Tag: First Amendment Law Page 1 of 4

by Réka Illei* 

In 2008 with District of Columbia v. Heller, the Supreme Court began its overhaul of Second Amendment jurisprudence and left lower courts in a state of limbo on how to evaluate permissible state restrictions on firearm possession. In 2022, in New York State Rifle & Pistol Association, Inc. v. Bruen, the Court affirmed the right to carry a firearm for self-defense outside of the home. At the same time, the Court left open the notion of “sensitive places,” such as schools and government buildings, in which firearm restrictions may be more permissible under the Second Amendment. In the years since, states have attempted to regulate firearm possession in parks under the Bruen historical analogue framework. Still, Bruen provides little to lower courts regarding how to properly identify if a location is a sensitive place for the purposes of relaxing Second Amendment protections. Meanwhile, First Amendment jurisprudence has established a forum analysis for the similar purpose of evaluating rights-restricting speech regulations, which is familiar to and faithfully applied by courts across the country. This Contribution argues that courts should appropriate the First Amendment forum framework for the Second Amendment analysis of sensitive places and historical analogues as established by Bruen.

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.

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.

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.

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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