Exploring New Approaches to Unsettled Legal Questions

Tag: First Amendment

State Action Analysis in the Age of Social Media: When Facebook and Twitter Become Tools of the State

by Leah Rosenberg*

When does a public official’s private social media account become a tool of governance subject to constitutional analysis? In this Contribution, Leah Rosenberg (’19) argues that public officials who use their personal social media pages to interact with the public and announce policy should be required to protect constituents’ constitutional rights and may not engage in viewpoint discrimination. This Contribution recommends that courts apply a context-specific approach to censorship claims against state officials and that court consider the specific activities challenged by assessing whether state resources and employees were used to take those actions, if the content pertained to government activities or policy, and whether the official was acting as an agent of the state at the time the censorship occurred.

Unblocked: The First Amendment and the Right to Access a State Official’s Social Media

By Maggie Seery*

Does a state official engage in viewpoint discrimination in a state-sponsored forum when they delete a constituent’s comments or block them from their social media pages? In this Contribution, Maggie Seery (’19) discusses the possible constitutional violations an official may make when using social media to interact with the public. Ultimately, this Contribution argues that deleting a comment or blocking a user from a public social media page constitutes unconstitutional viewpoint discrimination.

Everywhere at Once: The Tinker Framework and Off-Campus, Online Speech

by Avery Medjuck*

May a school restrict a student’s online speech without violating the First Amendment? In this Contribution, Avery Medjuck (’18) explains how the omnipresence of digital communication challenges the Tinker framework for determining when a school administrator can lawfully restrict speech. This Contribution argues that only a test that considers the intent of the student speaker can adequately balance students’ free speech rights against administrators’ need to protect the school environment.

Sustaining Academic Freedom: The Need to Redefine the Threshold Question in First Amendment Claims Brought by Public University Professors

by Emily Several*

Can a public university terminate a professor for speech made related to the university? In this Contribution, Emily Several (’18) analyzes the scope of public employees’ First Amendment rights with regard to speech made in their personal and professional capacities. This Contribution ultimately argues that the Supreme Court should establish an exception to the threshold requirement set in Garcetti v. Ceballos in order to preserve academic freedom on public university campuses.

Truly Threatening: Intent Requirements for First Amendment Protection

by Ben Lazarus*

How should the law determine whether a true threat was made with intent sufficient to not merit First Amendment protection? In this Contribution, Ben Lazarus (’18) analyzes the different approaches circuit courts have taken to answer this question. This Contribution argues that an objective test for what constitutes a threat is most in line with the Supreme Court’s precedents and reasoning when confronting threatening speech.

The Doctrinal Significance of Message Attribution in Compelled Speech Cases

by Jesse Klinger*

If a baker has a religious objection to same-sex marriage, would a law that doesn’t allow him to refuse to sell to a same-sex couple for their wedding violate his First Amendment rights? In this Contribution, Jesse Klinger tackles the problem of whether public accommodations laws — laws that prohibit discrimination in the provision of goods and services — impermissibly compel a person to speak. The Contribution examines the Supreme Court’s compelled speech precedents and argues that message attribution is the key issue. In particular, because public accommodations laws are content-neutral, a speaker’s First Amendment rights are violated only if one would attribute a particular message to the provider of the goods or services in question.

Protecting Prisoners: The Fight on Narrow Tailoring

by Staci Cox*

What evidentiary burden must prisons must satisfy in order to show that its policy restricting an inmate’s religious exercise is sufficiently narrowly tailored under Religious Land Use and Institutionalized Persons Act (RLUIPA)? Staci Cox (’17) examines this question, raised at the Touro Law School Moot Court Competition on April 7th, 2016. In assessing whether a prison’s policy that restricts religious exercise is sufficiently narrowly tailored under RLUIPA, courts examine the religious exemptions already provided to inmates within the facility; if no exemptions are already provided, courts ask whether the prison could effectuate its policy through less restrictive means, without unduly burdening other inmates or straining prison operations. This contribution argues that, in order to demonstrate that their policies are sufficiently narrowly tailored under RLUIPA, prisons must satisfy a significant evidentiary burden by showing: the frequency with which current exemptions are used, the costs of providing additional exemptions, and the extent would threaten the safety and security of inmates.

Reexamining the “Germaneness” Test for Limited Purpose Public Figures

by David Clements*

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.

The Dean Wormer Test: Good Faith as a Keystone of Student Speech First Amendment Jurisprudence

by Alec Webley*

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.

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