First Amendment Commons^™

$4.5 Million Defamation Award Against Anti-Gay Official Upheld, Arthur S. Leonard

Other Publications

No abstract provided.

“V.I.P” Videographer Intimidation Protection: How The Government Should Protect Citizens Who Videotape The Police, David Murphy

Student Works

No abstract provided.

Narrative Pluralism And The Doctrine Incoherence In Hosanna-Tabor, Frederick Mark Gedicks

Faculty Scholarship

In Hosanna-Tabor Church and School v. EEOC, the Supreme Court recognized for the first time that the Religion Clauses require a “ministerial exception” to federal antidiscrimination laws, holding that religious congregations have a broad and categorical immunity against government interference in ministerial employment decisions.

Hosanna-Tabor is filled with ironies. The case is as much about unjustified discrimination and administrative inconsistency as religious liberty. The Court’s endorsement of the exception as a feature of church autonomy overlooks that churches subvert autonomy as often as they protect it. The exception described by the Court is so broad, absolute, and inflexible that it …

Real Masks And Real Name Policies: Applying Anti-Mask Case Law To Anonymous Online Speech, Margot E. Kaminski

Publications

The First Amendment protects anonymous speech, but the scope of that protection has been the subject of much debate. This Article adds to the discussion of anonymous speech by examining anti-mask statutes and cases as an analogue for the regulation of anonymous speech online. Anti-mask case law answers a number of questions left open by the Supreme Court. It shows that courts have used the First Amendment to protect anonymity beyond core political speech, when mask-wearing is expressive conduct or shows a nexus with free expression. This Article explores what the anti-mask cases teach us about anonymity online, including proposed …

Neutrality And The Good Of Religious Freedom: An Appreciative Response To Professor Koppelman, Richard W. Garnett

Journal Articles

This paper is a short response to an address, “And I Don’t Care What It Is: Religious Neutrality in American Law,” delivered by Prof. Andrew Koppelman at a conference, “The Competing Claims of Law and Religion: Who Should Influence Whom?”, which was held at Pepperdine University in February of 2012. In this response, it is suggested – among other things – that “American religious neutrality” is, as Koppelman argues, “coherent and attractive” because and to the extent that it is not neutral with respect to the goal and good of religious freedom.
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Wipo And The American Constitution: Thoughts On A New Treaty Relating To Actors And Musicians, Hannibal Travis Professor Of Law

Vanderbilt Journal of Entertainment & Technology Law

The World Intellectual Property Organization (WIPO) is seeking to reform U.S. copyright law. The WIPO Treaty on Audiovisual Performances (AV Treaty) would restrict the communication of actors' and musicians' performances without authorization. The treaty would probably make it illegal to display or show clips of performances, or make a movie or YouTube video by transforming or adapting other actors' or musicians' performances, particularly when the original credits and copyright information are dropped. This Article analyzes key provisions of the AV Treaty to ascertain whether they change US law, or merely globalize existing US doctrines. This Article describes the threat posed …

Durkheim's Internet: Social And Political Theory In Online Society, Ari Ezra Waldman

Articles & Chapters

While the Internet has changed dramatically since the early 1990s, the legal regime governing the right to privacy online and Internet speech is still steeped in a myth of the Internet user, completely hidden from others, in total control of his online experience, and free to come and go as he pleases. This false image of the “virtual self” has also contributed to an ethos of lawlessness, irresponsibility, and radical individuation online, allowing the evisceration of online privacy and the proliferation of hate and harassment.

I argue that the myth of the online anonym is not only false as a …

Hate Speech And The Demos, Jamal Greene

Faculty Scholarship

It is sometimes said that the statist and aristocratic traditions of Europe render its political institutions less democratic than those of the United States. Richard Posner writes of “the less democratic cast of European politics, as a result of which elite opinion is more likely to override public opinion than it is in the United States.” If that is true, then there are obvious ways in which it figures into debates over the wisdom of hate-speech regulation. The standard European argument in favor of such regulation may easily be characterized as antidemocratic: Restrictions on hate speech protect unpopular minority groups …

Machine Speech, Tim Wu

Faculty Scholarship

Computers are making an increasing number of important decisions in our lives. They fly airplanes, navigate traffic, and even recommend books. In the process, computers reason through automated algorithms and constantly send and receive information, sometimes in ways that mimic human expression. When can such communications, called here “algorithmic outputs,” claim First Amendment protection?

Snake Oil Salesman Or Purveyors Of Knowledge: Off-Label Promotions And The Commercial Speech Doctrine, Constance E. Bagley, Joshua Mitts

Faculty Scholarship

The Second Circuit’s December 2012 decision in United States v. Caronia striking down the prohibition on off-label marketing of pharmaceutical drugs has profound implications for economic regulation in general, calling into question the constitutionality of restrictions on the offer and sale of securities under the Securities Act of 1933, the solicitation of shareholder proxies and periodic reporting under the Securities Exchange Act of 1934, mandatory labels on food, tobacco, and pesticides, and a wide range of privacy protections. In this Article we suggest that Caronia misconstrues the Supreme Court’s holding in Sorrell v. IMS Health, which was motivated by concerns …

Unequal Treatment Of Religious Exercises Under Rfra: Explaining The Outliers In The Hhs Mandate Cases, Mark L. Rienzi

