The Rise Of The Viewpoint-Discrimination Principle,
2019
Southern Methodist University, Dedman School of Law
The Rise Of The Viewpoint-Discrimination Principle, Lackland H. Bloom Jr.
SMU Law Review Forum
The Supreme Court’s freedom-of-speech jurisprudence is complicated. There are few hard and fast rules. One is that judicially-imposed prior restraints on speech are hardly ever permissible. In recent years, another hard and fast rule appears to have developed. It is that the government may never prohibit speech simply on account of its viewpoint. It remains unclear whether this is a per se prohibition or whether such viewpoint-focused regulation must overcome the all but insurmountable burden of serious strict scrutiny. In any event, any governmental rule that attempts to regulate speech based on its point of view will almost certainly be …
Native American Religious Freedom As A Collective Right,
2019
Brigham Young University Law School
Native American Religious Freedom As A Collective Right, Michael D. Mcnally
BYU Law Review
No abstract provided.
The First Amendment, Social Media, And The Public Schools: Emergent Themes And Unanswered Questions,
2019
University of Nevada, Las Vegas -- William S. Boyd School of Law
The First Amendment, Social Media, And The Public Schools: Emergent Themes And Unanswered Questions, Watt Lesley Black Jr., Elizabeth A. Shaver
Nevada Law Journal
No abstract provided.
The Broader Implications Of Masterpiece Cakeshop,
2019
Brigham Young University Law School
The Broader Implications Of Masterpiece Cakeshop, Douglas Laycock
BYU Law Review
No abstract provided.
The Case Of The Exemption Claimants: Religion, Conscience, And Identity,
2019
Brigham Young University Law School
The Case Of The Exemption Claimants: Religion, Conscience, And Identity, Steven D. Smith
BYU Law Review
No abstract provided.
A Rhetorical Revolution: The Antithesis Of The First Amendment,
2019
Brigham Young University Law School
A Rhetorical Revolution: The Antithesis Of The First Amendment, Eimi Priddis Yildirim
Brigham Young University Journal of Public Law
No abstract provided.
The Upside Of Deep Fakes,
2019
University of Maryland Francis King Carey School of Law
The Upside Of Deep Fakes, Jessica Silbey, Woodrow Hartzog
Maryland Law Review
No abstract provided.
Sex, Lies, And Videotape: Deep Fakes And Free Speech Delusions,
2019
University of Maryland Francis King Carey School of Law
Sex, Lies, And Videotape: Deep Fakes And Free Speech Delusions, Mary Anne Franks, Ari Ezra Waldman
Maryland Law Review
No abstract provided.
Drawing Trump Naked: Curbing The Right Of Publicity To Protect Public Discourse,
2019
University of Maryland Francis King Carey School of Law
Drawing Trump Naked: Curbing The Right Of Publicity To Protect Public Discourse, Thomas E. Kadri
Maryland Law Review
From Donald Trump to Lindsay Lohan to Manuel Noriega, real people who are portrayed in expressive works are increasingly targeting creators of those works for allegedly violating their “right of publicity”—a state-law tort that prohibits the unauthorized use of a person’s name, likeness, and other identifying characteristics. Intuitively, we might feel confident that Mark Zuckerberg should not be able to block his portrayal in The Social Network movie, that Marilyn Monroe could not have stopped Andy Warhol from exhibiting his vibrant paintings, that O.J. Simpson could not have demanded money from FX to air the American Crime Story docudrama. But …
Trust And Retaliation: The First Amendment And Trump’S Taxes,
2019
William & Mary Law School
Trust And Retaliation: The First Amendment And Trump’S Taxes, Timothy Zick
Popular Media
No abstract provided.
The President’S Utterly Un-American Response To Dissent,
2019
William & Mary Law School
The President’S Utterly Un-American Response To Dissent, Timothy Zick
Popular Media
No abstract provided.
Establishment Of Religion Supreme Court Appellate Division Third Department,
2019
Touro University Jacob D. Fuchsberg Law Center
Establishment Of Religion Supreme Court Appellate Division Third Department
Touro Law Review
No abstract provided.
A Dangerous Concoction: Pharmaceutical Marketing, Cognitive Biases, And First Amendment Overprotection,
2019
Loyola University Chicago, School of Law
A Dangerous Concoction: Pharmaceutical Marketing, Cognitive Biases, And First Amendment Overprotection, Cynthia M. Ho
Indiana Law Journal
Is more information always better? First Amendment commercial speech jurisprudence takes this as a given. However, when information is only available from a self-interested and marketing-savvy pharmaceutical company, more information may simply lead to more misinformation. Notably, doctors are also misled. This can result in public health harms when companies are promoting unapproved uses of prescription drugs that the Food and Drug Administration (FDA) has approved for other purposes—commonly referred to as “off-label” uses. Contrary to judicial presumptions, as well as the presumptions of some doctors and scholars, doctors are not sophisticated enough to always discern what is true versus …
Brief Amici Curiae Of Electronic Frontier Foundation, 1851 Center For Constitutional Law, And Profs. Jonathan Entin, David F. Forte, Andrew Geronimo, Raymond Ku, Stephen Lazarus, Kevin Francis O’Neill, Margaret Tarkington, Aaron H. Caplan, And Eugene Volokh In Support Of Respondent-Appellant, Joni Bey And Rebecca Rasawehr V. Jeffrey Rasawehr, Supreme Court Of Ohio (Case No. 2019-0295),
2019
Cleveland-Marshall College of Law, Cleveland State University
Brief Amici Curiae Of Electronic Frontier Foundation, 1851 Center For Constitutional Law, And Profs. Jonathan Entin, David F. Forte, Andrew Geronimo, Raymond Ku, Stephen Lazarus, Kevin Francis O’Neill, Margaret Tarkington, Aaron H. Caplan, And Eugene Volokh In Support Of Respondent-Appellant, Joni Bey And Rebecca Rasawehr V. Jeffrey Rasawehr, Supreme Court Of Ohio (Case No. 2019-0295), David Forte, Stephen R. Lazarus, Kevin F. O'Neill, Jonathan L. Entin, Andrew Geronimo, Raymond Ku, Margaret Tarkington, Aaron H. Kaplan, Eugene Volokh
Law Faculty Briefs and Court Documents
The brief argues that the Third District Court of Appeals, in violation of the First Amendment, erred in upholding an injunction that barred defendant from any online postings regarding plaintiff, whether or not those postings were to plaintiff or to third parties.
