N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Tag: Constitutional Law Page 1 of 5

Personal Property in Purgatory: Why the Fourth Amendment Should Police Government Hoarding

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On April 16, 2026

In Contributions

by Mia Bravo*

The Supreme Court has not yet adopted a legal standard to regulate what happens when the government seizes personal property and retains it for an extended period without a legally valid justification. Circuit courts are split on the correct doctrinal bucket to place this unsettling pattern of behavior. While some courts think a Due Process or Takings analysis is suitable, neither standard fits with current Supreme Court precedent, produces appropriate incentives for individual officers, or sufficiently compensates aggrieved parties. On the other hand, a Fourth Amendment standard offers the most effective and doctrinally sound path forward. The Fourth Amendment reasonability framework is firmly grounded in constitutional text, history, and precedent and provides a workable means to stop constitutional harms inflicted by the government’s prolonged, unjustified retention of personal property.

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The Tucker Act and the First Amendment: Core Constitutional Claims Do Not Belong in the Court of Federal Claims

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On April 3, 2026

In Contributions

by Wiatt Hinton*

Since October 7th, 2023, protests and encampments nationwide have forced schools to reconsider their balance between free speech and anti-harassment policies. In response to these protests, the Trump administration cut billions of dollars in federal funding from universities to extract settlements and impose speech policies favorable to the administration. Universities subsequently filed suit to reclaim their funding, bringing claims that, inter alia, the Trump administration violated their First Amendment rights. Instead of fighting these First Amendment claims head-on, the Trump administration delayed the conflict by seeking to shift the venue from federal district courts to the Court of Federal Claims pursuant to the Tucker Act. Although the Supreme Court has adopted a broad interpretation of the Tucker Act in Administrative Procedure Act claims, its reasoning there should not apply to First Amendment claims. This Contribution argues that a proper reading of the Tucker Act strips the CFC of jurisdiction over First Amendment claims because they are not money-mandating and because the CFC lacks the equitable power needed to remedy these violations. With this construction, the Trump administration can no longer escape liability for their suppressive policies and universities can restore their academic freedom.

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From Alvarez to AI: False Speech and Political Deepfakes

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On March 30, 2026

In Contributions

By Mara Clemons*

Political deepfakes occupy the outer limits of First Amendment protection by combining political expression with uniquely persuasive deception. Their capacity to mislead voters erodes trust in authentic media and challenges the traditional assumption that false political speech can be reliably corrected through the marketplace of ideas. Recent judicial treatment of state-level deepfake regulations illustrates the narrow constitutional space available for regulation. Statutes regulating political deepfakes should not receive strict scrutiny protection when analyzed by courts for First Amendment violations because the defining harm arises not from the communication of false ideas, but from the deliberate deception of speaker identity. By falsely representing who is speaking, deepfakes distort the informational cues that enable voters to assess credibility and accountability, placing them outside the core category of traditional political speech that the First Amendment is intended to protect. Regulations of political deepfakes target this deceptive mechanism, rather than suppressing ideas or viewpoints, and should therefore be evaluated under intermediate scrutiny.

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Policing by Algorithm: Rethinking the Fourth Amendment in the Age of AI Surveillance

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On January 5, 2026

In Contributions

by Elysia Wu*

The Fourth Amendment’s protections against unreasonable searches and seizures were developed when law enforcement investigations relied on publicly exposed information and relatively simple, localized data-collection technologies. The rapid adoption of artificial intelligence (“AI”) in law enforcement, however, places increasing strain on these traditional Fourth Amendment protections. Predictive policing software, facial recognition systems, and other algorithmic tools can generate detailed profiles of individuals without a warrant or individualized suspicion, enabling wide-scale police monitoring in a continuous, data-driven way. Treating AI tools as functionally equivalent to traditional policing techniques risks eroding constitutional safeguards and exacerbating existing racial disparities in the criminal legal system. To avoid these harms and ensure that the adoption of AI by law enforcement does not erode the Fourth Amendment’s core protections, courts must find that AI surveillance requires a warrant due to its scale, continuity, and predictive inferences.

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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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