Amendment Protection Research Articles

Beyond Legal Constraints: Understanding Barriers to Humanizing Responses in the Aftermath of Hate Speech at Private Universities

Supreme Court rulings prevent public institutions from censoring hate speech for content—even if that content has damaging consequences for marginalized students and conflicts with other institutional objectives. This case study examines administrator responses to hate speech and impacts for racial inclusion at a private university unconstrained by First Amendment protections. The findings illustrate that, even in contexts where administrators have both the constitutional leeway to enact stricter speech policies and a deep investment in building an anti-racist community, normative understandings about freedom of expression hamper efforts for racial inclusion and humanizing responses. We propose an “inclusive freedom” approach that leverages norms of academic freedom as a path forward for postsecondary institutions to address harm in the aftermath of hate speech.

Application of superabsorbent natural polymers in agriculture

To meet global food demand, reduce waste, and minimise environmental impact, the agricultural sector must improve its current practices on soil amendment, fertiliser encapsulation, and seed and crop protection. Super absorbent polymers (SAPs) are a class of polymeric materials that can absorb and retain large quantities of liquids/aqueous solutions compared to their own mass. Typically, SAPs are cross-linked to form three-dimensional hydrophilic networks, commonly known as hydrogels. Although SAPs can be synthesised from both synthetic and naturally sourced materials, for agricultural applications they are generally composed of synthetic polymers, due to their advantageous properties. These include higher water absorption rate and capacity, low cost, availability, durability, and mechanical performance. However, many of these systems utilise polyacrylic acid (PAA) and polyacrylamide (PAM) monomers which may have toxic effects on the nervous and respiratory systems of humans and animals. To ensure sustainable agricultural practices and maintain healthy long-term crop output, synthetic SAP usage must be greatly reduced. This review article aims to investigate alternative natural SAPs for agriculture and critically rationalise their adoption into the industry. Specific applications investigated include (i) soil amendment, (ii) fertiliser encapsulation, (iii) seed coating, and (iv) crop protection.

The Ultimate Metaverse Match: An Analysis of First Amendment Protections and Unauthorized Trademark Use in Non-Fungible Tokens

The First Amendment has long provided protections for artists’ creative expression and is a fundamental right for all United States citizens. However, with the rise of a predominantly digital world, those protections begin to blur with the introduction of non-fungible tokens (NFTs). Artistic creation often stems from an inspired source, and sometimes, that inspiration may come from registered intellectual property, specifically trademarks. Trademarks are everywhere we look, so it is not unusual for artists to be inspired by the logos, images, colors, figures, or symbols that are featured on billboards, magazine covers, or everyday items. When these trademarks are used in third-party artistic works, the situation often results in trademark owners gearing up to protect their marks and artists invoking their First Amendment rights to protect their creations. NFTs have become an extremely lucrative market, presenting a new route for artists to explore their creative ideas and an appealing business opportunity for luxury brands to enter into a unique space. Courts and practitioners must focus their attention on the rise of NFTs and trademark-related issues as litigation gradually increases. There has been a longstanding precedent formed by Rogers v. Grimaldi that gives courts some guidance on how to balance First Amendment protections and trademark rights, but with the introduction of NFTs, circuit courts are interpreting and applying the Rogers test in various ways resulting in inconsistent outcomes. This calls for another look at the Rogers test and a reconsideration of its design to balance First Amendment and trademark interests. This Article examines the nuances of First Amendment and trademark law to determine the effectiveness of the traditional Rogers test. This Article concludes that while courts have applied Rogers in unique ways, the emergence of NFTs requires a uniform approach that can only be accomplished by reconsidering Rogers’s application to the digital world. This Article encourages courts to include a more fact-intensive analysis in Rogers cases so fact finders can distinguish between expressive artistic works and ordinary consumer products while discerning the works’ true motives.

