Amendment Rights Research Articles

The Dangerous Case of Psychiatrists Writing About the POTUS’s Mental Health

The Dangerous Case of Psychiatrists Writing About the POTUS’s Mental Health

Fee Awards Turned Upside Down: A Threat to Public Interest Litigation

Public interest litigation derives funding from two main sources: the generosity of donors who subsidize it, and court-awarded attorneys’ fees. Both federal and state law authorize prevailing parties in public interest cases to recover attorneys’ fees from the losing party. These lawsuits generally involve private plaintiffs suing a government agency for alleged violation of constitutional or other rights. Sometimes, advocacy groups favoring the challenged governmental action are permitted to intervene to litigate alongside the government. Recent California decisions have resulted in these interventions considerably raising the stakes for public interest plaintiffs because state courts are using state’s private attorney general statute, Code of Civil Procedure section 1021.5, to award prevailing defendant-intervenors fees that are payable by the public interest plaintiff who initiated the lawsuit. This article argues that awarding fees to defendant-intervenors undermines the purposes of public interest litigation fee-shifting statutes, which are meant to encourage lawsuits challenging government action that violates constitutional or statutory rights. This is the reason that government defendants themselves are ineligible to recover fees from unsuccessful public interest plaintiffs. Allowing prevailing defendant-intervenor advocacy groups to recover fees from public interest plaintiffs subverts the purposes of the fee-shifting statutes and chills plaintiffs’ First Amendment rights to petition the courts. It improperly creates an incentive for public agencies to outsource defense of the laws to advocacy groups, creating conflicts between the groups’ ideological goals and the government’s own pursuit of the public interest. The article concludes that California courts should adopt the rule established by the federal courts for analogous statutes: Prevailing defendant-intervenors may recover attorneys’ fees from an unsuccessful public interest plaintiff only when the plaintiff’s lawsuit is found to have been frivolous, unreasonable, or without foundation.

Balancing Disruptive Students' Rights with Campus Safety

ABSTRACTDisruptive students potentially pose significant problems for campus administrators as they strive to maintain a safe campus environment conducive to learning while not violating the legal rights of the students. Maintaining a safe campus is important because increasing numbers of students with mental and cognitive disorders are enrolling in college and university classes. This article examines selected court cases involving disruptive students who alleged violations of their First Amendment right of free speech, due process rights under the Fourteenth Amendment, and violations of the rights afforded them under the Americans with Disabilities Act and the Rehabilitation Act. The rulings in these cases were used to develop campus guidelines and procedures to address the actions of disruptive students.

Gerrymandering and Association

This article argues that the First Amendment expressive right of association prohibits excessive partisan gerrymanders. For decades, the Court has struggled to articulate a manageable standard for partisan gerrymandering claims. Justice Kennedy’s concurring opinion in Vieth v. Jubelirer suggested that the First Amendment might provide a more promising basis for such a claim than equal protection. The issue is now before the Court in Gill v. Whitford and Benisek v. Lamone. The right of association has long been understood to limit the dominant political group’s ability to discriminate against its rivals. For over four decades, the Court has understood that voting implicates the right of association, at least in some contexts. The article develops the argument for challenging partisan gerrymanders as a violation of the First Amendment right of association, focusing on the party-based character of the harm and an administrable effects-based legal standard. It explains how the legal standard developed in other voting contexts might be extended and applied to cases challenging excessive partisanship in drawing district lines. Expressive association provides the strongest constitutional basis for challenging partisan gerrymandering for three reasons. The first is that it best captures the character of the injury, which inheres in party-based discrimination – more specifically, the dominant political party’s attempt to entrench itself at the expense of the rival major party and its supporters. Second, the legal standard adopted in voting-as-association cases focuses on effect rather than intent, avoiding the thorny challenge of discerning legislative intent. Third, the voting-as-association cases provide an appropriately nuanced standard. The balancing test that the Court has adopted in its voting-as-association cases allows fair consideration of both the burdens that the challenged practice has on the non-dominant party, as well as the state interests that might justify these burdens.

