First Amendment Commons^™

The (Limited) Constitutional Right To Compete In An Occupation, Rebecca Haw Allensworth

William & Mary Law Review

Is there a constitutional right to compete in an occupation? The “right to earn a living” movement, gaining steam in policy circles and winning some battles in the lower courts, says so. Advocates for this right say that the right to compete in an occupation stands on equal footing with our most sacred constitutional rights such as the right to be free from racial discrimination. This Article takes a different view, arguing that while there is a limited constitutional right to compete in an occupation, it is—and should be—weaker than these advocates claim. Some state licensing laws run afoul of …

Packingham V. North Carolina, Madeleine Burnette-Mcgrath

Ohio Northern University Law Review

No abstract provided.

Don't Bring A Cad File To A Gun Fight: A Technological Solution To The Legal And Practical Challenges Of Enforcing Itar On The Internet, Catherine Tremble

Fordham Law Review Online

This Essay begins by outlining Cody Wilson’s motivation to found his organization, Defense Distributed, and the organization’s progress toward its goals. Then, Part II provides a brief overview of the protracted legal battle between Wilson and the State Department over the right to publish Computer-Aided Design (CAD) files on the internet that enable the 3D printing of guns and lower receivers. Part III.A takes a brief look at whether these CAD files are rightly considered speech at all and, if so, what level of protection they might receive. Part III.B then addresses the problem of even asking whether the files …

Copyright Policy As Catalyst And Barrier To Innovation And Free Expression, Amanda Reid

Catholic University Law Review

At its core, copyright is an innovation policy, a competition policy, and a free expression policy. Copyright seeks to balance incentivizing a public good with providing a private interest. Copyright’s purpose to catalyze creative expression and innovation is canonical; creativity and innovation are synergetic. Copyright is a means of promoting progress; copyright is not an end in itself. Much like freedom of expression and new innovations are not ends in themselves, copyright protection is not for its own sake. Freedom of expression is often heralded as a means of fostering democratic self-governance, truth, and happiness. Innovation is seen as a …

How Media Impact Race Relations: Positive And Negative Historical Examples And Applied Psychological Principles, Sophia Nocera

Honors Program: Senior Projects (Public)

This thesis sought to examine how media influenced interracial relations in the 1920s and 1930s. It starts by defining necessary terms like media, race, racism, and stereotypes. Afterwards, studies which demonstrate that media reflect society are analyzed as well as studies which determine the extent of media influence on society. Media are the most influential on people who agree with the content provided and those who have no specific opinion on the issue at hand.

Next, psychological studies which determine the circumstances in which racist ideology is accepted the most are analyzed. This analysis determined that in-group versus out-group sentiments …

Erecting A Virtual Schoolhouse Gate, Maryam Ahranjani

Faculty Book Display Case

The very first amendment to the United States Constitution protects the freedom of speech. While the Supreme Court held in 1969 that students “do not shed their constitutional rights at the schoolhouse gate,” since then the Court has limited students' freedom of speech, stopping short of considering the boundaries of off-campus, online speech. Lower court holdings vary, meaning that a student engaging in certain online speech may not be punished at all in one state but would face harsh criminal punishments in another. The lack of a uniform standard leads to dangerously inconsistent punishments and poses the ultimate threat to …

The "Uncontroversial" Controversy In Compelled Commercial Disclosures, Lauren Fowler

Fordham Law Review

Federal and state administrative agencies increasingly advance public health goals through the use of mandatory disclosures, like warning labels on cigarettes, that are intended to both inform and influence consumer decisions. However, the standard for determining whether these requirements violate a commercial speaker’s First Amendment rights is unsettled. In Zauderer v. Office of Disciplinary Counsel, the U.S. Supreme Court adopted a test that defers to the government’s determination that the compelled disclosure of “factual and uncontroversial information” is justified. Since Zauderer was decided, lower courts have disagreed about the meaning of “uncontroversial.” A recent Supreme Court case, National Institute …

Licensing Knowledge, Claudia E. Haupt

Vanderbilt Law Review

When professionals give advice, they disseminate professional knowledge to their clients. Professional advice is valuable to clients because they gain access to a body of knowledge they do not otherwise possess. To preserve the accuracy, and hence the value, of this knowledge transfer, the First Amendment should protect professional speech against state interference that seeks to alter the content of professional advice in a way that contradicts professional knowledge. But before professionals can give professional advice, they are routinely subject to licensing by the state. This seemingly creates a tension between state involvement in professional licensing and protection against state …

Free Speech, Public Safety, & Controversial Speakers: Balancing Universities' Dual Roles After Charlottesville, Elisabeth E. Constantino

St. John's Law Review

(Excerpt)

This Note seeks to develop an approach to hateful and controversial speech that protects First Amendment values and students alike. Part I discusses the legal backdrop and First Amendment tradition that underlies a permissive view of hateful speech on university campuses. Part I also discusses the roots of time, place, and manner regulations and the public forum doctrine, both of which recent legislation invokes. Part II provides a timeline of events that have highlighted the tension between free speech and public safety on campuses. Part II also discusses the eruption of legislation that these events inspired. Finally, Part III …

The "High" Life: The Regulation, Competitive Advantage, And Ethical Considerations Of Marijuana Advertising, Casey Rockwell, Madeline Burke

Atlantic Marketing Association Proceedings

No abstract provided.