Military Vaccine Mandates: Thirty-Five Navy SEALs Believe Fighting for Religious Exemptions is A Shot Worth Taking

Abstract Americans take great pride in their constitutional freedoms, especially the renowned First Amendment, which states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” (U.S. Const. amend. I) The free exercise of religion is safeguarded by the First Amendment’s Free Exercise Clause; yet, in the face of a public health crisis – how far does this protection extend? Moreover, does the Free Exercise Clause cover all Americans equally? In 2020, the Corona virus (COVID-19) pandemic began testing the limits of the First Amendment. President Joseph Biden and Secretary of Defense Lloyd Austin mandated that all active and reserve military members take the newly developed COVID-19 vaccinations. Failing to comply would leave service members with no other option than to be dishonorably discharged from military service. This paper seeks to analyze the current case of thirty-five Navy SEALs who were denied religious exemptions from the COVID-19 vaccines, and examines the implications this has on First Amendment protections for military servicemembers.

The Fourth Amendment to the Constitution of the United States of America in the Light of the European Union Data Protection Model

The question of adequacy of data protection model in the United States is one of the most important in transatlantic business and politic relations. The fact that European Commission’s decisions recognizing the adequacy have been annulled twice put relations between EU and US in very difficult phase. In this article I aim to analyse whether basis guarantees for privacy protection in the United States in the shape of the Fourth Amendment to the US Constitution are adequate in the meaning of data protection model in EU. By looking at the practice of interpreting of the Fourth Amendment and art. 8 of European Convention of Human Rights, in line with police directive and GDPR I try to answer the questions if the Fourth Amendment protection gives enough guarantees to ensure respect towards privacy and data protection rights of individuals.

No Way Out: Eighth Amendment Protection for Do-Or-Die Acts of the Homeless

No Way Out: Eighth Amendment Protection for Do-Or-Die Acts of the Homeless

Religious Group Affect and Support for First Amendment Liberties

Abstract The First Amendment guarantees protection for religious exercise in the United States. But for some, the question of who should benefit from these protections seems to hinge on the identity of the religious group seeking these protections. In this article, we explore the extent to which people’s attitudes toward different religious groups affects their support for First Amendment protections as applied to these groups. We also examine whether it is possible to mitigate these effects, asking whether respondents can be primed to consider tolerance when evaluating rights claims, and if so, whether this increases support for rights in general. Our results have important implications for tolerance and rights in a diverse, pluralistic society, and shed light on what the future might hold for public opinion on constitutional rights and liberties.

Saving Religion from Ballardhoo

This article examines the 1942 federal trial and convictions of Edna and Donald Ballard as an example of the way legal processes can create new types of religious criminals. Scholarship has tended to focus on the landmark US Supreme Court decision United States v. Ballard (1944), which contributed to an expansion of religious freedom protections to individuals and groups previously not considered for First Amendment protection. Through a close reading of the prosecution’s case against the leaders of the I AM Movement, we see the courtroom as an active space of subject formation at a critical time in the history of religious freedom in the United States. I argue that trials, such as this one, demonstrate how the expansion of First Amendment rights also results in the expansion of religious illegality.

VanLife: An Argument to Reconsider the Automobile Exception and Ensure Fourth Amendment Protections for All Citizens


 

On Shaky Ground: Reconsidering the Justifications for First Amendment Protection of Hate Speech

In the United States, hate speech is protected by the First Amendment. This approach differs from most other Western democracies, many of which have enacted criminal or civil laws to punish those who publicly incite hatred toward groups based on their fixed identity characteristics such as race or ethnicity. Traditionally, U.S. jurisprudence and legal scholarship have relied on several discrete theories to justify this approach. These include the marketplace of ideas, political self-governance, personal liberty, the bellwether argument, the safety valve argument, and the reverse enforcement argument. For decades, these theories have been cited as the reasons why the United States allows hate speech. But do they still hold water? Social norms are changing. More Americans are beginning to understand how systems of oppression have shaped our laws and institutions. Young people are more willing now than they've been in the past to accept limits on our right to free expression to promote an inclusive society that welcomes diverse groups. Given these shifting norms, this article asks whether and to what extent each of these theories remains a viable justification for protecting hate speech. The result of this analysis is a comprehensive picture of how these ideas operate in our modern social, political, and media environments. With this clear-eyed view, we can more accurately weigh the potential benefits and drawbacks of our collective decision to protect hate speech in the United States.