The Classic First Amendment Tradition Under Stress: Freedom of Speech and the University

This forthcoming chapter in a book to be edited by Lee Bollinger and Geoffrey Stone scrutinizes the frequently-heard claim that universities are suppressing the “First Amendment” rights of students, faculty, and invited speakers. The chapter argues that this claim rests on a fundamental misconception about the nature of First Amendment rights, which apply to public discourse and are designed to establish preconditions for democratic self-determination. Speech at universities, by contrast, must be regulated to attain the ends of education. Debates about the proper regulation of campus speech are thus ultimately debates about the nature of education, not about First Amendment rights. The overblown and misleading constitutional rhetoric of these debates is symptomatic of a larger debasement of our understanding of the nature of free speech protections, a debasement that could seriously undermine the strength of Free Speech principles when we actually need to call upon them to do serious work to protect the integrity of our political system.

University Trademarks and 'Mixed Speech' on College Campuses: A Case Study of Gerlich v. Leath and Student Free Speech Rights

Higher education has long been the fundamental building block upon which American democracy is based. The guarantees of free speech have served as the catalyst for higher education, itself a revered liberty in the American polity. As the Supreme Court famously declared in 1969: “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Indeed, freedom of expression is imperative to a university’s mission in preparing young aspiring students to become informed and engaged citizens. This paper examines the decision by the Eighth Circuit Court of Appeals in Gerlich v. Leath and elaborates on the complexities that arise when analyzing student speech rights that conflict with university interests. Specifically, this paper reviews the Eighth Circuit's over-simplification of the rights and interests at stake in the original opinion and more thoroughly scrutinize the intricacies of student speech rights on university campuses. The Gerlich decision ultimately misses the analytical mark because it fails to fully evaluate the Free Speech rights at stake will. Insufficient attention is paid to the nuanced tensions that exist when examining First Amendment rights in the setting of a higher education institution—namely, that such circumstances present unique instances of “mixed speech” where both the university and its students are expressing a message particular to their own interests. Though student speech rights do not end at the schoolhouse gates, exactly how far they extend into the daily operations of a public university it remains to be seen. The Gerlich decision would suggest that they are fairly invasive, and growing. But there is good reason to question the strength of the Gerlich opinion. The relevant question is not whether student speech rights should be curtailed on university campuses; the relevant question, rather, is to what extent student speech rights should prevail when they content with—even conflict with—the expressive interests of their university.

A Penny for Your Thoughts: Free Speech and Paying Fines with Coins

In October, 2016, the city of Springfield, Illinois encroached on the First Amendment rights of its citizens and hardly anyone noticed! The City Council approved an ordinance that significantly limits the payment of debts owed to the city with coins. Specifically, the new law provides that “Cash payments [to the City] may be limited to no more than $20 in coinage of which not more than $5 may be in pennies. Overpayments will be applied to any existing debt if applicable.” Municipalities may be inconvenienced when citizens use coins to pay their fines or taxes, but legislation to prevent citizens from doing so runs afoul of the U.S. Constitution. This essay is a reminder of how easily First Amendment rights can be forgotten.

Excavating The Lacuna: Barbara Kingsolver’s allegorical understanding of America’s post-9/11 world

Abstract Following the violent attacks of September 11 2001, and before the dust had properly settled, popular author Barbara Kingsolver was, in effect, being ostracized for candidly voicing her first amendment right – freedom of speech. She spoke out forcefully in various periodicals in an attempt to check the rush towards war. By 2009 she stood ready to fictionalize her personal experience of ‘[b]ecoming a scapegoat for the American right-wing’, and figuratively link her ordeal to problematic government actions from her country’s complex political past. In doing this she stands out as one of the few American novelists who were prepared to critically examine the US political atmosphere during the first decade of the twenty-first century. Her complex allegorical novel, The Lacuna (2009), follows a historical political thread that is artfully woven into the very fabric of this metaphorical text. The Lacuna adeptly displays how the media can be employed to underpin political agendas, promote bias and surreptitiously provoke violence against those who step outside the margins of the existing status quo. This article examines these issues in order to discern connections between America’s violent past and the culture in conflict that has rapidly come into focus during the twenty-first century.

