First Amendment Commons^™

Visions Of The Republic Symposium: School Funding Under The Neutrality Principle: Notes On A Post-Espinoza Future, Aaron Saiger

Fordham Law Review Online

Based on current conditions, and for a variety of reasons, the best guess—and it is only a guess—is that common schooling might be forced to give way before a rigorously read First Amendment duty of the state to avoid preferring irreligion over religion. This need not signal the end of the Progressive educational vision, however. It will be possible for those committed to the values inherent in common schooling to regroup, reconsidering some of their positions in order to advance their core commitments.

Invasion Of The Content-Neutrality Rule, William D. Araiza

BYU Law Review

No abstract provided.

Pandora's Cake, Mark R. Killenbeck

Arkansas Law Review

Most of us are familiar with the spectre of Pandora's Box, the "present which seems valuable, but which in reality is a curse." Robert Graves described Pandora as "the most beautiful [woman] ever created.", She was sent by Zeus as a gift to Epimetheus, who initially "respectfully" declined to marry her. But chastened by the fate of his brother Prometheus, he changed his mind and wed a women who was "as foolish, mischievous, and idle as she was beautiful.", She opened a jar that she and her husband had been "warned. .. to keep closed in which" Prometheus had "imprison[ed …

How New York Anti-Slapp Law Could Survive The 2nd Circ., Daniel Novack, Christina Lee

Popular Media

On July 22, New York's Legislature passed sweeping reform to the state's anti-SLAPP law, intended to broaden the law and enhance protections for media and other First Amendment activity. The updated law awaits Gov. Andrew Cuomo's signature, but is sure to be tested by the U.S. Court of Appeals for the Second Circuit's recent decision in La Liberte v. Reid.

Democracy, Deference, And Compromise: Understanding And Reforming Campaign Finance Jurisprudence, Scott P. Bloomberg

Loyola of Los Angeles Law Review

In Citizens United, the Supreme Court interpreted the government’s interest in preventing corruption as being limited to preventing quid pro quo— cash-for-votes—corruption. This narrow interpretation drastically circumscribed legislatures’ abilities to regulate the financing of elections, in turn prompting scholars to propose a number of reforms for broadening the government interest in campaign finance cases. These reforms include urging the Court to recognize a new government interest such as political equality, to adopt a broader understanding of corruption, and to be more deferential to legislatures in defining corruption.

Building upon that body of scholarship, this Article begins with a descriptive …

Competing Free Speech Rights: Evaluating Compelled Disclosures On Food Packaging In A Way That Reflects Scientific Realities - Or A Lack Thereof, Rakelle Shapiro

Cardozo Law Review

No abstract provided.

What The Lawyers Who Sue The Press Think Of The Press, And Media Law, Jonathan Peters

Popular Media

“HAVE A SCORE TO SETTLE WITH THE PRESS? Charles Harder, the media lawyer who ground Gawker.com to dust, is your man.”

That was the subhead of a GQ profile of Harder published in 2016, after he won a $140 million jury verdict for Hulk Hogan against Gawker (later settled for $31 million). The profile went on to say that Harder had established himself “as perhaps the greatest threat in the United States to journalists, the First Amendment, and the very notion of a free press.”

Whether or not that’s true, Harder has said it would be “awesome” if the Gawker …

You Must Present A Valid Form Of (Gender) Identification: The Due Process And First Amendment Implications Of Tennessee's Birth Certificate Law, Brooke Lowell

William & Mary Bill of Rights Journal

This Note analyzes Tennessee’s prohibition against transgender people changing their gender markers on their birth certificates under both Fourteenth Amendment Substantive Due Process and the First Amendment. Part I discusses the relevant terms related to transgender rights, the importance of birth certificates, and the relevant laws at play. Part II focuses on the Substantive Due Process argument. It lays out the foundational cases and then applies them to analyze whether gender identity is a fundamental right. Part III explores the First Amendment analysis, focusing on gender as speech. It also discusses how government speech affects the analysis. The Note concludes …

Secondary Meaning And Religion: An Analysis Of Religious Symbols In The Courts, Eric D. Yordy, Elizabeth Brown

William & Mary Bill of Rights Journal

In the Supreme Court’s most recent freedom of religion case, Justice Alito and Justice Ginsburg disagreed about the actual and potential meaning of the Latin cross, a traditional symbol of Christianity in which the upright leg of the cross is longer than the horizontal arms of the cross. Justice Alito stated that the Latin cross, while not losing its religious meaning, has acquired what might be called a “secondary meaning” as a symbol of World War I. He couched his analysis in language suggesting that a religious symbol’s meaning may depend on its circumstances. While he also denied that he …

De Libero Conscientia: Martin Luther’S Rediscovery Of Liberty Of Conscience And Its Synthesis Of The Ancients And The Influence Of The Moderns, Bessie S. Blackburn

Liberty University Journal of Statesmanship & Public Policy

One fateful day on March 26, 1521, a lowly Augustinian monk was cited to appear before the Diet of Worms.[1] His habit trailed behind him as he braced for the questioning. He was firm, yet troubled. He boldly proclaimed: “If I am not convinced by proofs from Scripture, or clear theological reasons, I remain convinced by the passages which I have quoted from Scripture, and my conscience is held captive by the Word of God. I cannot and will not retract, for it is neither prudent nor right to go against one’s conscience. So help me God, …

The First Amendment And The Roots Of Lgbt Rights Law: Censorship In The Early Homophile Era, 1958-1962, Jason M. Shepard

