First Amendment Commons^™

Volume 2, Issue 2 Masthead, Njaj Editorial Board

Nebraska Journal on Advancing Justice

No abstract provided.

Lawyers’, Law Professors’ And Law Students’ Free Speech: The Rule Of Law, Civility, And Informed Engagement, Eli Wald

Journal of Civil Rights and Economic Development

(Excerpt)

The Article is organized as follows. Part I summarizes the traditional doctrine governing lawyers’ free speech, as well as the related doctrines of free speech, academic freedom, and tenure on college campuses. Part II explores twenty-first century developments that have thrown these old established doctrines into a state of flux.

Part III consists of three sections. The first suggests a new understanding of lawyers’ free speech, arguing that unprecedented twenty-first-century attacks on the rule of law justify recognizing a third, narrowly tailored restriction on lawyers’ free speech. In addition to the traditional restrictions grounded in protecting clients from lawyers’ …

Some Thoughts About Free Speech And Hostile Environment Discrimination On College Campuses, Mark Tushnet

Journal of Civil Rights and Economic Development

(Excerpt)

Section I examines which kinds of utterances may be considered in determining whether a hostile environment exists, and how those utterances may be taken into account. After distinguishing between targeted utterances directed at an identifiable individual and general statements that disparage a racial or nation-origin group, this Section focuses on targeted utterances.

Section II then turns to general statements, typically of a more clearly political sort. After describing the quite limited nature under which individuals can be held liable for general statements, the Section argues that such statements can be part of the “dossier” relevant to hostile environment discrimination, …

The First Amendment, Student Protest On Campus And The Law, Gene Policinski

Journal of Civil Rights and Economic Development

(Excerpt)

After a brief background on the history of student protest and free expression, this Article examines campus speech policies developed in response to student protests in the 1960s, and present examples of how these codes and regulations recently have been reviewed and revised in light of campus protests and disruptions, with many involving the Israeli-Palestinian conflict.

Next, this Article also examines the ongoing impact of federal legislation—specifically Titles VI and IX of the Civil Rights Act of 1964—on campus speech. In addition, this section addresses public attitudes regarding campus protests and related on campus issues, as well as an …

Free Speech, The University, And The Wrong Turn In The Road, Donald Downs

Journal of Civil Rights and Economic Development

(Excerpt)

I introduce this Article by examining the present state of campus free speech policy and politics. I pose questions raised by the demonstrations that erupted in the wake of the war between Israeli and Iranian proxies on October 7, 2023. I then present a skeletal model of the liberal university, followed by a discussion of how illiberal forms of free speech logic have influenced and shaped thinking in higher education and elsewhere since the 1960s. I conclude with a critique of higher education’s turn turning away from a liberal model of discourse.

Campus Coverage: How Biden's Title Ix Regulations Threaten Free Speech, Academic Freedom, And University Liability, Alex Drury

Kentucky Law Journal

No abstract provided.

The Ministerial Exception And Defamation: Navigating Churches’ Autonomy And Their Communications, Zachary Runge

Pepperdine Law Review

In two recent cases, the Supreme Court has adopted what scholars and lower courts have called the “ministerial exception.” The Court only addressed the ministerial exception’s application to employment discrimination claims. But the Court did not foreclose the possibility of its application to other claims. This Comment argues that the ministerial exception applies to defamation claims arising out of a minister’s termination. After providing the background for the ministerial exception, this Comment explains the current state of the law. Then, this Comment argues that the ministerial exception, as a form of the church autonomy doctrine, applies to the defamation claims …

Ayahuasca And Religious Freedom, Andrew C. Michaels

Pepperdine Law Review

Ayahuasca is an ancient and powerful psychedelic brew that has been used for many centuries in the Amazon rainforest, and over past decades has been gaining popularity in western countries such as the United States. The ayahuasca brew contains dimethyltryptamine (DMT) and accordingly is banned by the Controlled Substances Act (CSA). But some groups working with ayahuasca have applied for exemptions under the Religious Freedom Restoration Act (RFRA), and so far, at least five such groups have received exemptions, either via court decision or via agreement with the Drug Enforcement Administration (DEA). However, the factors that courts and the DEA …

Broadcasting Bigotry: A Proposal To Revive Group Defamation And Hold Modern Media Accountable For The Disparagement Of Asian Americans, Dominic Roschival

University of Cincinnati Law Review

No abstract provided.

True Threats And Protected Speech In Counterman V. Colorado, David Crump

University of Cincinnati Law Review

No abstract provided.

Press Protection As Anticorruption, Zachary Reger

Texas A&M Law Review

As the partisan press of the Founding Era gave way to the commercial press of the nineteenth century, then to the professional press of the twentieth century, American journalism assumed an increasingly skeptical attitude toward governmental power. Today, the investigatory and information-spreading functions of the “fourth branch” are more important than ever to checking public corruption in a vast administrative state. At the same time, the press faces financial crisis, threatening the anticorruption interest.

