First Amendment Commons^™

Privacy, Eavesdropping, And Wiretapping Across The United States: Reasonable Expectation Of Privacy And Judicial Discretion, Carol M. Bast

Catholic University Journal of Law and Technology

One-party consent and all-party consent eavesdropping and wiretapping statutes are two broad pathways for legislation to deal with the problem of secret taping and some states protect conversation under state constitutions. Whether a conversation is protected against being taped as a private conversation is often gauged by the reasonable expectation of privacy standard. Judges in both all-party consent and one-party consent jurisdictions have had to use their leeway under the reasonable expectation of privacy standard to arrive at what at the time seemed to be the most appropriate solution, perhaps in doing so creating a case law exception.

The Supreme Court's Facilitation Of White Christian Nationalism, Caroline Mala Corbin

Articles

Doug Jager, a band student of Native-American ancestry, complained about the Christian prayers at his Georgia public school’s football games. Rather than address his concerns, the school lectured him on Christianity and proposed an alternative that appeared neutral yet would result in the continuation of the Christian prayers. In striking down the school’s proposal, Judge Frank M. Johnson Jr. understood some of the ramifications of state-sponsored Christianity.

Despite Supreme Court rulings limiting Christian invocations at public-school events, government-sponsored Christian prayers and Christian symbols remain plentiful in the United States. This proliferation of government-sponsored Christianity around the country both reflects and …

Media Literacy Beyond The National Security Frame, Lili Levi

Articles

No abstract provided.

Some First Amendment Implications Of The Trademark Registration Decisions, Marc Rohr

Marquette Intellectual Property Law Review

No abstract provided.

Shield, Sword, Or Trojan Horse? Free Speech As The Court's Modern Weapon Of Choice, Zachary M. Mazzarella

Duquesne Law Review

No abstract provided.

James Madison, Citizens United, And The Constitutional Problem Of Corruption, Anthony J. Gaughan

American University Law Review

No abstract provided.

Elegy For Anti-Corruption Law: How The Bridgegate Case Could Crush Corruption Prosecutions And Boost Liars, Ciara Torres-Spelliscy

American University Law Review

No abstract provided.

First Amendment Traditionalism, Marc O. Degirolami

Scholarly Articles

Traditionalist constitutional interpretation takes political and cultural practices of long age and duration as constituting the presumptive meaning of the text. This Essay probes traditionalism's conceptual and normative foundations. It focuses on the Supreme Court's traditionalist interpretation of the First Amendment to understand the distinctive justifications for traditionalism and the relationship between traditionalism and originalism. The first part of the Essay identifies and describes traditionalism in some of the Court's Speech and Religion Clause jurisprudence, highlighting its salience in the Court's recent Establishment Clause doctrine.

Part II develops two justfications for traditionalism: "interpretive" and "democratic-populist." The interpretive justification is that …

Trade Secrets And The Right To Information: A Comparative Analysis Of E.U. And U.S. Approaches To Freedom Of Expression And Whistleblowing, Sharon Sandeen, Ulla-Maija Mylly

Faculty Scholarship

Both the EU Trade Secrets Directive and US trade secret law seek to balance the protection of trade secrets against other values, including freedom of expression, but the EU Trade Secret Directive is more explicit about the need to do so. This article examines EU and US trade secret law through the right to information, a recognized human right under the Universal Declaration of Human Rights and implementing laws and conventions. In particular, it discusses how principles of freedom of expression and whistleblowing should apply in the trade secret context in the EU and U.S.

Tinkering With Circuit Conflicts Beyond The Schoolhouse Gate, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Robo-Bureaucrat And The Administrative Separation Of Powers, Matthew Seipel

Cardozo Law Review de•novo

This Essay argues that the administrative state's use of artificial intelligence (AI) creates concentrated, unchecked power at the agency leadership level. The Essay draws from Professor Jon Michaels' theory of the administrative separation of powers, and it describes how AI in government disrupts this separation. To alleviate this concern, the Essay puts forward one modest proposal: Congress should amend federal public sector labor law to require collective bargaining over an agency’s decision to use AI.