Smart Devices and Criminal Investigations: Protecting Suspectss Privacy and Fourth Amendment Rights

From asking Alexa to saying “Hey, Siri!” smart devices are increasingly popular. People using internet connected, or “smart”, devices can easily store and share information as well as interact with one another. Smart devices record and track users’ movements, actions, and words, which raises privacy concerns. They log where users are and what they are doing. They can gather biostatistics. All that information may reveal more than you think. Information stored in smart devices could be used in a myriad of unanticipated ways. This has led to increased privacy concerns. Smart devices also are used in criminal investigations. Today, detectives search for smart devices at crime scenes. The Central Intelligence Agency (“CIA”) can hack smartphones, computers, and other internet-connected devices. Due to their widespread use, law enforcement agencies increasingly ask tech companies to provide access to information within or gathered by smart devices. Evidence gathered from home smart devices “have already put [at least one murder suspect] in jail … [perhaps] for life.” Law enforcement’s powerful capabilities for hacking smart devices “potentially takes surveillance right into the homes and hip pockets of billions of users worldwide, showing how a remarkable variety of every day devices can be turned to spy on their owners.” The popularity of smart devices and the kinds of information they contain may provide law enforcement with an end run around privacy laws while investigating crimes. Due to the widespread popularity of smart devices, and since smart devices store information potentially useful to law enforcement, privacy protections including clear standards for law enforcement and the judiciary are necessary. Legislative solutions to privacy concerns are appropriate. Congress for several decades has regulated government use of information obtained from new technology to balance privacy interests and law enforcement needs. The warrant requirement is as old as the constitution. Requiring probable cause and a warrant prior to accessing data contained within an individual’s smart device does not unduly burden police investigations and protects individual privacy from government intrusion.

Networking the Party: First Amendment Rights & the Pursuit of Responsive Party Government

This Article argues that the Supreme Court’s party jurisprudence is predicated on a set of theoretical assumptions that do not hold true in the real world of contemporary American politics. In this regard, the Supreme Court’s recent decisions denying certiorari in two cases implicating the rights of political parties — one involving a challenge to the federal ban on so-called soft money and the other involving a challenge to state mandated open primaries — provide a much needed opening to explore alternate paths to democratic responsiveness and to identify opportunities for First Amendment doctrine to increase rather than decrease the odds of responsive and responsible party government. Without claiming that there are easy solutions to our democratic dysfunctions, and drawing on a substantial body of empirical literature, the Article maintains that an alternative path to democratic responsiveness emerges when one focuses on the associational qualities of partisan networks. Viewed as associations, the capacity of political parties to foster a functioning democracy depends less on their capacity to speak and the coherence of their platform and more on the depth and breadth of their political networks. This is because social connections turn out to be more central to political mobilization, organization, and information transmission than many, especially in law, appreciate. As such, strengthening and broadening social ties within partisan networks presents an alternative and, as yet underappreciated, path to responsive and responsible governance. Integrating these insights into existing First Amendment doctrine provides a new scale with which to weigh the burdens on a party’s First Amendment rights and a new ability to allocate First Amendment rights in such a way as to encourage political parties to attend to the concerns of their constituents and to govern in the public interest.

Why So Silent? The Supreme Court and the Second Amendment Debate After DC v. Heller

In District of Columbia v. Heller (2008) the Supreme Court appeared to give to gun rights activists what they had campaigned for since the 1970s: a ruling that the Second Amendment encompassed an individual right to bear arms for the purposes of self-defence. But as the debate about gun rights returned to the top of the political agenda in the United States as a result of a series of high profile mass shootings in 2015 and the death of Justice Antonin Scalia in 2016, two things became clear: that Heller had not ended the political or legal debate about Second Amendment rights and that the Supreme Court had been noticeably absent from the debate since applying the Heller ruling to the states in McDonald v. Chicago in 2010. This article argues that, far from the success claimed by gun rights supporters, the consequences of Heller fundamentally undermined some of their key arguments and forced a shift in the nature of the debate. Both worked to keep the Supreme Court away from the debate at a time when greater clarity about the meaning of Heller was needed.

