N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Tag: First Amendment Law Page 1 of 3

Confusion, Not Transformation: A Trademark Approach to the Right of Publicity

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On December 1, 2025

In Contributions

by Samantha O’Connell*

Originating in common law privacy torts, the right of publicity now protects the economic and reputational value of identity instead. However, current holdings by courts have produced vague and inconsistent standards, particularly in the age of AI-generated deepfakes. This Contribution argues that the right of publicity should be re-oriented from copyright-inspired frameworks, such as the transformative use test, toward the trademark-based analysis established in Rogers v. Grimaldi which is centered on misattribution of source. A trademark-inspired analysis of right of publicity cases would yield more consistent results while more clearly targeting the core harms of this tort: misappropriation of goodwill and unjust enrichment. By emphasizing consumer perception over subjective aesthetic judgment, the Rogers test fills loopholes in the current doctrine that infringers might exploit, safeguards valuable social commentary, and better equips courts to address new forms of identity exploitation in digital media.

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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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From Scarcity to Surplus: Rethinking Red Lion in the Modern Era

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On November 24, 2025

In Contributions

by Jessica Ford* 

The First Amendment protects the freedom of speech and expression of both individual persons and the media. Generally, the Supreme Court analyzes First Amendment challenges to governmental restrictions on the content of speech by applying heightened scrutiny as the mechanism of constitutional review. In Red Lion Broadcasting Co. v. Federal Communications Commission, however, the Court held that some content-based restrictions on speech are acceptable in broadcasting because of the limited availability of spectrum space, or the frequencies in the electromagnetic spectrum used to transmit audio and audiovisual content. This “scarcity rationale” has subjected broadcasters to unique treatment under the First Amendment for decades, but dramatic changes in technology and media consumption, most notably the rise of multicast streaming, cable television, and digital streaming platforms, call its modern-day validity into question. This Contribution reexamines the foundations of Red Lion and argues that the Court’s 1969 reasoning cannot be squared with today’s vastly expanded and distinct media environment.

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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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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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