N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Tag: Constitutional Law Page 1 of 5

Search by Geofence Warrant: Why Location Sharing Does Not Relinquish Fourth Amendment Rights

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On December 4, 2025

In Contributions

by Lily Van Petten*

This Contribution argues that the sweeping data retrievals conducted via geofence warrants constitute Fourth Amendment searches for purposes of constitutional protections. The Fourth Circuit’s en banc decision in United States v. Chatrie avoided a definitive holding as to whether these investigatory tools pass constitutional muster. The court merely affirmed the district court’s holding that despite the occurrence of a Fourth Amendment violation, evidence would not be suppressed in the defendant’s criminal trial due to the good faith efforts of the investigating officers. The Fourth Circuit should have conclusively held that law enforcement’s use of a geofence warrant constitutes a search because individuals have a reasonable expectation of privacy in their location data under the Supreme Court’s decision in Carpenter v. United States, regardless of the fact that users share that data with third parties. As a result, a particularized search warrant stating probable cause must be obtained for each stage of data acquisition facilitated by a geofence warrant.

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When Speaking is Not “Speech”: Sanctioning Conversion Therapy Bans

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On November 28, 2025

In Contributions

by Declan Alvidrez*

Professional conduct often uses or relies on speech, which is why courts may assess government regulations targeting such conduct under the First Amendment’s broad protections. Attacks on restrictions of professional speech—speech by a professional to a client in the course of providing professional services—have challenged courts to analyze the boundaries of First Amendment protections in relation to states’ power to regulate licensed professions. In so doing, courts have struggled with whether to treat professional speech as a distinct category under the First Amendment and how to analyze regulations of professional conduct when the regulated conduct relies on speech. These doctrinal issues are especially salient in constitutional challenges to states’ prohibitions on conversion therapy, because banning this professional conduct necessarily limits the speech associated with its talk therapy method. Nonetheless, this Contribution argues that such prohibitions only warrant assessment under a lower level of constitutional scrutiny because they only incidentally burden speech, and the speech that is burdened is not of the kind that First Amendment jurisprudence is most concerned with protecting.

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“Partially Protected” Speech: Why the Flawed Logic of Free Speech Coalition v. Paxton Limits its Holding

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On October 31, 2025

In Contributions

by Orly Salik* 

The Supreme Court ruled in Free Speech Coalition v. Paxton that a statute requiring individuals to verify their ages before accessing sexually explicit content triggers, and satisfies, intermediate scrutiny. Employing a novel form of First Amendment analysis, the Court found that because access to sexually explicit content is protected as to adults, but not as to children, this form of speech on the whole is only “partially protected.” This Contribution argues that the majority’s new rule, applying intermediate rather than strict scrutiny to “partially protected” speech, in fact limits the scope of Paxton’s applicability. The case should not be construed as providing a broad mandate for age verification laws across the internet because, unlike most other online content, sexually explicit material is a narrow category of speech that is excluded from First Amendment protections for minors. A broader reading of the decision would contravene existing precedent regarding the speech rights of minors and impermissibly lower the standard of constitutional review for any speech deemed inappropriate for children. Thus, Paxton must not be read to endorse the use of intermediate scrutiny for any other restriction on material harmful to minors.

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No Talking (or Thinking) in Class: How Bans on Critical Race Theory in the Classroom Unconstitutionally Silence Students

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On April 29, 2025

In Contributions

by Galia Pino*

The Supreme Court has long maintained that students have a First Amendment right to speech and, relatedly, the freedom to receive information in K-12 public school classrooms. Despite public officials’ attempts to ban critical race education in classrooms, these fundamental rights cannot be infringed upon absent a legitimate pedagogical concern. Even though Critical Race Theory (CRT) originates in the legal academy, state legislation purporting to ban CRT actually censors K-12 education on racial injustice, historical oppression, the American slavery system, and more. While communities have mounted challenges to these laws on a variety of grounds, including vagueness, incorrect identification of CRT, and speech rights of educators, this Contribution argues that the bans infringe on students’ First Amendment rights. It first outlines the framework of First Amendment rights in public school classrooms and assesses how state actors may reasonably restrict speech there. It focuses on the pedagogical concerns courts have deemed legitimate enough to constitutionally limit First Amendment rights, highlighting how political ideology or partisanship are not appropriate justifications. It then applies that framework to selected state laws banning CRT and demonstrates that neither the topics those bans purport to cover, nor the actual curricula they target, can be properly limited based on a theory of legitimate pedagogical concern. Therefore, this Contribution argues that bans on CRT—even as it is defined by recent state laws—censor students’ right to speech and violate their right to receive information.  

