First Amendment Commons^™

Extrajudicial Statements And Prejudice In The Digital Age: Creating Factors To Preserve The Balance Between Attorney And State Interests In Trial Litigation, Emily R. O'Hara

William & Mary Law Review

As social media’s prevalence and usage grows within the United States, people and organizations capitalize on new media to send news to users. In 2017, 67 percent of people consumed their news from social media websites, and the rate continues to grow. Local and national news sources bring newsworthy stories to active users on social media sites such as Twitter, where users can communicate and interact with one another to promote ideas and spread information. These online accounts cover not only mundane, day-to-day news, but also salacious stories relating to civil and criminal lawsuits.

In April 2018, attorney Neal Katyal …

Kill Me Through The Phone: The Legality Of Encouraging Suicide In An Increasingly Digital World, Sierra Taylor

BYU Law Review

No abstract provided.

Who Tells Your Story: The Legality Of And Shift In Racial Preferences Within Casting Practices, Nicole Ligon

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

No abstract provided.

The Effects Of Rejecting Mind-Body Dualism On U.S. Law, Matthew W. Lawrence

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

While neuroscience continues to make it clearer that mental processes, effects, disorders, and states can be described through physical observation, the metaphysical notion of mind-body dualism still pervades the U.S. legal system. In this Article, I discuss many areas where mind-body dualism holds fast, and others where mind-body dualism has already been explicitly or impliedly rejected. I argue that in most areas, the dualist distinction would have little to no impact on the values the law already describes. However, I argue that rejecting dualism would have an impact on fundamental rights analyses. First Amendment free speech rights, fundamental rights, and …

Free-Speech Formalism And Social Injustice, Stephen M. Feldman

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

The Roberts Court has shifted constitutional law in a formalist direction. This Essay explains the Court’s formalism and its causes and consequences in First Amendment free-expression cases. The thesis is that the current conservative justices’ reliance on formalism intertwines with their attitudes toward public and private spheres of activity. Their attitudes toward the public-private dichotomy are, in turn, shaped by their political ideologies as well as by the contemporary practices of democratic government, which have shifted significantly over American history. Formalism contains an inherent political tilt favoring those who already wield power in the private sphere. Formalism favors the wealthy …

Stripped: Speech, Sex, Race, And Secondary Effects, Lisa Crooms-Robinson

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

No abstract provided.

Introduction, Dania Matos

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

No abstract provided.

Testing The First Amendment Validity Of Laws Banning Sexual Orientation Change Efforts On Minors: What Level Of Scrutiny Applies After Becerra And Does A Proportionality Approach Provide A Solution?, Clay Calvert

Pepperdine Law Review

This Article examines the standard of scrutiny courts should apply when testing the validity of laws banning speech-based sexual orientation change efforts (SOCE) against First Amendment challenges. Justice Clarence Thomas’s 2018 opinion for a five-justice conservative majority of the United States Supreme Court in National Institute of Family and Life Advocates v. Becerra casts considerable doubt on whether a level of inquiry less stringent than strict scrutiny applies. The article analyzes how lower courts after Becerra that have reviewed anti-SOCE laws disagree on the issue. And yet, as the Article explains, the Supreme Court refuses to clarify the muddle. First, …

Ministries Of Truth: Free Speech And The Tech Giants, Clayton Calvin

The Journal of Business, Entrepreneurship & the Law

As the tech giants’ influence has grown, they have increasingly become arbiters of truth. This comment explores three methods for lessening their authority over digital speech. Antitrust, adjustment of the companies’ “neutral platform” status, and even creative use of First Amendment could each serve its role. At the same time, the First Amendment rights of the companies themselves pose a barrier, justifiably, to each method. To remain true to its founding ideals, America must lessen this private grip on civic discourse without expanding the government’s dominion over it.

"When The Enemy Drew Our Attention": Reconsidering Prior Restraint In The Context Of Dual Use Research Of Concern, Caine Caverly

William & Mary Bill of Rights Journal

Through 2016 and 2017, a team led by Canadian virologist David Evans, and funded by an American pharmaceutical company, attempted to synthesize the previously extinct horsepox virus. After just six months and an expenditure of $100,000, the research team was able to successfully construct the virus “using only commercially available information, technology and tools.” In January of 2018, the team went on to publish their information in an American-based journal, PLOS ONE.

