First Amendment
Forum
“We Do No Such Thing”: 303 Creative v. Elenis and the Future of First Amendment Challenges to Public Accommodations Laws
In 303 Creative v. Elenis, the Supreme Court ruled that a business had a right to refuse to design a wedding website for a same-sex couple. But properly understood, the decision’s parameters are narrow, and the decision should have minimal effect on public accommodations laws.
Feature
Policing Protest: Speech, Space, Crime, and the Jury
Speech can catalyze reform, particularly for marginalized speakers. Yet, criminal law regularly curtails speech rights by regulating access to spaces where speech occurs. This Feature (1) argues that, sometimes, presence in such spaces is the message and (2) proposes a First Amendment defense ground…
Forum
Who’s Afraid of Carson v. Makin?
Carson v. Makin was yet another defeat for progressives in a brutal term. But just how bad was it? This Essay examines how Democratic lawmakers in Maine have already neutralized the ruling, teaching important lessons about how concerned Americans can best resist the Court’s conservative supermajorit…
Forum
The Once and Future Promise of Religious Schools for Poor and Minority Students
When Carson v. Makin allowed religious schools participation in educational-choice programs, the public-school establishment predicted dire results for marginalized students. This Essay responds to that prediction, exploring religious schools’ historical importance to marginalized students, the publ…
Forum
When Religion and the Public-Education Mission Collide
Recently, the Supreme Court has chosen education as the primary stomping ground for rewriting Free Exercise Clause doctrine. It has framed education policies that prevented public funds from promoting religious indoctrination as discrimination. In the process, it has created a new victim—educational…
Forum
Racialized Religious School Segregation
Carson v. Makin has several implications for the future of school-choice programs. This Essay explores one possibility: an increase in sectarian schools participating in state-funded school-choice programs, causing new forms of school segregation based on race and religion and impairing the democrac…
Note
Proceduralize Student Speech
This Note proposes a new dimension for student-speech jurisprudence: procedure. How schools punish speech drives the lessons students learn, and the lessons students learn should drive judicial determinations of whether the educational value of a restriction is worth the First Amendment infringement…
Article
The Emergence of Neutrality
This Article traces the origins of the content and viewpoint neutrality principles in First Amendment law. It argues that these ideas emerged later than scholars have previously appreciated and that their development was tied to a broader Twentieth Century transformation in constitutional rights jur…
Forum
A Counter-History of First Amendment Neutrality
In The Emergence of Neutrality, Jud Campbell provocatively argues that courts only recently recognized the importance of neutrality to First Amendment law. In this Response I argue that this claim is wrong: that neutrality has always been important to free speech law, even if its meaning has shifted…
Forum
Individualized Exemptions, Vaccine Mandates, and the New Free Exercise Clause
While scholars have interpreted Fulton v. City of Philadelphia as a minimalist decision that avoids revolutionizing the Free Exercise Clause, this Essay uses vaccine mandates as a case study to clarify how Fulton has in fact transformed it by interpreting the right to free exercise as an expansive e…
Forum
The Case for a Federal Defamation Regime
This Essay argues that Congress can and should replace the existing state-law defamation regime with a federal defamation law. Doctrinally, a federal regime would better fit the modern, boundaryless digital-communications paradigm. Practically, it would benefit press organizations by ensuring their …
Forum
How Two Rights Made a Wrong: Sullivan, Anti-SLAPP, and the Underenforcement of Public-Figure Defamation Torts
When applied in tandem, the Supreme Court’s Sullivan standard and state anti-SLAPP statutes give public-figure defamation plaintiffs a near-impossible task. Such plaintiffs must introduce facts—before discovery—about the defendant’s mental state. Otherwise, courts must dismiss their claims. Our Essa…
Forum
The Foreign Intelligence Surveillance Court and the Petition Clause: Rethinking the First Amendment Right of Access
Drawing on recent litigation seeking access to Foreign Intelligence Surveillance Court opinions, this Essay proposes anchoring the First Amendment right of access not just in the Speech, Press, and Assembly Clauses, but also the Petition Clause. Framed this way, access doctrine vindicates both publi…
Feature
The Facebook Oversight Board: Creating an Independent Institution to Adjudicate Online Free Expression
This Feature documents the creation of the Facebook Oversight Board, an independent external body that provides appellate review of Facebook’s content-moderation decisions and policy recommendations. Should the Oversight Board gain legitimacy, it has tremendous precedential potential for democratizi…
Note
Sincerity, Religious Questions, and the Accommodation Claims of Muslim Prisoners
Current First Amendment doctrine permits courts to judge a claimant’s religious sincerity in a free-exercise suit but prohibits them from adjudicating religious questions. This Note challenges that understanding by explaining and evaluating how courts treat Muslim prisoner accommodation claims in pr…
Article
Bans
Courts have often suggested that “bans” are per se unconstitutional. But what makes a regulation a ban and why should it matter? This Article addresses those questions, which are particularly pressing as the Supreme Court prepares to hear its first Second Amendment case in nearly a decade.
