First Amendment Commons^™

Re-Recording The Record: The Case For A Stronger Moral Right Of Integrity In The United States, Alexandria Touron

Fordham Law Review

In the United States, musical artists have limited legal recourse over transferring ownership of their music to third parties, even when such transfers may harm the artist’s reputation or the integrity of the work. Even the most prominent musicians, like Taylor Swift, must operate within an industry structure that normalizes the transfer of rights and, thus, control of their creative works. This occurs because U.S. law ties artists’ rights almost exclusively to economic ownership of their work unless they specifically bargain to keep their moral rights. However, most other countries have comprehensive moral rights frameworks where all artists can protect …

Undercover Investigations, Deception, And Democracy, Helen Norton

Publications

No abstract provided.

How The Antidiscrimination Law Of Commercial Transactions Really Works, Helen Norton

Publications

No abstract provided.

From Gods To Google, Rebecca Aviel, Margot Kaminski, Toni M. Massaro, Andrew Keane Woods

Publications

The First Amendment has become a significant barrier to sensible technology regulation. The conventional explanation for this is the Court's deregulatory turn in free-speech law. But the Lochnerization story is incomplete. The Court's profound solicitude for religious speakers plays a central role in the current digital-free-expression landscape. By protecting the speech of certain religious dissidents, the Court has created a set of constitutional entitlements that logically extend to technology firms. Along the way, the Court has eroded its ability to apply the First Amendment sensibly to novel technologies.

This Feature draws the doctrinal through line from gods to Google. We …

Contesting "Address": Conflicts Over The Words We Use To Address And Refer To Each Other, Helen Norton

Publications

Professor Richard Brooks's generative insights provide us with valuable tools for recognizing, and trying to make sense of, address's role in human interactions. That "address"--the words we use to address and refer to each other--has the potential both to offer value and to inflict harm to these interactions sometimes triggers conflict over appropriate forms of address. In this Commentary to Professor Brooks's Frankel Lecture, I examine some of these conflicts.

As we'll see, some address conflicts involve debates over whether and when address actually makes meaning or whether it’s instead relatively trivial--while others involve contestants who agree that address makes …

“Forced Worship Stinks In God’S Nostrils”: The Inquisition, Sepharad, And The American Experiment, Isaac Amon

Touro Law Review

In December 1791, the Bill of Rights, comprising the first 10 amendments to the U.S. Constitution, enshrined fundamental protections for individual freedoms, with the First Amendment guaranteeing liberty of conscience. This milestone, however, was the culmination of centuries of struggle. The arrival of Iberian Jews, including conversos, in North America played a pivotal role in shaping the course of American history. The Founders referenced the Inquisition in their letters and debates, particularly in discussions on legal protections for criminal suspects and the broader issue of religious liberty. Founding assurances of religious freedom to Jews and Christians stand in stark contrast …

Trading Places: The Intersection Of Lgbtq Rights And Zionist Rights Under Federal Civil Rights, Marc A. Greendorfer

Touro Law Review

While antidiscrimination laws have a long history at both the federal and state levels, the scope of coverage for these laws has evolved based on nuanced interpretations of terms that previously had established, static meanings. Many antidiscrimination laws prohibit discrimination on the basis of generic categorizations such as sex, religion or ethnicity but such terms are undergoing a rapid change in the way society understands and uses them. For example, sex, which historically has referred to biological gender at birth, now encompasses gender as well as sexual orientation. This article focuses on a recent Supreme Court decision relating to the …

First Amendment Rights On Trial: A Critique Of The Time, Place, And Manner Doctrine, Alec Greven

Oklahoma Law Review

No abstract provided.

Interesting Intersections Of Immigration And First Amendment Law, David Hudson, Maximiliano Gluzman

FIU Law Review

This essay identifies four areas of immigration law in which pressing First Amendment claims play a prominent and dominant role. The first area involves denial of admission or deportation based on pure or symbolic speech. At various times, Congress has enacted grounds of inadmissibility and deportability that squarely fall within the purview of the First Amendment. The second area involves so-called retaliatory deportations, when the government initiates or accelerates removal proceedings against a noncitizen who is in violation of immigration laws allegedly for the non-citizen’s activism, protest activity, or other First Amendment speech or expressive conduct. The third area involves …

Individual Academic Freedom And The Current Forces Of Economics And Technology, George R. Wright

FIU Law Review

There are always a number of cultural constraints on higher education institutions. Such cultural constraints always matter. But sometimes, as in our day, such constraints are especially severe. These constraints are broadly economic; more specifically market-based; and technological in nature. They operate on public and private universities and on law schools in particular. Our concern herein is for such constraints in the many cases in which a faculty member’s speech on some matter of public interest arguably impairs a legitimate interest of the employer-university or law school. The weight of the educational institution’s interests in such academic speech cases is, …

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

FIU Law Review

The ideology of Jewish hatred, also known as antisemitism, has deep roots. In the United States, antisemitism has known a long and complicated history; in the early 1940s, it reached peak levels. Now, more than 80 years later, antisemitism again rears its ugly head, aiming to end the Golden Age of American Jewry. The exclusionary ideology aiming to obliterate the wall separating Church and state, and to institutionalize Christian identity and values into the public square, also known as White Christian Nationalism, has deep roots. In the United States, it had a long and complicated history; by the mid 1920s, …

