Amendment Rights Research Articles

"We Move": How Florida School Librarians are Protecting Controversial Titles and Navigating a Legally Perilous Environment

Using a mixed method approach and informed by Noelle-Neumann’s Spiral of Silence Theory, this study examines the impact on school librarians of recent legislation in Florida that has facilitated widespread materials challenges and removals of titles in public school libraries across the state. Participants were presented with several series of questions that included their comfortability with collecting materials that could potentially be considered controversial, and their perceptions of support for their collection development decisions by stakeholders including principals, parents, colleagues, and their community. Additional series of questions focused on the participants’ experience with self-censorship and their familiarity with both Florida State law and federal case law that pertains to students’ First Amendment and intellectual freedom rights. Multiple, successive rounds of recruitment yielded 49 survey participants and 9 interviewees. Preliminary analysis suggests that Florida school librarians increasingly rely on professional reviews to both guide their selection choices as well as protect themselves in the event of a materials challenge. Additionally, although a large majority of the respondents indicated strong support for intellectual freedom, many avoid selecting materials perceived as controversial to avoid controversy. However, the data also suggest that communication, collaboration, and involvement with like-minded individuals and organizations can be key mitigators of self-censorship and appear to offer a fruitful avenue to assist Florida school librarians in navigating the current environment. Finally, Florida school librarians appear to have a more robust awareness and deeper understanding of state laws compared to the federal case law that provides critical context.

Regulating the landscape of protest: The National Park Service National Capital Region as testing ground for First Amendment rights

This article explores the origins of how NPS manages First Amendment activities in National Capital Parks, concentrating on developments in the 1960s and 1970s. It outlines the emergence of regulations over time, as the agency has sought to reconcile the historical and cultural values of National Capital Parks with the value they hold for civic engagement.

Territory, rights, and migrant justice: Undocumented first amendment rights, or the deterritorialization of rights access

This paper analyzes the work of the powerful migrant rights organization Migrant Justice, as they exemplify ways in which migrant activists in the U.S. today are challenging the socio-political confines of bordered state territory and are pushing the landscape of rights access in new directions. This work utilizes a year-long ethnography conducted with Migrant Justice as they faced intense targeting and surveillance from immigration authorities, including the use of a covert informant, in response to their successful labor and human rights organizing in the state of Vermont. This work in particular details Migrant Justice’s First Amendment rights lawsuit against the federal government in response to this targeting. Here, Migrant Justice directly challenged the federal government in a groundbreaking lawsuit that saw federal immigration authorities forced to acknowledge constitutional rights for undocumented migrant activists. In this confluence of opposing forces, we of course see egregious abuses against migrant actors, but we also see exemplifications of new and progressively powerful forms of resistance that are posing a specific challenge to the state’s bordered and territorially based limitations on human and civil rights. This work utilizes Stuart Elden’s conception of territory—as a process and a praxis of control—to understand migrant resistance to state-sanctioned exclusion and exploitation and the ways in which these challenges to state power are creating new spaces for political belonging. An analysis in this way allows us to see the work of Migrant Justice as that which increasingly deterritorializes relationships between residents and state power—an undoing of spatial limitations on rights and belonging. Throughout this work, the concept of deterritorialization as a form of migrant resistance is unpacked and defined to understand the full potentials of migrant activism today.

Strategic uses of constitutional originalism by conservatives in US gun politics and beyond

