First Amendment Commons^™

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

Utah Law Faculty Scholarship

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 legislators’ and the President’s 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 paper presents the findings of the first comprehensive empirical …

Free Speech In The Balance: Judicial Sanctions And Frivolous Slapp Suits, Shine Sean Tu, Nicholas F. Stump

Loyola of Los Angeles Law Review

The balance between free speech and access to courts in defamation tort actions is fraught with public policy concerns. On one hand, plaintiffs should have unencumbered access to the justice system to remedy real harms brought upon them by defamatory statements. However, defamation suits should not be wielded to suppress the constitutionally protected free speech rights of news organizations and of concerned citizens that are vital for well-functioning democracies. This Article argues for a new type of remedy, namely enhanced Rule 11 attorney sanctions, such as suspension or debarment, that should be available to defendants of defamation suits brought by …

Sex Offenders And The Free Exercise Of Religion, Christopher C. Lund

Notre Dame Law Review

In a variety of ways, sex offenders in the United States find themselves in a difficult position. One of the lesser-known ways relates to the free exercise of religion. Sometimes by categorical statute, and sometimes by individualized parole, probation, or supervised-release condition, sex offenders can find themselves legally barred from places where children are present (or likely to be present). Because children are usually present at religious services, sex offenders can find themselves unable to attend them altogether. And this hardship has a bit of irony in it too. Back in prison, sex offenders could worship freely with others; now …

Protesting In America, Timothy Zick

Popular Media

No abstract provided.

Religious Exemptions As Rational Social Policy, Justin W. Aimonetti, M. Christian Talley

University of Richmond Law Review

In its 1963 decision Sherbert v. Verner, the Supreme Court interpreted the Free Exercise Clause to permit religious exemptions from general laws that incidentally burdened religious practice. Sherbert, in theory, provided stringent protections for religious freedom. But those protections came at a price. Religious adherents could secure exemptions even if they had no evidence the laws they challenged unfairly targeted their religious conduct. And they could thereby undermine the policy objectives those laws sought to achieve. Because of such policy concerns, the Court progressively restricted the availability of religious exemptions. In its 1990 decision Employment Division v. Smith …

Schools: A Place Where Freedom Of Speech Ceases To Exist, Samira Hossain

Emerging Writers

This short essay argues that public schools should not limit students' freedom of speech.

Censorship Of Rock And Roll, Meaghan Curtin

Emerging Writers

This short essay explores the history of censorship of rock and roll music.

Twitter, Parody, And The First Amendment: A Contextual Approach To Twitter Parody Defamation, Emma Lux

Loyola of Los Angeles Entertainment Law Review

Twitter parody defamation cases raise novel questions about how to translate defamation law to Twitter’s interactive platform. What constitutes a “reasonable” reader on Twitter? What content is relevant to interpreting the meaning of a tweet from a parody account? The answers to these questions will have far-reaching effects for online speech. Parody authors are already vulnerable to defamation liability, particularly on Twitter where their statements often appear with very little context. Twitter parody accounts, which produce important political and social commentary, risk defamation lawsuits, as well as, in some states, criminal liability for online impersonation. This Note proposes a methodology …

John Stuart Mill’S Harm Principle And Free Speech: Expanding The Notion Of Harm, Melina Constantine Bell

Scholarly Articles

This article advocates employing John Stuart Mill’s harm principle to set the boundary for unregulated free speech, and his Greatest Happiness Principle to regulate speech outside that boundary because it threatens unconsented-to harm. Supplementing the harm principle with an offense principle is unnecessary and undesirable if our conception of harm integrates recent empirical evidence unavailable to Mill. For example, current research uncovers the tangible harms individuals suffer directly from bigoted speech, as well as the indirect harms generated by the systemic oppression and epistemic injustice that bigoted speech constructs and reinforces. Using Mill’s ethical framework with an updated notion of …

The New Editors: Refining First Amendment Protections For Internet Platforms, Mailyn Fidler

Law Faculty Scholarship

This Article envisions what it would look like to tailor the First Amendment editorial privilege to the multifaceted nature of the internet, just as courts have done with media in the offline world. It reviews the law of editorial judgment offline, where protections for editorial judgment are strong but not absolute, and its nascent application online. It then analyzes whether the diversity of internet platforms and their functions alter how the Constitution should be applied in this new setting. First Amendment editorial privilege, as applied to internet platforms, is often treated by courts and platforms themselves as monolithic and equally …

