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content-based analysis of speech; third, the distinction between limited purpose and general purpose public figures is no longer applicable due to technological advancement and the heightened access to self-help channels that even limited purpose public figures now possess.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.