The Hybrid Trademark and Free Speech Right Forged from Matal v. Tam

An analysis of the potential ramifications of the 2017 Matal v. Tam U.S. Supreme Court case and the implications of the hybrid trademark and free speech right that has been forged in its wake. In permitting trademarks to be allowed over the Disparagement Clause even if they are offensive, First Amendment rights are now inextricably intertwined with the scope of trademark protection. This paper examines the holding of the Matal v. Tam case and also attempts to predict the behavior of trademark filings and the development of trademark law after its holding.

Does the internet eraser button for youth delete first amendment right of others?

Will Facebook and similar posting sites soon come to an end from hefty civil fines and consent decrees? Is Internet discourse at risk? That may be the case if lawmakers succeed in passing the Do Not Track Kids Act. As drafted, the law would require operators of children directed websites to include an eraser button to remove user posted content and would penalize mom and pop run sites unable to afford the financial and technological resources to comply with the mandate. This Note argues that if enacted, the law would constitute a presumptively impermissible burden on Free Speech under the First Amendment and should be subject to strict scrutiny.

The First Amendment Issue of Our Time

Here we go, once more unto the breach, to face yet another battle in the near decade-long war over net neutrality. Some of the combatants have changed, and their positions have shifted slightly, but today we find essentially the same interests represented and the same arguments advanced. On one side, the major cable, Digital Subscriber Line (DSL), and wireless broadband providers continue to argue against increasing the Federal Communication Commission's (FCC) authority over how these providers manage the flow of information through their pipes. On the other side, we have content providers, Internet users, and - this time - the FCC, contending that the government has the power to protect the free flow of information on the Internet. In 2002, the FCC under President George W. Bush and then Chairman Kevin Martin embarked on a course of extremely light (which turned out to be nonexistent) regulatory oversight of broadband providers. The Obama administration, with Chairman Julius Genachowski now at the helm, is attempting to reverse this course and impose a meaningful net neutrality mandate on broadband providers. In this iteration, not only has the FCC switched sides, but, to keep things interesting, Google and Verizon - typically on opposite sides of the net neutrality debate--have joined together to find common ground and have proposed a compromise position. Many of the issues are nuanced, yet the general contours of the arguments are relatively straightforward. On the one hand, the broadband providers’ argument continues to proceed something like this: Trust the market. Any imperfections in the market or barriers to free and open Internet communications will be cured by the market itself. The market is robust and has thrived thus far without regulation, and the Internet will only be hampered by regulation. There is simply no need for net neutrality regulation because there is hardly any evidence that broadband providers have discriminated against content or applications (and Comcast had good reasons for blocking BitTorrent traffic). Furthermore, regulation of broadband providers will violate those providers’ First Amendment rights as speakers to select, edit, block, or favor the content of their choosing. In response, the proponents of net neutrality regulation such as myself argue that broadband providers serve as increasingly important conduits for our communications. This is especially true with respect to those providers’ ability to manage the “transmission component” of broadband communications--the part the FCC now seeks to regulate. Conduits for communications--which we call “common carriers,” such as telephone companies, the postal service, and telegraph companies of old--have long been under a legal obligation not to discriminate against the communications they are charged with carrying. The telephone company cannot refuse to connect your call because your conversation is racy, nor can the postal service refuse to deliver your mail because it contains unpopular political propaganda. This basic duty not to discriminate is imposed regardless of the existence of monopoly control by communications conduits. We have learned over the past century not to entrust our free speech interests to “the market.” Rather, we regulate these conduits for communication because doing so is necessary to ensure the free flow of information. The relevant free speech interests at issue here are not those of the broadband provider (which are virtually nonexistent) but those of members of the public whose communications must be facilitated free of discrimination or censorship in order for democratic self-government to fun. Notably, both sides of the net neutrality debate invoke free speech in support of their cause. As a result, the net neutrality battle has turned into what has been called “the First Amendment issue of our time.” In this article, I explore some of the latest contours of the net neutrality debate, with an eye toward evaluating the First Amendment and free speech implications of both sides’ arguments. Part I examines the specifics of the approaches to net neutrality regulation recently proposed by the FCC and the Verizon-Google team. In Part II, I critique broadband providers’ arguments that net neutrality regulation would violate their First Amendment rights. Part III argues that proposed transparency-only requirements for wireless broadband providers are insufficient to protect our full range of free speech interests. And Part IV proposes a framework for regulating “specialized” online services that is informed by the First Amendment’s public forum doctrine.

