First Amendment Commons^™

Liberal, Conservative, And Political: The Supreme Court's Impact On The American Family In The Uber-Partisan Era, Marsha B. Freeman

Faculty Scholarship

No abstract provided.

Following In The European Union’S Footsteps: Why The United States Should Adopt Its Own “Right To Be Forgotten” Law For Crime Victims, 32 J. Marshall J. Info. Tech. & Privacy L. 185 (2016), Erin Cooper

UIC John Marshall Journal of Information Technology & Privacy Law

This comment aims to look at this intersection between Google search results, their lack of removal options in the United States, and the potential harm this can cause crime victims. The comment will begin by assessing Google’s method for delivering search results, and its general removal process for most non-European nations. Then, this comment will continue by looking at the European Union and its “right to be forgotten” ruling that allows people in certain circumstances to remove their personal information from the Internet, and what the United States can learn from its implementation. Moreover, we will then contrast the European …

Guns, Speech, And Breathing Space: Response To Andrew Jay Mcclurg's The Second Amendment Right To Be Negligent, Allen K. Rostron

Faculty Works

No abstract provided.

Lgbt Rights And The Mini-Rfra: A Return To Separate But Equal, Terri R. Day, Danielle Weatherby

Faculty Scholarship

No abstract provided.

Contingent Constitutionality, Legislative Facts, And Campaign Finance, Michael T. Morley

Faculty Scholarship

No abstract provided.

Expanding The Schoolhouse Gate: Public Schools (K-12) And The Regulation Of Cyberbullying, Philip Lee

Journal Articles

Cyberbullying has received increasing societal attention in the aftermath of the tragic suicides of some of its youngest and most vulnerable victims — 15-year-old Phoebe Prince from Massachusetts, 13-year-old Ryan Halligan from Vermont, 12-year-old Sarah Lynn Butler from Arkansas, 15-year-old Grace McComas from Maryland, and 12-year-old Rebecca Ann Sedwick from Florida.

In this Article, I hope to provide states and their schools better guidance on how to effectively regulate cyberbullying that originates off campus. Specifically, I aim to make four unique contributions to the conversation.

First and foremost, I argue that cyberbullying is so harmful in and of itself that …

The Inapplicability Of First Amendment Protections To Bds Movement Boycotts, Marc A. Greendorfer

Cardozo Law Review de•novo

This paper has been derived from, and is an expansion of, certain arguments the author made in an earlier legal study of the BDS Movement under United States law entitled, “The BDS Movement: That Which We Call a Foreign Boycott, by Any Other Name, Is Still Illegal,” and is meant to rebut recent misleading assertions that the First Amendment protects participation by United States persons in foreign boycotts of Israel.

The Road To Adopting And Implementing Systemic Disclosure Changes In The Dallas County District Attorney’S Office, Susan Hawk, Patricia J. Cummings

Cardozo Law Review de•novo

Discovery and Brady are currently two of the most discussed and debated topics in our criminal justice system. Americans have become more and more aware of the number of individuals convicted and incarcerated for crimes they did not commit. In 2007, in a very bold and innovative move, the Dallas County District Attorney’s Office created the Conviction Integrity Unit (CIU) to reexamine questionable convictions to determine if a particular defendant was in fact guilty.

Making Corporate Law More Communitarian: A Proposed Response To The Roberts Court's Personification Of Corporations, Robert M. Ackerman, Lance Cole

Brooklyn Law Review

Both Citizens United and Hobby Lobby are notable for the Roberts Court’s personification of the corporation. In Citizens United, the United States Supreme Court expanded corporate speech rights in a political context; in Hobby Lobby, it accorded religious rights to corporations in an unprecedented manner. This article explains how the Court’s expansion of corporate personification has ignored both traditional corporate law doctrine regarding shareholder primacy and the fundamental distinction in corporate law between the corporate entity and the shareholders who control it.