Facebook And Politicians’ Speech, Sarah C. Haan

Scholarly Articles

In his Article Facebook’s Speech Code and Policies: How They Suppress Speech and Distort Democratic Deliberation, Professor Joseph Thai argues that Facebook skewed public debate with a policy that exempted politicians from its content-based rules. This Response updates the reader on Facebook’s retreat from this policy and identifies some preliminary lessons from it. Between May 2020 and January 2021, Facebook moved away from its “light touch” regulation of politicians’ speech by employing strategies like labeling and down-ranking—and, eventually, removal of content. After the January 6, 2021 insurrection at the U.S. Capitol, Facebook de-platformed President Trump altogether, putting a final …

Sex Offenders And The Free Exercise Of Religion, Christopher C. Lund

Law Faculty Research Publications

No abstract provided.

Lawyer Speech, Investigative Deception, And The First Amendment, Rebecca Aviel, Alan K. Chen, False

Sturm College of Law: Faculty Scholarship

It seems unassailable that attorneys must refrain from deception or dishonesty of any kind as a condition of professional licensure. But this principle, one of the foundational norms of the legal profession, may well infringe upon First Amendment rights, at least in certain applications. In this Article, we confront the tension between an attorney’s expressive and associational rights and her professional duty of absolute honesty. We explain that the latter must yield to the former in the unique circumstances presented by undercover investigations, where attorneys work side-by-side with journalists, civil rights testers, political activists, and others who seek to expose …

Free Speech & Abortion: The First Amendment Case Against Compelled Motherhood, Raymond Shih Ray Ku

Faculty Publications

The most important lessons are taught by example. Children learn the fundamental values that guide them throughout their lives from the examples set by their parents, especially their mothers. Even before they understand a language, they learn by observing and imitating the actions of their parents. For almost fifty years Roe v Wade guaranteed pregnant women the freedom to determine whether to carry their pregnancy to term. The right to obtain a safe abortion prior to viability is the most significant and controversial aspect of this freedom. The Supreme Court is now poised to overturn what it previously described as …

Regulating The Political Wild West: State Efforts To Disclose Sources Of Online Political Advertising, Victoria Smith Ekstrand, Ashley Fox

Journal of Legislation

The problem of disinformation in online political advertising is growing, with ongoing and potential threats to campaigns coming from both within and outside the United States. Most scholarship in this area has focused on either disclosures and disclaimers under the proposed Honest Ads Act or other fixes aimed at a gridlocked Federal Election Commission (“FEC”). With federal reform at a standstill, states have jumped into the void. Between the 2016 presidential election and early 2020, eight states passed legislation to expressly regulate online political advertising for state candidates and ballot measures, including Maryland, whose state law was declared unconstitutional as …

Little Sisters Of The Poor V. Pennsylvania: The Not So Little Effect Of Interfering With The Aca's Contraceptive Mandate, Sabrina Rubis

Women, Leadership & Equality

No abstract provided.

Cheap Speech Creation, 54 U.C. Davis L. Rev. 2405 (2021), Alan K. Chen

Sturm College of Law: Faculty Scholarship

As we look back on Professor Eugene Volokh’s predictive article about cheap speech, it is worth examining what other elements of the speech and media landscape, as well as the supporting legal infrastructure, have changed over that same period. This Essay focuses on the substantial reduction in the cost of speech creation, as opposed to distribution. After briefly discussing the accuracy of many of Volokh’s most important predictions, it examines innovative technological changes that have enabled a larger number and more diverse range of people to engage in speech creation because of the rapidly shrinking costs of doing so by …

Freedom Of The Press In U.S. Protests, Abigail Rosenthal

Human Rights Brief

No abstract provided.

Perverted Or Protected?: The Battle Between Morphed Child Pornography And The First Amendment, 54 Uic L. Rev. 967 (2021), Ella Smith

UIC Law Review

No abstract provided.

Hate Speech On Social Media: Content Moderation In Context, Richard A. Wilson, Molly Land

Connecticut Law Review

For all practical purposes, the policy of social media companies to suppress hate speech on their platforms means that the longstanding debate in the United States about whether to limit hate speech in the public square has been resolved in favor of vigorous regulation. Nonetheless, revisiting these debates provides insights essential for developing more empirically-based and narrowly tailored policies regarding online hate.

First, a central issue in the hate speech debate is the extent to which hate speech contributes to violence. Those in favor of more robust regulation claim a connection to violence, while others dismiss these arguments as tenuous. …