The publication was controversial because it included a potential “blueprint” for the synthesis of a genetic strand in the same viral family as the highly lethal, albeit eradicated, …

Safeguarding Fair Use Through First Amendment's Asymmetric Constitutional Fact Review, Amanda Reid

William & Mary Bill of Rights Journal

This Article proposes a novel procedural safeguard for copyright fair use. Two courts recently overturned jury verdicts on the question of fair use. In Corbello v. De Vito, the trial court overturned a jury verdict that had rejected a fair use defense. In Oracle America, Inc. v. Google LLC, the Federal Circuit reversed a jury verdictthat had found in favor of a defendant's fair use defense. While this Article offers a new perspective on these cases, the main goal is more ambitious: a theoretical framework to heighten protection for the free expression interests of users of copyrighted works. Specifically, appellate …

News As Surveillance, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

As inhabitants of the Information Age, we are increasingly aware of the amount and kind of data that technology platforms collect on us. Far less publicized, however, is how much data news organizations collect on us as we read the news online and how they allow third parties to collect that personal data as well. A handful of studies by computer scientists reveal that, as a group, news websites are among the Internet’s worst offenders when it comes to tracking their visitors.

On the one hand, this surveillance is unsurprising. It is capitalism at work. The press’s business model has …

Promoting Journalism As Method, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

The marketplace of ideas has been a centerpiece of free speech jurisprudence for a century. According to the marketplace theory, the vigorous competition of ideas, free from government interference, is the surest path to truth. As our metaphorical marketplace has moved online, the competition has never been so heated. We should be drowning in truth. Yet, in reality, truth has perhaps never been more elusive.

As we struggle to promote democratic debate and surface truth in our chaotic networked public sphere, we are understandably drawn to familiar frames and tools. These include the source of the marketplace of ideas theory—the …

Brief For Child Usa Et Al. As Amici Curiae Supporting Respondents, Our Lady Of Guadalupe School V. Morrissey-Berru, Leslie C. Griffin

Court Briefs

No abstract provided.

Defense Against The Dark Arts: Justice Jackson, Justice Kennedy And The No-Compelled-Speech Doctrine, Richard F. Duncan

Nebraska College of Law: Faculty Publications

According to Justice Anthony M. Kennedy, "The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought. " If this is so, and I believe it is, then the greatest threat to freedom, the darkest of the dark arts of government, occurs when the law compels persons to speak and thus commandeers their intellectual autonomy. Only a vibrant First Amendment is an adequate defense against this darkest of the dark arts.

This Article traces the Supreme Court's First Amendment jurisprudence protecting speaker autonomy and the "right not …

Dialectics Of The Right To Freedom Of Religion Or Belief, Peter G. Danchin

Faculty Scholarship

No abstract provided.

Brief For Child Usa Et Al. As Amici Curiae Supporting Respondents, Little Sisters Of The Poor Saints Peter And Paul Home V. Pennsylvania, Leslie C. Griffin

Court Briefs

No abstract provided.

Bad Actors: Authenticity, Inauthenticity, Speech, And Capitalism, Sarah C. Haan

Scholarly Articles

“Authenticity” has evolved into an important value that guides social media companies’ regulation of online speech. It is enforced through rules and practices that include real-name policies, Terms of Service requiring users to present only accurate information about themselves, community guidelines that prohibit “coordinated inauthentic behavior,” verification practices, product features, and more.

This Article critically examines authenticity regulation by the social media industry, including companies’ claims that authenticity is a moral virtue, an expressive value, and a pragmatic necessity for online communication. It explains how authenticity regulation provides economic value to companies engaged in “information capitalism,” “data capitalism,” and “surveillance …

Ethical Imperatives Critical To Effective Disease Control In The Coronavirus Pandemic: Recognition Of Global Health Interdependence As A Driver Of Health And Social Equity, George A. Gellert Md, Mph, Mpa

Journal of Health Ethics

Ethical imperatives critical to effective disease control in the coronavirus pandemic: Recognition of global health interdependence as a driver of health and social equity

George A. Gellert MD, MPH, MPA

ABSTRACT

Decades into the era of emerging infectious diseases, the 2019-2020 coronavirus pandemic has caught the world, and the United States in particular, poorly prepared to engage effective public health disease prevention and control measures. In part, this reflects poor public health planning, response, logistical preparation and pandemic readiness, and complacency by governments and disease control agencies. In terms of future responses to emerging infection pandemics, these deficiencies can be …

Hate Wins, Courtney Lauren Anderson

Loyola University Chicago Law Journal

The controversy surrounding the conflict between hate crimes and the First Amendment makes the task of even defining hate crimes difficult. Actions that some find prejudicial are simply expressive to others. This diversion obstructs efforts to collect data on hate crimes and deploy a unified legal or prosecutorial response. The antidiscrimination purpose of the Fair Housing Act is known, despite questions surrounding the Act’s breadth, and the inconsistent prioritization and interpretation of the Act that comes with changing the person who holds the position of the Secretary of the Office of Housing and Urban Development (HUD). This paper sets forth …