Packer Fan May Give Green, Gold Another Win Over Bears

A Green Bay Packers fan filed suit against the Chicago Bears in federal court for the Northern District of Illinois on June 16, alleging that the Bears violated his First Amendment rights by barring him from wearing clothing supporting an opposing team while attending on-field events. While fan expression is a long-standing tradition and expected part of sports, the First Amendment rights of fans has become a widely debated issue. This dispute, in large part, is due to the fact that there have been very few precedential cases that deny, interpret or establish fans’ rights. The issue becomes further complicated when it involves stadiums and arenas constructed with some public financing or built on state land or land operated by a municipal authority.

The Impact of Courtroom Cameras on the Judicial Process

The sensational trial of Richard Bruno Hauptmann for the kidnapping and murder of Charles Lindberg’s young son in 1935 marked the starting point of the debate regarding the propriety of allowing cameras in courtrooms during judicial proceedings. This debate intensified during and following the 1994-1997 trial of O.J. Simpson. At issue is how a court must weigh the Sixth Amendment right of the accused to a public trial and the First Amendment right to a free press, as well as its own interest in preserving the dignity and decorum of the courtroom. This paper examines the history, Federal rules, seminal court cases, and California rules concerning cameras in the courtroom in the context of these important Constitutional issues. This research provides qualitative data from 208 California judges that help explain some of the thinking by those who are empowered to accept or reject requests to record court proceedings.

Speech and Consequences

This issue begins with the moving story of intellectual freedom champion Gordon Conable. The drama plays out like this: a principled and outspoken defender of First Amendment rights stands up for a controversial book in accordance with library policy and federal law. Then, his community vilifies, harasses, and punishes him for this defense until his death. One lesson is the inescapable truth that although we have the right to free speech, there can be consequences, whether in Michigan, or in Russia (see this issue’s review of Garden of Broken Statues).

The Exercise of Constitutional Rights, a Crime Punishable by Death

Coerced, involuntary confessions are constitutionally barred. All interrogations and plea negotiations must be maintained absent any threats. Death is different. Prosecutors throughout the United States acknowledge the continued practice of leveraging plea negotiations with the threat of execution. A small fraction of death penalty trials result from the prosecution’s pursuit of the death sentence. Many of the nation’s most notorious serial killers escaped the death penalty by simply accepting a guilty plea. Those prosecutors who adamantly support the death penalty, seeking the sentence in every case in which it is available, are overwhelmingly amenable to abandoning the sentence in exchange for the defendant’s guilty plea. In these negotiations, the defense counsels’ legal strategy centers on saving their client’s life. Legal ethics mandate defense attorneys counsel defendants to accept any offer to avoid the death penalty. This exposes the growing number of guilty pleas accepted for the sole purpose of avoiding death. The Court recognizes the practice of threatening a defendant’s life with the death penalty as constitutionally valid. Defendants maintain a voluntary choice to plead guilty and avoid the death penalty. These defendants’ guilty pleas are products of voluntary and intelligent choices between the alternatives. This interpretation effectively permits prosecutors, who leverage capital plea bargains with death, to avoid any liability for coerced confessions. This increased practice is problematic as it both undermines the purpose of the death penalty, and forces the forfeiture of constitutional rights contingent on escaping death. Employing the death penalty to encourage guilty pleas proves an unreasonable burden on defendants’ Fifth and Sixth Amendment rights. These plea negotiations result in penalizing defendants for the refusal to plead guilty, rather than for the commission of the particular crime. Immense public policy concerns evolve from both enabling defendants, guilty of the most heinous crimes, to avoid the harshest sentence through pleading; and encouraging false confessions from defendants merely attempting to escape a death sentence. This plea bargaining practice conveys both an impermissible improper influence forcing the pleas constitutionally involuntary under the Fifth Amendment, and serves as an unreasonable burden on the defendant’s Sixth Amendment rights. This article is the first to scrutinize prosecutors’ use of the death penalty in plea negotiations congruent to the lacking recourses available to try death penalty cases. Encouraging defendant’s to accept a guilty plea in order to avoid a sentence in which the prosecution lacks the recourses to procure conveys an impermissible false threat. Additionally, this academic article serves as a unique analysis of the effects of plea bargaining in capital cases to penalize the exercise of constitutional rights rather than the commission of a particular crime. The pleas prove overly burdensome to the constitutional rights of capital defendants.