ABSTRACT Political scientists have increasingly operationalised ‘Discourse’ as a means through which actors promote their interests. Building on Plehwe (2011, 2014) and Hajer’s (1995, 2006) concept of discourse coalition theory, I explore how actors promote their interests via discourse. I do this through the case of constitutional originalism: the interpretation of the US Constitution in according to its historical provisions, viewing citizens’ rights as determined at the point of its drafting, irrespective of revisions appropriate to modern society. Such a view has become a mainstream philosophy. I show constitutional originalism’s strategic utility for conservatives, as a study of shared ‘flexible discourse’ through which multiple actors pursue differing objectives. In short, actors us the same idea differently and this ‘quid pro quo’ entrenches both the narrative and establishes actors’ goals. This question is the notion that ideology is a coherent thing: rather, it is a convenience that is strategically deployed by different members of the coalition. I develop the framework of Flexible Discourse Theory to this end. ‘Discourse’ is a strategic tool allowing for strength in number, fortifying individual groups’ pursuit of their political ends and the political vehicle which allows differing value sets to be pursued. It is also a means through which diverse coalitions can be built, in which mediating discourses are compatible with diverse values and do not fall between blocs’ ideological faultlines. Flexible discourses’ strategic utility is an important story of political bloc and coalition formation. It elucidates the role of ideation as a deployable tool, through which coalitions are maintained. I explore this theory by analysing constitutional originalism’s political uses for the American right, in the victory case for originalism, D.C. v. Heller (2008) on Second Amendment rights, and how this strategy is deployed towards a variety of other political stances. In brief, this is a study of how actors use ideology strategically and instrumentally to realise their interests.

Lawyers, Guns & Weed: Second Amendment Rights for Cannabis Users

Lawyers, Guns & Weed: Second Amendment Rights for Cannabis Users

Destined to Deceive: The Need to Regulate Deepfakes with a Foreseeable Harm Standard

Political campaigns have always attracted significant attention, and politicians have often been the subjects of controversial—even outlandish—discourse. In the last several years, however, the risk of deception has drastically increased due to the rise of “deepfakes.” Now, practically anyone can make audiovisual media that are both highly believable and highly damaging to a candidate. The threat deepfakes pose to our elections has prompted several states and Congress to seek legislative remedies that ensure recourse for victims and hold bad actors liable. These recent attempts at deepfake laws are open to attack from two different loci. First, there is a question as to whether these laws unconstitutionally infringe on deepfake creators’ First Amendment rights. Second, some worry that these laws do not adequately protect against the most harmful deepfakes. This Note proposes a new approach to regulating deepfakes. By delineating a “foreseeable harm” standard, with a totality-of-the-circumstances test rather than a patchwork system of discrete elements, this Note addresses both major concerns. Not only is a foreseeable harm standard effective, workable, and constitutionally sound; it is also grounded in existing tort law. Moreover, a recent Supreme Court decision pertaining to false statements and the First Amendment, United States v. Alvarez, lends support to such a standard. Adopting this standard will combat the looming threat of politically oriented deepfakes while preserving the constitutional right to free speech.

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.

Brief of Appellees in Richwine v. Matuszak (7th Cir.) on the First Amendment Rights of End-of-Life Doulas

Brief of Appellees in Richwine v. Matuszak (7th Cir.) on the First Amendment Rights of End-of-Life Doulas

Stripped Bare: Students' Fourth Amendment Rights, School Searches, and the Reasonable Standard

Stripped Bare: Students' Fourth Amendment Rights, School Searches, and the Reasonable Standard

Controversy over the Estate Tax Assessment with Beneficiary Amendment Rights: Based on the Supreme Administrative Court's Decision No. 110, Case No. Shang 501

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Immigrants are not Felons: A Legal Analysis of Immigrants’ Civil Rights Chilling Effect Issues Caused by Ice’s SmartLINK App Surveillance

ABSTRACT This article discusses the chilling effect impact on immigrants’ freedom of speech resulting from recent Immigration and Customs Enforcement (ICE) surveillance processes utilizing the SmartLINK app and Alternatives to Detention (ATD) program. Further, this article brings privacy abuses of immigrants to U.S. lawmakers’ attention, as well as possible violations of Fourth Amendment rights related to personal networks that apply to U.S. citizens and legal permanent residents alike. Finally, this manuscript provides legal recommendations that might be used as a panacea to solve the problem of ICE surveillance of immigrants.

