First Amendment Commons^™

Government Employee Religion, Caroline Mala Corbin

Articles

Picture a county clerk who refuses to issue a marriage license to an LGBT couple or a city bus driver who insists on wearing a hijab. The clerk is fired for failing to fulfill job responsibilities and the bus driver for violating official dress codes. Both claim that their termination violates the First Amendment speech and religion clauses.

There is a well-developed First Amendment government employee speech jurisprudence. Less developed is the doctrine and literature for First Amendment government employee religion. The existing Free Exercise Clause jurisprudence usually does not specifically account for the government employee context. This Article attempts …

The Weaponized Lawsuit Against The Media: Litigation Funding As A New Threat To Journalism, Lili Levi

Articles

This Article identifies a new front in the current war against the media one in which billionaire private actors clandestinely fund other people's lawsuits in an attempt to censor press entities. The use of strategic litigation to shutter media outlets constitutes a major threat to the expressive order. And the current climate of press failures, institutional disaggregation, decreasing accountability journalism, and declining public trust-the very vulnerability of the press today-significantly amplifies the chilling impact of strategic third party funding. It does so whether the strategy is death-by-a-thousand litigations or titanic, bankruptcy-inducing damage verdicts.

Still, contrary to the assertions of both …

Ending The Pursuit: Releasing Attorney Advertising Regulations At The Intersection Of Technology And The First Amendment, Jan L. Jacobowitz

Articles

No abstract provided.

"Facts Are Stubborn Things": Protecting Due Process From Virulent Publicity, Benjamin Brafman, Darren Stakey

Touro Law Review

No abstract provided.

The Continuing Vitality Of Louis D. Brandeis’S Free Expression Jurisprudence, Frederick M. Lawrence

Touro Law Review

No abstract provided.

Finding A Fair Balance For The Right Of Publicity And First Amendment Protections, Christine Digregorio

Touro Law Review

No abstract provided.

Humans Of New York, Shut Your Blinds, Amanda Defeo

Touro Law Review

No abstract provided.

Ithink My Electronic Data Is Secure, But Is It: A Constitutional Analysis Of In Re The Search Of An Apple Iphone, Shira Bloom

Touro Law Review

No abstract provided.

"My Lips Are Sealed, Unless..." Examining The Reporter's Privilege In New York And Why It Should Be Applied Federally, Luann Dallojacono

Touro Law Review

No abstract provided.

A Progressive Mind: Louis D. Brandeis And The Origins Of Free Speech, Elizabeth Todd Byron

Touro Law Review

No abstract provided.

Free Speech Or Slavery Profiteering?: Solutions For Policing Online Sex--Trafficking Advertisement, Marguerite A. O'Brien

Vanderbilt Journal of Entertainment & Technology Law

Online sex trafficking is big business. The Department of Homeland Security estimates that sex trafficking generates billions of dollars per year. The marketplace for sex has moved from the street corner to classified ad websites such as Backpage.com, and all too often the victims of online sex trafficking are minors. The National Center for Missing and Exploited Children reported an 846 percent increase in reports of child sexual exploitation between 2010 and 2015--growth the organization attributes to the availability of sex ads on websites such as Backpage.com. Law enforcement agencies and victims have sought to hold Backpage.com liable for facilitating …

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

Oklahoma Law Review

No abstract provided.

The Costly Exercise Of Religion: Issues On Diocesan Bankruptcy Estate Formation And First Amendment Implications, Simon W. Bright

Oklahoma Law Review

No abstract provided.

To Repeal Or Not Repeal: The Johnson Amendment, Mark Goldfeder, Michelle K. Terry

Scholarly Works

No abstract provided.

Recent Applications Of The Supreme Court's Hands-Off Approach To Religious Doctrine: From Hosanna-Tabor And Holt To Hobby Lobby And Zubik, Samuel J. Levine

Scholarly Works

In each of the past four terms, the United States Supreme Court has decided a case with important implications for the interpretation and application of the Religion Clauses of the United States Constitution: Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, Burwell v. Hobby Lobby, Inc., Holt v. Hobbs, and, most recently, Zubik v. Burwell. Although the Court’s decisions in these cases addressed—and seemed to resolve—a number of questions central to Free Exercise and Establishment Clause jurisprudence, including recognition of the “ministerial exception” and religious rights of a corporate entity, the decisions left a number of questions unanswered, such as …

You Have The Right To Free Speech: Retaliatory Arrests And The Pretext Of Probable Cause, Katherine G. Howard

Georgia Law Review

An important question about an individual's First
Amendment freedoms arises when a citizen or journalist is
arrested while verbally challenging, filming, or writing
about police actions. Did the police officer have legitimate
law enforcement reasons for the arrest, or was the arrest in
retaliationfor engaging in First Amendment activities the
officer did not like? Courts have grappled with the best
way to resolve this question, often importing the Fourth
Amendment's bright-line rule about probable cause into
analyses of FirstAmendment retaliatoryarrest claims and
barringthose claims were the officer had probable cause to
arrest. This Note argues that when retaliatory arrest
claims …

Privacy And Court Records: Online Access And The Loss Of Practical Obscurity, David S. Ardia

Faculty Publications

Court records present a conundrum for privacy advocates. Public access to the courts has long been a fundamental tenant of American democracy, helping to ensure that our system of justice functions fairly and that citizens can observe the actions of their government. Yet court records contain an astonishing amount of private and sensitive information, ranging from social security numbers to the names of sexual assault victims. Until recently, the privacy harms that attended the public disclosure of court records were generally regarded as insignificant because court files were difficult to search and access. But this “practical obscurity” is rapidly disappearing …

Religious Accommodation, Religious Tradition, And Political Polarization, Marc O. Degirolami

Scholarly Articles

A religious accommodation is an exemption from compliance with the law for some but not for others. One might therefore suppose that before granting an accommodation, courts would inquire about whether a legal interference with religious belief or practice is truly significant, if only to evaluate whether the risk of political polarization that attends accommodation is worth hazarding. But that is not the case: any assessment of the significance of a religious belief or practice within a claimant's belief system is strictly forbidden.

Two arguments are pressed in support of this view: (1) courts have institutional reasons for acquiescing on …

Chilling Rights, Toni M. Massaro

University of Colorado Law Review

A persistent trope in free speech doctrine is that overbroad laws chill protected expression and compromise the breathing room needed for a vibrant marketplace of ideas. The conventional restrictions on facial challenges of measures that sweep beyond legitimate regulatory zones are relaxed. Whether and to what extent this liberal approach to judicial review actually governs in free speech law and not elsewhere, and whether this is constitutionally or normatively defensible, have been the subject of considerable and exceptionally insightful scholarship. Yet the United States Supreme Court has given the best of this work slight notice.

This Article proposes a new …

Performative Privacy, Scott Skinner-Thompson

Publications

Broadly speaking, privacy doctrine suggests that the right to privacy is non-existent once one enters the public realm. Although some scholars contend that privacy ought to exist in public, “public privacy” has been defended largely with reference to other, ancillary values privacy may serve. For instance, public privacy may be necessary to make the freedom of association meaningful in practice.

This Article identifies a new dimension of public privacy, supplementing extant justifications for the right, by arguing that many efforts to maintain privacy while in “public” are properly conceptualized as forms of performative, expressive resistance against an ever-pervasive surveillance society. …