First Amendment Commons^™

Cross-Talk, The Honorable Raymond J. Lohier, John Q. Barrett, Noa Ben-Asher, Margaret E. Mcguinness, Mark L. Movsesian, Michael A. Perino

St. John's Law Review

(Excerpt)

You know what is interesting? This has been on my mind for a long time as my law clerk, Colin, knows. What you have all described in different ways, maybe with the exception of the religious rights case, but I will get to that, is a Supreme Court that either is, or perceives itself to be, unchecked by Congress and at times unchecked by the President, largely for reasons that we can discuss.

Some Brief Thoughts On The Ten Commandments In The Schools, Mark L. Movsesian

St. John's Law Review

(Excerpt)

Thank you, Judge, and I want to thank Eva for inviting me to participate and all of you for being here this afternoon.

My area of scholarly expertise is the Religion Clauses of the First Amendment. That is what I write about. So far, the Supreme Court has not taken any cases on the Religion Clauses this term, which is a little unusual. The Court has decided several important cases in this area in the last decade or so, and maybe the Court has decided to take a break this term. We will see.

But some important church-and-state issues …

Drawing A Line In The Mud: The Fifth Circuit's Narrow Reading Of Louisiana's Infrastructure Trespass Statute In White Hat V. Murrill, Andrew J. Lloyd

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Regulating Manipulative Design Is Not Preempted By Cda 230 Or The First Amendment, Brett Frischmann, Peter Ormerod

Faculty Publications

For over two decades, there has been a heated debate among legal scholars, activists, judges, and others about the scope of Section 230 of the Communications Decency Act. A persistent theme in those debates has been hyperbolic claims about the necessity of immunity from state laws for digital tech platforms and fearmongering that anything less than maximum immunity will destroy the Internet.

This Article argues that states retain considerable discretion to regulate digital platforms’ design and engineering decisions. We argue that manipulation, engineered behavior, and even habituation and normalization of engineered behavior by digital platforms are content-agnostic harms attributable to …

Religious Liberty And The New Ten Commandments Cases, Christopher C. Lund

Journal of Catholic Legal Studies

(Excerpt)

Thanks for having me. I’m grateful to St. John’s, the Mattone Center, and Professor Movsesian for the invitation. I’m glad to be here with Eric, whom I admire greatly. I’ve worked with Eric and Becket on several projects, and we see some things quite similarly. But on these issues, we see things differently, which I hope will make for good conversation.

Religious liberty is one of America’s great contributions to the world. Centuries ago, religious liberty brought an end to the war of religion. And in our modern society, religious liberty enables people to live together with fundamentally different …

Governing Algorithmic Attention: Attention Safeguard Models And The Cognitive Attentional Standard As System Level Interventions In Human Computer Interaction, Behavioral Economics, And Artificial Intelligence, Delante Clark

Graduate Scholarship and Creative Works

Algorithmic recommendation systems and interface designs shape attention by combining visually salient cues with uncertain reward timing and low friction interaction. These conditions can sustain anticipatory checking, extend time on task, and reduce natural disengagement points through patterns such as infinite scrolling and autoplay. This paper synthesizes research across neuroscience, human computer interaction, behavioral economics, and artificial intelligence to argue that attention capture is a predictable outcome of incentive driven design rather than an individual failure of self regulation. It advances the Attention Safeguard Models and the Cognitive Attentional Standard as system level interventions that regulate exposure conditions, pacing, and …

Unfriending The Kids: The Problematic Race To Childproof Social Media, Randolph A. Robinson Ii

Cleveland State Law Review

A growing number of states have recently enacted new laws with the goal of protecting young people from potential harm allegedly caused by social media use. These laws are diverse in their approaches but broadly seek to limit youth access to social media platforms by imposing age verification and parental consent requirements. These laws directly implicate the First Amendment rights of both young users who will no longer be able to access speech or speak on social media platforms as well as adult users who must now submit to age verification to access these quintessential forums for political discourse.

These …

Studying Noncitizens: Immigration, The University, And The First Amendment, Peter Margulies

Cleveland State Law Review

From its campaign against anti-war protesters in World War I to the present, the government has tried to restrict the pure political speech of noncitizens, defined as noncitizens’ expression of views about the structure and policies of the U.S. government and governments of foreign nations. Threats to academic freedom are also a hallmark of government action in this domain. Taking a page from this book, the Trump administration has targeted noncitizen students who participated in campus protests against Israel’s military actions in Gaza after Hamas’s brutal attacks on October 7, 2023.

The Trump administration’s effort has viewpoint discrimination at its …

Private Disestablishment, Gaurav Mukherjee

BYU Law Review

Should public funds support religious schools? The Supreme Court’s 4–4 decision in St. Isidore of Seville Catholic Virtual School v. Drummond may have blocked America’s first religious charter school but set no precedent, leaving core constitutional questions unanswered. This Article argues that St. Isidore illustrates “private disestablishment,” where religious institutions claim private status while exercising public power—allowing them to access public benefits without accepting public constraints. Blurring the boundary between private and public allows these entities to secure public benefits like funding and regulatory advantages while avoiding obligations that typically constrain public institutions, such as non-discrimination or religious neutrality.