Comment
The Reverse-Entanglement Principle: Why Religious Arbitration of Federal Rights Is Unconstitutional
Several courts have compelled religious arbitration of employment disputes even when the arbitration agreement explicitly states that holy text would trump federal law. This Comment articulates a “reverse-entanglement” principle that explains why courts violate the Establishment Clause when they enf…
Note
Beyond Nudging: Debiasing Consumers Through Mixed Framing
Mixed framing juxtaposes the positive and negative attributes of a product. For example, a label using mixed framing might characterize food as “90% fat-free / 10% fat.” This Note advocates that regulators embrace mixed framing as a middle ground in the battle between paternalistic and libertarian a…
Note
A Legal Sanctuary: How the Religious Freedom Restoration Act Could Protect Sanctuary Churches
Over the last three decades, the doctrine and political valence of protections for religious exercise have shifted significantly. This Note analyzes how those changes provide new legal protections for sanctuary churches, demonstrating how religious freedom statutes can protect marginalized individua…
Forum
Religious Exemptions and Antidiscrimination Law in Masterpiece Cakeshop
Conversation about Masterpiece Cakeshop has focused on the Court’s holding that decisionmakers must treat those seeking religious exemptions with respect. This Essay brings to light the case’s broader guidance on religious exemptions under the Free Exercise Clause and what that means for judicial an…
Forum
The Limits of Professional Speech
This Essay argues that the definition of professional speech should not be expanded beyond the doctrine’s purpose: ensuring that clients receive accurate, comprehensive, and reliable advice in accordance with the insights of the relevant knowledge community. It then examines these limits of professi…
Forum
The First Amendment Freedom of Assembly as a Racial Project
Beginning with the author’s experience of being arrested as a legal observer during a Ferguson protest, this Essay explores the First Amendment freedom of assembly’s fragile protection for those who fight for racial justice, arguing that civil rights movements have always been and continue to be dis…
Article
Natural Rights and the First Amendment
This Article excavates the Founding Era approach to expressive freedom, which was grounded in a multifaceted understanding of natural rights that no longer survives in American constitutional thought. This forgotten history undercuts the Supreme Court’s recent insistence that the axioms of modern do…
Comment
Williams-Yulee and the Anomaly of Campaign Finance Law
In 2015, the U.S. Supreme Court held in Williams-Yulee v. Florida Bar that states may prohibit candidates for judicial office from personally soliciting campaign donations in order to protect the appearance of judicial integrity.2 For only the third time in its history, the Court upheld a l…
Forum
A Trademark Defense of the Disparagement Bar
The Supreme Court will soon hear argument over whetherCongress may forbid registering trademarks that consist of “matter which may disparage or falsely suggest aconnection with persons, living or dead, institutions, beliefs, or nationalsymbols, or bring them into contempt, or disrepute.” The dispara…
Article
Professional Speech
Professionals speak in the course of exercising their profession. At the same time, the state can regulate the professions. What is the permissible scope of regulation of the professions as distinct from regulation of professional speech? This Article provides a comprehensive a…
Forum
