First Amendment Commons^™

Constitutional Law—The Erosion Of Political Anonymity And Its Chilling Effect On Freedom Of Association: Reconsidering The Constitutionality Of The Mandated Public Disclosure Of Individuals’ Political Donations, Scout Snowden

University of Arkansas at Little Rock Law Review

No abstract provided.

Religious Accommodation, The Establishment Clause, And Third-Party Harm, Mark Storslee

Faculty Scholarship

In the wake of Burwell v. Hobby Lobby, religious accommodation has become increasingly controversial. That controversy has given rise to a new legal theory gaining popularity among academics and possibly a few Supreme Court justices: the idea that the First Amendment's Establishment Clause condemns accommodations whenever they generate anything beyond a minimal cost for third parties.

The third-party thesis is appealing. But this Article argues that there are good reasons to believe it falls short as an interpretation of the Establishment Clause. In its place, the Article offers a new theory for understanding the relationship between costly accommodations and the …

Church Taxes And The Original Understanding Of The Establishment Clause, Mark Storslee

Faculty Scholarship

Since the Supreme Court’s decision in Everson v. Board of Education, it has been widely assumed that the Establishment Clause forbids government from 'aiding' or subsidizing religious activity, especially religious schools. This Article suggests that this reading of the Establishment Clause rests on a misunderstanding of Founding-era history, especially the history surrounding to church taxes. Contrary to popular belief, the decisive argument against those taxes was not an unqualified assertion that subsidizing religion was prohibited. Rather, the crucial argument was that church taxes were a coerced religious observance: a government-mandated sacrifice to God, a tithe. Understanding that argument helps …

The Law Of Obscenity In Comic Books, Rachel Silverstein

Touro Law Review

No abstract provided.

The Arms Dealer Who Cries, :“First Amendment”, Gustave Passanante

Touro Law Review

No abstract provided.

Fosta: A Necessary Step In Advancement Of The Women’S Rights Movement, Alexandra Sanchez

Touro Law Review

No abstract provided.

Speech Inequality After Janus V. Afscme, Charlotte Garden

Indiana Law Journal

This Article explores the growing divide between the Roberts Court’s treatment of the free speech rights of wealthy individuals and corporations in campaign finance cases as compared to its treatment of the rights of public-sector labor unions and their members. First, it highlights some internal contradictions in the Janus Court’s analysis. Then, it discusses the growing—yet mostly ignored—divergence in the Court’s treatment of corporate and labor speakers with respect to the use of market influence to achieve political influence.

The Article has two Parts. In Part I, I explain how the Court reached its decision in Janus before critiquing the …

Why A Data Disclosure Law Is (Likely) Unconstitutional, Max I. Fiest

Kernochan Center for Law, Media, and the Arts

Social media platforms have changed the very structure of communication. These platforms exert significant influence over how we get our news, how we form and join political movements, and how we connect with friends and family. But social media platforms are black boxes. Moderation algorithms are opaque--even to the platforms themselves — and attempts by third parties to research these algorithms are often frustrated. Because platforms withhold data necessary for public interest research, Congress might step in and mandate data access for certain researchers and journalists. I conclude that any such effort would (likely) be unconstitutional under the First Amendment. …

The Freedom Of Speech-Conduct, John Fee

Kentucky Law Journal

No abstract provided.

Incitement In An Era Of Populism: Updating Brandenburg After Charlottesville, Richard A. Wilson, Jordan Kiper

Faculty Articles and Papers

We live in an era of populism, characterized by political polarization, inciting speech on social media, and an escalation in hate crimes. The regulatory framework for direct incitement to imminent lawless action established fifty years ago in Brandenburg is showing signs of severe strain. One of the central frailties of Brandenburg’s three-part test is the lack of guidance on how courts should evaluate the probability that an inciting speech act will cause an imminent offense. In the absence of clear direction on analyzing risk, judges often rely on outdated heuristics and misleading metaphors. This article is the first to draw …

Legal Interpretation, Mykaila Ashlynn Berry

Undergraduate Theses, Professional Papers, and Capstone Artifacts

The purpose of this project is to provide a fresh and in-depth analysis of legal jurisprudence through the use of two of the most important legal theorists of our time, H. L. A. Hart and Ronald Dworkin. This project focuses on how Dworkin’s position in his famous paper “Hard Cases”, helps us understand an important Supreme Court case, Cohen v. California. Cohen will be the main focus of my project. The project will discuss the case and the possible ways of deciding the case. Then the project explains both Dworkin’s and Hart’s positions. Finally, the project will analyze how Dworkin’s …

Merging The Social And The Public: How Social Media Platforms Could Be A New Public Forum, Amélie P. Heldt

Mitchell Hamline Law Review

No abstract provided.

