First Amendment Commons^™

Free Speech Has Gotten Very Expensive: Rethinking Political Speech Regulation In A Post-Truth World, John A. Barrett, Jr.

St. John's Law Review

(Excerpt)

Protecting free speech has been a foundational principle of American democracy since the nation’s founding. A core element of free speech has long been a prohibition on regulating political speech. The principle behind this protection holds that citizens are free to make whatever political pronouncements they wish and that their speech shall remain free from government suppression. Even within the limited exceptions to unfettered political speech, like defamation or libel, the speech is not banned but may merely result in liability. A premise underlying this view is that competing viewpoints, by being made available to us all, will allow …

Absolute Publishing Power And Bulletproof Immunity: How Section 230 Shields Internet Service Providers From Liability And Makes It Impossible To Protect Your Reputation Online, Victoria Anderson

Seattle University Law Review Online

No abstract provided.

Model Rule 8.4(G) And The Profession’S Core Values Problem, Michael Ariens

St. Mary's Journal on Legal Malpractice & Ethics

Model Rule 8.4(g) declares it misconduct for a lawyer to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” The American Bar Association (ABA) adopted the rule in 2016 in large part to effectuate the third of its four mission goals: Eliminate Bias and Enhance Diversity. The ABA adopted these goals in 2008, and they continue to serve as ABA’s statement of its mission.

A …

The Law Of License Plates And Other Inevitabilities Of Free Speech Context Sensitivity, William D. Araiza

Faculty Scholarship

No abstract provided.

Breathing Room For The Right Of Assembly, Tabatha Abu El-Haj

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

This Article explores the legal and political fault lines that the wave of protests highlighting police violence and systemic racism in the summer of 2020 reveal. It focuses in depth on Detroit, Michigan, as a window into the ways that the First Amendment, as currently construed, under-protects those seeking political change and racial reckoning by demonstrating in the streets.

Taking Exception To Assessments Of American Exceptionalism: Why The United States Isn’T Such An Outlier On Free Speech, Evelyn Mary Aswad

Dickinson Law Review (2017-Present)

One of the most significant challenges to human freedom in the digital age involves the sheer power of private companies over speech and the fact that power is untethered to existing free speech principles. Heated debates are ongoing about what standards social media companies should adopt to regulate speech on their platforms. Some have argued that global social media companies, such as Facebook and Twitter, should align their speech codes with the international human rights law standards of the United Nations (“U.N.”). Others have countered that U.S.-based companies should apply First Amendment standards. Much of this debate is premised on …

Free Speech Still Matters, Joel M. Gora

Faculty Scholarship

No abstract provided.

Mad About The First Amendment, Our Beacon For Liberty, Equality And Democracy, Nicholas Allard

Faculty Scholarship

No abstract provided.

The Paradox Of Free Speech In The Digital World: First Amendment Friendly Proposals For Promoting User Agency, Nadine Strossen

Articles & Chapters

The United States Supreme Court has continued a speech-protective trend dating back to the 1960s, safeguarding even the most controversial speech from government regulation, including speech that critics of this trend label with the stigmatizing terms "hate speech," "disinformation," "misinformation," "extremist speech," and "terrorist speech." In contrast, as dominant online platforms have become increasingly important forums for both individual self-expression and democratic discourse, the platforms have been issuing and enforcing increasing restrictions on their users' speech pursuant to each platform's content moderation policies. These restrictions often suppress speech that the U.S. Constitution bars government from suppressing. As private sector entities, …

Lgbtqia+ Public Accomodation Cases: The Battle Between Religious Freedom And Civil Rights, Jamie Reinah

Fordham Law Review

Protections for LGBTQIA+ Americans have greatly expanded since the U.S. Supreme Court recognized marriage equality in Obergefell v. Hodges, but the debate about whether business owners can refuse to serve LGBTQIA+ couples on religious grounds has grown more bitterly divided. The free exercise of religion is a fundamental constitutional right, and it is strongly protected at both the federal and state levels. At the same time, LGBTQIA+ couples are protected from receiving unequal treatment in public places under state antidiscrimination laws. The clash between religion and LGBTQIA+ rights has culminated in a line of cases that present difficult questions …

Deceive, Profit, Repeat: Public Deception Schemes To Conceal Product Dangers, Wes Henricksen