The article takes a communitarian approach to corporate law analysis, recognizing that corporations play useful roles …

Panhandling And The First Amendment: How Spider-Man Is Reducing The Quality Of Life In New York City, Steven J. Ballew

Brooklyn Law Review

Recently, New York and other cities have taken steps to regulate panhandling activity in their communities. These regulations are informed by Broken Windows policing, which emphasizes addressing quality-of-life issues as a strategy for reducing crime. Yet government-imposed limitations on panhandling raise concerns about whether such measures violate panhandlers’ First Amendment rights. This note explores whether it is possible to separate the act of panhandling—defined as approaching a stranger in public and requesting immediate and gratuitous cash payment for oneself—from expression that is protected by the First Amendment. It concludes that, based on a concurrence from Justice Kennedy in International Society …

Parody And The Fair Use Defense: The Best Way To Practice Safe Sex With All Your Favorite Characters, Jessica N. Schneider

Brooklyn Law Review

The copyright fair use test balances the copyright holder’s right to exclude others from using its work against the secondary user’s First Amendment right, yet this test is often too unpredictable and favors misappropriation, even the most commercial kind. The test is weakest when used to determine the legality of sexual parodies. The sexual nature of the parody should receive statutory consideration in the balancing test because vulgar and lewd speech is often deemed “low value” speech, and therefore the secondary user’s First Amendment right is weaker compared to the copyright owner’s right to exclude. Courts already consider the sexual …

The Minefield: Designing And Implementing Human Resource Policies In The Age Of Social Media, Christopher R. Mcmillan

The Graduate Review

Human resource managers have had to navigate a minefield of laws and regulations while continuing to manage the traditional business functions of the employer. Now, human resource departments across the nation are tasked with managing the traditional employee-employer relationship in light of an ever-changing technological and legal landscape. Businesses across the nation have had to adjust to a rise in the use of social-media and have suffered the consequences of instantaneous communication between employees and the media. These same businesses must reconcile the need to protect its goodwill and livelihood, while incorporating the safeguards provided by legislation and regulations in …

"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 …

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

Faculty Scholarship

No abstract provided.

Binding The Enforcers: The Administrative Law Struggle Behind Pres. Obama’S Immigration Actions, Michael Kagan

Scholarly Works

President Obama’s ambitious use of executive discretion in immigration – especially the DACA and DAPA programs – should be understood in context of a struggle within the executive branch between the President and frontline enforcement officers in the Department of Homeland Security who have actively resisted his policy agenda. The so far successful litigation by 26 states to partially halt these programs has focused on this struggle within the executive branch, rather than on the stalemate between the President and Congress over legislative immigration reform. In preliminary rulings, the federal district court and the Court of Appeals have interpreted ambiguous …

When Immigrants Speak: The Precarious Status Of Non-Citizen Speech Under The First Amendment, Michael Kagan

Scholarly Works

The legal protection of free speech for immigrants in the United States is surprisingly limited, and it may be under more threat than is commonly understood. Although many unauthorized immigrants have become politically active in campaigning for immigration reform, their ability to speak out publicly may depend more on political discretion than on the Constitutional protections that we normally take for granted. Potential threats to immigrant free speech may be seen in three areas of law. First, a broad claim has been made by the Department of Justice that immigrants who have not been legally admitted to the country have …

Politics At Work After Citizens United, Ruben J. Garcia

Scholarly Works

There are seismic changes going on in the political system. The United States Supreme Court has constitutionalized the concentration of political power in the "one percent" in several recent decisions, including Citizens United v. FEC. At the same time, unions are representing a shrinking share of the workforce, and their political power is also being diminished. In order for unions to recalibrate the balance of political power at all, they must collaborate with grassroots community groups, as they have done in several recent campaigns. There are, however, various legal structures that make coordination between unions and nonunion groups difficult, …

Off-Label Drug Marketing, The First Amendment, And Federalism, David Orentlicher

Scholarly Works

In this article, Professor Orentlicher explores free speech and federalism issues arising from FDA regulation of off-label uses and off-label marketing of drugs. In light of the FDA's desire to respect state government authority, together with other considerations discussed in this article, he argues for the rejection of the analysis of the Caronia court and to give the FDA significant leeway in its regulation of off-label marketing.