Lessons For The Trump Administration From The Biden U.S. National Strategy To Counter Antisemitism, Lili Levi

FIU Law Review

In May 2023, the Biden Administration issued the first-ever U.S. National Strategy to Counter Antisemitism with a goal of hindering further normalization of antisemitism by increasing public awareness of antisemitism and highlighting positive Jewish contributions to America. Recent events, however, particularly the social and political upheaval over protests of the war in Gaza, have led to public contestation over Israel, increased instances of antisemitism, and the partisan politicization of Jewish issues. All this has raised questions about whether the National Strategy's assumptions about public attitudes, the viability of antisemitism awareness initiatives, and the possibility of whole-of-society agreement on countering antisemitism …

Free Movement Rights And The American City, Ryan Stoa

FIU Law Review

American cities are facing an inflection point. Widespread dissatisfaction with urban planning outcomes is making land use and transportation policies (such as congestion pricing) a mainstream topic of debate. Suburban sprawl and housing shortages are moving urban populations into the periphery, commuting times (and associated mental health problems) are increasing, and pedestrian and cyclist deaths caused by vehicles are at all-time highs. American cities that were largely planned and built in the twentieth century based on assumptions that we now know are flawed are not meeting the needs of their residents, and urban planners are making changes to reshape urban …

The First Amendment, Global Corporate Responsibility Standards, & The Quest For Online "Speech Nirvana", Evelyn Aswad

Faculty Articles

With large and powerful social media companies operating as worldwide speech regulators, it is unsurprising that governments have attempted to not only regulate how these companies address platform speech but also pressure them to deliver preferred speech outcomes. In 2024, the Supreme Court decided two cases addressing both themes in the U.S. context. In Moody v. NetChoice, the Court explained how legislation regulating private platform curation of usergenerated content runs afoul of First Amendment protections. And, in Murthy v. Missouri, the Court appeared to erect significant hurdles to challenging alleged governmental coercion of such platforms. These cases have left many …

Insider Trading & Unconstitutionally Complelled Speech, Steven J. Cleveland

Faculty Articles

The Supreme Court has recently weaponized the First Amendment to invalidate economic regulations. Consequently, the Court’s current analytical framework risks invalidating as unconstitutional certain speech compelled by Congress and the SEC to combat insider trading.

The government may compel speech to combat fraud, and many courts and commentators view insider trading as a fraud against the counterparty to the insider’s trade. Today, the government primarily resorts to Section 10(b) of the Securities Exchange Act of 1934 and its implementing regulations, including Rule 10b-5, to combat insider trading. Those regulations prohibit deceptive conduct and do not directly compel speech. Interestingly, in …

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

Articles by Maurer Faculty

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 regarding harmful private actor use. This Article helps fill a 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 private actors.

In May 2025, a multidistrict litigation against Clearview AI, an FRT company, offered …

The Fox Effect? Implications Of Recruiting Corporate Law To Combat Misinformation, Lili Levi

Articles

In 2023, Fox Corporation settled U.S. Dominion’s defamation action over Fox News’ broadcast of false election fraud claims after the 2020 presidential election for the staggering sum of $787.5 million. Now, a shareholder derivative action is pending in Delaware against the company’s board of directors for breach of state corporate law fiduciary oversight duties for their failure to prevent such defamatory programming. Beyond the specifics of the case, this development portends the emergence of a new politico-legal strategy—using corporate governance requirements as a weapon to promote press accountability and combat misinformation in public discourse. The question addressed in this Essay …

Unboxing The Box: A Deep Dive Into Solitary Confinement And When It May Violate The First And Eighth Amendments, Madison Scarfaro

Touro Law Review

Solitary confinement has been a practice used for those who are incarcerated in our criminal justice system for hundreds of years. Our nation, as well as our society have evolved and continue to evolve over the course of hundreds of years. However, the use of solitary confinement has not. Even with all of the research and literature surrounding the monstrosities that come about from solitary confinement, it is still used in most of our jails and prisons to this day. The Eighth Amendment to the U.S. Constitution provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel …

Private Religious Schools And Disability Discrimination, Kevin Timpe

Touro Law Review

In the lead-up to the passing of the Americans with Disabilities Act (“ADA”), religious institutions and organizations lobbied to be exempt. Because they were successful in securing an exemption to most of the ADA’s requirements, religious private schools maintain the legal right to refuse admission to disabled students or to fail to give them various legal protections. After considering the arguments given in its favor, the paper critiques this exemption on moral grounds. It then suggests that these considerations should lead to a reexamination of the legal right such schools have to discriminate against disabled individuals, especially in those cases …

In Too Deep: Navigating An Unpredictable Algorithm, Anthony J. Ranieri

Touro Law Review

This note explores the intersection of deepfakes, a newfound and seemingly ubiquitous technology, and the protections granted by the Free Speech Clause under the First Amendment. At this juncture, society has failed to develop an infallible form of deepfake detection technology despite persistent and diligent efforts by individuals and entities alike. Hyper realistic deepfake technology has and will continue to be utilized by bad actors as a tool for advancing their nefarious goals, resulting in cognizable harm to individuals and society at large. This note evaluates the current state of deepfake technology and the potential obstacle that traditional First Amendment …