First Amendment Commons^™

From The Legal Literature: Criminalizing Propaganda: J. Remy Green’S Argument To Digitize Brandenburg, Francesca Laguardia

Department of Justice Studies Faculty Scholarship and Creative Works

No abstract provided.

The Law Of The Eruv, Michael Lewyn

Scholarly Works

Describes case law governing municipal regulation of the eruv (an artificial enclosure designed to allow observant Jews to carry on the Jewish Sabbath). The article focuses on First Amendment case law, and concludes that a municipality may prohibit eruvin only pursuant to a regulation that is enforced against comparable secular signs.

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

Touro Law Review

No abstract provided.

Religious Freedom And The Churches: Contemporary Challenges In The United States Today, Richard W. Garnett

Journal Articles

A crucial, but often overlooked, dimension of the human and constitutional right to religious freedom is the autonomy of religious institutions, associations and societies with respect to matters of governance, doctrine, formation and membership. Although the Supreme Court of the United States has affirmed this autonomy in the context of American constitutional law, it is vulnerable, and even under threat, for a variety of reasons, including a general decline in the health of civil society and mediating associations and a crisis of confidence and authority caused by clerical sexual abuse and churches’ failure to respond to it.

Drawing The Line: A First Amendment Framework For Partisan Gerrymandering In The Wake Of Rucho V. Common Cause, Kyle Keraga

Maryland Law Review

No abstract provided.

Overbey V. Mayor Of Baltimore: The Cost Of Silence And The Impact Of Restricting Speech In Police Brutality Settlements, Delaney E. Anderson

Maryland Law Review

No abstract provided.

First Amendment Traditionalism, Marc O. Degirolami

Faculty Publications

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 …

The Facebook Oversight Board: Creating An Independent Institution To Adjudicate Online Free Expression, Kate Klonick

Faculty Publications

For a decade and a half, Facebook has dominated the landscape of digital social networks, becoming one of the most powerful arbiters of online speech. Twenty-four hours a day, seven days a week, over two billion users leverage the platform to post, share, discuss, react to, and access content from all over the globe. Through a system of semipublic rules called “Community Standards,” Facebook has created a body of “laws” and a system of governance that dictate what users may say on the platform. In recent years, as this intricately built system to dispatch the company’s immense private power over …

Discrimination, The Speech That Enables It, And The First Amendment, Helen Norton

Publications

Imagine that you’re interviewing for your dream job, only to be asked by the hiring committee whether you’re pregnant. Or HIV positive. Or Muslim. Does the First Amendment protect your interviewers’ inquiries from government regulation? This Article explores that question.

Antidiscrimination laws forbid employers, housing providers, insurers, lenders, and other gatekeepers from relying on certain characteristics in their decision-making. Many of these laws also regulate those actors’ speech by prohibiting them from inquiring about applicants’ protected class characteristics; these provisions seek to stop illegal discrimination before it occurs by preventing gatekeepers from eliciting information that would enable them to discriminate. …

Copyright Infringement Standards As They Relate To Appropriation Artists, Kimberly Pallen

Cardozo Arts & Entertainment Law Journal

The article examines the application of the "total concept and feel" test established in Roth Greeting Cards v. United Card Co. to determine copyright infringement, particularly in cases involving appropriation artists like Jeff Koons and Richard Prince. It argues that while this test is effective for analyzing substantial similarity in visual arts, it faces limitations when applied to appropriation art, where the original work's mood or feel is not significantly altered. The article highlights the subjective nature of the test and its reliance on visual comparison, which may not adequately address the transformative aspects of appropriation art.

Forgotten Federal-Missionary Partnerships: New Light On The Establishment Clause, Nathan Chapman

Scholarly Works

Americans have long disputed whether the government may support religious instruction as part of an elementary education. Since Everson v. Board of Education (1947), the Supreme Court has gradually articulated a doctrine that permits states to provide funds, indirectly through vouchers and in some cases directly through grants, to religious schools for the nonreligious goods they provide. Unlike most other areas of Establishment Clause jurisprudence, however, the Court has not built this doctrine on a historical foundation. In fact, in Trinity Lutheran v. Comer (2017), the dissenters from this doctrine were the ones to rely on the founding-era record.