Public-School Teachers and Social Media: Understanding Free Speech and Constitutional Limitations

Constitutional protections are unalienable rights in the United States for most citizens. However, public employees are held to a higher standard due to set legal precedents regarding First Amendment protections and rights. Free speech, freedom of expression, and freedom of association are foundational rights of the United States for citizens working in the private sector, and public sector with untaught conditions. Limitations imposed on public-school teachers are historically difficult to decipher and navigate. Due to substantial technological advances in nearly every aspect of modern society, interpretations of current precedents may not be inherently viewed as applicable in regards to public-school teachers’ freedom of expression relating to individual social media usage.
 In this research paper, various landmark decisions, including Pickering v. BOE Township (1968) and Melzer v. BOE New York City (2003), are analyzed and applied to current societal concerns relating to public-school teachers’ social media usage and content. Recommendations for public-school teachers and administration encompass modeling pro-social behaviors, comprehensive social media policies, enhancing digital citizenship, and ethical decision-making practices.

Regulating for the Future: The Law’s Enforcement Deficit

Regulating for the Future: The Law’s Enforcement Deficit Orla Lynskey (bio) I. Introduction Digitization has changed the way we operate as individuals and as a society in significant ways, with this change accelerated by the Covid-19 pandemic. Digital technologies are now treated as ‘imperative’ across many spheres of life.1 A by-product of this digitization has been datafication, as formerly analogue phenomena need to be translated into data in order to digitize them. As our daily social, professional, administrative, and civic interactions have taken on a digital dimension, the data generated about these transactions are recorded and analysed for insights. The data generated by your morning coffee purchase might therefore reveal your location, your appetite for early mornings, and your price sensitivity, amongst many other insights. The aggregation of such insights across all your daily activities can create remarkably in-depth profiles of individual behaviour. Repeated across the population, datafication facilitates surveillance at a mass scale. The creation and capture of data therefore has clear implications for society. Most evidently, the very act of capturing our interactions through data has privacy implications and could have a chilling effect on the exercise of other rights, including freedom of expression and association. Datafication therefore impacts upon established fundamental rights in democratic societies, with consequences for individuals and society at large. Data also act as a source of power to their holders. Data analytics, including automated decision-making and machine learning, enable the holders of data to categorize and sort individuals in novel ways and to differentiate between cohorts on this basis. While we browse the Internet, the advertisements displayed are targeted based on our profiles, with individuals being grouped into categories to deliver these ads – categories including ‘fertility’, ‘eating disorders’, ‘left-wing politics’ and ‘right-wing politics’, amongst many others.2 Beyond clear privacy implications, the use of such categorizations to differentiate the content that individuals see and the opportunities they are offered offends against ideals of equality, exacerbates asymmetries of power [End Page 104] and information, and has the capacity to further segment already fragmented societies. These data collections have been a source of economic power for their holders and users, but their use goes beyond commerce. The state also engages in such classification-by-data. In England, for instance, resource-pressured local authorities have relied upon automated recommendations to identify children at risk3 while the eligibility of criminal offenders for rehabilitation programmes is assessed, in part, algorithmically, taking into account information scraped from social media sites.4 Increasingly, we see the state operate in tandem with private-sector actors in ways that obscure the flow of data and render effective accountability more difficult to achieve. The challenge for the law, against this backdrop, is to ensure continued respect for the rule of law and fundamental rights. In this contribution, the efforts of the European Union to date will be evaluated with two significant challenges identified. This paper proceeds by, first, providing an overview of the legislative initiatives introduced to regulate the European ‘data economy’. In subsequent sections, it identifies and discusses two key challenges. Firstly, there is an enforcement deficit – to which Ireland contributes – that limits the effectiveness of these laws and detracts from their legitimacy. This enforcement deficit has ironically led to the push for more legislation to plug perceived gaps, which itself may contribute to enforcement pressures. Secondly, and perhaps more fundamentally, there is an ambiguity in European data and digital policy regarding what objectives we seek to promote. While the overarching aim might be to secure rights-respecting innovation, there is little recognition that these two elements – respect for rights and innovation – might be in tension and no clear indication about how conflicts between efficiencies and rights might be resolved. II. The European approach to digital regulation The European approach to digital regulation has been juxtaposed with that of the US, where a liberal ethos and the constraints of the First Amendment protection of speech have characterized its response to digitization, and China, where emphasis has been placed on promoting home-grown tech giants and on data-gathering for surveillance and commercial purposes.5 In contrast, Europe has taken it upon itself to...

