N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Tag: Constitutional Law Page 2 of 4

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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Barred from Birthright: The Constitutional Case for American Samoan Citizenship

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On November 3, 2022

In Contributions

by Tess Saperstein*

Unlike those born in any other United States territory, American Samoans are saddled with the ambiguous legal status of “nationals, but not citizens, of the United States.” American Samoans have repeatedly sued, arguing that they are entitled to birthright citizenship. However, the Court of Appeals for the District of Columbia and the Tenth Circuit have denied their claims, relying on the Insular Cases, a series of early twentieth century Supreme Court decisions dealing with territories acquired as a result of the Spanish-American War. Nonetheless, the modern Court has repeatedly expressed its reluctance to extend the logic of the Insular Cases because of their racist underpinnings. This Contribution argues for the Court to overturn the Insular Cases and grant American Samoans birthright citizenship.

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Preserving the Bivens Doctrine in the Fourth Amendment Context

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On October 4, 2022

In Contributions

by Tina LaRitz*

The Bivens doctrine allows plaintiffs who suffer constitutional violations at the hands of federal officers to claim monetary damages from federal courts, absent the statutory recognition of such a right. Recent jurisprudence has increasingly sought to limit this right in a show of judicial conservatism at the expense of deserving plaintiffs. This Contribution argues that the Bivens doctrine must be preserved broadly within the Fourth Amendment unreasonable search context.

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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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The Cruel and Unusual Nature of Denying Self-Identity: The Eighth Amendment and Gender Confirmation Surgery

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On April 25, 2022

In Contributions

by Virginia Su*

This Contribution examines whether the denial of Gender Confirmation Surgery to a transgender inmate suffering from severe gender dysphoria constitutes cruel and unusual punishment under the Eighth Amendment. Virginia Su (’22) argues that, under Eighth Amendment precedent, the denial of medically necessary gender confirmation surgery constitutes deliberately indifferent conduct by prison officials.

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COVID Era Regulations in the Absence of Federal Coordination: How the Dormant Commerce Clause Can Co-Exist with Effective State Contact Tracing Regulations

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On April 11, 2022

In Contributions

by Kenneth R. Brown*

Contact tracing emerged during the beginning of the COVID-19 pandemic as an important tool to reduce the spread of COVID-19. The use of cell phone applications provides a method to effectively trace potential exposures since most individuals carry cell phones that can easily gather the necessary data. The federal government has thus far failed to introduce its own regulations regarding the large volume of data that can be collected during contact tracing efforts or attempt to help coordinate the regulations of the individual states to ensure consistency; paving the way for a patchwork system of rules to govern, as each state is left to formulate its own method to protect the health and privacy of its residents. However, due to the volume of interstate travel and difficulty of restricting application usage based on state borders, states must be careful not to run afoul of the so-called “Dormant Commerce Clause” of the United States Constitution. In this Contribution, Kenneth Brown (’22) argues that it is possible for a state to effectively regulate con-tact tracing applications without violating the Constitution.

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Evolving Standards of Decency: Solitary Confinement and the Eighth Amendment

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On November 22, 2021

In Contributions

by Jane M. Mahan* 

The Eighth Amendment prohibits cruel and unusual punishments. But proving an Eighth Amendment violation based on dangerous or unfit prison conditions is difficult because it requires a showing of subjective culpability on the part of prison officials. Federal courts have grown increasingly aware of the harmful nature of solitary confinement, particularly for juveniles, the mentally ill, and inmates with special medical needs. In this Contribution, Jane M. Mahan (’22) argues that the placement of vulnerable inmates in solitary confinement for a period exceeding fifteen consecutive days should be per se unconstitutional under the Eighth Amendment.

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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 Right Against Self-Incrimination in the Digital Age

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On September 20, 2021

In Contributions

by Diego Wright*

Law enforcement agencies are increasingly seeking to compel the disclosure of passwords from the owners of password-protected encrypted devices, such as cell phones. Does the government have the right to compel this disclosure? In this Contribution, Diego Wright (‘22) argues that the Fifth Amendment right against self-incrimination protects an individual from being forced to disclose their passcode when analyzed under the “foregone conclusion” doctrine unless the government can demonstrate they already know the testimonial communications tacit in the act of providing the passcode.

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