First Amendment “Harms”,
2020
Notre Dame Law School
First Amendment “Harms”, Stephanie H. Barclay
Journal Articles
Refuting the unhelpful fixation on the mere presence of generic harm, this Article makes two important contributions, one descriptive and one normative. First, this Article carefully describes the nuanced ways that courts classify and weigh different types of harm, and it identifies three categories: (1) prohibited harms (meaning harms that are categorically impermissible); (2) probative harms (meaning relevant harms that can be balanced against other harms); and (3) inadmissible harms (meaning harms that are given no weight regardless of how severely or disproportionately they are experienced by third parties). This Article demonstrates how these categories of harm are not limited …
‘‘Appearance Of Corruption’’: Linking Public Opinion And Campaign Finance Reform,
2020
University of Colorado Law School
‘‘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 …
A Recent Renaissance In Privacy Law,
2020
University of Colorado Law School
A Recent Renaissance In Privacy Law, Margot Kaminski
Publications
Considering the recent increased attention to privacy law issues amid the typically slow pace of legal change.
Symposium: The California Consumer Privacy Act,
2020
University of Colorado Law School
Symposium: The California Consumer Privacy Act, Margot Kaminski, Jacob Snow, Felix Wu, Justin Hughes
Publications
This symposium discussion of the Loyola of Los Angeles Law Review focuses on the newly enacted California Consumer Privacy Act (CPPA), a statute signed into state law by then-Governor Jerry Brown on June 28, 2018 and effective as of January 1, 2020. The panel was held on February 20, 2020.
The panelists discuss how businesses are responding to the new law and obstacles for consumers to make effective use of the law’s protections and rights. Most importantly, the panelists grapple with questions courts are likely to have to address, including the definition of personal information under the CCPA, the application …
Free Speech Idealism,
2020
William & Mary Law School
First Amendment Lochnerism & The Origins Of The Incorporation Doctrine,
2020
William & Mary Law School
First Amendment Lochnerism & The Origins Of The Incorporation Doctrine, James Y. Stern
Faculty Publications
The 20th century emergence of the incorporation doctrine is regarded as a critical development in constitutional law, but while issues related to the doctrine's justification have been studied and debated for more than fifty years, the causes and mechanics of its advent have received relatively little academic attention. This Essay, part of a symposium on Judge Jeffrey Sutton's recent book about state constitutional law, examines the doctrinal origins of incorporation, in an effort to help uncover why the incorporation doctrine emerged when it did and the way it did. It concludes that, for these purposes, incorporation is best understood as …
Tinkering With Circuit Conflicts Beyond The Schoolhouse Gate,
2020
American University Washington College of Law
Tinkering With Circuit Conflicts Beyond The Schoolhouse Gate, Stephen Wermiel
Scholarly Articles in Law Reviews & Journals
No abstract provided.
Gillis V. Miller,
2020
New York Law School
Hargis V. Bevin,
2020
New York Law School
Taking Stock Of The Religion Clauses,
2020
Washington University in St. Louis School of Law
Taking Stock Of The Religion Clauses, John D. Inazu
Scholarship@WashULaw
After a few decades of relative quiet, the Supreme Court has in recent years focused once again on the religion clauses and related statutes.
Symposium Introduction,
2019
Brooklyn Law School
Symposium Introduction, William D. Araiza, Joel M. Gora
Brooklyn Law Review
On April 12, 2019, scholars gathered at Brooklyn Law School to consider the past, the present, and the future of free speech, and concerns about incitement that militate toward suppression. The speakers provided incisive and timely insight on these important matters—insight that is reflected in the papers published in this symposium issue of the Brooklyn Law Review. This introduction provides an overview of this symposium issue and the questions presented by each article.
In Defense Of Brandenburg: The Aclu And Incitement Doctrine In 1919, 1969, And 2019,
2019
Brooklyn Law School
In Defense Of Brandenburg: The Aclu And Incitement Doctrine In 1919, 1969, And 2019, Emerson J. Sykes
Brooklyn Law Review
In the United States, full-throated advocacy—even advocacy of violence—is protected by the First Amendment of the Constitution. Few other countries define “incitement to violence” as narrowly, and governments tend to exploit any authority to regulate speech. The ACLU has played a central role in developing America’s speech-protective modern incitement doctrine over the last century, sometimes by representing clients with abhorrent views, including in the landmark Brandenburg v. Ohio. The Brandenburg test sets a high bar for incitement that should be maintained, even with respect to online speech. Calls for increased regulation of speech should not be heeded.
