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.
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. In this Contribution, Shara Safer (’23) argues that the law constitutes an unconstitutional restriction on free speech in a public forum.
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.
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.
This Contribution examines whether compliance with the Fifth Amendment should shield a federal condemnation action from a First Amendment retaliation claim. Hannah Beattie (’21) argues that the rationales for carving out safe harbors for government action to be free from First Amendment scrutiny if in compliance with the Fourth Amendment do not extend to the Fifth Amendment context. Ultimately, this Contribution concludes that an individual should be able to raise a First Amendment retaliation defense to a condemnation action, even if the government complied with the Fifth Amendment.
What standard should be applied to limited purpose public figures – individuals that are public figures only due to their involvement in a particular public controversy – who bring defamation claims, when the alleged defamatory remarks are unrelated to the plaintiff’s purpose for being a public figure? David Clements (’17) examines this question, presented at the Spring 2016 Marden Moot Court Competition, held at New York University School of Law. The “germaneness test” employed by several Circuit Courts of Appeal determines the extent of First Amendment protections a defendant in a defamation suit receives: a challenged statement germane to the controversy for which a defamation claimant is a public figure receive more protection than a statement unrelated to that controversy. This Contribution urges the Supreme Court to revisit this germaneness test, as applied to limited purpose public figures, for three reasons: first, allowing limited purpose public figures to recover damages for negligent defamation would cause a chilling effect on the press; second, engaging in a intensive investigation into whether certain comments are “germane” to a particular plaintiff’s purpose as a public constitutes a presumptively unconstitutional content-based analysis of speech; third, the distinction between limited purpose and general purpose public figures is no longer applicable due to technological advancement and the heightened access to self-help channels that even limited purpose public figures now possess.
Does a school district violate the First Amendment when they ban stickers reading “Screw Hate, Don’t Discriminate,” and if so, how? Alec Webley (’16) examines this question, presented at the 2015 Seigenthaler First Amendment Moot Court Competition at Vanderbilt University. Supreme Court doctrine recognizes that a school or educator may suppress student speech – speech that, in other contexts, would receive First Amendment protections – that is "lewd," and therefore inconsistent with a school’s educational mission. This Contribution critiques this lewdness test as impermissibly vague, content-based, and overbroad, and proposes an alternative method through which schools could productively address and sanction "lewd" speech.