Influencing Juries In Litigation "Hot Spots",
2019
Catholic University of America
Influencing Juries In Litigation "Hot Spots", Megan M. La Belle
Indiana Law Journal
This Article considers how corporations are using image advertising in litigation "hot spots" as a means of influencing litigation outcomes. It describes how Samsung and other companies advertised in the Eastern District of Texas--a patent litigation "hot spot"--to curry favor with the people who live there, including by sponsoring an ice rink located directly outside the courthouse. To be sure, image advertisements are constitutionally protected speech and might even warrant the highest level of protection under the First Amendment when they are not purely commercial in nature. Still, the Article argues, courts should be able to prohibit such advertisements altogether, …
The Sickness Unto Death Of The First Amendment,
2019
St. John's University School of Law
The Sickness Unto Death Of The First Amendment, Marc O. Degirolami
Faculty Publications
The sickness unto death, in Søren Kierkegaard’s work of the same name, is the anxiety and despair an individual experiences in recognizing that the self is separated from what is collective, extrinsic, or transcendent. Something like this condition now afflicts the First Amendment. The sickness unto death of the First Amendment is that the spectacular success of free speech and religious freedom as American constitutional rights on premises of liberal, individual autonomy has been the very cause of mounting and powerful collective anxiety. The impressive growth of these rights has rendered them fragile, if not actually unsustainable, in their current …
Grinding Down The Edges Of The Free Expression Right In Hong Kong,
2019
Brooklyn Law School
Grinding Down The Edges Of The Free Expression Right In Hong Kong, Stuart Hargreaves
Brooklyn Journal of International Law
In the liberal-democratic tradition limits on speech must be clear, precise, and subject to justification within the particular constitutional framework of a given jurisdiction. In the Hong Kong Special Administrative Region (HKSAR), the Court of Final Appeal has developed a line of jurisprudence that explains under which circumstances the Government of Hong Kong (Government) may seek to limit the free speech provisions contained within the Basic Law, Hong Kong's quasi-constitution. In its fight against ‘localists,’ however, rather than legislating a clear speech restriction that is consistent with this jurisprudence, the Government has instead attempted to suppress unwelcome political speech in …
The Locke Exception: What Trinity Lutheran Means For The Future Of State Blaine Amendments,
2019
Pepperdine University
The Locke Exception: What Trinity Lutheran Means For The Future Of State Blaine Amendments, Christopher Tyler Prosser
Pepperdine Law Review
At its core, this Article is about whether states have the discretion to discriminate against religious organizations by excluding them from generally available secular government aid programs. In the wake of the Supreme Court’s 2004 decision in Locke v. Davey, the federal courts have developed conflicting interpretations of whether the Court’s holding in Locke permits states to exclude religious organizations from generally available secular aid programs. However, the Court’s 2017 decision in Trinity Lutheran v. Comer has cast doubt on the ability of states to exclude religious organizations from such programs and seemingly restricts the Court’s prior decision in Locke …
Thinking Slow About Abercrombie & Fitch: Straightening Out The Judicial Confusion In The Lower Courts,
2019
Pepperdine University
Thinking Slow About Abercrombie & Fitch: Straightening Out The Judicial Confusion In The Lower Courts, Bruce N. Cameron, Blaine L. Hutchison
Pepperdine Law Review
In Abercrombie & Fitch, the U.S. Supreme Court fundamentally changed the way that Title VII religious accommodation cases are litigated and evaluated. This paper analyzes Abercrombie, explains how the Court eliminated religious accommodation as a freestanding cause of action, and suggests an altered proof framework for plaintiffs seeking an accommodation. The paper also explores the conflict between employee privacy rights and classic proof requirements for religious sincerity. The lower courts have largely failed to apprehend the change mandated by Abercrombie, with the result that their opinions are in disarray. The paper includes a chart organizing the diverse lower court opinions.
The Future Of Physicians’ First Amendment Freedom: Professional Speech In An Era Of Radically Expanded Prenatal Genetic Testing,
2019
Washington and Lee University School of Law
The Future Of Physicians’ First Amendment Freedom: Professional Speech In An Era Of Radically Expanded Prenatal Genetic Testing, Wynter K. Miller, Benjamin E. Berkman
Washington and Lee Law Review
This Article explores the First Amendment questions prenatal whole genome sequencing (PWGS) is likely to raise. It argues that most of the foreseeable options for state intervention in conversations between physicians and prospective parents about genetic sequencing should trigger at least heightened scrutiny. Part I provides an overview of the most recent advances in genetic testing. It assesses the ongoing impact of non-invasive prenatal testing (NIPT) for providers and patients and charts the course from NIPT to PWGS. Part II establishes a foundational background for evaluating First Amendment claims. Part II.A describes the development of First Amendment jurisprudence, focusing on …
