N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Tag: Seigenthaler-Sutherland Cup National First Amendment Competition

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

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On February 25, 2019

In Contributions

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.

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

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On February 11, 2019

In Contributions

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.

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

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On February 23, 2018

In Contributions

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.

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Truly Threatening: Intent Requirements for First Amendment Protection

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On November 10, 2017

In Contributions

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.

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The Doctrinal Significance of Message Attribution in Compelled Speech Cases

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On April 7, 2017

In Contributions

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.

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

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On March 28, 2016

In Contributions

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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