First Amendment Commons^™

Speaking Collectively: The First Amendment, The Public Sector, And The Right To Bargain And Strike, Kate Andrias

Faculty Scholarship

How is it that the Supreme Court has not understood collective bargaining and strikes among public sector workers to fall within the First Amendment’s ambit? Public sector union activity involves expression, assembly, association, and petitioning. Workers’ ability to form unions and to engage in concerted action in support of their shared goals is an important part of democratic governance. Through unions, workers engage in active citizenship; through association with one another, they express their views collectively and engage the government and the public on issues of public concern. Indeed, in the context of protecting the putative speech rights of union …

Infringing Uses, Not Works, Timothy J. Mcfarlin

South Carolina Law Review

No abstract provided.

Lies, Counter-Lies, And Disinformation In The Marketplace Of Ideas, Enrique Armijo

Indiana Law Journal

The First Amendment’s main theoretical account has been as consistent as it has been influential. As John Stuart Mill wrote in On Liberty in 1859, and as First Amendment theory and doctrine, following Mill, have maintained since, the truthfinding process requires that truth and falsity collide in an open marketplace of ideas. Because false speech clarifies truth, and government cannot be trusted to decide for knowledge-seekers what is true, counterspeech is the proper—indeed in most cases the only—remedy for correcting falsity. However, this account itself relies on several false premises. Participants in knowledge production environments are often not motivated by …

Masking Identity At Public Protests, Deborah R. Gerhardt

William & Mary Journal of Race, Gender, and Social Justice

As masks have become increasingly popular at public protests, government officials, college administrators and law enforcement are struggling with how to handle masked protesters who evade responsibility for violence and intimidation. While some wear masks to safely engage in anonymous speech, others wear them to avoid accountability for violence and intimidation.

This Article will explore these issues to assist those seeking to enact constitutionally valid mask policies. To situate today’s mask regulation challenges in the context of American history, Part I reviews events that led to enactment of anti-mask laws many years ago. Part II explains when the First Amendment …

Identity And Procedural Subordination In Lgbtq Religious Exemption Cases, Kyle C. Velte

William & Mary Journal of Race, Gender, and Social Justice

This Article proceeds in four Parts. Part I summarizes the legal literature on procedural injustice. Part II briefly describes the white Christian nationalism movement, its connection with the LGBTQ civil rights movement, and contends that it is an identity-based movement akin to traditional identity-based civil rights movements. Part III summarizes the holdings of the Religious Exemptions Trilogy [Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, Fulton v. City of Philadelphia, and 303 Creative LLC v. Elenis] and makes the argument that they are strongly procedural decisions. Part IV contends that the Court has engaged in identity-based …

Chilling Victims’ Rights: The Supreme Court Creates A “Pride Of Place” For True Threats, Ana Maria Matovic

Dickinson Law Review (2017-Present)

Living in the Information Age means that information is literally always at our fingertips. This also means that keeping tabs on one another is as easy as a tap on a screen. The effortless ability to follow another’s life on the internet has led to a sinister phenomenon: cyberstalking. Prosecuting cyberstalking cases poses complex constitutional challenges. Specifically, prosecuting these cases may clash with a perpetrator’s First Amendment right to free speech. However, the First Amendment does not protect all categories of speech. One of those unprotected categories is the category of “true threats.” If a perpetrator’s conduct constitutes a “true …

Interpreting Religious Doctrine: The Third Rail That Wags The Dog In Religion Clause Jurisprudence, Samuel J. Levine

Washington and Lee Law Review

This Article is part of a broader project exploring and assessing the United States Supreme Court’s hands-off approach to interpreting religious doctrine. The mixed metaphor that constitutes the title of this Article incorporates various aspects of the project’s interrelated themes and claims. First, as a descriptive matter, the Supreme Court has repeatedly and increasingly refused to adjudicate issues that require the interpretation, evaluation, and resolution of substantive areas of religious practice and belief. Thus, like the third rail of train tracks, interpreting religious doctrine is deemed off-limits and better left untouched. Indeed, the Court’s justifications for the hands-off approach rely …

From Anti-Bds To Anti-Esg: The Next Generation Of Boycotting The “Boycott” Is Only Slightly Less Problematic, Kali Venable

Washington and Lee Law Review

In response to an explosion in Environmental, Social, Governance (“ESG”), state lawmakers are enacting statutes to penalize companies that “boycott” industries they seek to protect. This Note first explains how we got here. To do so, it explains how lawmakers used statutes aimed at suppressing the Boycott, Divestment, and Sanctions (“BDS”) movement against Israel as templates for anti-ESG boycott laws. Further, this Note examines the rise of ESG and the subsequent anti-ESG movement that led to the enactment of state anti-ESG boycott laws pertaining to public contracts.

