First Amendment Commons^™

The Comstock Act: Will The First Amendment Finally Bury This Zombie Law’S Speech Restrictions?, Morgan Garces

University of Miami Law Review

The Comstock Act of 1873 is a federal anti-obscenity law that, along with lascivious and filthy literature, explicitly restricts the sending of anything that can be used to procure an abortion—including writing. However, since the decision of Roe v. Wade, the law’s abortion-speech provisions had been considered long-dead—although never officially being overturned. Now that Dobbs v. Jackson Women’s Health Organization has rescinded the right to an abortion, the law appears to be reaching out from its grave. Anti-abortion activists are currently looking to the Comstock Act as a federal abortion ban already on the books because of its ban …

Volume 14 Masthead

American Indian Law Journal

No abstract provided.

Table Of Contents

American Indian Law Journal

No abstract provided.

A Clash Between Rfra And The Department Of Homeland Security: Does A Rescission Of The Sensitive Locations Policy Substantially Burden The Free Exercise Of Religion?, Mathew Pelham

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Throwing The Supreme Court/Free Speech A Bone, Leah Litman

Reviews

Too often, our “free speech culture” gloms together private censorship and state-sponsored censorship. These things are not the same. Only one of them is prohibited by the First Amendment, and failing to differentiate between the two runs the risk of collapsing the distinction between censorship, on one hand, and on the other, private citizens exercising their own First Amendment rights (sometimes by choosing who to associate with or who to support).

Mitigating Data Privacy Risks In Political Micro-Targeting Through Gdpr-Compliant Federated Learning: Lessons From The Cambridge Analytica Controversy, Jingfan (Serena) Xiao

Marquette Intellectual Property & Innovation Law Review

Political micro-targeting employs granular data analytics to deliver hyper- personalized political messaging, raising fundamental tensions between electoral strategy, data privacy, and democratic accountability. The Facebook- Cambridge Analytica scandal exposed significant gaps in pre-GDPR data protection laws, highlighting the risks of unchecked algorithmic profiling in shaping voter behavior. However, as micro-targeting evolves under more sophisticated AI-driven systems, a pressing question emerges: should AI- generated political messaging qualify for First Amendment protection? This Article introduces the concept of speech certainty, arguing that speech must be intentional and cognitively understood by the speaker at the moment of articulation to warrant constitutional protection. Under …

Platforms, Power, And The Public Square: The Debate On Editorial Rights In The Age Of Social Media, Donovan Smith

St. Thomas Law Review

Social media has taken a hold on society and continues to tighten its grip; its influence is undeniable. Today, billions of people all over the world use social media for news, weather updates, communication, commerce, and self-expression every day. With the increasing dependence on social media, it is essential that the civil liberties and fundamental rights of social media users remain protected. Over the last decade, censorship of users and content on social media has become a key political talking point, especially when coupled with concurring events like elections and global pandemics. But is any of this censorship even allowed? …

When The “Public Interest” Violates The First Amendment: Jimmy Kimmel And Fcc Chair Brendan Carr, Joel Timmer

Fordham Intellectual Property, Media and Entertainment Law Journal

Following the assassination of conservative political activist Charlie Kirk, comments made by late-night ABC host Jimmy Kimmel sparked controversy after some interpreted his remarks as implying conservative responsibility for the crime. The backlash intensified when Federal Communications Commission Chair Brendan Carr publicly suggested that Kimmel’s statements were misleading and potentially inconsistent with FCC policy, warning that broadcast stations airing the program should address the matter or risk regulatory consequences, including fines or license revocation. Shortly thereafter, major broadcast groups suspended the program, followed by ABC’s temporary suspension of the show. These events raised serious concerns about whether the FCC Chair’s …

First Amendment Protection For Unlicensed Wellness Coaches, Barbara Zabawa

Faculty Works

This article examines the constitutional implications of state efforts to license unregulated wellness practitioners, particularly wellness coaches. As occupational licensing expands, wellness services—ranging from nutrition counseling and life coaching to mindfulness and holistic practices—face increasing scrutiny. The paper argues that most wellness coaching involves speech rather than conduct and therefore qualifies for First Amendment protection. Drawing on Supreme Court and lower court precedent, it distinguishes between professional judgment that may justify state regulation and speech-based coaching practices that pose minimal risk of harm. The analysis situates wellness coaching within broader debates over professional regulation, consumer empowerment, and the marketplace of …

Reading Wars, Don Herzog

Books

Once again, we’re fighting wars over reading. Who gets to read? What do they get to read? These days, the right is obsessed with removing LGBTQ books from school and public library shelves and ensuring students read only the Correct version of American history. The left is obsessed with eradicating right-wing fantasies, not to mention outright lies, from the internet, and with airbrushing or even purging racist texts. You don’t have to stoop to whataboutery to notice a suspicious resemblance. But once again is wrong. We’ve always fought these wars, even if the enemies come and go. In this book, …

The Unconstitutional Attempt To Criminalize Naming Ice Agents, Noah C. Chauvin

Faculty Articles

Some members of Congress propose to make it a crime to publish the name of a federal official with the intent of obstructing that official’s law or immigration enforcement duties. This Essay considers whether the lawmakers’ bill, the Protecting Law Enforcement from Doxxing Act, is consistent with the First Amendment. It is not.

