N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Tag: First Amendment Page 1 of 3

Addressing Harms to Children’s Privacy and Safety Online

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On May 15, 2024

In Contributions

by Lindsey Schwartz*

The drastic expansion in collection of consumer personal data and concerning trends in children’s health and safety, correlated with their increased time spent online, further revealed the inadequacy of current regulatory protections and motivated a recent wave of children’s privacy and online safety legislation. As a result, companies are challenging the regulations’ constitutionality, primarily in the form of alleged First Amendment violations. This Contribution argues that, despite a recent court decision finding otherwise, the California Age-Appropriate Design Code regulates children’s privacy largely within the bounds of the First Amendment, while concurrently identifying the provisions of the Code that may be constitutionally uncertain. Finally, this Contribution proposes alternative options for age-appropriate design codes that would more easily survive First Amendment scrutiny while still protecting children’s privacy interests.

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Armed Against AI: How Victims of Nonconsensual Deepfake Pornography Can Bring a Federal Civil Cause of Action That Withstands First Amendment Challenges

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On May 14, 2024

In Contributions

by Brittany Bruner*

Nonconsensual deepfake pornography (“NDFP”) damages victims and leaves people without the ability to control how they are intimately portrayed. To date, no federal statute explicitly addresses NDFP, but Congress recently passed 15 U.S.C. § 6851, a civil statute that addresses nonconsensual pornography (“NCP”). This Contribution argues that 15 U.S.C. § 6851 applies to NDFP and that NCP and NDFP should be considered First Amendment exceptions and, therefore, should not be protected speech. This statute provides an avenue by which to create these exceptions. Finally, even if NCP and NDFP are not deemed First Amendment exceptions, applying the statute to NDFP passes strict and intermediate scrutiny.

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Roger That: Evaluating First Amendment Limits to Trademark Infringement in the Aftermath of VIP Products

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On April 10, 2024

In Contributions

by Noelle Higginson*

Trademark law allows producers of commercial goods to identify and differentiate their goods in the market by a specific mark. In this way, trademark law protects producers and consumers alike: A recognizable mark, exclusively used by a single producer, allows consumers to make informed choices about what goods to purchase and allows producers to benefit from the fruits of their labor—when they make good products, consumers associate their mark with that good reputation. Trademark infringers—those who use a confusingly similar mark to the trademark holder’s mark—interfere with that goal. However, certain products like works of art or parody that intentionally refer to another entity often must use the other’s trademark (or something similar) to achieve their purpose. These alleged infringers therefore risk trademark liability for the sake of artistic expression. The difficulty for courts is determining when the use of a mark in art or parody might defeat an infringement claim or vice versa. That determination is the province of the Rogers framework as recently considered by the Supreme Court in Jack Daniel’s Properties, Inc. v. VIP Products, LLC.1 This Contribution (i) assesses the Rogers v. Grimaldi2 framework’s application in two recent cases in lower federal courts and (ii) considers how courts can factor in First Amendment principles even when, following the VIP Products holding, Rogers does not apply.

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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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