First Amendment Commons^™

"And To Your Left You'll See...": Licensed Tour Guides, The First Amendment, And The Free Market, Kristin Tracy

University of Baltimore Law Review

If you are a beer-lover visiting Washington, D.C., you might want to check out “DC Brew Tours,” a “beer tour company in the Capital region that offers daily brewery tours to Washington’s best breweries, brewpubs, and bars.” As you would expect, the tour includes samples of beer from a number of local craft breweries, as well as information about how each beer is made. What you might not expect, however, is that, until very recently, DC Brew tour guides were legally obligated to pass a written exam about the history of D.C., a topic which has little to do with …

The First Amendment As Killer App, Anupam Chander

Journal of Law, Technology, & the Internet

"While it is a commonplace that the Internet revolutionized speech, what is perhaps less well understood is that free speech made today’s Internet." Symposium article.

Rluipa And The Limits Of Religious Institutionalism, Zachary A. Bray

Law Faculty Scholarly Articles

What special protections, if any, should religious organizations receive from local land use controls? The Religious Land Use and Institutionalized Persons Act (“RLUIPA”)—a deeply flawed statute—has been a magnet for controversy since its passage in 2000. Yet until recently, RLUIPA has played little role in debates about “religious institutionalism,” a set of ideas that suggest religious institutions play a distinctive role in developing the framework for religious liberty and that they deserve comparably distinctive deference and protection. This is starting to change: RLUIPA’s magnetic affinity for controversy has begun to connect conflicts over religious land use with larger debates about …

Milkovich V. Lorain Journal Twenty-Five Years Later: The Slow, Quiet, And Troubled Demise Of Liar Libel, Leonard Niehoff, Ashley Messenger

University of Michigan Journal of Law Reform

In Milkovich v. Lorain Journal Co., the Supreme Court held that there is no separate constitutional protection for statements of opinion. It also held that an accusation that an individual lied is a statement of fact actionable in defamation. Lower courts have, correctly in our view, essentially ignored both holdings. In Part I we discuss Milkovich and the infirmities in its reasoning. In Part II we discuss the complex nature of lies and accusations of lies and argue that Milkovich failed to account for that complexity. In Part III we discuss the strategies the lower courts have used to …

The Past, Present, And Future Of Free Speech, Joel Gora

Faculty Scholarship

No abstract provided.

Town Of Greece And City Of Saguenay: Non-Establishment Principles With Or Without An Establishment Clause, 14 First Amend. L. Rev. 343 (2016), Donald L. Beschle

UIC Law Open Access Faculty Scholarship

No abstract provided.

Shareholder Political Primacy, Jay B. Kesten

Scholarly Publications

Corporate political activity raises an important and difficult question of corporate law: who decides when the corporation should speak and what it should say? In several cases, the Supreme Court has provided a clear answer: shareholders, acting through the procedures of corporate democracy. While this holding has attracted substantial academic and public criticism, there has been no sustained evaluation (beyond identifying the potential agency costs of corporate political activity) of the possibility that the Supreme Court's appeal to the fraught concept of "corporate democracy," though woefully under-theorized, might be the best allocation of power in the limited context of corporate …

Book Review: The Great Dissent: How Oliver Wendell Holmes Changed His Mind – And Changed The History Of Free Speech In America, By Thomas Healy, Jamie Cameron

Osgoode Legal Studies Research Paper Series

Thomas Healy’s The Great Dissent re-treads the familiar story of US Supreme Court Justice Holmes’s First Amendment conversion between March and November 1919, when he launched his marketplace of ideas theory and strong-form version of the clear and present danger doctrine. Healy’s book demonstrates that fresh perspectives on this vital and ever-intriguing change of mind or transformation on Holmes’s part remain possible. The review offers its own perspective by highlighting the process of “reverse mentoring” which took place, in which the older jurist was mentored on free speech issues by the emerging thought leaders of the day – Laski, Frankfurter, …

Walker V. Texas Division, Sons Of Confederate Veterans, Inc. And License Plate Speech: A Dangerous Roadblock For The First Amendment, Morgan E. Creamer

American University Law Review

No abstract provided.

Whole Other Story: Applying Narrative Mediation To The Immigration Beat, Carol Pauli

Cardozo Journal of Conflict Resolution

If Donald Trump, in kicking off his campaign for the White House, was saying "what everyone is thinking" about illegal immigration, it must be that his message mirrored a narrative that already existed in the minds of his audience. That fearful story of criminals invading the U.S. borders has long been a dominant theme in the mainstream news immigration story. Like all news stories, this one focuses attention on some facts at the expense of others. Like many news stories, it draws its power from earlier, well-known tales-some as old as The Flood. This article reconsiders news stories-and the storytelling …

Blackhawk Down Or Blackhorse Down? The Lanham Act’S Prohibition Of Trademarks That “May Disparage” & The First Amendment, Russ Versteeg

Oklahoma Law Review

No abstract provided.