The …

Lies Begin At Conception: Crisis Pregnancy Centers And The Right To Deceive, Abigail Gainer

Brooklyn Law Review

Crisis Pregnancy Centers (CPCs) are faith-based, free pregnancy care facilities designed to attract vulnerable pregnant individuals, especially those who may be considering abortion. Through the use of deceptive practices, CPCs, which far outnumber abortion clinics, are able to intercept pregnant people seeking care and discourage or prevent them from receiving abortion care. Pro-life legal groups aggressively wage legal battles on states who seek to curb CPC-propagated deception. In 2018, one of these groups achieved a victory for CPCs in NIFLA v. Becerra, where the Supreme Court held that California’s regulations requiring CPCs to inform clients about state-sponsored abortion services and …

You Must Be This Tall To Scroll: California's Questionable Approach To Parenting By Policy, Caroline M. Cuddy

Pace Law Review

This note examines California's Protecting Our Kids from Social Media Addiction Act (SB 976), signed into law in September 2024, which prohibits personalized algorithmic feeds on minors' accounts without pa- rental consent and restricts platform notifications during school hours and nighttime. Drawing on the Supreme Court's decision in Brown v. Entertainment Merchants Association and related federal litigation, this note argues that SB 976 is unconstitutional under the First Amendment. Specifically, SB 976 is underinclusive because it fails to meaning- fully reduce minors' screen time, exempts comparable addictive plat- forms, and permits the very algorithmic feeds it deems harmful upon parental …

Advocacy Matters, Richard Collins

American Indian Law Journal

The Supreme Court’s 2022 Castro-Huerta decision was wrong on the points it discussed. It was doubly wrong for a reason it ignored. But the latter error was shared because all briefs and the dissenting opinion ignored it as well. The question presented was whether a nineteenth-century federal Indian country statute provided for exclusive federal jurisdiction over interracial crimes, or for concurrent authority with states. The Court held that the statute allowed concurrent jurisdiction. But it ignored the fact that Congress and the Court, until fairly recently, avoided concurrent federal-state jurisdiction over crimes. Had the self-styled originalist Justices taken their theory …

Stability At Stake: The Effects Of Overturning Chevron On Indian Gaming, Evan Callahan

American Indian Law Journal

The Supreme Court’s decision in Loper Bright to overturn Chevron Deference marks a significant change in administrative law and could have drastic consequences for the regulation of Indian gaming in the United States. This Note explores the implications of such a shift, emphasizing the importance of maintaining stability in the highly regulated gaming industry. Many stakeholders, including operators, investors, regulatory agencies, and patrons, may face significant uncertainty without doctrines such as Chevron Deference. Without agency expertise in interpreting statutes, the Court may instead directly influence the regulation of Indian gaming in the United States, presenting challenges and uncertainties for all …

Reading Between The Treaties: Why The Supreme Court Must Honor The Indian Canons Of Construction, Amelia R. Wimmer

American Indian Law Journal

This Note critically examines the Indian canons of construction as interpretive tools employed by the United States Supreme Court in cases involving treaties and statutes with Tribal Nations. Ultimately tracing their origins to Worcester v. Georgia, this Note explores how the Indian canons were designed to protect tribal sovereignty, ensure the liberal construction of ambiguous provisions in favor of tribes, and prevent the abrogation of tribal land and rights. Shifts in interpretive philosophy and the rise of textualism have led to a checkered application of the Indian canons across courts. However, a continued application of the Indian canons is necessary …

The Federal Trust ​​​Responsibility ​And Special Domestic Violence Criminal Jurisdiction: Restoring Justice In Tribal Nations​​​ ​, Sofia Sallas

American Indian Law Journal

Special Domestic Violence Criminal Jurisdiction (SDVCJ), enacted through the Violence Against Women Act, was designed to address jurisdictional gaps that long allowed non-Indian perpetrators of domestic violence in Indian Country to evade accountability. Yet despite restoring Tribal authority, SDVCJ remains significantly under-implemented. This Note argues that this failure is not merely a policy shortcoming, but a legal one. Congress restored Tribal criminal jurisdiction while conditioning its exercise on federal funding, coordination, and institutional support. Federal agencies, however, have failed to provide the consistent infrastructure necessary for SDVCJ to function in practice. These failures breach the federal trust responsibility, which imposes …

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American Indian Law Journal

No abstract provided.

Tribal Nations As Lords Of The Fee: A Common Law Argument For Tribal Discretion In Spending Federal Forfeiture Funds, Kent A. Anderson

American Indian Law Journal

Federal criminal forfeiture is a powerful tool meeting at the nexus of criminal law and property law. Courts justify its use based on its English common law history. After seizing and selling assets, the federal government doles out payments from its Assets Forfeiture Fund to cooperating law enforcement agencies through equitable sharing agreements that bind recipients to use funds for law enforcement purposes. Tribal Nations have compelling legal and policy arguments for their entitlement to greater access to and discretion over forfeiture funds obtained through seizures in Indian country. These legal arguments are grounded in: (1) federal criminal forfeiture’s failure …

September 2024 – August 2025 Case Law On American Indians, Thomas P. Schlosser

American Indian Law Journal

No abstract provided.

Real Promise For False Claims: A Whistleblower Litigation Strategy To Reward Investigative Journalism, Frank D. Lomonte

Washington Law Review

Every year, investigative reporters uncover stories of waste, fraud, and corruption, alerting the government to taxpayer ripoffs that had previously gone undiscovered or ignored. For decades, non-journalists have been reaping windfall rewards—sometimes in the millions—by using false-claims statutes to bring whistleblower actions on the government’s behalf. With news organizations struggling for their economic survival, and efforts to secure alternative financial support through government bailouts faltering, is it time for journalists to seek a share of the money they recoup for taxpayers by becoming plaintiffs?

This Article explores the possibilities, and downside risks, of using the federal False Claims Act, and …

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Seattle University Law Review

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