First Amendment Commons^™

Media In Flux: Does Consolidation Promote The Public Interest?, Simone A. Dvoskin

Cardozo Arts & Entertainment Law Journal

The note examines the transformative impact of digital platforms on traditional media and the legal challenges arising from this shift, advocating for updated regulations to ensure accessibility, fairness, and public interest. It argues that the rapid evolution of technology has outpaced regulatory frameworks, necessitating reforms to address media consolidation, accessibility for individuals with disabilities, and the role of the FCC in overseeing new media platforms.

Scrolling, Trolling, And Uploading: Youtube's Impact On Modern Public Discourse, Internet Regulation, And Free Speech, Brett Gossett

Cardozo Arts & Entertainment Law Journal

No abstract provided.

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.

First Amendment (Un)Exceptionalism: A Comparative Taxonomy Of Campaign Finance Reform Proposals In The United States And United Kingdom, Lori A. Ringhand

Scholarly Works

There is an urgent conversation happening among the world’s democracies about how to respond to the combined threat of online electioneering and foreign interference in domestic elections. Despite the shadow such activities cast over the 2016 presidential election in the United States, the US has been largely absent from comparative discussions about how to tackle the problem. This is not just because of a recalcitrant president. The assumption that America’s “First Amendment Exceptionalism” – the idea that American freedom of expression law is simply too much of an outlier to warrant useful comparative consideration – is strong on both sides …

All The Border's A Stage: Humanitarian Aid As Expressive Dissent, Jason A. Cade

Scholarly Works

Immigration enforcement along the Southwest border between the United States and Mexico has long channeled immigrants into perilous desert corridors, where many thousands have dies, out of the public view. In response to this humanitarian crisis, activists from organizations such as No More Deaths (NMD) trek deep into the treacherous desert, hoping to save lives, honor the remains of those who did not survive, and influence public opinion about border enforcement policies. NMD's activism is not merely utilitarian but also deeply expressive; ultimately, they hope to convey the message that all lives -- including those of unauthorized migrants-- are worth …

The Modern Fight For Media Freedom In The United States, Jonathan Peters

Scholarly Works

The First Amendment as a subject is challenging and provocative, and scholarly and popular understandings of it are changing. New communication technologies are pushing lawyers, judges, and scholars to revisit, and sometimes rethink, old legal doctrines and concepts. In the area of privacy, we have to think today about encryption and a website's terms of service. In the area of copyright, we have to think about peer-to-peer file sharing and the licenses granted by iTunes. In the area of sexual expression, we have to think about sexting, revenge porn, and deep fakes.'

This is the emerging state of play for …

The Majoritarian Press Clause, Sonja R. West

Scholarly Works

In early 2018, stories began circulating that something troubling was happening at the United States-Mexico border. The reports claimed that the United States government was separating migrant families and then holding children (as well as adults) by the thousands in crowded, possibly inhumane environments. There were alarming accounts of children who were sick, dirty, hungry, neglected, and sleeping on concrete floors.

Americans, of course, demanded answers: What was happening at these migrant detention centers? Why was it happening? What were the official policies involved? Were the government's actions appropriate? Were they legal? In other words, this was a textbook example …

Monopolizing Free Speech, Greg Day

Scholarly Works

The First Amendment prevents the government from suppressing speech, though individuals can ban, chill, or abridge free expression without offending the Constitution. Hardly an unintended consequence, Justice Oliver Wendell Holmes famously likened free speech to a marketplace where the responsibility of rejecting dangerous, repugnant, or worthless speech lies with the people. This is supposed to maximize social welfare since the market is believed to promote good ideas and condemn bad ones better than the state. Nevertheless, anxiety is mounting that large technology corporations exercise unreasonable power in the marketplace of ideas.

Because the ability of “big tech” to abridge speech …

Balancing Burdens In Religious Freedom Claims, T. J. Denley

Cardozo Journal of Equal Rights & Social Justice

The article examines the expansion of religious freedom claims under the First Amendment and related laws, arguing that recent developments risk creating unequal treatment and burdening marginalized groups. It critiques the shift in doctrine that favors conservative Judeo-Christian morality, potentially undermining antidiscrimination protections and creating "theocratic zones of control." The analysis emphasizes the need to balance religious freedom with the rights of third parties and equality-implicating rights.

Fixed Stars: Famous First Amendment Phrases And Their Indelible Impact, David L. Hudson Jr., Jacob David Glenn

Law Faculty Scholarship

Some passages in First Amendment law have taken on a life and legend of their own, entering our cultural lexicon for their particular power, precision or passion. Some phrases are just so beautifully written that they cannot escape notice. Others aptly capture the essence of a key concept in a memorable way. Still others seemingly have grown in importance simply by the frequency for which they are cited in later court decisions. This article analyzes ten phrases from U.S. Supreme Court First Amendment decisions that qualify as some of the most enduring passages in First Amendment jurisprudence.

Porn Wars: Serious Value, Social Harm, And The Burdens Of Modern Obscenity Doctrine, P. Brooks Fuller, Kyla P. Garrett Wagner, Farnosh Mazandarani

American University Journal of Gender, Social Policy & the Law

During the 1980s, anti-pornography ideologues—an unlikely alliance of feminist activists and right-wing evangelical Christians—waged an open war against pornography and the anti-censorship feminists who supported legal protection for pornographic works. Following a pivotal defeat of an anti-pornography ordinance in federal court, the ideologies constituted in the so-called “Porn Wars” continued to guide obscenity doctrine. These ideologies have informed lower courts’ understanding of the harms and values associated with sexually explicit content more than constitutional scholars recognize, at least explicitly. Although courts recognize core feminist values such as sexual autonomy and privacy in sexually explicit content, they have built doctrine that …

Conflicting Reports: When Gun Rights Threaten Free Speech, Gregory P. Magarian

Scholarship@WashULaw

This Article catalogs and analyzes collisions between free speech and gun rights. The most important and hotly debated of those collisions is the clash between the First Amendment rights to assemble and speak in public political protests and the asserted Second Amendment right to carry firearms openly in public places. Beyond protests, public university students’ First Amendment rights to speak and learn clash with the asserted Second Amendment right to carry concealed weapons on university campuses; First Amendment interests in robust political deliberation clash with Second Amendment interests in promoting and securing the right to keep and bear arms; and …

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

American University Law Review

No abstract provided.

Antitrust & Corruption: Overruling Noerr, Tim Wu

Faculty Scholarship

We live in a time when concerns about influence over the American political process by powerful private interests have reached an apogee, both on the left and the right. Among the laws originally intended to fight excessive private influence over republican institutions were the antitrust laws, whose sponsors were concerned not just with monopoly, but also its influence over legislatures and politicians. While no one would claim that the antitrust laws were meant to be comprehensive anti-corruption laws, there can be little question that they were passed with concerns about the political influence of powerful firms and industry cartels.

Since …

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

American University Law Review

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.

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

American University Law Review

No abstract provided.

Political Participation, Expressive Association, And Judicial Review, Joshua S. Sellers

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 …