First Amendment Commons^™

Review Law: New York Defamation Applied To Online Consumer Reviews, Ian Lewis-Slammon

St. John's Law Review

(Excerpt)

In early July 2017, Michelle Levine booked her first and only appointment with gynecologist Dr. Joon Song for an annual exam. Ms. Levine had a dissatisfying experience with the office. She claims that Dr. Song’s office did not follow up with her for almost a month, and that when she called to ask about the results of a blood test, Dr. Song’s staff falsely informed her that she tested positive for herpes. To top it off, Ms. Levine alleges that the office overcharged her. Following this experience, Ms. Levine did what many others do when dissatisfied with a product …

Guess Who? Reducing The Role Of Juries In Determining Libel Plaintiffs' Identities, Nat Stern

St. John's Law Review

(Excerpt)

During the nomination hearings for now-Justice Brett Kavanaugh, considerable attention was drawn to a high school friend’s memoir featuring a fellow student named “Bart O’Kavanaugh.” By the memoir’s account, “O’Kavanaugh” in one episode blacked out—apparently from alcohol—on his return from a party. For any number of possible reasons, Justice Kavanaugh did not bring a libel suit against the book’s author. If he had, however, a crucial threshold issue—preceding questions of falsity and intent—would have been whether the memoir’s portrayal of “O’Kavanaugh” amounted to a false depiction of Kavanaugh himself. In the parlance of defamation doctrine, Justice Kavanaugh would have …

Anti-Slapp Coverage And The First Amendment: Hurdles To Defamation Suits In Political Campaigns, David L. Hudson Jr.

Law Faculty Scholarship

Defamation cases often arise out of intemperate or offensive statements made in political campaigns. These comments may refer to a candidate’s criminal history, familial conduct, or other matters. Whatever the subject, emotions undoubtedly run high during hotly contested campaigns. However, First Amendment protection is at its zenith when speakers engage in political speech, and speech about political candidates is inherently political speech. Thus, defamation suits arising out of political campaigns face significant hurdles, including (1) anti-SLAPP statutes and a greater public awareness of SLAPP suits; (2) a history and tradition of mudslinging and enhanced protection of political speech during political …

Essay: Cyberbullying And Freedom Of Speech, David L. Hudson Jr.

Law Faculty Scholarship

Part I of this essay examines state cyberbullying laws. These laws vary a lot in terms of language and coverage but this part attempts to group these different state laws into different categories. This section categorizes cyberbullying laws into two main categories—(1) those that treat cyberbullying as a crime and (2) those that address cyberbullying as a violation of a school’s code of conduct. Part II of this essay then addresses court decisions that deal with cyberbullying. Once again, this essay examines the topic from both the perspective of (1) criminal law decisions and (2) school law decisions.

Essay: Understanding First Amendment Freedoms Through The Remarkable Life Of "The Greatest" --Muhammad Ali, David L. Hudson Jr.

Law Faculty Scholarship

Muhammad Ali represents much more than a great sports figure and one of the greatest fighters of all time.He is also the epitome of the citizen protected by the First Amendment– a man who paid dearly for his religious convictions and provocative speech, but found a defense in the amendment’s forty-five words. An examination of First Amendment freedoms through the prism of Ali can teach us much about the fragility of the amendment but also the strength that we all can find in it. The First Amendment provides: “Congress shall make no law respecting an establishment of religion or prohibiting …

The Use Of Digital Millenium Copyright Act To Stifle Speech Through Non-Copyright Related Takedowns, Miller Freeman

Seattle Journal of Technology, Environmental, & Innovation Law

In 1998, Congress passed the Digital Millennium Copyright Act. This law provided new methods of protecting copyright in online media. These protections shift the normal judicial process that would stop the publication of infringing materials to private actors: the online platforms. As a result, online platforms receive notices of infringement and issue takedowns of allegedly copyrighted works without the judicial process which normally considers the purpose of the original notice of infringement. In at least one case, discussed in detail below, this has resulted in a notice and takedown against an individual for reasons not related to the purpose of …

Contracting Away The First Amendment?: When Courts Should Intervene In Nondisclosure Agreements, Abigail Stephens

William & Mary Bill of Rights Journal

No abstract provided.

Sex-Segregation, Economic Opportunity, And Roberts V. U.S. Jaycees, Elizabeth Sepper

William & Mary Bill of Rights Journal

No abstract provided.

Constitutional Conflict And Sensitive Places, Darrell A. H. Miller

William & Mary Bill of Rights Journal

No abstract provided.

Political And Non-Political Speech And Guns, Gregory P. Magarian

William & Mary Bill of Rights Journal

No abstract provided.

The Deliberative-Privacy Principle: Abortion, Free Speech, And Religious Freedom, B. Jessie Hill

William & Mary Bill of Rights Journal

No abstract provided.