Lights, Camera, State Action: Manhattan Community Access Corp. V. Halleck, Graham L. Fisher

Cardozo Law Review de•novo

It is a well-established rule that constitutional constraints governing public entities do not extend to private actors—until they do. If this principle seems unclear, it is largely due to the piecemeal jurisprudence that defines the “state action” doctrine. This doctrine applies when courts hold that a private actor is subject to constitutional constraints by virtue of the quasi-public role they have willingly accepted. In these situations, constitutional protections—and the resulting 42 U.S.C. § 1983 actions—may be available to those who demand relief. While questions of what entails a “state action” loom in the face of closely intertwined private and public …

Balancing Religious Liberties And Antidiscrimination Interests In The Public Employment Context: The Impact Of Masterpiece Cakeshop And American Legion, Brenda Bauges

Articles

No abstract provided.

The Second Amendment's Safe Space, Or The Constitutionlization Of Fragility, Mary Anne Franks

Articles

No abstract provided.

In Memory Of Professor James E. Bond, Janet Ainsworth

Seattle University Law Review

Janet Ainsworth, Professor of Law at Seattle University School of Law: In Memory of Professor James E. Bond.

"Inciting A Riot": Silent Sentinels, Group Protests, And Prisoners' Petition And Associational Rights, Nicole B. Godfrey

Seattle University Law Review

This Article argues for increased legal protections for prisoners who choose to engage in group protest to shed light on the conditions of their incarceration. A companion piece to a similar article that focused on prisoner free speech rights, this Article uses the acts of protest utilized by the Silent Sentinels to examine why prisoners’ rights to petition and association should be strengthened. By strengthening these rights, the Article argues that we will advance the values enshrined by the First Amendment’s Petition Clause while simultaneously advancing the rights of the incarcerated millions with little to no political power.

The Article …

Black Women And Girls And The Twenty-Sixth Amendment: Constitutional Connections, Activist Intersections, And The First Wave Youth Suffrage Movement, Mae C. Quinn

Seattle University Law Review

On this 100th anniversary of the Nineteenth Amendment—and on the cusp of the fiftieth anniversary of the Twenty-sixth Amendment—this article seeks to expand the voting rights canon. It complicates our understanding of voting rights history in the United States, adding layers to the history of federal constitutional enfranchisement and encouraging a more intersectional telling of our suffrage story in the days ahead.

Thus, this work not only seeks to acknowledge the Twenty-sixth Amendment as important constitutional content, as was the goal of the article I wrote with my law student colleagues for a conference held at the University of Akron …

Protecting Local News Outlets From Fatal Legal Expenses, Nicole J. Ligon

Faculty Scholarship

As lawsuits targeting the press continue to rise in response to today’s political climate, local news outlets are more likely to find themselves facing unexpected legal expenses. Although the national news media can generally weather the costs of libel lawsuits and subpoena requests, smaller news outlets have gone bankrupt or barely escaped such a fate while paying off legal fees, even when these outlets have ultimately been successful in their legal battles. Because local news outlets serve a critical role in underserved communities and are powerful agents of positive social change, they ought to be protected against fatal legal expenses. …

Raising The Stakes: The Battle Between The First Amendment And Athlete's Publicity Rights In The Wake Of Murphy V. Ncaa, Alexis Nicole Lilly

American University Business Law Review

No abstract provided.

Public Official, Figures, And Controversies In Minnesota Defamation Law, Michael K. Steenson

Faculty Scholarship

In Minnesota, the plaintiff in a common law defamation claim is entitled to recover presumed damages in libel and slander per se cases. Those rules change when the First Amendment is injected into defamation cases when the plaintiff is a public official or figure or is a private person involved in a public controversy. A plaintiff who is a public official or figure must prove not only the elements of the common law defamation claim, but also that the defamatory communication was a false statement of fact and prove by clear and convincing evidence that it was made with actual …