First Amendment Commons^™

Using Bruen To Overturn New York Times V. Sullivan, Michael L. Smith, Alexander S. Hiland

Faculty Articles

New York Times Co. v. Sullivan is a foundational, well regarded First Amendment case, Justice Clarence Thomas has repeatedly called on the Court to revisit it. Sullivan, Thomas claims, is policy masquerading as constitutional law, and it makes almost no effort to ground itself in the original meaning of the First and Fourteenth Amendments. Thomas argues that at the time of the founding, libelous statements were routinely subject to criminal prosecution including libel of public figures and public officials.

This Essay connects Justice Thomas's calls to revisit Sullivan to his recent opinion for the Court in New York State Rifle …

Constitutional Rights As Human Rights: Freedom Of Speech, Equal Protection, And The Right Of Privacy, Michael J. Perry

Faculty Articles

Much of my recent scholarly work has addressed questions concerning the political morality - the global political morality of human rights. This essay continues in that vein; I focus on a relationship I began to discuss almost forty years ago, in my first book: the relationship between (some) constitutional rights and (some) human rights. My overarching claim here: There is a significant interface between the constitutional law of the United States and the political morality of human rights. My principal aim in this Essay is to defend (and illustrate) that broad claim by defending three narrower claims:

1. The constitutional …

Antidiscrimination And Tax Exemption, Alex Zhang

Faculty Articles

The Supreme Court held, in Bob Jones University v. United States, that violations of fundamental public policy— including race discrimination in education—disqualify an entity for tax exemption. The holding of the case was broad, and its results cohered with the ideals of progressive society: the government ought not to subsidize discrimination, particularly of marginalized groups. But almost four decades later, the decision has never realized its antidiscriminatory potential. The Internal Revenue Service (IRS) has limited implementation to the narrowest facts of the case. The scholarly literature has not formulated a systematic account of how to enforce the Bob Jones …

Back To The Sources? What’S Clear And Not So Clear About The Original Intent Of The First Amendment, John Witte Jr.

Faculty Articles

This Article peels through these layers of founding documents before exploring the final sixteen words of the First Amendment religion clauses. Part I explores the founding generation’s main teachings on religious freedom, identifying the major principles that they held in common. Part II sets out a few representative state constitutional provisions on religious freedom created from 1776 to 1784. Part III reviews briefly the actions by the Continental Congress on religion and religious freedom issued between 1774 and 1789. Part IV touches on the deprecated place of religious freedom in the drafting of the 1787 United States Constitution. Part V …

Appealing Compelled Disclosures In Discovery That Threaten First Amendment Rights, Richard L. Heppner Jr.

Law Faculty Publications

Last year, the Supreme Court held in Americans for Prosperity Foundation v. Bonta that a California anti-fraud policy compelling charities to disclose the identities of their major donors violated the First Amendment. That holding stems from the 1958 case NAACP v. Alabama where the Court held that a discovery order compelling the NAACP to disclose the names of its members violated the First Amendment right of free association because of the members’ justifiable fear of retaliation.

In the over sixty years since NAACP v. Alabama, the Court has only decided a handful of cases about how compelled disclosures of …

Free Speech, Social Media, And Public Universities: How The First Amendment Limits University Sanctions For Online Expression And Empowers Students, Staff, And Faculty, Eric T. Kasper

Mitchell Hamline Law Review

No abstract provided.

On-Campus Or Off-Campus? - That Is Still The Question: Mahanoy Area Sch. Dist. V. B.L. And The Supreme Court’S New Digital Frontier, Kristopher L. Caudle

Campbell Law Review

This Article examines the contours of the “on-campus” versus “off-campus” distinction embedded in the Supreme Court’s opinion in Mahoney School District v. B.L. This Article argues that B.L., and the Court’s broader Tinker doctrine, fail to adequately address modern student speech issues, especially student speech arising in extracurricular programs and activities. This Article proposes a two-part legal framework for future courts to analyze student speech issues in an increasingly digital post-pandemic world.

Taking Justification Seriously: Proportionality, Strict Scrutiny, And The Substance Of Religious Liberty, Stephanie H. Barclay, Justin Collings

Journal Articles

Last term, five Justices on the Supreme Court flirted with the possibility of revisiting the Court’s First Amendment test for when governments must provide an exemption to a religious objector. But Justice Barrett raised an obvious, yet all-important question: If the received test were to be revised, what new test should take its place? The competing interests behind this question have be-come even more acute in light of the COVID-19 pandemic. In a moment rife with lofty rhetoric about religious liberty but riven by fierce debates about what it means in practice, this Article revisits a fundamental question common to …

The Unintended Consequences Of The Court's Religious Freedom Revolution: A History Of White Supremacy And Private Christian Church Schools, Vania Blaiklock

Scholarly Articles

Although private church schools have historically received less attention than charter schools and other private nonsectarian schools in public discourse, in recent years, the Supreme Court’s First Amendment jurisprudence has allowed private church schools to make great strides in achieving state funding. At a time where public education is facing criticism on all sides, it seems natural that school choice supporters are more vocal than ever. This Essay takes a closer look at private church schools and their relationship to white supremacy in anticipation of the Court’s decision in Carson ex rel. O.C. v. Makin. Ultimately, that case will …

Restating The "F" Word: The Cursing Cheerleader, The First Amendment, And Proximate Cause, Don Corbett

University of San Francisco Law Review

No abstract provided.