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Wrong All Along: Why Using Deliberate Indifference for Claims by People Incarcerated Awaiting Trial is Unconstitutional

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On February 13, 2025

In Contributions

by Megan Haddad*

Almost half a million people in U.S. jails are considered “pretrial detainees” 1—people who are incarcerated while they await trial. Yet even though our criminal system presumes that the pretrial detainee is innocent, for decades federal courts of appeals have assumed that when jail officials fail to protect people detained pretrial, those people are entitled only to the diminished constitutional rights of “a prisoner”—a person who is incarcerated after being convicted. Although some circuit courts have begun to reverse course on this issue in response to Kingsley v. Hendrickson, application of the “prisoner” constitutional standard was always incorrect. This Contribution argues that deliberate indifference—the legal standard announced in Estelle v. Gamble and Farmer v. Brennan, which holds that the prisoner can only establish a constitutional violation by showing officials are deliberately indifferent to a substantial risk of harm—should never have been applied to pretrial detainee claims. This Contribution first describes the difference between the pretrial detainee and prisoner status, including how each corresponds to a different constitutional provision (the Due Process Clause and the Cruel and Unusual Punishments Clause, respectively). It then discusses the deliberate indifference standard, and how it is inextricably linked to the Cruel and Unusual Punishments Clause. Finally, it demonstrates that Supreme Court jurisprudence has always indicated that pretrial detainee claims warrant a different, Due Process Clause-based standard, and urges litigants to use the full picture of pretrial detainee/prisoner jurisprudential history to convince the remaining circuits to abandon the deliberate indifference standard for pretrial detainee claims.

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Farmer versus Kingsley: Applying the Subjective Standard to Evaluate Deliberate Indifference Claims Brought by Incarcerated Individuals Awaiting Trial

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On February 11, 2025

In Contributions

by Jodi Lessner*

Section 1983 of the United States Code establishes a statutory basis for individuals to sue state and local government officials in federal court for violating their constitutional or federal statutory civil rights. For incarcerated individuals awaiting trial, § 1983 claims brought against corrections officials for unconstitutional conditions of confinement are rooted in the Due Process Clause of the Fourteenth Amendment, as opposed to § 1983 claims for those who have already been convicted, which are rooted in the Eighth Amendment. In Kingsley v. Hendrickson, the Supreme Court ruled that an objective standard should be used to analyze § 1983 claims for excessive force brought under the Fourteenth Amendment by incarcerated individuals awaiting trial. However, claims of deliberate indifference, which contain an inherently subjective component, defy analysis utilizing an objective standard. Therefore, this Contribution argues a subjective standard, as applied to the deliberate indifference claim brought by a convicted individual in Farmer v. Brennan, should also apply to deliberate indifference claims brought by individuals awaiting trial. 

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Editorial Discretion and Doxing: Possibilities for Social Media Regulation After Moody v. NetChoice, LLC

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On December 26, 2024

In Contributions

by Patience T. Adegboyega*

As technology continues to advance, legislatures are understandably concerned about maintaining the safety of their citizens. Doxing, the act of publicly releasing another’s information online, poses a threat to public safety. However, any legislation targeting doxing will have to be mindful to not infringe on the First Amendment rights of internet providers. In Moody v. NetChoice, LLC., the United States Supreme Court held that editorial discretion—the constitutionally protected right of older forms of media like newspapers to decide what speech they will or will not disseminate—also applies to social media platforms. This Contribution first lays out the framework courts use to analyze First Amendment speech issues, explores the meaning of editorial discretion, and demonstrates that doxing statutes targeting social media platforms may struggle to overcome First Amendment challenges based on editorial discretion. It then proposes a law that could address a platform’s response to doxing without triggering editorial discretion protections. Alternatively, it argues that even if such doxing regulation infringed on editorial discretion, states’ legitimate interests in enacting such legislation sufficiently outweigh the platform’s right to editorial discretion. While this Contribution does not explore it fully, it also recognizes that Section 230 of the Communications Decency Act of 1996 poses an additional barrier for the proposed doxing regulation if it survives constitutional scrutiny.