Cardozo Law Review

Companies in numerous industries have misled the public by hiding the dangers posed by their products. Sugar manufacturers hid the dangers of high fructose corn syrup and misdirected the public’s attention to fat, causing an epidemic of diabetes, obesity, and heart disease. Opioid manufacturers hid the dangers and addictiveness of opioid painkillers, leading to the opioid crisis. Fossil fuel companies misled the public about the causes, certainty, and effects of global warming, resulting in massive unregulated CO2 emissions and causing one of the greatest threats to humankind. This Article identifies all such schemes as belonging to a category of wrongs …

Rluipa’S Hidden Third-Party Harms On Landowners And Local Governments, Menachem Polishuk

Cardozo Law Review

No abstract provided.

When Free Speech And Privacy Collide: Why Strict Scrutiny Is A Poor Fit For Nonconsensual Pornography Laws, Leah S. Murphy

Cardozo Law Review

No abstract provided.

Special Matters: Filtering Privileged Materials In Federal Prosecutions, Christina Frohock

Articles

This Article reviews the U.S. Department of Justice's toolbox for handling potentially privileged materials, with close attention to the evolution from filter teams to the Special Matters Unit in fraud prosecutions. Significant case opinions from the U.S. Courts of Appeals for the Fourth, Sixth, and Eleventh Circuits reveal the judiciary's diverse views on filter teams. The recent case of United States v. Esformes in the U.S. District Court for the Southern District of Florida, now on appeal to the Eleventh Circuit, illustrates how a filter team can fall short and draw unflattering attention to the Department of Justice. In the …

Equal Justice Under Law: Navigating The Delicate Balance Between Religious Liberty And Marriage Equality, Meg Penrose

Faculty Scholarship

This Article discusses the current state of the law and offers thoughts on its future. Part Il provides a brief overview of the legal landscape involved in the clash between religious liberty and same-sex marriage From Justice Scalia's seminal religious liberty test to the evolution of same- sex marriage, Part Il describes the current law. Part III introduces the reader to public accommodations laws. After providing this brief history, Part Ill discusses three Supreme Court cases that could have resolved the religious liberty versus marriage equality question. Part IV looks ahead and draws analogies to the 1960s religious liberty objections …

(Anti)-Slapp Happy In Federal Court?: The Applicability Of State Anti-Slapp Statutes In Federal Court And The Need For Federal Protection Against Slapps, Caitlin Daday

Catholic University Law Review

In recent years, lawsuits known as Strategic Lawsuits Against Public Participation, or SLAPPs, have become increasingly common. These suits seek to intimidate and punish people for exercising their First Amendment rights. In response to SLAPPs, over half of the states have enacted anti-SLAPP statutes to protect the targets of SLAPPs. They do so by providing a mechanism for the target to dismiss the lawsuit more quickly than they would normally be able to. In federal courts, the question has arisen as to whether anti-SLAPP statutes should be applied in diversity suits given their close alignment to Federal Rules 8, 12, …

A Democratic View Of Public Employee Speech Rights, R. George Wright

Catholic University Law Review

The question of the scope of public employee free speech rights is of obvious importance. Such cases are frequently litigated. The speaker's continuing employment is commonly at stake. The appropriate functioning of the government agency may be at issue as well. But government agencies are intended to operate not only with internal efficiency but with proper accountability to the public. And such accountability requires an appropriate degree of agency openness, transparency, and meaningful disclosure on publicly significant matters. Adequately assuring the democratic accountability of government agencies, it turns out, requires greater protection of public employee speech than is currently available.

Disinfo V. Democracy, Nadine Strossen

Other Publications

Using accusations of ‘disinformation’ to suppress scientific criticism, steer media coverage, and silence political opponents is not part of the operating system of a free society

Does The Ministerial Exception Protect A Minister's Humiliating Comments?, Yiting Feng

SLU Law Journal Online

The Seventh Circuit case of Demkovich v. St. Andrew the Apostle Parish applied the ministerial exception to bar a fired minister’s claim of a hostile work environment. In this article, Yiting Feng lists the reason why she disagrees with the majority opinion and leans towards the dissenting opinion.

"Recognized Stature" Revisited: Could "Community Standards" Rescue Restrictive "Recognized Stature" Definition In Castillo V. G&M Realty L.P.?, Caitlin M. Mcgrail

Villanova Law Review (1956 - )

No abstract provided.