Doctrinal Dynamism, Borrowing, And The Relationship Between Rules And Rights, Joseph Blocher, Luke Morgan

William & Mary Bill of Rights Journal

The study of “Rights Dynamism,” exemplified in Timothy Zick’s new book on the First Amendment’s relationship with the rest of the Bill of Rights, can enrich our understanding of constitutional rights. It also opens a door to another potentially fruitful arena: what we call “Doctrinal Dynamism.” Constitutional rights often interact and generate new meanings and applications by way of importing and exporting one another’s doctrinal rules, even when the rights themselves do not intersect directly in the context of a single case. Focusing on these doctrinal exchanges can illuminate the strengths and weaknesses of various rules, the specific interests underlying …

The Conscience Of The Baker: Religion And Compelled Speech, Ashutosh Bhagwat

William & Mary Bill of Rights Journal

No abstract provided.

Gender-Stereotyping Theory, Freedom Of Expression, And Identity, Carlos A. Ball

William & Mary Bill of Rights Journal

This Article argues that the expressive components of gender-stereotyping theory serve to delink the equality protections afforded by that theory from fixed and predetermined identity categories in helpful and positive ways. Many have viewed American antidiscrimination law as being normatively grounded in the notion that there are certain identities that, because of their stable and immutable characteristics, deserve equality-based protections. Gender-stereotyping theory can help make the normative case for a more pluralistic understanding of equality, one that is grounded in the need to protect the fluid and multiple ways in which gender is performed or expressed rather than focusing, as …

The Corporate Privacy Proxy, Shaakirrah R. Sanders

Cornell Law Review

This Article contributes to the First Amendment corporate privacy debate by identifying the relevance of agriculture security legislation, or ag-gag laws. Ag-gag laws restrict methods used to gather and disseminate information about commercial food cultivation, production, and distribution-potentially creating a "right" to control or privatize nonproprietary information about animal and agribusinesses. Yet, corporate privacy rights are unrecognized as a matter of U.S. constitutional law, which implicates the sufficiency of the justification for ag-gag laws. This Article ponders whether "security" acts as a proxy for an unrecognized right to corporate privacy in the ag-gag context. Part I of this Article surveys …

The Copyright Act’S Mandatory-Deposit Requirement: Unnecessary And Unconstitutional, Drew Thornley

Loyola of Los Angeles Law Review

Many people are unaware of a federal copyright statute that requires owners of material published in the United States to furnish the federal government with two copies of each item published. Section 407(a) of the Copyright Act of 1976 (17 U.S.C. § 407) states that “the owner of copyright or of the exclusive right of publication in a work published in the United States shall deposit, within three months after the date of such publication—(1) two complete copies of the best edition; or (2) if the work is a sound recording, two complete phonorecords of the best edition, together with …

Hot Off The Press: An Argument For A Federal Shield Law Affording A Qualified Evidentiary Privilege To Journalists In Light Of Renewed Concerns About Freedom Of The Press And National Security, Nicole N. Wentworth

Loyola of Los Angeles Law Review

No abstract provided.

Is The Establishment Clause Asymmetrical?, Sam Foer

Senior Honors Projects

Through numerous Establishment Clause cases, the Supreme Court has concluded that when public educators promote or denigrate religious views in the K-12 classroom, they violate the First Amendment. The Court has found that the protection of ‘freedom of conscience’ is embedded in the purpose of the Establishment Clause, which applies most strictly to the public school setting. This is because the sphere of conscience is most vulnerable to invasion in developing minds, and children are in a captive environment at school - they cannot escape from State instruction. Thus, states, school systems, and teachers who impose their religious beliefs onto …

A More Perfect Pickering Test: Janus V. Afscme Council 31 And The Problem Of Public Employee Speech, Alexandra J. Gilewicz

University of Michigan Journal of Law Reform

In June 2018, the Supreme Court issued its long-awaited—and, for the American labor movement, long-feared—decision in Janus v. AFSCME Council 31. The decision is expected to have a major impact on public sector employee union membership, but could have further impact on public employees’ speech rights in the workplace. Writing for the majority, Justice Samuel Alito’s broad interpretation of whether work-related speech constitutes a “matter of public concern” may have opened the floodgates to substantially more litigation by employees asserting that their employers have violated their First Amendment rights. Claims that would have previously been unequivocally foreclosed may now …

Private Schools' Role And Rights In Setting Vaccination Policy: A Constitutional And Statutory Puzzle, Hillel Y. Levin

William & Mary Law Review

Measles and other vaccine-preventable childhood diseases are making a comeback, as a growing number of parents are electing not to vaccinate their children. May private schools refuse admission to these students? This deceptively simple question raises complex issues of First Amendment law and statutory interpretation, and it also has implications for other current hot-button issues in constitutional law, including whether private schools may discriminate against LGBTQ students. This Article is the first to address the issue of private schools’ rights to exclude unvaccinated children. It finds that the answer is “it depends.” It also offers a model law that states …