Religious Liberty for Politically Active Minority Groups: A Response to NeJaime and Siegel
Introduction Douglas NeJaime and Reva Siegel have offered an elaborately reasoned argument against claims of conscience with respect to healthcare and marriage, claims that they call “complicity-based conscience claims.”1 I appreciate that they have avoided some of the exaggerations o…
Forum
RFRA and First Amendment Freedom of Expression
I have very little expertise in the Religious Freedom Restoration Act (RFRA)1 or in the underlying constitutional law of freedom of religion that RFRA seeks to codify. I therefore venture into the debate surrounding Douglas NeJaime and Reva B. Siegel’s Conscience Wars: Complicity-Based Co…
Forum
Nervous Victors, Illiberal Measures
Douglas NeJaime and Reva B. Siegel’s Conscience Wars1 is an exemplar of a dying breed: a progressive piece that takes religious freedom seriously for political foes in the sex-and-reproduction culture wars. In just one generation, those battles have turned religious liberty, that cons…
Forum
Reconstructing RFRA: The Contested Legacy of Religious Freedom Restoration
Introduction Almost every member of Congress voted to approve the Religious Freedom Restoration Act of 1993 (RFRA),1 a bill endorsed by an unprecedented coalition of dozens of religious and civil rights organizations spanning the political and ideological spectrum.2 President Clinton quip…
Forum
The "Supreme Board of Sign Review": Reed and Its Aftermath
First Amendment jurisprudence is fickle. Sometimes it is transformed in prominent, widely known cases, like Citizens United. At other times, it is quieter, lesser known cases that revolutionize the doctrine. One of last summer’s cases, Reed v. Town of Gilbert, falls squarely into the latter…
Forum
Online Service Providers and Surveillance Law Transparency
On June 5, 2013, the first revelation hit the front pages: documents provided by Edward Snowden showed that the National Security Agency (NSA) had for years ordered telephone companies to turn over our domestic telephone calling records en masse.1 The government had created a database of …
Forum
Warrant Canaries and Disclosure by Design: The Real Threat to National Security Letter Gag Orders
Introduction Since the 1980s, the FBI has issued documents referred to as National Security Letters (NSLs), which demand data from companies—including financial institution records and the customer records of telephone companies and communications service providers—for foreign intellig…
Forum
Roundup: Citizens United and Public Corruption
Public corruption has occupied an interstitial space in American law, cutting across many different legal fields, including traditional criminal law, campaign finance regulation, special rules governing public officers, and First Amendment doctrine. When Citizens United was decided,1 its eff…
Forum
Garcia v. Google and a "Related Rights" Alternative to Copyright in Acting Performances
A recent Ninth Circuit case, Garcia v. Google, held that an actor can maintain a copyright interest in her acting performance in a film—independent of the copyright held by the filmmaker—and that this copyright can sometimes be sufficiently powerful to allow the actor to prevent public di…
Forum
Storage Wars: Greater Protection for Messages in Memory
The laws governing stored communication privacy—enacted almost thirty years ago—may finally be updated to reflect contemporary needs, at least in part. The Email Privacy Act,1 proposed by Representatives Kevin Yoder (R-Kan.), Tom Graves (R-Ga.), and Jared Polis (D-Colo.), would afford gr…
Note
Should the Ministerial Exception Apply to Functions, Not Persons?
