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Tag: First Amendment

Washington and Lee Law Review - First Amendment

Article

To Protect Freedom of Expression, Why Not Steal Victory from the Jaws of Defeat?

by Evelyn Mary Aswad

Global social media platforms are grappling with whether to align their corporate speech codes with international human rights law. Facebook’s June 2019 report that summarized worldwide feedback about its proposed independent oversight board for content moderation noted a split in stakeholder opinions on this topic. The UN’s top expert on freedom of expression as well as many civil society members recommended that Facebook anchor its content moderation in the international human rights law regime. Others expressed concern that this legal regime would not be sufficiently protective of speech and contained inconsistencies that create problems for content moderation.

Those concerns were linked to a recent scholarly call for updates to the UN’s international legal regime regarding freedom of expression, particularly with respect to the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Racial Discrimination.

This Article examines the scholarly call’s analysis to assess whether its conclusions are correct, which would make this body of law less useful for platforms to adopt in content moderation. This Article finds that the state of international law on freedom of expression is more protective of speech (and more coherent) than the scholars assessed and proposes ways to achieve their laudable goal of promoting broad protections for freedom of expression in international law. The Article concludes that the existing international legal regime on freedom of expression remains a useful resource for content moderation by global platforms.

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Article

Supreme Court Journalism: From Law to Spectacle?

by Barry Sullivan & Cristina Carmody Tilley

Few people outside certain specialized sectors of the press and the legal profession have any particular reason to read the increasingly voluminous opinions through which the Justices of the Supreme Court explain their interpretations of the Constitution and laws. Most of what the public knows about the Supreme Court necessarily comes from the press. That fact raises questions of considerable importance to the functioning of our constitutional democracy: How, for example, does the press describe the work of the Supreme Court? And has the way in which the press describes the work of the Court changed over the past several decades?

This Article seeks to address those questions by comparing the print media coverage of two highly salient cases involving similar legal issues decided fifty years apart. Our study suggests that, at least in highly salient cases, the nature of print media coverage may well have changed dramatically during that fifty-year interval. More specifically, our study suggests that while the mid-twentieth century press described the Court’s decisions largely in terms of the legal questions presented, the contemporary press seems more likely to describe the Court’s decisions in non-legal terms—as something resembling a spectacle, in which unelected judges are presumed to decide cases, not on properly contested legal grounds, but based on their respective political commitments.

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Article

Wither Zauderer, Blossom Heightened Scrutiny? How the Supreme Court’s 2018 Rulings in Becerra and Janus Exacerbate Problems with Compelled-Speech Jurisprudence

by Clay Calvert

This Article examines how the United States Supreme Court’s 2018 decisions in the First Amendment cases of National Institute of Family & Life Advocates v. Becerra and Janus v. American Federation of State, County, & Municipal Employees, Council 31, muddle an already disorderly compelled-speech doctrine.Specifically, dual five-to-four decisions in Becerra and Janus raise key questions about the level of scrutiny—either a heightened test or a deferential variant of rational basis review—against which statutes compelling expression should be measured. Critically, Becerra illustrates the willingness of the Court’s conservative Justices to narrowly confine the aging compelled-speech test from Zauderer v. Office of Disciplinary Counsel. Furthermore, the Article explores how Justice Clarence Thomas’s concurrence in a third 2018 decision—Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission—heightens problems with the compelled-speech doctrine. The Article concludes by proposing multiple criteria for the Court to consider when determining the level of scrutiny to use in compelled-speech cases.

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Note

Left with No Name: How Government Action in Intra-Church Trademark Disputes Violates the Free Exercise Clause of the First Amendment

by Mary Kate Nicholson

The United States was founded in part on the principle of freedom of religion, where citizens were free to practice any religion. The founding fathers felt so strongly about this principle that it was incorporated into the First Amendment. The Free Exercise Clause states that “Congress shall make no law . . . prohibiting the free exercise thereof . . . .” The Supreme Court later adopted the neutral principles approach to avoid Free Exercise violations resulting from courts deciding real property disputes. Without the application of the same neutral principles to intellectual property disputes between churches, however, there is real danger of violating the Free Exercise Clause. This Note seeks to answer the question: Does the government’s role in approving and enforcing trademark rights in intra-church disputes violate the Establishment and Free Exercise Clauses of the First Amendment?