Freedom To Morph? An Analysis Of Morphed Imagery, Child Pornography, And The First Amendment, Katie H. Jung

Catholic University Journal of Law and Technology

This article examines the current law related to child pornography and how it leaves a gap for morphed imagery to flourish. The jurisprudence in this area is insufficient to keep up with the changing technology which allows children to be portrayed in morphed imagery and argues that this should not fall within First Amendment protection. The Supreme Court has made it clear that protecting children is an exceedingly important interest and that traditional child pornography falls outside of what was traditionally considered to be protected First Amendment speech. This article argues that the Circuit Split, should the Supreme Court take …

Defrosting The Chill: How Facial Recognition Technology Threatens Free Speech, Kirsten E. Roy

Roger Williams University Law Review

No abstract provided.

Rap Reform: Why Rhode Island Should Exclude Police Detectives And Gang Experts From Interpreting A Criminal Defendant’S Ambiguous Rap Lyrics, Chad O. Stroum

Roger Williams University Law Review

No abstract provided.

Distrust, Negative First Amendment Theory, And The Regulation Of Lies, Helen Norton

Publications

This symposium essay explores the relationship between “negative” First Amendment theory—rooted in distrust of the government’s potential for regulatory abuse—and the government’s regulation of lies. Negative First Amendment theory explains why many lies are protected from governmental regulation—even when the regulation neither punishes nor chills valuable speech (as was the case, for example, of the statute at issue in United States v. Alvarez). But negative theory, like any theory, also needs limiting principles that explain when the government’s regulation is constitutionally justifiable.

In my view, we engage in the principled application of negative theory when we invoke it in (the …

Establishment’S Political Priority To Free Exercise, Marc O. Degirolami

Scholarly Articles

Americans are beset by disagreement about the First Amendment. Progressive scholars are attacking the venerable liberal view that First Amendment rights must not be constricted to secure communal, political benefits. To prioritize free speech rights, they say, reflects an unjust inflation of individual interest over our common political commitments. These disagreements afflict the Religion Clauses as well. Critics claim that religious exemption has become more important than the values of disestablishment that define the polity. Free exercise exemption, they argue, has subordinated establishment. This Article contests these views. The fundamental rules and norms constituting the political regime—what the Article calls …

Balancing Clashing Scholars’ Academic Freedoms, Sharona Aharoni-Goldenberg, Gerry Leisman

Touro Law Review

The paper analyzes the scope of scholars’ academic freedom and maintains that it is composed of two pillars. First, inclusion, which is subject to capacity, equality, and the provision of a pro-educational academic environment. Second, academic expression, which refers to teaching and research, freedom of opinion, political participation outside academia and freedom to receive academic materials. Scholars’ academic freedom is limited by professional standards and is subject to the respect of the rights of fellow scholars.

The paper argues that scholars’ academic freedom is not confined to a scholar-state relation but is also relevant to scholar-scholar relations. Hence, scholars’ academic …

Establishing A Right To Last Rites: Examining Death Row Inmates’ Right To Clergy Presence In The Execution Chamber In Gutierrez V. Saenz, Sarah B. Conley

Oklahoma Law Review

No abstract provided.

The U.S. Supreme Court's Characterizations Of The Press: An Empirical Study, Sonja R. West, Ronnell Anderson Jones

Scholarly Works

The erosion of constitutional norms in the United States is at the center of an urgent national debate. Among the most crucial of these issues is the fragile and deteriorating relationship between the press and the government. While scholars have responded with sophisticated examinations of the President’s and legislators’ characterizations of the news media, one branch of government has
received little scrutiny—the U.S. Supreme Court. This gap in the scholarship is remarkable in light of the Court’s role as the very institution entrusted with safeguarding the rights of the press. This Article presents the findings of the first comprehensive empirical …

Las Medidas De “Acomodación” De La Religión En El Derecho Estadounidense [Accommodation Of Religion In U.S. Law], Michael W. Mcconnell, Nathan Chapman

Scholarly Works

En este trabajo se analizan las medidas de acomodación de la religión, que gozan de una gran tradición en el derecho constitucional de los Estados Unidos, así como los debates que han generado desde el punto de vista de su conformidad con las cláusulas de la Primera Enmienda de la Constitución de los Estados Unidos: la cláusula de no establecimiento de una religión oficial y la cláusula de libre ejercicio de la religión. A lo largo del trabajo se analiza la principal jurisprudencia recaída sobre las medidas de acomodación y los test que se han construido para enjuiciarlas.

[This paper …

Government Employee Speech And Forum Analysis, Randy J. Kozel

Journal Articles

This Article analyzes the institution of government employment as a nonpublic forum. Forum analysis offers a framework for bringing the doctrine of government employee speech into alignment with broader First Amendment principles. It also sharpens the theoretical contours of employee speech law by underscoring the need for vigilance against ordained orthodoxy while acknowledging the necessity of managerial discretion over institutional operations. Characterizing government employment as a nonpublic forum circumvents problematic questions like whether employee speech has provoked an adverse reaction. The proper inquiry, in the employment context as in other nonpublic forums, is whether a speech restriction is reasonable and …