Marijuana Business Attorneys And The Professional Deference Standard, Andrew Dixon

Arkansas Law Review

Imagine that you practice as an attorney in the State of Arkansas. A client solicits your advice about opening a marijuana dispensary or cultivation center. The client might want you to assist him in filing a dispensary application with the State. On the other hand, she might want you to negotiate a commercial lease or to provide services to ensure compliance with municipal zoning laws. Although Arkansas voters approved a constitutional amendment permitting medical marijuana sales, you provide a clear warning to your client: possessing, manufacturing, selling, and distributing marijuana remains a federal crime. After these precautions, however, you proceed …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Facebook's Alternative Facts, Sarah C. Haan

Scholarly Articles

In this short essay, I argue that Facebook’s adoption of the alternative-facts frame potentially contributes to the divisiveness that has made social media misinformation a powerful digital tool. Facebook’s choice to present information as “facts” and “alternative facts” endorses a binary system in which all information can be divided between moral or tribal categories—“bad” versus “good” speech, as Sandberg put it in her testimony to Congress. As we will see, Facebook’s related-articles strategy adopts this binary construction, offering a both-sides News Feed that encourages users to view information as cleaving along natural moral or political divisions.

The Resistance & The Stubborn But Unsurprising Persistence Of Hate And Extremism In The United States, Jeannine Bell

Indiana Journal of Global Legal Studies

Though the far right has a long history in the United States, the presidential campaign and then election of Donald Trump brought the movement out of the shadows. This article will analyze the rise in White supremacist activity in the United States-from well-publicized mass actions like the White supremacist march in Charlottesville in August 2017 to individual acts of violence happening since November 2016. This article focuses on contextualizing such incidents within this contemporary period and argues that overt expressions of racism and racist violence are nothing new. The article closes with a call to strengthen the current legal remedies …

Antidiscrimination Laws And The Administrative State: A Skeptic's Look At Administrative Constitutionalism, David E. Bernstein

Notre Dame Law Review

This Article discusses why administrative agencies charged with enforcing antidiscrimination legislation while implicitly undertaking administrative constitutionalism tend to be inconsiderate of constitutional limitations on government authority in general, and especially of the limitations imposed by the First Amendment’s protection of freedom of expression.

To establish the existence and contours of the problem, Part I of this Article provides context by recounting several detailed examples of how federal, state, and local civil rights agencies have favored broad antidiscrimination enforcement over countervailing constitutional doctrines that impose limits on regulatory authority. These examples include the U.S. Department of Education’s Office of Civil Rights’ …

Hush Don't Say A Word: Safeguarding Student's Freedom Of Expression In The Trump Era, Laura R. Mcneal

Georgia State University Law Review

The controversy surrounding NFL player Colin Kaepernick’s act of kneeling during the national anthem in protest of police brutality against people of color continues to permeate public discourse. In March 2017, President Trump referenced Colin Kaepernick’s symbolic act during a rally in Louisville, Kentucky, in an effort to illustrate his strong opposition to anyone kneeling during the national anthem. In this speech, President Trump stated that although many NFL franchise owners were interested in signing Colin Kaepernick, many were afraid of receiving a nasty tweet from him. Likewise, in another speech, President Trump stated, “I think it’s a great lack …

No Place For Speech Zones: How Colleges Engage In Expressive Gerrymandering, A. Celia Howard

Georgia State University Law Review

This note takes a critical look at the shortcomings of the current tests applied to speech zone litigation as well as the constitutional violations that occur when public schools carve out speech areas. Part I examines the evolution of First Amendment law in education, with a focus on university free speech zones. Part II analyzes the convoluted First Amendment jurisprudence, suggesting that the time, place, and manner test, typically used in conjunction with a forum analysis when examining the constitutionality of speech zones, allows universities to practice what is known as “expressive gerrymandering.” Finally, Part III proposes that courts eliminate …

Graffiti, Speech, And Crime, Jenny E. Carroll

Faculty Scholarship

Graffiti resides at the uncomfortable intersection of criminal law and free speech rhetoric. It is not the shout of revolution to the gathered, protesting masses, or the political pamphlet flung from a 1920s window. Graffiti is not the obscene-rendered-political-jacketed protest of war, or a flag set aflame in the name of reclaiming patriotism. It is an illicit scrawl. It is damage and defiance rolled into one from the moment of its creation. Graffiti is a crime.

Unlike more celebrated examples of free speech, graffiti earns no safe harbor from the First Amendment. When asked to choose between the tag that …

Code Mixing As A Form Of Indonesian Identity Based On The Motto Of Bhinneka Tunggal Ika, Fajar Muhammad Nugraha

International Review of Humanities Studies

In 2018, the Language Comission of the Ministry of Education and Culture (Kemendikbud) of the Republic of Indonesia has made verification towards all the languages that exists in Indonesia. The verification conducted from 1991 to 2017 resulted in 652 languages to be found. That number still does not include the dialects and their sub-divisions of the 652 languages. Meanwhile, UNESCO recorded 143 languages based on their vitality status. Identity can be interpreted as similarity or unity with others in a certain area or other things (Rummens, 1993: 157-159). "The identity possessed by an individual can be in the form of …

Rethinking Social Media: An Expert Panel Discussion, Howard M. Squadron Program In Law, Media And Society, Bonavero Institute Of Human Rights, Cardozo Law Moot Court Honor Society

2018–2019 Flyers

This expert panel discussion, moderated by Professor Monroe Price, explored the evolving challenges and regulatory efforts related to social media. Held on Thursday, January 31st, from 6–8pm in the Moot Court Room at Cardozo School of Law, the event addressed pressing issues such as child pornography, cyberstalking, hate speech, terrorist content, and the impact of social media on U.S. elections. Panelists included Robyn Caplan (Data and Society), Jessa Lingel (University of Pennsylvania), and Cardozo Professor Felix Wu, whose work focuses on freedom of expression and cybersecurity. Presented by the Howard M. Squadron Program in Law, Media and Society in partnership …