Part II of this Note provides an overview of Supreme Court church property jurisprudence and describes the evolution of the neutral principles approach. This Note primarily focuses on property disputes between hierarchical churches, as their governing structure leaves them most vulnerable to Free Exercise implications. Part III outlines how an entity, secular or religious, registers a trademark with the U.S. Patent and Trademark Office (USPTO). The section details infringement actions and provides examples of registered church trademarks. Part IV concerns the constitutional implications of church trademark adjudication, specifically through the lens of the Establishment Clause and the Free Exercise Clause. Part IV.A concludes that the USPTO’s registering of church trademarks does not violate the Establishment Clause. Part IV.B analyzes Free Exercise implications concerning the adjudication of trademark infringement suits. Because of the neutral principles approach and the inherently ecclesiastical nature of church trademarks, Part IV.B concludes that current court action violates the Free Exercise Clause. Part V suggests that courts should uniformly apply the neutral principles approach to real and intellectual property disputes alike. This section theorizes that such an approach would prevent future Free Exercise violations.

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Article

The Future of Physicians’ First Amendment Freedom: Professional Speech in an Era of Radically Expanded Prenatal Genetic Testing

by Wynter K. Miller & Benjamin E. Berkman

Under the First Amendment, state intervention in conversations between physicians and prospective parents about prenatal whole genome sequencing (PWGS) should trigger at least heightened scrutiny. Part I of this Article 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 the doctrinal distinctions between levels of judicial scrutiny. Part II.B explores historical Supreme Court case law addressing professional speech. Part III surveys the current legal landscape. Using a handful of recent Circuit cases, Part III.A demonstrates that the legal frameworks for assessing physician speech qua professional speech are shambolic. Part III.B provides an overview of the most recent Supreme Court ruling on professional speech in the 2018 case National Institute of Family and Life Advocates v. Becerra. Part IV uses the material in Parts I–III to predict how legislative efforts to limit reproductive decision-making are likely to manifest in the PWGS context. Based on the case analyses in Part III, Part IV identifies the Fourth and Eleventh Circuit approaches as the most defensible for future judicial interventions. This Article concludes that state-based restrictions on PWGS-related speech would be vulnerable to First Amendment challenges and unlikely to survive heightened judicial scrutiny.

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Response

Inappropriate for Establishment Clause Scrutiny: Reflections on Mary Nobles Hancock’s, God Save the United States and this Honorable County Board of Commissioners: Lund, Bormuth, and the Fight Over Legislative Prayer

by Samuel W. Calhoun

The Supreme Court has long misconstrued the Establishment Clause. This misinterpretation in turn has led the Court mistakenly to interpose itself into the realm of legislative prayer, an incursion the Founders never intended. This Response to Mary Nobles Hancock’s Note, after noting the complexity of the issues she presents, briefly comments on Ms. Hancock’s analysis, which focuses on how current Supreme Court doctrine should be applied to legislative prayer. Part III ranges more broadly.

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Response

Christian Legislative Prayers and Christian Nationalism

by Caroline Mala Corbin

This Response to Mary Nobles Hancock’s Note explains Christian nationalism, and argues that government sponsored Christian prayers reflect and exacerbate Christian nationalism. It further contends that to help curb Christian nationalism and its ill effects, legislative prayers ought to cease entirely. Such a result is most in keeping with the Establishment Clause goal of avoiding a caste system based on religious belief.

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Colloquium

Frank Miller’s Sin City College Football: A Game to Die For And Other Lessons About the Right of Publicity and Video Games

by Jordan M. Blanke

The challenge of finding a workable solution for applying the right of publicity is a formidable one because it implicates not only a delicate balance between First Amendment rights and the rights of publicity, but also the complications of varying state laws. The best of the tests developed by the courts so far—the transformative use test—was borrowed from copyright law and itself reflects a careful balance between First Amendment and copyright interests. Additionally, because of dramatic progress in technology, it is likely that in the near future this balancing will often involve not only the rights of publicity and the First Amendment but also copyright law as well.

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Colloquium

“Groove is in the Hart”: A Workable Solution for Applying the Right of Publicity to Video Games

by R. Garrett Rice

This Note reexamines the three major existing alternatives and concludes that none of them is an effective standard that courts can apply consistently. It addresses this problem by proposing an alternative test that will be easier for courts to apply consistently, will protect video game producers’ reasonable expectations, and is designed specifically for balancing the right of publicity with the First Amendment in the video game context.

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