Brandenburg And Terrorism In The Digital Age,
2019
Brooklyn Law School
Brandenburg And Terrorism In The Digital Age, David S. Han
Brooklyn Law Review
This essay explores the tension between the longstanding Brandenburg standard and the current technological context—one in which abstract advocacy of terrorist conduct, widely and cheaply disseminated through the internet and channeled through social media, has contributed to a number of devastating attacks such as the Orlando nightclub shooting, the Boston marathon bombings, and the shootings in San Bernardino. It does so through the lens of the Supreme Court’s recent decision in Carpenter v. United States—a Fourth Amendment case that similarly dealt with the collision between the longstanding constitutional righThis essay explores the tension between the longstanding Brandenburg standard and the …
Assumptions About “Terrorism” And The Brandenburg Incitement Test,
2019
Brooklyn Law School
Assumptions About “Terrorism” And The Brandenburg Incitement Test, Christina E. Wells
Brooklyn Law Review
The incitement standard announced in Brandenburg v. Ohio, which bars government officials from punishing advocacy of illegal activity unless it is directed and likely to imminently incite such activity, is one of the most speech-protective tests in the Supreme Court’s jurisprudence. However, terrorist advocacy – glorification of violence, spreading of propaganda, and recruitment of individuals to their cause – is putting pressure on the Brandenburg standard. Scholars have suggested working around Brandenburg’s incitement standard to counter the dangerous influence of terrorist advocacy, especially online advocacy. Although scholars’ concern with the harms of terrorism is understandable, their willingness to alter Brandenburg …
"Incitement Lite" For The Nonpublic Forum,
2019
Brooklyn Law School
"Incitement Lite" For The Nonpublic Forum, Leslie Gielow Jacobs
Brooklyn Law Review
The incitement exception set out in Brandenburg v. Ohio defines the authority of the government, acting in its sovereign capacity, to impose criminal punishment on speakers because the content of their advocacy may persuade listeners to commit crimes. Nonpublic forum managers have much greater flexibility than the government-as-sovereign to restrict the private speakers they invite onto their property because the content of their speech may persuade listeners to engage in harmful conduct. In nonpublic forum management, speakers experience no sanctions and, unlike the government-as-sovereign, nonpublic forum managers may close their forums to all private speakers to avoid unwanted speech. This …
Words We Fear: Burning Tweets & The Politics Of Incitement,
2019
Brooklyn Law School
Words We Fear: Burning Tweets & The Politics Of Incitement, Rachel E. Vanlandingham
Brooklyn Law Review
The United States government has long wrestled with the link between speech and violence, periodically employing speculative claims of potential violence and law-breaking to suppress political speech in times of national insecurity. By the late 1960s, however, the Supreme Court fully operationalized the First Amendment’s premise that most government speech suppression is antithetical to self-government, individual autonomy, equality, and liberty. The Court therefore, required immediacy of potential violence before the government could punish speech advocating such illegality, but left private actors free to censor and suppress speech. Today, social media companies, at the behest of the government, are doing what …
The First Amendment And The Imminence Of Harm,
2019
Brooklyn Law School
The First Amendment And The Imminence Of Harm, Floyd Abrams
Brooklyn Law Review
Noted First Amendment litigator Floyd Abrams engages questions about the past, the present and the future of free speech directly by considering the key words from Justice Holmes’s canonical formulation for the constitutional standard governing regulation of incitement speech—the requirement that any danger justifying such speech regulation must be “clear and present.” Mr. Abrams asks what types of “danger” are sufficiently “present” to provide that justification, using as examples the Communist teachings at issue in Dennis v. United States and The Progressive magazine’s publication of plans for constructing a hydrogen bomb. While Mr. Abrams reaches no hard and fast conclusion …
#Losingthethread: Recognizing Assembly Rights In The New Public Forum,
2019
Brooklyn Law School
#Losingthethread: Recognizing Assembly Rights In The New Public Forum, Liz Grefrath
Brooklyn Law Review
The specter of banishment from the vibrant public forum of social media to the empty streets and deserted sidewalks is a matter of increasing political, social, and cultural importance. Today, nearly every government official maintains a social media presence on Facebook or Twitter, generally to promote initiatives, share ideological positions, engage constituents, and tangle with critics. Privacy controls and content moderation tools, however, offer government officials tantalizing opportunities to discretely and effectively muffle disapproval, stifle dissent, and shield themselves from criticism on their public social media pages through “blocking” features. Courts are just starting to grapple with the First Amendment …
Censorship, Free Speech & Facebook: Applying The First Amendment To Social Media Platforms Via The Public Function Exception,
2019
University of Washington School of Law
Censorship, Free Speech & Facebook: Applying The First Amendment To Social Media Platforms Via The Public Function Exception, Matthew P. Hooker
Washington Journal of Law, Technology & Arts
Society has a love-hate relationship with social media. Thanks to social media platforms, the world is more connected than ever before. But with the ever-growing dominance of social media there have come a mass of challenges. What is okay to post? What isn't? And who or what should be regulating those standards? Platforms are now constantly criticized for their content regulation policies, sometimes because they are viewed as too harsh and other times because they are characterized as too lax. And naturally, the First Amendment quickly enters the conversation. Should social media platforms be subject to the First Amendment? Can—or …
The Constitutional Case For "Red Flag" Laws,
2019
William & Mary Law School
The Constitutional Case For "Red Flag" Laws, Timothy Zick
Popular Media
No abstract provided.
