First Amendment Commons^™

Understanding Free Speech Values At The Supreme Court, Noah C. Chauvin

Faculty Articles

This essay is a book review of The Supreme Court and the Philosopher: How John Stuart Mill Shaped US Free Speech Protections, by Professors Eric Kasper and Troy Kozma. The book argues that John Stuart Mill had an indelible impact on the Supreme Court's free speech jurisprudence, and that through the power of precedent, we have come to have a "Millian "First Amendment. As I explain in the review, Kasper and Kozma have made a compelling case. However, because Mill offered an expansive defense of freedom of expression, it is not enough to say that the Court's free speech jurisprudence …

An Impossible Task: Enforcing Disclosure Requirements In A Multi-Billion Dollar Industry, Keelin Ferris

Catholic University Journal of Law and Technology

Users of the first global social network, MySpace, could have never imagined that a mere twenty years later, teenagers could be millionaires making thirty-second videos out of their parents’ basement. Social media platforms have blossomed and advanced to an unpredictable level in a short amount of time. The growth of TikTok, surpassing one billion users, has been one of the most substantial contributors to the change in landscape.[1] In 2025, “social media influencers” come in all shapes and sizes.[2] Social media users can scroll through Instagram reels and stumble upon their fellow PTA member, co-worker, or grandmother promoting …

The Limits Of Tradition: Counterman, True Threats, And The Categorical Approach To Free Speech, Brett Zicari

Catholic University Journal of Law and Technology

Tradition is in vogue.[1] Across a wide variety of areas, the Supreme Court has embraced “history and tradition” as its primary methodology for determining the meaning of constitutional provisions.[2] Recently the Court has even suggested that a restriction on the use of names in trademarks could rest entirely on its traditional status,[3] but nowhere has this move toward tradition been as robust or longstanding as in the speech context. Since the 1940s, the Supreme Court has invoked tradition to defend content-based or categorical restrictions, and more recently, it has purported to rely exclusively on tradition.[4] The …

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Catholic University Journal of Law and Technology

No abstract provided.

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Catholic University Journal of Law and Technology

No abstract provided.

New Threats To Campus Protest, Timothy Zick

Faculty Publications

This symposium Essay focuses on how universities responded, both initially and after the fact, to campus protests concerning the Hamas-Israel War. During those protests students and others erected encampments, held demonstrations, displayed signs, vandalized university property, and occupied buildings. Some protesters communicated anti-Semitic tropes and slogans. Although a few university leaders responded to the protests by negotiating with protest leaders, most relied on law enforcement and security to clear encampments and restore order. Since the initial protests, universities have adopted a spate of new policies that threaten campus protest. These measures include cancellation of already-permitted demonstrations, content-based speech restrictions, bans …

303 Creative, Exclusive Private Enforcement, And Blue-State Revenge, Howard M. Wasserman, Charles W. “Rocky” Rhodes

Journal of Legislation

Red states have made exclusive private enforcement schemes targeting locally unpopular but constitutionally protected conduct a cornerstone of culture-war legal strategy. Laws such the Texas Heartbeat Act (“S.B. 8”) in 2021 and anti-“WOKE” laws forego public enforcement in favor of private enforcement; this forces targeted federal rights-holders to vindicate their rights by raising the law’s constitutional invalidity as a defense to liability rather than through pre-enforcement offensive litigation against the government or government officials responsible for enforcing the law. This threatens rights-holders with a wave of costly and burdensome litigation and liability.

Blue states and liberal scholars and advocates have …

Green Dividends: A Case Study In Green Dividends And The Conditions For Private Ordering Solutions, Anne M. Tucker

Seattle University Law Review

This Essay introduces a novel private ordering solution to facilitate corporate investments in pro-social and environmental initiatives: Green dividends. Green dividends are an optional increase in shareholder dividends that are returned to the company to be reinvested in environmental initiatives or kept by a shareholder.

Green dividends pose an alternative to the current gridlocked debate that corporations can’t, won’t, shouldn’t, and shouldn’t even try to act in pro-social or environmental ways. Turning the common refrains on their head converts each narrative into an element for a successful private ordering solution: authority, accountability, shareholder buy-in, and government- backed enforcement. With Green …

Does Climate Disclosure Work To Reduce Greenhouse Gas Emissions? Emerging Evidence Suggests Cautious Optimism, Cynthia A. Williams

Seattle University Law Review

Significant regulatory resources have been spent developing global, voluntary climate and sustainability disclosure standards, such as the TCFD, TNRD, and ISSB’s Sustainability and Climate Disclosure standards, or domestically required disclosures, such as in the EU and in the U.S. Thus, it is important to evaluate whether this disclosure, particularly voluntary, qualitative disclosure, will have the power to shift the allocation of capital, will have a significant effect on the management of climate risk within firms, and ultimately will reduce climate change risk and biodiversity loss.

In this Article, several interrelated questions will be discussed. First, what does the empirical evidence …

White Christian Nationalism & Antisemitism: A True Threat, Doron M. Kalir

Law Faculty Articles and Essays

For a short period following World War II, it seemed like the World is aspiring to become a better place. Article I of The Universal Declaration of Human Rights reflected that notion, announcing that “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” That was the closest we, as a family of nations, ever came to fulfill the “dream of reason”—a state where we all work together, free from hate and prejudices, towards a common goal: A better world …

Free Speech And Anti-Democratic Violence, Andy J. Carr

Washington and Lee Journal of Civil Rights and Social Justice

The resurgence of far-right extremist groups—like “sovereign” militias, white supremacists, and avowedly fascist gangs—has exposed the First Amendment’s vulnerabilities to the “leaderless resistance” model of extremist organizing. This model, first popularized by white supremacist Louis Beam, specifically aims to insulate extremist leaders from liability when their followers engage in violence. It does so through fragmented structures and coded messages: Leaders use indirect references in speaking to disparate followers, without specificity (of targets) or immediacy (of corresponding violence), as required, e.g., for “incitement” under Brandenburg v. Ohio.

