N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Tag: First Amendment Page 1 of 2

Revisiting Corporate Personhood in Hobby Lobby

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On November 20, 2023

In Contributions

by Celia Garrett*

In Burwell v. Hobby Lobby, the Supreme Court allowed closely held for-profit corporations to claim religious exemptions from the Patient Protection and Affordable Care Act contraception mandate, allowing these companies to omit certain contraceptive methods from their employer-provided health insurance plans. In downplaying the personhood controversy and the degree of the Court’s departure from established legal principles in its opinion, the majority conceals the extent of the debate and disagreement over this issue—and the extent of legal arguments and precedent to the contrary, as diligently explained in the amicus briefs supporting the government. This Contribution serves to revive and emphasize that discussion, as well as add to the ongoing debate on corporate personhood and human rights.

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My Mind, My Choice: The First Amendment Right of Mature Minors to Refuse Psychotropic Medication

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On September 20, 2023

In Contributions

by Amanda Cort*

In Parham v. J.R., the Supreme Court infamously limited due process protections for children in the medical context. At the same time, the Supreme Court has acknowledged that children enjoy First Amendment protections—to the point where they have rights beyond the traditional parent-child relationship. Additionally, lower courts have articulated a strong connection between First Amendment protection from intrusions into mental processes and the right to refuse treatment. This Contribution argues that the First Amendment can be used as a new avenue to advocate for the rights of mature minors to refuse psychiatric drugs that alter their ability to think and express themselves.

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“You’re Blocked”: Section 1983 Liability in the Age of Social Media

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On April 25, 2023

In Contributions

by Emma Becker*

With the advent of social media, a digital “town square” was created whereby elected officials and their constituents could interact in new, unforeseen ways. With the creation of this new space, however, came difficult First Amendment questions regarding digital access to officials via social media. When elected officials block constituents from their social media accounts are they acting under “color of state law,” thereby violating the First Amendment rights of those who are blocked? This Contribution argues that to determine whether an elected official is acting under “color of state law” when blocking constituents, courts should undertake a totality of the circumstances analysis, focusing on whether the social media account is swathed in the trappings of the official’s office, and whether the social media account was used as a tool of governance.

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Mastering the Internet Experience: Why Section 230 Carve-Outs for “Neutral Assistance” Should Not Extend to Algorithmic Recommendations

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On April 24, 2023

In Contributions

by Amanda Frame*

Section 230 is sometimes referred to as “the internet’s most important law.” The statute, which amends the Communications Decency Act, generally provides immunity for website platforms from liability arising from the content produced by third parties. In doing so, Section 230 eliminates many ordinary legal responsibilities assumed by traditional publishers of third-party content. Protections initially meant to facilitate the growth of the internet now shield powerful social media corporations and incentivize risky and permissive content moderation rules. A proposed shift in the statutory interpretation of “development” would make it easier for plaintiffs to bring facially valid claims against big tech and would allow finders of fact to properly determine when the existing “good faith” requirements have been violated.

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Protecting the Pious: Why the Ministerial Exception Should Not Categorically Bar Hostile Work Environment Claims

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On March 2, 2023

In Contributions

by Jessica Daneshvar* 

Religious organizations are constitutionally protected from undue burden from the government. This protection has been extended to laws that shield employees from employer discrimination. This “ministerial exception” is an affirmative defense religious organizations utilize in response to employment discrimination claims made by ministers. The Supreme Court has found that such an exception is appropriate in a case of employee termination, however circuits have split on whether the exception creates a categorical bar against all types of employment discrimination claims, including hostile work environment claims. This Contribution argues that the ministerial exception as applied to hostile work environment claims that do not involve tangible employment action should be applied sparingly on a case-by-case basis to safeguard religious organizations from unconstitutional government interference while also protecting employee rights.

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The Inadequacy of Brandenburg’s Imminence: Incitement Regulation in the Internet Era

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On December 1, 2022

In Contributions

by Matthew Uvas*

Certain classes of speech are deemed to be so dangerous that they fall outside of the protections of the First Amendment. Regulation of one such class, incitement, seeks to prevent speech which would encourage lawless and violent action. The modern test for whether speech qualifies as incitement hinges upon whether the speech is likely to produce imminent lawless action. However, when hateful or violent speech is spread online, there may be a delay from when a post is made to when someone sees it and responds violently. Therefore, in these cases, imminence may not be an appropriate measure for identifying incitement language online. This Contribution argues that history, case law, and other First Amendment jurisprudence suggests shifting focus to context rather than imminence when regulating online incitement.

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You Vote What You Eat? Assessing the Constitutionality of Prohibitions on Food Distribution to Voters

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On November 10, 2022

In Contributions

by Shara Safer*

A controversial Georgia law, the Election Integrity Act of 2021, prohibits non-profit organizations from handing out food or water to individuals waiting in line to vote. This Contribution argues that the law constitutes an unconstitutional restriction on free speech in a public forum.

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Undo Deference: Reversing the Erosion of Public Employees’ Free Speech Rights

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On September 20, 2022

In Contributions

by Bex Rothenberg-Montz*

Although members of the general public enjoy a right to free speech under the First Amendment, government employees’ speech is more constrained. Courts determine whether a government employee’s speech is protected by balancing the interests of the government and the employee. However, in practice, the deference afforded to the government typically tips the scales. Because courts defer to the government’s interests without requiring substantiating evidence, the government is able to stifle employee speech and erode First Amendment protections for its employees. Consequently, this deference conditions free speech protections upon public employment status. Abandoning this deference will bring First Amendment jurisprudence in line with the principles that animated its enactment.

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Religious Accommodation or Unlawful Favoritism? Examining the Constitutionality of the Parsonage Exemption

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On November 8, 2021

In Contributions

by Alec Soghomonian*

The First Amendment’s Religion Clauses provide that “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof . . . .” The Religion Clauses clearly prohibit both the Federal and state governments from establishing an official state religion or hindering religious practice to such an extent that it results in a constitutional infringement. However, the Supreme Court has long acknowledged that absent those two clear commands “there is room for play in the joints” when addressing the constitutionality of government action that implicates religious belief. Does a tax benefit that provides a financial benefit to a limited class of religious employees and their employers violate the Establishment Clause? In this Contribution, Alec Soghomonian (‘22) argues that the Parsonage Exemption, found in 26 U.S.C. § 107(2) of the United States tax code, unlawfully provides a benefit to religious employees and employers because it does not extend to similarly situated non-religious institutions.

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The Fifth Amendment: No Safe Harbor for First Amendment Retaliation

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On February 22, 2021

In Contributions

by Hannah Beattie*

This Contribution examines whether compliance with the Fifth Amendment should shield a federal condemnation action from a First Amendment retaliation claim. Hannah Beattie (’21) argues that the rationales for carving out safe harbors for government action to be free from First Amendment scrutiny if in compliance with the Fourth Amendment do not extend to the Fifth Amendment context. Ultimately, this Contribution concludes that an individual should be able to raise a First Amendment retaliation defense to a condemnation action, even if the government complied with the Fifth Amendment.

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