122 Yale L.J. 1964 (2013).
In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the Supreme Court confirmed what the lower courts had been saying for some time: the First Amendment prohibits the application of the employment discrimination laws to the relationship between a church and its m…
Note
Lawsuits as Information: Prisons, Courts, and a Troika Model of Petition Harms
122 Yale L.J. 1024 (2013).
This Note is about the practice of conditioning recovery for violations of prisoners’ intangible constitutional rights, like First Amendment petition rights, upon a showing of physical injury. It argues that the prior physical injury requirement of the Prison Litigation Ref…
Forum
Winn and the Inadvisability of Constitutionalizing Tax Expenditure Analysis
**This Essay is part of a new Yale Law Journal Online series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases.**
In Arizona Christian School Tuition Organization v. Winn, the U.S. Supreme Court decided, by the thinnest of margins, that Arizona taxpayers cannot m…
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A Winn for Educational Pluralism
**This Essay is part of a new Yale Law Journal Online series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases.**
Over the past decade, scholarship tax credit programs, like the one at issue in Arizona Christian School Tuition Organization v. Winn, have emerged a…
Forum
Snyder v. Phelps, the Supreme Court’s Speech-Tort Jurisprudence, and Normative Considerations
The Supreme Court’s forthcoming decision in Snyder v. Phelps will address the clash between two fundamental and longstanding American values: freedom of speech and “the right to be let alone.” Freedom of speech is a cherished and distinguishing characteristic of American democracy, while the r…
Forum
Citizens United and Its Critics
Testifying before the Senate Judiciary Committee regarding her confirmation as a Supreme Court Justice, Solicitor General Elena Kagan summed up in a cool and even-handed manner the arguments she and her opponents in the Citizens United v. FEC case had made to the Supreme Court. The “strongest argu…
Forum
Tinker’s Tenure in the School Setting: The Case for Applying O’Brien to Content-Neutral Regulations
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Addressing Political Captive Audience Workplace Meetings in the Post-Citizens United Environment
Citizens United has wrought widespread changes in the election law landscape. Yet, a lesser-known consequence of this watershed case might have a significant impact in the workplace: it may permit employers to hold political captive audience workplace meetings with their employees. Under Citizens Un…
Comment
Fantasy Liability: Publicity Law, the First Amendment, and Fantasy Sports
119 Yale L.J. 131 (2009).
Forum
Citizens Not United: The Lack of Stockholder Voluntariness in Corporate Political Speech
The Yale Law Journal Online is reissuing Elizabeth Pollman's Citizens Not United: The Lack of Stockholder Voluntariness in Corporate Political Speech in light of recent developments at the Supreme Court. With the Supreme Court hearing a new round of oral arguments in Citizens United v. Federal Elec…
Note
Is There a Place for Religious Charter Schools?
118 Yale L.J. 554 (2008).
Recently, religious groups have sought to become charter school providers. Scholarship and popular commentary dispute the desirability of this prospect. Religious charter schools can address unmet needs of religious groups and keep them invested in the public school sys…
Article
The Ideology of Authorship Revisited: Authors, Markets, and Liberal Values in Early American Copyright
118 Yale L.J. 186 (2008).
The concept of the author is deemed to be central to copyright law. An important strand of copyright scholarship explores how the development of modern copyright law was intertwined with the rise of a new ideology of authorship as an individualist act of creation ex nihilo…
Note
Defending the Faithful: Speaking the Language of Group Harm in Free Exercise Challenges to Counterterrorism Profiling