This Article makes three contributions. First, it articulates this “gap” with precision, drawing …

“Change Is Inevitable”: How The First Amendment Safety-Valve Theory Can Expand Protections For Student Expression, Leslie Klein, Jonathan Peters

Indiana Journal of Law and Social Equality

This article challenges the traditional notion that the regulation and protection of student expression in public schools should be based primarily or exclusively on the marketplace theory, which often reinforces the status quo. The safety valve theory is more appropriate and should be applied, especially in the current political and social climate, to inspire an expansion of student speech and press rights that would support expressive activities seeking to change the public discourse around important issues. Students who can speak freely will be more willing to accept decisions that go against them, and a school environment in which passionate or …

The Expressive Power Of Protecting Intimate Privacy: A Comparative Study Of Legal And Platform Measures, Danielle Keats Citron, Jonathon W. Penney, Alexis Shore Ingber

Articles & Book Chapters

Intimate privacy violations exact profound costs to freedom, including chilling victims into silence; denying them sexual agency; and eroding trust critical to intimate expression and sharing. Effective intimate privacy protections could mitigate these harms via law’s expressive function—sending a message or “signal” that victims of intimate privacy invasions are valued, and their expressions worthy of protection. However, without proof, skepticism is warranted about potential expressive functions as there has been an absence of proof to back up these claims. This Article aims to help fill this void, making a theoretical and empirical case for a positive expressive impact of both …

Constitutional Law Application In The Sport Industry, Barbara Osborne

Marquette Sports Law Review

No abstract provided.

The Impossibility Of Religious Equality, Zalman Rothschild

Articles

The Supreme Court has recently adopted a new rule of religious equality: Laws unconstitutionally discriminate against religion when they deny religious exemptions but provide secular exemptions that undermine the law’s interests to the same degree as would a religious exemption. All the Justices and a cadre of scholars have agreed in principle with this approach to religious equality. This Essay argues that this new rule of religious equality is inherently unworkable, in part because it turns on treating that which is religious the same as its secular “comparators.” But religion is not comparable to anything neither in terms of its …

Facial Recognition Technology And The First Amendment, Joseph A. Tomain

Michigan Technology Law Review

The growing ubiquity of facial recognition technology (FRT) is a problem. While much has been written on harmful government use of FRT, little has been written about harmful use by private actors. This Article helps fill that gap in the literature by providing a detailed analysis of the First Amendment interests at stake when private actors use FRT. Specifically, this Article analyzes whether laws that limit the use of publicly available photographs to create “faceprints” for inclusion in FRT databases violate the First Amendment rights of the private actors creating these databases.

In May 2025, a multidistrict litigation against Clearview …

Moral Panic Or Public Health Crisis? Lessons From Drugs And Gambling For “Addictive” Design, Matthew B. Lawrence, Haomin (Kevin) Yan

Faculty Articles

In her important book, Unwired: Gaining Control Over Addictive Technologies, Gaia Bernstein illustrates the value of a comparative approach, drawing lessons from fights around the regulation of tobacco and ultra-processed food for the regulation of social media. Building on Bernstein’s work, this symposium contribution aims to draw additional insight from experience with drug and gambling regulation for the regulation of social media, video games, AI, and other potentially-addictive technologies.

Specifically, after introducing Bernstein’s book and the foundation it lays, we draw six lessons from the study of psychoactive drugs and gambling. As we elaborate below: Lesson one is that …

Extramural Absolutism, Deepa Das Acevedo

Faculty Articles

As battles over academia escalate, an area of intensifying concern is the speech faculty engage in outside their professional functions—what is often called “extramural” speech. Professors have been criticized, disciplined, pressured to resign, and even terminated for extramural speech that is deemed offensive by individuals inside and outside university communities. And yet, academics generally remain committed to a principle that this Article identifies as extramural absolutism.

The Article explains extramural absolutism’s unpopularity outside academia as a reasonable consequence of the way supporters have presented and justified it. Contrary to widespread scholarly portrayal, extramural absolutism is not a moderate concession justified …

Free Speech And Incorporation: A Reassessment, Ilan Wurman

Articles

Many of the Supreme Court’s most controversial free speech decisions involve state laws. In Gitlow v. New York, the Court assumed that the First Amendment’s guarantee of freedom of speech applied directly against the states via the Fourteenth Amendment, a doctrine today referred to as incorporation. Yet there is reason to doubt incorporation is correct as a matter of the original meaning of the Fourteenth Amendment. Indeed, much of the historical evidence involves debates over the freedom of speech, but none of the historical actors seemed to think the First Amendment applied against the states. This short essay evaluates the …

From Likes To Legislation: How The Internet Has Facilitated Hate Speech, Anti-Dei Discourse And Policy, And Threatens Our Democracy, Carmen Lynn Benavides-Garb

Undergraduate Scholarship

I argue that the way hate speech, and Anti-DEI rhetoric spreads online, through social media and algorithms, has impacted real-world Anti-DEI policies, attitudes, and overall backlash. In this essay I will begin by discussing the four themes found in my literature review, 1) Online Hate Speech, 2) Social Media and Algorithms, 3) Diversity, Equity, and Inclusion (DEI), and 4) Anti-DEI Movements. From there, I will discuss the historical background of DEI movements in America to provide context about what makes this moment in history unique. I will then discuss the role of the Trump Presidency in relation to Anti-DEI work. …