Intriguingly, …

Speech, Innovation, And Competition, Greg Day

Scholarly Works

Critics contend that concentrated power in digital markets has generated threats to free speech. For a variety of reasons, market power is naturally thought to concentrate in digital markets. The consequence is that “big tech” is said to face little competition; Facebook controls 72 percent of the social media market while the parent of YouTube (72 percent of the video market) is Google (92 percent of the search market). This landscape has potentially vested private companies with unprecedented power over the flow of information. If Facebook, for example, decides to ban certain types of speech or ideas, it would potentially …

'Water Is Life!' (And Speech!): Death, Dissent, And Democracy In The Borderlands, Jason A. Cade

Scholarly Works

Decades of stringent immigration enforcement along the Southwest border have pushed migrants into perilous desert corridors. Thousands have died in border regions, out of the general public view, yet migrants continue to attempt the dangerous crossings. In response to what they see as a growing humanitarian crisis, activists from organizations such as No More Deaths seek to expand migrant access to water, to honor the human remains of those who did not survive the journey, and to influence public opinion about border enforcement policies. Government officials, however, have employed a range of tactics to repress this border-policy “dissent,” including blacklists, …

Disinformation In The Marketplace Of Ideas, Tim Wu

Faculty Scholarship

It was just one line, nearly a throwaway; technically a subordinate clause. Yet that one clause from Oliver Wendell Holmes’s Abrams dissent breathed life into a metaphor, the “marketplace of ideas,” whose lasting power is undeniable. Nor is it difficult to understand why. Yes, it may be incomplete, inaccurate, and possibly cribbed from John Stuart Mill, but the metaphor matches something we all see. Ideas and ideological programs are out there looking for adherents or “buyers.” In Holmes’s time, progressives, socialists, and fascists courted supporters, just as similar groups do now. Specific ideas like the flat tax or the legalization …

Cyberbullying: School Administrators' Perceptions Of Law And Prevalence, And Their Roles In Prevention, Intervention And Discipline, Suzan Gragg Denby

Theses and Dissertations

This study was aimed at investigating secondary school administrators’ experiences with and their perceptions of cyberbullying, as well as their intervention and prevention procedures. As technology has become ubiquitous in our society, students’ use has increased and impacted the school environment. Given the potential for cyberbullying and the negative effects of such, schools harbor the responsibility to prevent and intervene in such occurrences. This can be a tricky process.

This study included 12 administrators of secondary schools across eight school divisions in Virginia. Through an interview process, administrators spoke of their experiences with technology and cyberbullying incidents, and how they …

Internet Architecture And Disability, Blake E. Reid

Publications

The Internet is essential for education, employment, information, and cultural and democratic participation. For tens of millions of people with disabilities in the United States, barriers to accessing the Internet—including the visual presentation of information to people who are blind or visually impaired, the aural presentation of information to people who are deaf or hard of hearing, and the persistence of Internet technology, interfaces, and content without regard to prohibitive cognitive load for people with cognitive and intellectual disabilities—collectively pose one of the most significant civil rights issues of the information age. Yet disability law lacks a comprehensive theoretical approach …

Missing In “State Action”: Toward A Pluralist Conception Of The First Amendment, Moran Yemini

Lewis & Clark Law Review

Online speech intermediaries, particularly social platforms, have an enormous impact on internet users’ freedom of expression. They determine the speech rules for most of the content generated and information exchanged today and routinely interfere with users’ speech while enjoying practically unchecked power to block, filter, censor, manipulate, and surveil. Accordingly, our current system of free expression lacks one of the main requirements of a just system—the notion that no form of power is immune from the question of legitimacy. Scholarly responses to this situation tend to assign decreased weight to constitutional norms as means to impose duties on online intermediaries …

Speech Inequality After Janus V. Afscme, Charlotte Garden

Faculty Articles

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 decision’s …

Avoidance Creep, Charlotte Garden

Faculty Articles

At first glance, constitutional avoidance—the principle that courts construe statutes so as to avoid conflict with the Constitution whenever possible—appears both unremarkable and benign. But when courts engage in constitutional avoidance, they frequently construe statutory language in a manner contrary to both its plain meaning and to the underlying congressional intent. Then, successive decisions often magnify the problems of avoidance—a phenomenon I call “avoidance creep.” When a court distorts a statute in service of constitutional avoidance, a later court may amplify the distortion, incrementally changing both statutory and constitutional doctrine in ways that are unsupported by any existing rationale for …

The Freedom Of Speech-Conduct, John Fee

Kentucky Law Journal

No abstract provided.