The Chilling Effect Claims In ‘Zeran V. Aol’, Jonathon W. Penney

Articles & Book Chapters

No abstract provided.

Obvious But Not Clear: The Right To Refuse To Cooperate With The Police During A Terry Stop, Sam Kamin, Zachary Shiffler

American University Law Review

No abstract provided.

Employing Smith To Prevent A Constitutional Right To Discriminate Based On Faith: Why The Supreme Court Should Affirm The Third Circuit In Fulton V. City Of Philadelphia, Margaret Smiley Chavez

American University Law Review

In the interest of the children in the Philadelphia foster care system, the City of Philadelphia prohibits its contracting foster care agencies from discriminating against prospective foster care parents on account of race, religion, and sexual orientation, among other things. Despite this requirement, in 2018, two foster care agencies—Catholic Social Services (CSS) and Bethany Christian Services— that have annual contracts with Philadelphia refused to certify same-sex couples as foster parents for religious reasons. While Bethany Christian Services reached an agreement with the city, CSS did not. As a result, the city froze foster care placement referrals to CSS and did …

Facebook's Speech Code And Policies: How They Suppress Speech And Distort Democratic Deliberation, Joseph T. Thai

American University Law Review

No abstract provided.

Platforms And The Fall Of The Fourth Estate: Looking Beyond The First Amendment To Protect Watchdog Journalism, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

Journalists see the First Amendment as an amulet, and with good reason. It has long protected the Fourth Estate—an independent institutional press—in its exercise of editorial discretion to check government power. This protection helped the Fourth Estate flourish in the second half of the twentieth century and ably perform its constitutional watchdog role.

But in the last two decades, the media ecology has changed. The Fourth Estate has been subsumed by a Networked Press in which journalists are joined by engineers, algorithms, audience, and other human and non-human actors in creating and distributing news. The Networked Press’s most powerful members …

How Can We End #Cancelculture—Tort Liability Or Thumper’S Rule?, Nanci K. Carr

Catholic University Journal of Law and Technology

In the Disney film Bambi, when the young rabbit Thumper says that Bambi “is kinda wobbly” and “doesn’t walk too good,” Thumper’s mother tells him “if you can’t say something nice, don’t say anything at all.” The Des Moines Register seems to have forgotten Thumper’s Rule when it uncovered Carson King’s teenage tweets and canceled the relationship he had built with Busch Light while raising $3 million for the Stead Family Children’s Hospital. #CancelCulture is a social media phenomenon, where some people use their voices to cancel the platform enjoyed by others. It is the 2019 equivalent of the …

The Survival Of Critical Infrastructure: How Do We Stop Ransomware Attacks On Hospitals?, Helena Roland

Catholic University Journal of Law and Technology

Our nation’s infrastructure is under an emerging new threat: ransomware attacks. These attacks can cause anything from individual laptops, to entire cities to shut down for a period of time until the victim pays a ransom to the attacker. Unfortunately, these attacks are on the rise and the attackers have a new target: hospitals. Ransomware attacks on hospitals can temporarily shut down operating room technology and limit physician access to patient files, ultimately threatening the safety of hospital patients and the surrounding community. This paper examines how the threat of ransomware attacks on hospitals is on the rise and what …

‘‘Appearance Of Corruption’’: Linking Public Opinion And Campaign Finance Reform, Douglas M. Spencer, Alexander G. Theodoridis

Publications

At present, campaign finance regulations may only be justified if their primary purpose is to prevent quid pro quo corruption or the appearance of corruption. References to the ‘‘appearance of corruption’’ are ubiquitous in campaign finance decisions, yet courts have provided very little guidance about what the phrase means. In this article, we report findings from a broadly representative national survey in which we (1) directly ask respondents to identify behaviors that appear politically corrupt, and (2) indirectly measure perceptions of corruption using a novel paired-choice conjoint experiment asking respondents to choose which of two randomly generated candidates are more …