117 Yale L.J. 920 (2008).
Counterterrorism officials increasingly seek to scrutinize conduct and behavior that they believe, however uncertainly, to be probative of terrorist activity. When such conduct- based profiling specifically targets activity that is also expressive of Muslim identity, it ma…
Forum
The "Bong" Show: Viewing Frederick's Publicity Stunt Through Kuhlmeier's Lens
Next week, the U.S. Supreme Court will hear argument in Morse v. Frederick. At issue is whether a public high school principal violated a student’s First Amendment rights by suspending him for displaying a banner reading “BONG HiTS 4 JESUS” at an outdoor school rally for the 2002 Winter Olympi…
Forum
A Remedy Without a Wrong
Somewhere far away, in a land not studied by Professor John Goldberg, there may be a legal system that denies injured people redress for injuries. Flipping through the yellow pages here in America, however, there seems to be heavy traffic in the commerce of bringing lawsuits for almost any setback i…
Forum
Big Money v. The Framers
African-Americans and women were once, at law, lesser beings. They were made that way, in part, by not having the right to go to court and get redress there, the right by which the powerless hold the powerful to account. Why is it even plausible that so fundamental a right is not protected by the Co…
Review
Justice Breyer Throws Down the Gauntlet
115 Yale L.J. 1699 (2006)
A Supreme Court Justice writing a book about constitutional law is like a dog walking on his hind legs: The wonder is not that it is done well but that it is done at all. The dog's walking is inhibited by anatomical limitations, the Justice's writing by political ones. Supre…
Comment
Grand Theft Oreo: The Constitutionality of Advergame Regulation
115 Yale L.J. 227 (2005)
In recent years, companies have increasingly embraced alternative forms of marketing that deviate from the conventional advertising model. One new type of marketing that has received particular attention is "advergames." The term--a combination of "advertisement" and "video g…
Note
Limiting Coercive Speech in Class Actions
114 Yale L.J. 1953 (2005)
Courts once routinely banned communications of named parties and their counsel with potential class members, until the Supreme Court, in Gulf Oil Co. v. Bernard, called for "specific findings" and a "weighing of interests" before the imposition of such bans. Most courts have…
Comment
Freeing Newsgathering from the Reporter's Privilege
114 Yale L.J. 1827 (2005)
A number of recent high-profile cases have forced courts to reexamine whether reporters must respond to subpoenas seeking disclosure of confidential sources or whether they are protected from doing so by the doctrine of reporter's privilege. While these confidential-source …
Essay
Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It
114 Yale L.J. 535 (2004)
Recent cases and scholarship have debated whether copyright law is consistent with the First Amendment. Much of the discussion has centered on copyright law's ability to suppress transformative, creative reuses of copyrighted works and on copyright's fair use doctrine as a m…
Note
Private Voucher Schools and the First Amendment Right To Discriminate
113 Yale L.J. 743 (2003)
At the end of its 2001 Term, the Supreme Court settled one of the most contentious educational debates in recent history, ruling in Zelman v. Simmons-Harris that the inclusion of religious schools in a state school voucher program did not violate the Establishment Clause of t…
Note
A Robust Public Debate: Realizing Free Speech in Workplace Representation Elections
112 Yale L.J. 2415 (2003)
The First Amendment stands as a guarantor of political freedom and as the "guardian of our democracy." It seeks to expand the vitality of public discourse in order to enable Americans to become aware of the issues before them and to pursue their ends fully and freely. As t…
Comment
The Limits on University Control of Graduate Student Speech
112 Yale L.J. 1295 (2003)
In the spring of 1999, Christopher Brown, a master's degree candidate in material sciences at the University of California at Santa Barbara (UCSB), submitted his thesis for approval. The copy reviewed by Brown's thesis committee contained no acknowledgments page. After the c…
Comment
"Exceedingly Vexed and Difficult": Games and the First Amendment
112 Yale L.J. 361 (2002)
The mayor of Tinley Park, Illinois, describes his village as a "dynamic, progressive community" of more than 45,000 people. He claims it is a "great place to live, work and play." Until September 22, 2000, however, the village was a "great" place to play only for those who …
Article
The Freedom of Imagination: Copyright's Constitutionality
112 Yale L.J. 1 (2002)
In some parts of the world, you can go to jail for reciting a poem in public without permission from state-licensed authorities. Where is this true? One place is the United States of America.
Copyright law is a kind of giant First Amendment duty-free zone. It flouts basic fr…
Note
Free Speech and the Visage Culturel: Canadian and American Perspectives on Pop Culture Discrimination
111 Yale L.J. 2289 (2002)
Comment
The Kabuki Mask of Bush v. Gore
111 Yale L.J. 223 (2001)
Is law merely Kabuki politics? Many critics consider the Supreme Court's recent foray into electoral matters, Bush v. Gore, as resounding evidence that it is, with concerns for equality and electoral deadlines constituting the "conservative" Justices' masks. These critics p…