Regulating Facial Recognition Technology: A Taxonomy of Regulatory Schemata and First Amendment Challenges

This article examines the patchwork of regulatory approaches policymakers have used to govern use of facial recognition technology (FRT). Without comprehensive federal legislation, state and local policymakers are left to fill the regulatory gap. The purpose of this article is twofold. First, it creates a taxonomy of the existing regulatory schemata governing uses of FRT. The authors’ systematic analysis of FRT regulatory approaches identified five main categories of policymaking options: (1) agents of use; (2) limitations on use; (3) accountability of use; (4) evaluation of use; and (5) enforcement of permitted use. Second, the authors analyze whether First Amendment protection of information as speech may serve as a barrier to any regulatory aspect of FRT. Building on the novel empirical framework of regulatory options, the authors examine which types of FRT regulations would likely survive a First Amendment challenge. Thus, this taxonomy of regulatory approaches, coupled with a First Amendment analysis, offers valuable insights for policymakers and scholars.

Warranted Exclusion: A Case for a Fourth Amendment Built on the Right to Exclude

Searches intrude; fundamentally, they infringe on a right to exclude. So that right should form the basis of Fourth Amendment protections. Current Fourth Amendment doctrine—the reasonable expectation of privacy test—struggles with conceptual clarity and predictability. The Supreme Court’s recent decision to overturn Roe v. Wade casts further doubt on the reception of other privacy-based approaches with this Court. But the replacement approach that several Justices on the Court favor, what I call the “maximalist” property approach, risks troublingly narrow results. This Article provides a new alternative: Fourth Amendment protection should be anchored in a flexible concept derived from property law—what this Article terms a “situational right to exclude.” When a searchee has a right to exclude some law-abiding person from the thing to be searched, in some circumstance, the government must obtain a warrant before gathering information from that item. Keeping the government out is warranted when an individual has a situational right to exclude; it is exactly then that the government must get a warrant.

Potential Eighth Amendment Protections for Inmates Subject to Sexual Victimization in the Post-Dobbs World

Potential Eighth Amendment Protections for Inmates Subject to Sexual Victimization in the Post-Dobbs World

Viewpoint, Not Content: Strengthening First Amendment Protection for Nonconforming Gender Expression

Viewpoint, Not Content: Strengthening First Amendment Protection for Nonconforming Gender Expression