Let Them Hear It: Peaceful Protests Near The Homes Of Supreme Court Justices, Srikanth Reddy

Lewis & Clark Law Review

All of us—not just attorneys and politicians—need to be more critical and skeptical of the Supreme Court. Criticism by ordinary people is good and appropriate, even if it hurts the Justices’ feelings. That includes public protests. When a case matters enough to them, members of the public can and should criticize the Court and its Justices, including by peacefully gathering and protesting near a Justice’s home, or when a Justice appears out in the world.

Conversational Ai And Human-Centered First Amendment, Inyoung Cheong

Michigan Technology Law Review

Human-centered artificial intelligence (AI) is premised on the idea that humans must remain the ultimate locus of agency in technological systems. First Amendment jurisprudence has displaced this commitment. By extending speech protection to algorithmic architectures, the judiciary has forged a doctrinal shield that insulates corporate actors from the consequences of their products. Conversational AI deepens this crisis through intimate incursions into the epistemic and emotional registers of the self. Emerging approaches that anchor First Amendment coverage to the controllability or traceability of AI outputs offer no stable solution. Policy-level design choices such as safety guardrails and alignment processes can readily …

Tiktok, The First Amendment, And Regulating Speech On The Internet, Marriah Binek

Roger Williams University Law Review

No abstract provided.

The Ten Commandments, Stripped Of Slavery, Exodus & Jubilee, Christopher D. Hampson

UF Law Faculty Publications

The Ten Commandments are back on public classroom walls and in federal court, after several states passed new laws requiring school districts to post the text. As attorneys, judges, and amici debate whether First Amendment law has changed enough since Stone v. Graham in 1980 to allow the posting of the ancient religious text, this Essay comes at the situation from an entirely different angle. The precise text proposed by the states might be a good example of “ceremonial deism,” but it removes biblical law from biblical narrative – and, in doing so, unsets the Ten Commandments from their original …

Son Of Orwell, Chesterton, And Mill, Stephen B. Presser

Touro Law Review

No abstract provided.

A New Frontier For An International Right With No Frontiers: Freedom Of Expression & Generative Ai Outputs, Evelyn Aswad

Faculty Articles

As people debate whether the First Amendment protects generative AI outputs, we should also reflect on what the global freedom of expression standard has to say on the matter. This standard will affect discussions around national and regional regulatory approaches to generative AI throughout the world. In addition, global corporate responsibility standards call on companies to respect international human rights in their operations, which may also impact how businesses that provide generative AI services approach their activities.

I argue that the global free expression standard protects the rights of individuals to seek and receive information of any kind, including gen …

Body Of Law: When Content Moderation Becomes Gender Oppression And Triggers Legal Consequences, Sarah E. Bahrenburg

Journal of Race, Gender, and Ethnicity

For as long as the Internet has existed, it has been used as a tool for good and as a tool for malice. However, there is a discrepancy between punishment for those maliciously invading individuals’ personal space and those posting consensual images of themselves for art or entertainment purposes (not to mention for work). Over the years, while attempting to create safe spaces for people to express themselves, the Internet has also created barriers to individuals doing just that. The Internet and the laws surrounding exposure therein have become increasingly misogynistic and anti-women’s sexual freedom. The laws encompassing safety on …

Copyright Protection Or Media Suppression? The Digital Millennium Copyright Act's Impact On News Media And Journalism, Alenis Olivera

FIU Law Review

When copyright law collides with press freedom, which one survives the takedown? The Digital Millennium Copyright Act (DMCA) was once hailed as a necessary adaptation to copyright protection issues in the digital age. But now, nearly three decades since its incorporation into the Copyright Act, the DMCA has continued to cast a shadow over the journalism industry. The DMCA’s notice-and-takedown system, originally designed to protect copyright owners by allowing for quick removal of infringing content, has become a mechanism that risks suppressing lawful reporting and undermines the First Amendment’s guarantee of a free press. This Comment will explore how the …

Due Process And Press Credentialing, Nicole J. Ligon

Scholarly Works

Government-issued press credentials increasingly determine which journalists may access public officials, attend government events, and report from restricted spaces. Yet the legal frameworks governing these credentials remain underdeveloped, discretionary, and structurally vulnerable to abuse. This Article examines the constitutional dimensions of press credentialing through the lens of procedural due process. It is the first law review article to consider whether press credentials give rise to protected liberty or property interests under the Fifth and Fourteenth Amendments, such that denial or revocation requires due process.

Drawing on analogies to professional licensing regimes and recent litigation involving credentialing disputes, this Article maps …