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

Long before substantive due process and equal protection extended constitutional rights to homosexuals under the Fourteenth Amendment, in three landmark decisions by the Supreme Court of the United States, First Amendment law was both a weapon and shield in the expansion of LGBT rights. This Article examines constitutional law and “gaylaw” from the perspective of its beginning, through case studies of One, Inc. v. Olesen (1958), Sunshine Book Co. v. Summerfield (1958), and Manual Enterprises, Inc. v. Day (1962). In protecting free press rights of sexual minorities to use the U.S. mail for mass communications, the Warren Court’s liberalization of …

Brief Of Religious Liberty Scholars, Employment Law Scholars, And Karamah: Muslim Women Lawyers For Human Rights As Amici Curiae In Support Of Petitioner, Douglas Laycock, Richard W. Garnett

Court Briefs

No. 19-1388
Jason Small v. Memphis Light, Gas & Water

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

From the Summary of Argument

This case is an ideal vehicle for correcting an error that has undermined protection for religious workers across the country, in defiance of clear statutory text and underlying principles of religious liberty.

Racial Justice Protests & Protestor Rights (July 15, 2020), Timothy Zick, Mikaela Phillips

Racial Justice & Social Reform Speaker Series

No abstract provided.

Unsettled Questions In Student Speech Law, David L. Hudson Jr.

Law Faculty Scholarship

More than fifty years ago, the U.S. Supreme Court famously proclaimed in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” In subsequent decades, the Supreme Court reduced the level of free-speech protections for public school students, but Tinker is still the lodestar decision.

There remain several areas of uncertainty regarding the scope of student (K–12) First Amendment rights. This Article addresses three of those main areas: (1) whether a student’s speech can be limited by the unruly behavior …

No Safe Spaces: A Distorted Image Of A Clear Problem, Michael Conklin

Pepperdine Law Review

This is a critical analysis of the documentary No Safe Spaces. The movie features comedian Adam Carolla and conservative talk show host Dennis Prager. Depending on the source, the movie is either the most necessary and prescient documentary ever or the most harmful. Unfortunately, the polarizing nature of the reviews largely fall along partisan political lines, with conservatives praising the movie and liberals criticizing it. This partisan result could have likely been minimized if the movie communicated a more bipartisan tone. To further complicate things, the movie does not provide a clear thesis of what it is trying to promote. …

The First Amendment And Data Privacy: Securing Data Privacy Laws That Withstand Constitutional Muster, Kathryn Peyton

Pepperdine Law Review

Given the growing ubiquity of digital technology’s presence in people’s lives today, it is becoming increasingly more necessary to secure data privacy protections. People interact with technology constantly, ranging from when engaging in business activates, such as corresponding through emails or doing research online, to more innocuous activities like driving, shopping, or talking with friends and family. The advances in technology have made possible the creation of digital trails whenever someone interacts with such technology. Companies aggregate data from data trails and use predictive analytics to create detailed profiles about citizen-consumers. This information is typically used for profit generating purposes. …

Janus And The Future Of Collective Bargaining: Rhetorically Predicting A First Amendment Right To Negotiation, Thomas J. Freeman, Aaron Mckain, Destynie J.L. Sewell

William & Mary Business Law Review

The importance of the U.S. Supreme Court ruling in Janus v. American Federation of State, County, and Municipal Employees has been widely recognized for its effect on reducing the power and influence of public unions. A close reading of the majority opinion provides a clue that compulsory collective bargaining itself may be settling into the court’s crosshairs. Collective bargaining is an important tool, by which labor can reduce the often-inherent power imbalance it has with ownership and management. Yet as this Article outlines, the interests of individual workers can often be at odds with those other workers workers, particularly those …

Measuring Trademark Dilution By Tarnishment, Suneal Bedi, David Reibstein

Indiana Law Journal

The law of trademark tarnishment—a type of trademark dilution—is in disarray. The

basic definition is deceptively simple. Trademark tarnishment occurs when a junior

mark harms the reputation of a substantially similar existing senior trademark by

associating itself with something perverse or deviant. However, it turns out that

Congress and the courts disagree over the prima facie evidence necessary to prove

its existence. The problem is that federal law and related legal principles are simply

ill-equipped to adequately analyze this unique market-driven doctrine. To make

matters worse, legal scholars cannot even agree on whether trademark tarnishment

can empirically exist in the …

Sharenting And The (Potential) Right To Be Forgotten, Keltie Haley

Indiana Law Journal

Part I of this Note serves as an evaluation of parental use of social media and

further seeks to draw attention to the social and developmental impact parental

oversharing can have on children. Part II examines the tension between parents’

constitutional rights to direct the upbringing of their children, as well as their First

Amendment interest in online expression, and their children’s interest in personal

data security and privacy. Part III provides an overview of the European Union’s

right to be forgotten framework in the sharenting context and considers the

plausibility of implementing such a framework in the United States. …

Policing The Wombs Of The World's Women: The Mexico City Policy, Samantha Lalisan

Indiana Law Journal

This Comment argues that the Policy should be repealed because it undermines

firmly held First Amendment values and would be considered unconstitutional if

applied to domestic nongovernmental organizations (DNGOs). It proceeds in four

parts. Part I describes the inception of the Policy and contextualizes it among other

antiabortion policies that resulted as a backlash to the U.S. Supreme Court’s

landmark decision in Roe v. Wade. Part II explains the Policy’s actual effect on

FNGOs, particularly focusing on organizations based in Nepal and Peru, and argues

that the Policy undermines democratic processes abroad and fails to achieve its stated

objective: reducing …