The Listeners: A History of Wiretapping in the United States by Brian Hochman

Reviewed by: The Listeners: A History of Wiretapping in the United States by Brian Hochman P. Arun (bio) The Listeners: A History of Wiretapping in the United States By Brian Hochman. Cambridge, MA: Harvard University Press, 2022. Pp. 368. Brian Hochman's The Listeners is an account of more than 150 years of wiretapping and eavesdropping over telegraph and telephone communications in America. In this chronological account, Hochman explores "how the wiretap has evolved from a specialized intelligence-gathering tool to a mundane fact of American life" (p. 6). To do this, he meticulously unpacks the technological evolution, discusses the uses and abuses of technologies by the government and other organizations, and reexamines surveillance scandals as well as debates on surveillance and privacy over the course of time. In addition to secondary literature, the author examines historical newspapers and magazines, lawsuits, congressional hearings, investigative reports, personal interviews, pulp novels, films, and drama series. The issue of surveillance is not unique to the digital age, as such practices were also prevalent in the analog age; as Hochman says, "surveillance is, and always has been, a constitutive element of our communications ecosystem" (p. 6). Previous historical studies of wiretapping by David Kahn, James Bamford, and Athan Theoharis revolved around code-breaking, spycraft, and crushing political dissent carried out by government agencies. Following the narrative of secrecy and governmentality, these canonical texts exposed the existence of a covert discourse on wiretapping, which was "buried in the depths of the state" (p. 12). On the other hand, scholarship by Walter F. Murphy, Edith J. Lapidus, Whitfield Diffie, and Susan Landau, among others, focused on the official realm of law and policy. To present an alternative story, Hochman looks into the overt discourse on wiretapping by exploring how it was employed, debated, imagined, and experienced. He examines the intense pro-and-con debate over wiretapping policy for official use by the state, which remained unsettled until the mid-twentieth century. Besides the predominant narrative of using surveillance against communists and radicals, Hochman identifies how American lawmakers in the twentieth century presented wiretapping as a weapon to fight alcohol, crime, and drugs. Then he investigates unofficial uses for various purposes, such as private detectives hired in matrimonial cases, labor spies, and corporate espionage to gather competitive intelligence. He also traces how citizens and businesses used wiretaps and bugs. Besides the fear surrounding Big Brother in the past, there were "Big Brother's little siblings," who were "the 'listeners' the nation feared for much of the wiretap's history" (p. 9). Although Hochman explores the period of telegraph surveillance, he overlooks some crucial debates: legislative investigation committees and grand juries obtaining telegrams in an indiscriminate manner and the reactions of the public and newspapers to these practices; the eminent jurist [End Page 229] Thomas Cooley's opinion on the inviolability of telegrams, which shaped the views of many of his contemporaries, including the prominent lawyer and attorney for Western Union, Henry Hitchcock (merely cited in ch. 3 n3); and a failed but firm attempt to seek Fourth Amendment protection for the telegram in the Ex parte Brown case, where a Western Union telegraph manager was held in custody for contempt of a subpoena. The absence of these debates leads to the inaccurate view that telegraph surveillance existed and thrived without any resistance in the name of privacy. Except for partial references (in chs. 2 and 3), this book obscures wartime surveillance measures employed by the United States and the allied countries during both world wars and the popular reaction among citizens and businesses. The word "wiretap" during the telegraph era is not just a phenomenon of intercepting and monitoring messages; it carries a few other connotations such as censoring, delaying, and blocking messages. A book on the history of wiretapping in the United States definitely deserves a separate chapter on these historical developments and nuances, focusing on how citizens and businesses expressed their outrage and despair toward wartime surveillance measures. In spite of missing some of these themes, Hochman has skilfully contributed to understanding the phenomenon of wiretapping as a dirty business during the mid-nineteenth and twentieth centuries and the ways it evolved and flourished as...

Weaponizing free speech protections in U.S. higher education: the ugly impact of assaultive speech on Black women students

First Amendment protections for blackface in U.S. higher education have for too long fostered hostile educational environments for Black women and other racially minoritized and marginalized communities. Institutions dedicated to inclusive learning environments can no longer ignore these abuses and have an opportunity and obligation to challenge and disrupt the protections long afforded to assaultive speech. However, overturning these problematic gendered-anti-Black racist narratives of interpreting caricatures of Black women's bodies with blackface and exaggerated body parts as harmless entertainment of means centering the voices, perspectives and lived truths of Black women. I use what I call an Intersectionality Discourse Analysis to analyze two subsequent federal court cases involving a white fraternity's ugly woman contest at a public U.S. university and free speech theory. In my recommendations I urge institutional leaders to take an unapologetic stance in sanctioning assaultive speech and to petition the courts to support their decision-making.

“Greasy Thumb”—The Man Who Made the Chicago Mob

“Greasy Thumb”—The Man Who Made the Chicago Mob

MCCLESKEY ACCUSED Justice Powell and The Moral Price of Institutional Pride

<i>MCCLESKEY</i> ACCUSED Justice Powell and The Moral Price of Institutional Pride