Scholarly Articles

Ongoing conflict over the contraceptive mandate promulgated by the Department of Health and Human Services ("HHS") has resulted in more than two dozen lawsuits by profit-making businesses and their owners seeking protection under the Religious Freedom Restoration Act ("RFRA"). To date, the businesses and their owners are winning handily, having obtained preliminary relief in seventeen of the cases, and being denied relief in only six. Last month, in fact, a panel of the D.C. Circuit Court of Appeals took the extraordinary step of reconsidering and reversing its own prior ruling and granting a preliminary injunction to a business seeking RFRA's …

God And The Profits: Is There Religious Liberty For Money-Makers?, Mark L. Rienzi

Scholarly Articles

Is there a religious way to pump gas, sell groceries, or advertise for a craft store? Litigation over the HHS contraceptive mandate has raised the question whether a for-profit business and its owner can engage in religious exercise under federal law. The federal government has argued, and some courts have found, that the activities of a profit-making business are ineligible for religious freedom protection.

This article offers a comprehensive look at the relationship between profit-making and religious liberty, arguing that the act of earning money does not preclude profit-making businesses and their owners from engaging in protected religious exercise.

Many …

Neutral No More: Secondary Effects Analysis And The Quiet Demise Of The Content-Neutrality Test, Mark L. Rienzi

Scholarly Articles

When the Supreme Court introduced the “secondary effects” doctrine to allow for zoning of adult businesses, critics fell into two camps. Some, like Justice Brennan, predicted dire consequences for the First Amendment, particularly if the doctrine were used in political speech cases. Others, like Professor Laurence Tribe, predicted secondary effects analysis would be limited to sexually explicit speech, and would not threaten the First Amendment. The modern consensus is that the doctrine has, in fact, been limited to cases about sex.

Recent cases demonstrate, however, that the impact of the secondary effects doctrine on the First Amendment has been broader …

Brown V. Entertainment Merchants Association: "Modern Warfare" On First Amendment Protection Of Violent Video Games, Jessica Fisher

Journal of Business & Technology Law

No abstract provided.

Analogies And Institutions In The First And Second Amendments: A Response To Professor Magarian, Darrell A.H. Miller

Faculty Scholarship

In this essay, Professor Darrell Miller responds to Professor Gregory Magarian's criticism of the manner in which judges, advocates, and scholars have used the First Amendment to frame Second Amendment interpretive questions.

Crisis Pregnancy Centers: Impeding The Right To Informed Decision Making, Alice X. Chen

Cardozo Journal of Equal Rights & Social Justice

The note argues that crisis pregnancy centers (CPCs) in the United States engage in deceptive practices to deter women from obtaining abortions, often masquerading as medical facilities while providing misleading information about reproductive health. These centers receive significant funding from federal and state governments, despite their lack of regulation and medical licensure. The note contends that while local governments have attempted to regulate CPCs through ordinances requiring transparency, these efforts have largely been struck down by federal courts on First Amendment grounds. The author advocates for state-level action to protect women's rights to informed decision-making and accurate reproductive healthcare.

Three Puzzling Things About New York Times V. Sullivan: Beginning The Anniversary Conversation, Leonard M. Niehoff

Articles

This is the 50th anniversary of a watershed year in the history of the civil rights movement. During that year, the Southern Christian Leadership Conference mounted its anti-segregation campaign in Alabama; Commissioner "Bull" Connor turned dogs and fire hoses on demonstrators; activists were attacked; riots flared; George Wallace blocked the doors of a public university to keep black students out; President Kennedy dispatched troops to Alabama and called for the passage of a civil rights bill; Medgar Evers was murdered; the then-largest human rights demonstration in U.S. history converged on Washington; Martin Luther King Jr. gave his historic speech at …

A Jurisdictional Perspective On New York Times V. Sullivan, Howard M. Wasserman

Faculty Publications

New York Times v. Sullivan, arguably the Supreme Court's most significant First Amendment decision, marks its fiftieth anniversary next year. Often overlooked in discussions of the case's impact on the freedom of speech and freedom of the press is that it arose from a complex puzzle of constitutional, statutory, and judge-made jurisdictional and procedural rules. These kept the case in hostile Alabama state courts for four years and a half-million-dollar judgment before the Times and its civil rights leader co-defendants finally could avail themselves of the structural protections of federal court and Article III judges. The case's outcome and …

Landscape Fairness: Removing Discrimination From The Built Environment, Stephen Clowney

Utah Law Review

At its core, this Article argues that the everyday landscape is one of the most overlooked instruments of modern race-making. Drawing on evidence from geography and sociology, the paper begins by demonstrating that the built environment inscribes selective and misleading versions of the past in solid, material forms. These narratives — told through street renamings, parks, monuments, and buildings — ultimately marginalize African-American communities and transmit ideas about racial power across generations.

After demonstrating that the landscape remains the agar upon which racial hierarchies replicate themselves, the Article then pivots and examines current efforts to rid the built environment of …

'The Freedom Of The Church': (Towards) An Exposition, Translation, And Defense, Richard W. Garnett

Journal Articles

This Article was presented at a conference, and is part of a symposium, on the topic of "Freedom of the Church in the Modern Era." In addition to summarizing and re-stating claims made by the author in earlier work – claims having to do with, among other things, church-state separation, the no-establishment rule, legal and social pluralism, and the structural role played by religious and other institutions – the Article attempts to strengthen the argument that the idea of “the freedom of the church” (or something like it) is not a relic or anachronism but instead remains a crucial component …