) the regulation is narrowly tailored, and (3) ample alternative channels of expression remain open. This article advocates simplifying and improving this test in First Amendment jurisprudence by replacing the often-confused second and third prongs with the far less deferential and much more rigorous undue-burden test embraced by the U.S. Supreme Court in 2016 in the abortion-regulation case of Whole Woman’s Health v. Hellerstedt. Incorporating the undue-burden standard maintains intermediate scrutiny’s balancing framework while …

The Government Speech Doctrine In Walker’S Wake: Early Rifts And Reverberations On Free Speech, Viewpoint Discrimination, And Offensive Expression, Clay Calvert

UF Law Faculty Publications

This Article examines the immediate effects on free expression of the U.S. Supreme Court’s 2015 ruling in Walker v. Texas Division, Sons of Confederate Veterans, Inc. involving the government speech doctrine. In Walker, a sharply—and largely partisanly—divided Court upheld, in the face of a First Amendment challenge, Texas’s decision denying a private organization’s application for a specialty license plate featuring Confederate battle flag imagery. This Article initially reviews the government speech doctrine and Walker. It then analyzes Walker’s impact on cases that, like it, involve specialty license plate programs. Next, this Article explores lower court efforts stretching …

Professional Standards And The First Amendment In Higher Education: When Institutional Academic Freedom Collides With Student Speech Rights, Clay Calvert

UF Law Faculty Publications

This Article examines rising tensions between institutional academic freedom and the First Amendment speech rights of college students. Specifically, the friction addressed here occurs when universities enforce external professional standards on students within their curricula. Initially, Part I provides a primer on institutional academic freedom. Part II then contrasts the vastly deferential Hazelwood approach to professional-standards disputes embraced by the Eighth Circuit in Keefe with the somewhat more rigorous ones adopted by the Ninth Circuit in Oyama and Minnesota’s Supreme Court in Tatro.