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A Tool for Judicial Traffic Control: The Pragmatic Case for Why Heck Dismissals Ought Not Always Count as PLRA Strikes

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On September 24, 2024

In Contributions

by Austin Upshaw *

Since Congress passed the Prison Litigation Reform Act (PLRA) in 1996, courts have struggled to harmonize one of its key provisions—the ‘three-strikes rule’—with the Heck bar, a rule derived from Heck v. Humphrey, which prevents district courts from reaching the merits of Section 1983 claims that attack the validity of a conviction before that conviction has been overturned on appeal or through collateral proceedings. The PLRA’s three-strikes rule provides that if an incarcerated person has had three or more of their suits dismissed for failing to state a claim, they can no longer proceed in forma pauperis. Denial of in forma pauperis effectively prevents indigent incarcerated people from accessing relief in federal court. The crux of the Heck issue is a procedural one: is every Heck dismissal equivalent to a dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)? The current circuit split mainly concerns whether Heck created a pleading requirement Section 1983 plaintiffs must plead and prove, or whether it is a waivable affirmative defense. But that focus is misplaced because a Heck-barred complaint can be properly dismissed under 12(b)(6) regardless of whether it is a pleading requirement or an affirmative defense. The better way to resolve the issue is on pragmatic, policy-driven grounds. The Heck bar is best treated as a ripeness doctrine that district courts can bypass at their sound discretion. If Heck is treated as a tool for judicial traffic control, rather than a rigid jurisdictional bar, district courts can ensure meritorious claims are not wrongfully treated as ‘strikes’ under the PLRA.

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The Free Exercise Clause and School Funding: Why a State’s Exclusion of Jewish Orthodox Schools from Funding Does Not Violate the First Amendment

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On September 17, 2024

In Contributions

by Edward Stein*

Recent disputes over government’s exclusion of religious private schools from public funding shine new light on the Free Exercise Clause of the First Amendment, which commands that the government “shall make no law . . . prohibiting the free exercise” of religion. The Individuals with Disabilities Education Act (“IDEA”) offers states federal funds to assist in educating children with disabilities. The question remains whether a state government’s exclusion of Jewish Orthodox schools from IDEA funding triggers strict scrutiny under the Free Exercise Clause. This Contribution argues that exclusion of Jewish Orthodox schools from IDEA funding does not impose a sufficiently substantial burden on the religious exercise of Jewish Orthodox schools or their students’ families, and thus does not trigger strict scrutiny. First, this Contribution situates this issue by explaining the difference between direct and indirect burdens. Second, it distinguishes Jewish Orthodox parents from prior free exercise claimants to show that they do not face a substantial burden. Finally, it contends that Jewish Orthodox schools are also not subject to a substantial burden because they face a permissible use-based exclusion.

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Lending a Helping or Harmful Hand? Why Federal Magistrate Judges Should Not Accept Felony Guilty Pleas

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On April 3, 2024

In Contributions

by Mariana Lopez*

Magistrate judges perform a crucial role in the federal judiciary system by reducing the administrative burden on Article III judges. Courts, however, remain divided on the scope of magistrates’ duties, and importantly, whether they have  final decision-making authority to accept felony guilty pleas under Rule 11 of the Federal Rules of Criminal Procedure. Vesting this duty in a magistrate judge violates the Federal Magistrates Act, which allows district judges to delegate “additional duties as are not inconsistent with the Constitution and the laws of the United States.”1 The weightiness of this task, the Federal Rules of Criminal Procedure, and the separation of powers doctrine enshrined in the Constitution should prohibit magistrate judges from accepting guilty pleas, regardless of a criminal defendant’s consent, and require magistrates to submit a report and recommendation to an Article III judge who may then accept the plea. As the consequences of a felony verdict weigh heavily on defendants and our judicial system, this task should remain in the hands of a constitutionally endorsed Article III Judge.

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