Faith, Football, and the First Amendment: Threading the Needle between Establishment and Free Exercise

From the “Hail Mary Pass” to the “Immaculate Reception,” “Touchdown Jesus” to “Catholics vs. Convicts,” and even “Tebowing” to the simple celebration prayer, faith and football have always been intertwined. Despite the significant impact of religion and prayer in shaping our football culture, the concern is when this tradition involves both coaches and players in the public-school context. Specifically, courts are being faced with determining when a coach’s expressive conduct around the football field is “private” speech expressing the views and emotions of the individual, or “public” speech expressing the views of the school and the state. This paper analyzes how Kennedy v. Bremerton School District — the most recent clash between faith and public-school football — sheds light on how lower courts are failing to interpret the proper scope of the Establishment Clause and in doing so, stripping high school football coaches of their First Amendment rights.

The Rugged Individual's Guide to the Fourth Amendment: How the Court's Idealized Citizen Shapes, Influences, and Excludes the Exercise of Constitutional Rights

Few figures inspire us like individuals who stand up for their rights and beliefs despite the peril that may follow. One cannot help but feel awe looking at the famous photograph of the lone Tiananmen Square protestor facing down a line of Red Army tanks, his willowy frame clothed in a simple white shirt and black pants as he holds a shopping bag. Or who can help but feel humbled by the courage of Rosa Parks, a seamstress, who finally had enough and was willing to be arrested rather than sit in the back of the bus. But while these stories of everyday individuals acting with remarkable courage inspire us, we would hesitate to say that before a citizen can enjoy his or her constitutional rights that he or she must exhibit a similar fortitude. A close examination of the Court’s cases, however, shows that the Court has imposed exactly such an expectation when it comes to the Fourth Amendment. The Court has repeatedly turned to the archetype of an idealized citizen – the “rugged individual” who will unflinchingly stand up to government authority – to define Fourth Amendment rights, and it has had disastrous consequences. The Court’s use of the rugged individual has created an unrealistic threshold for exercising one’s Fourth Amendment rights and is a primary reason why current Fourth Amendment doctrine has proven so impotent in addressing the severe problems with police-citizen encounters that have erupted across the country, from Seattle to Chicago to Ferguson to Baltimore, with each day’s headlines seemingly adding another city to the list. This Article will examine the Court’s use of the rugged individual archetype in its Fourth Amendment jurisprudence and demonstrate how instead of promoting values like dignity and autonomy, the values that the archetype was intended to represent, it has actively undermined those values to devastating effect. Not only does the empirical evidence show that acting like the rugged individual is beyond the reach of most of the citizenry when confronted by the police, it also shows that the archetype when applied to minority communities creates an especially dangerous situation that alienates and effectively disenfranchises a large swath of citizens from their rights. The Article concludes by examining the various reasons the Court continues to rely on the rugged individual and why that reliance must change. In its place, the Article proposes a rights-bearing citizen as an archetype that far better promotes the Fourth Amendment’s underlying values − an archetype that presumes that every citizen, whatever their race, income, or neighborhood, desires to exercise their Fourth Amendment rights and aligns Fourth Amendment jurisprudence with the realities of a police-citizen encounter.