First Amendment Freeze Play: Bennett's Strategy For Entrenching Inequality, Frank Pasquale

Faculty Scholarship

No abstract provided.

Why We Need Reed: Unmasking Pretext In Anti-Panhandling Legislation, Joseph Mead

Law Faculty Articles and Essays

Over the past decade, there has been a dramatic increase in the number of areas where asking for help is restricted or banned. Whether called begging, panhandling, or solicitation, cities were spurred on by concerns of business owners and residents to ban or highly restrict this type of speech from occurring in public areas. Yet laws such as these have been repeatedly struck down by courts in recent months, fueled in large part by the Supreme Court’s decision in Reed v. City of Gilbert.

In this essay I argue that, at least in the context of anti-panhandling legislation, Reed …

Protecting The Public From Itself: Paternalism And Irony In Defining Newsworthiness, Clay Calvert

UF Law Faculty Publications

In a speech more than 150 years ago, author and British politician Benjamin Disraeli' proclaimed it "much easier to be critical than to be correct." Viewed in that sagacious light, this article surely traverses the low road, not the high one. It offers, in discussion-sparking spirit, a few slight criticisms of Professor Amy Gajda's conclusions and suggestions in her timely, meticulously researched and example-laden book, The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press.

Specifically, Part I of this Article encapsulates the problems identified by Professor Gajda for journalism today - and, more broadly, troubles for a …

Fissures, Fractures & Doctrinal Drifts: Paying The Price In First Amendment Jurisprudence For A Half Decade Of Avoidance, Minimalism & Partisanship, Clay Calvert, Matthew D. Bunker

UF Law Faculty Publications

This Article comprehensively examines how the U.S. Supreme Court’s adherence to principles of constitutional avoidance and judicial minimalism, along with partisan rifts among the Justices, have detrimentally affected multiple First Amendment doctrines over the past five years. The doctrines analyzed here include true threats, broadcast indecency, offensive expression, government speech, and strict scrutiny, as well as the fundamental dichotomy between content-based and content-neutral regulations.

Newsgathering Takes Flight In Choppy Skies: Legal Obstacles Affecting Journalistic Drone Use, Clay Calvert, Charles D. Tobin, Matthew D. Bunker

UF Law Faculty Publications

This Article examines legal challenges confronting journalists who use drones to gather images. Initially, it traces the history of drones and the Federal Aviation Administration’s efforts to regulate them, as well as new state legislation that aims to restrict drones. This Article then illustrates that a wide array of legal remedies already exist for individuals harmed by journalistic drone usage, and it argues that calls for additional, piecemeal state laws to regulate drones are unnecessary and unduly hinder First Amendment interests in newsgathering and the public’s right to know. Furthermore, this Article asserts that the reasonable-expectation-of-privacy jurisprudence developed in aerial …

Underinclusivity And The First Amendment: The Legislative Right To Nibble At Problems After Williams-Yulee, Clay Calvert

UF Law Faculty Publications

Using the U.S. Supreme Court’s 2015 opinion in Williams-Yulee v. Florida Bar as an analytical springboard, this Article examines the slipperiness — and sometimes fatalness — of the underinclusiveness doctrine in First Amendment free-speech jurisprudence. The doctrine allows lawmakers, at least in some instances, to take incremental, step-by-step measures to address harms caused by speech, rather than requiring an all-out, blanket-coverage approach. Yet, if the legislative tack taken is too small to ameliorate the harm that animates a state’s alleged regulatory interest, it could doom the statute for failing to directly advance it. In brief, the doctrine of underinclusivity requires …

The Right To Record Images Of Police In Public Places: Should Intent, Viewpoint, Or Journalistic Status Determine First Amendment Protection?, Clay Calvert

UF Law Faculty Publications

Using the February 2016 federal district court ruling in Fields v. City of Philadelphia as an analytical springboard, this Article examines growing judicial recognition of a qualified First Amendment right to record images of police working in public places. The Article argues that Judge Mark Kearney erred in Fields by requiring that citizens must intend to challenge or criticize police, via either spoken words or expressive conduct, in order for the act of recording to constitute "speech" under the First Amendment. It asserts that a mere intent to observe police-not to challenge or criticize them-suffices. It then also explores how …

Is The First Amendment At Risk?, Devin Darrow

Nebraska College Preparatory Academy: Senior Capstone Projects

Since the establishment of the Bill of Rights on December 15th 1791, Freedom of Speech has been one of the more controversial topics found within the first ten amendments. The Supreme Court has changed their interpretation of the 1st Amendment, Freedom of Speech clause, due to the cultural shifts of each generation. Recent cases have made technology a major factor for laws needing to be changed in order to protect people’s rights.

In conclusion, the definition of freedom of speech will continuously change due to the progress in technology. The last 10 years have demonstrated the need for changes. There …

Diy Solutions To The Hobby Lobby Problem, Kristin Haule

Loyola of Los Angeles Law Review

No abstract provided.