This Essay evaluates three mechanisms for shoring up the corruption-fighting role of American journalism: (1) constitutional speech protections for the corporate form taken by most modern …

Brief Of First Amendment Scholars As Amici Curiae Supporting Petitioner, Joseph M. Terry, Stephen J. Fuzesi, James N. Sasso, Langston E. Ward, Richard W. Garnett

Court Briefs

No. 25-927
Richard Lowery v. Lillian Mills

On Petition for Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit

From the Summary of Argument

The suppression of constitutionally protected speech violates the First Amendment. A speaker need not be punished to be able to state a cause of action if the government has suppressed or threatens to suppress his or her speech through other means. This Court, across decades, and in a range of contexts, repeatedly has reaffirmed that principle. It has done so in cases affirming that a party may challenge a criminal statute …

The Authoritarian Semiotics Of The New Campus Mask Bans, Rob Kahn

St. John's Law Review

(Excerpt)

In 2024, students took part in protests for and against Israel’s military actions in Gaza. Some protests were disruptive and violent— most were not. In response, calls arose across the country to ban masks. In New York, a broad organization of civil rights groups called for a statewide mask ban under the hashtag #UnmaskHateNY, while New York Governor Kathy Hochul—with the support of New York City Mayor Eric Adams—called for a mask ban on the New York City subways. There were also calls in North Carolina and Los Angeles for new, or enhanced, mask bans. Meanwhile, Ohio’s Attorney General …

Free Speech Trapped In Amber: The Rise Of The 'History And Tradition' Test, From Unregulated Guns To Highly Regulated Speech, Matthew D. Bunker, Emily Erickson

William & Mary Bill of Rights Journal

An insidious virus appears poised to invade First Amendment free speech doctrine. “History and tradition,” a deeply flawed variant of originalism, threatens to transform speech law from a rational enterprise, employing tiers of scrutiny to evaluate potential infringements on speech, to a random scavenger hunt through the distant past that could upend numerous vital First Amendment principles.

Traditionalism’s ascendence to the forefront of history-centric constitutional interpretation was heralded in three dramatic cases decided at the end of the U.S. Supreme Court’s October 2021 term. New York State Rifle & Pistol Ass’n v. Bruen elicited particular concern among First Amendment scholars, …

Complicit Nullification: The Illegitimate (Abrogation) Of School Religious Liberty Precedent, Amanda Harmon Cooley

Cardozo Law Review

Louisiana has enacted legislation that mandates the display of the Ten Commandments in every public school classroom. This statutory mandate directly contradicts the Supreme Court’s extant precedent in Stone v. Graham. Legislators in Texas, North Dakota, South Dakota, Oklahoma, Tennessee, and Kentucky have also indicated plans to introduce similar unconstitutional legislation, defying the Supreme Court’s interpretations of the First Amendment’s Religion Clauses. Similarly, Texas and Florida now permit public school chaplains or Bible-based public school curricula, which violates the Court’s longstanding prohibitions on such actions, as established in its 1948 ruling in Illinois ex rel. McCollum v. Board of Education …

All The King’S Lawyers, Rebecca Aviel

Fordham Law Review

No abstract provided.

Marked For Prosecution: The Use Of Tattoo Recognition Technology In Criminal Trials And The Case For Evidentiary Limits, Marc Consalo

Mercer Law Review

In recent years, tattoos have taken on a new and largely overlooked role in our criminal trial system. Once viewed primarily as personal or cultural expression, tattoos are now treated by law enforcement as biometric data which can be analyzed, codified, and then searched by artificial intelligence (“AI”). Police departments and prosecutorial offices have begun using tattoo recognition software to identify suspects, assume gang membership, and establish guilt based on imagery or symbols. Yet, despite the rapid growth of this technology, its use in the courtroom has received almost no scholarly attention and even less judicial scrutiny.

This Article seeks …

An Alternative Sacrifice: Religious Arbitration Agreements In Ministerial Employment Contracts, Grace E. Brandt

Pepperdine Dispute Resolution Law Journal

After decades of development in lower courts, the Supreme Court unanimously affirmed the ministerial exception in Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. (2012) and provided additional guidance in Our Lady of Guadalupe School v. Morrissey-Berru (2020). The precise contours of the exception remain uncertain, but the doctrine—grounded in the Free Exercise and Establishment Clauses of the First Amendment—effectively bars civil courts from reviewing claims against religious institutions that implicate ministerial employment decisions. Thus, ministers are unable to pursue redress for legitimate harms that occur within the scope of their religious employment, even if unrelated to religious doctrine. This …

A Free Speech Dilemma: Ai Outputs And The Constitution, Mbilike M. Mwafulirwa

Akron Law Review

In the beginning was a word—then over time, a whole civilization was built on words. Speaking, thinking, and writing have always been inherent aspects of the human experience. Until now. Artificial intelligence machines have hi-jacked words. Through focused training on our words and knowledge, they too can now write, create, and express themselves just like we do. This, then, presents a profound constitutional question flagged by Justice Barrett in Moody v. NetChoice: if the U.S. Constitution protects human expression, does it also protect AI outputs?

This article addresses that question through the derivative principle: If you squeeze an orange into …

What’S History Without Tradition?, Richard C. Osborne Iii

Catholic University Law Review

For many decades, the Establishment Clause had been a thorn in the Supreme Court’s side. Indeed, no other constitutional provision in recent memory has provided the Court with more trouble than the Establishment Clause. In its efforts to decide whether government conduct violated the Establishment Clause, the Court had applied no less than six tests. And as if that were not bad enough, many of these tests co-existed with one another, leaving government actors left to guess at their own peril which one controlled their fate.

But that officially changed when the Supreme Court decided Kennedy v. Bremerton School District …