By analyzing the mixed outcomes of recent First Amendment challenges to anti-BDS laws …

Make America Fake Again?: Banning Deepfakes Of Federal Candidates In Political Advertisements Under The First Amendment, Sophie Loewenstein

Fordham Law Review

In recent years, artificial intelligence (AI) technology has developed rapidly. Accompanying this advancement in sophistication and accessibility are various societal benefits and risks. For example, political campaigns and political action committees have begun to use AI in advertisements to generate deepfakes of opposing candidates to influence voters. Deepfakes of political candidates interfere with voters’ ability to discern falsity from reality and make informed decisions at the ballot box. As a result, these deepfakes pose a threat to the integrity of elections and the existence of democracy. Despite the dangers of deepfakes, regulating false political speech raises significant First Amendment questions. …

(Synthetic) Stump Speech: Crafting Generative Ai Disclosure Regulations For Political Advertisements, Alex Paget

Fordham Law Review

Synthetic media, or content generated using artificial intelligence, has begun to infect political advertising. Federal legislation has spent most of its time stalled in committees, but states and online platforms have rapidly implemented regulations. Although synthetic media may pose harms through voter manipulation and democratic distortion, it also can lower campaign costs and more vividly illustrate conceptions of a political choice’s consequences. Some governments and commentators have sought to prohibit the most harmful forms, while others have focused more on transparent approaches to regulation. In the face of yet another contentious election cycle, the question of how to ensure choices …

The First Amendment In Education: May Faculty At Public Schools Be Disciplined For Political Hate Speech?, Ken M. Levy

William & Mary Bill of Rights Journal

At a House hearing on December 5, 2023, the presidents of three universities— Harvard, MIT, and the University of Pennsylvania—refused to state that certain kinds of hate speech, specifically calls for genocide of Jews, are prohibited on their campuses. The backlash against two of them, Harvard’s Claudine Gay and Penn’s Liz Magill, was swift and devastating; both were successfully pressured to resign. Still, while Professors Gay’s and Magill’s responses were widely criticized as tone-deaf, they were legally correct. At many private, and all public, colleges and universities, even the worst hate speech is generally protected unless it is accompanied by …

Sitting On A Throne Of Lies: Using Rico And Wire Fraud To Hold Politicians Accountable And Demonetize Campaigns That Intend To Defraud, Michael Furey

Villanova Law Review (1956 - )

No abstract provided.

Constitutional Law—Librarians Are Not Babysitters: Enacting Legislation To Curtail Unconstitutional Book Bans, Gracie Roper

University of Arkansas at Little Rock Law Review

No abstract provided.

Continuing Legal Education Accreditation And The First Amendment, Anthony M. Ciolli

Journal of Legal Education

No abstract provided.

First Amendment Imbalance: Kennedy V. Bremerton School District, Steven K. Green

Notre Dame Law Review Reflection

This Essay seeks to unpack the competing legal claims presented by a public-school employee engaging in religious expression in conjunction with their work duties and in the presence of students. The competing First Amendment issues are several: nonestablishment, free exercise, free speech (including the government-employee speech doctrine), and parental expressive rights. These various issues came to a head in 2022 in Kennedy v. Bremerton School District where a Court majority affirmed the right of a high school football coach to engage in demonstrative prayers on the football field at the conclusion of a game. In so holding, the majority prioritized …

Public Employees As A Reflection Of A Religiously Diverse Culture, Steven T. Collis

Notre Dame Law Review Reflection

For decades, scholars and jurists have debated over whether government violates the Establishment Clause when it endorses religion or if coercion is required. In Kennedy v. Bremerton School District, the Supreme Court put this argument to rest, at least as to public employees. It grounded its decision in some form of originalism. While that will be sufficient to satisfy some readers, others will want to be assured of the wisdom of the rule originalism demands. This Essay argues that a coercion test for the private religious exercise of public employees is appropriate for a pluralistic society.

It offers four …

Thoughts On The Architecture Of Freedom Of Religion And Freedom Of Speech, Perry Dane

Notre Dame Law Review Reflection

This symposium was convened to explore the rights of businesses and employees to invoke freedom of religion or freedom of expression to resist certain forms of state regulation. The most immediate occasions for that discussion, at least for my purposes, are cases such as 303 Creative LLC v. Elenis, in which the Supreme Court upheld the right of a website designer to refuse to design a wedding website for a same-sex couple. These sorts of cases, which pit the religious or expressive rights of conscientious believers against the equality rights of others, have proliferated in recent years.

I have …

Ordinary Conscience And Pretend Offenses: Protecting Those Left Out Of Title Vii After Groff, Robin Fretwell Wilson, Michael J. Petersen

Notre Dame Law Review Reflection

Part I reviews America’s foundational commitment to fairness and transparency by government, as well as the deep respect the Founders believed should be accorded to conscience specifically.

Part II applauds the unanimous decision in Groff to walk back the Supreme Court’s grievous error in Trans World Airlines, Inc. v. Hardison. We canvas illustrative cases pre-Groff in which employees, notwithstanding Hardison’s “de minimis” burden standard, proceeded to trial, and instances in which employees did not. We also illustrate how, post-Groff, employees are, rightfully, having an easier time getting to trial.

Even as Groff makes actual Title …

Cleaning The Mess Of 303 Creative V. Elenis, Netta Barak-Corren

Notre Dame Law Review Reflection

No piece of academic writing can clean, by itself, the mess left by 303 Creative v. Elenis. Only the Court can. This symposium piece can only offer analytical clarity on 303 Creative, which can help to understand and organize the mess. I will proceed to do so in three steps. First, I point out the glaring omissions of the Court’s opinion and criticize the dangerous consequences of the Court’s inexplicable approach. Second, I discuss the inconsistency of the dissent and the truth it reveals about the unviability of its sweeping position. Finally, I argue that the only way …

University Of The District Of Columbia Law Review, University Of The District Of Columbia Law Review

University of the District of Columbia Law Review

No abstract provided.