Can the principle of the ‘right to be forgotten’ be applied to academic publishing? Probe from the perspective of personal rights, archival science, open science and post‐publication peer review

AbstractIn this paper, we reflect on how the principle of the ‘right to be forgotten’ (RTBF), specifically the right to erasure as enshrined in Article 17 (and to some extent Art. 19 and Art. 21) of the General Data Protection Regulation (GDPR; Regulation (EU) 2016/679), or the right to delete undesirable, unflattering or reputation‐damaging archived records of oneself from search engines or databases, might apply to academic publishing. In particular, we focus on archival (library and information) science, post‐publication peer review, and reflect on whether RTBF is compatible with open science principles. Even though RTBF became enshrined in EU law in 2018, its trans‐Atlantic export to the United States faces resistance because it is seen as being incompatible with First Amendment rights. We ponder the pertinence of the debate regarding local versus global applicability of RTBF when considering the transnational nature of some collaborative research. Although RTBF applies broadly to search engines such as Google, we question whether authors have this right and also whether publishers are subjected to this law with respect to science databases, or even ‘local’ (i.e., publisher‐controlled) archives, especially in the light of retractions or withdrawals, in which data and files are removed from a preprint or journal's website or, in extreme cases, where all or most bibliometric information is scrubbed clean, as in the case of ‘silent retractions’. We extend our reflections further to appreciate whether authors or editors are entitled to RTBF in extreme instances of misconduct or fraud. The fundamental right to privacy and personal choice, as is suggested by (or enshrined in) RTBF, is not—in our view—compatible with several principles related to the integrity of data and information, or even their preservation, and may be diametrically opposed, depending on the situation. We encourage wider debate on this budding pertinent issue as a fundamental aspect of academic rights and freedoms.

Ray Bradbury’s Abiding Influence

Ray Bradbury’s career spanned seven decades and intersected a remarkable, wide-ranging gamut of American cultural history. He was closely associated with Hollywood, where his stories and books were adapted for feature films and television. Adaptations of his work for network radio broadcasts began in 1946 and continued, both at home and abroad, until three years before his passing in 2012. For more than forty years he adapted dozens of his stories for successful stage runs in Los Angeles and occasionally for national venues. But his influence reached even broader cultural stages, writing for radio, film, television, and stage theater production. Throughout his life he defended public libraries and First Amendment rights, and eventually became one of the most prominent public advocates for space exploration. While he is most well-known for his fiction, having published more than four hundred stories and twenty-seven book-length works, including The Martian Chronicles, The Illustrated Man, The Golden Apples of the Sun, The October Country, Dandelion Wine, Something Wicked This Way Comes, and Fahrenheit 451, he also engaged real-world issues in his writing, including racial and political intolerance, freedom of the imagination, the threat of nuclear war, the need to fund the American Space program, and the vital importance of literacy.

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.

‘Hamlet Without the Prince’ – The U.S. Supreme Court on Religious Practice

The Supreme Court of the United States of America has recently issued a decision in several cases that are closely related to First Amendment rights. In doing so, the Court has changed its own set of criteria from its earlier practice. The reasons for these decisions have attracted increased interest among practitioners and academics, as it is a long time since the Court has so clearly distanced itself from its own precedent and called lower courts to account for failing to take certain criteria into account. By analysing the Court’s reasoning on the role of history and tradition and the compelling nature of religious belief, this paper seeks to answer the question whether the change in the Supreme Court’s practice can indeed be considered truly substantial. I argue that the change is significant, but as a process is not without precedent, and is not necessarily unacceptable in terms of its consequences.

About the Sixth (6th) Amendment Rights to Counsel & Britney Spears Perturbing Conservatorship - #Michael A. Ayele (a.k.a) W - #Americans with Disabilities Act (ADA)

About the Sixth (6th) Amendment Rights to Counsel & Britney Spears Perturbing Conservatorship - #Michael A. Ayele (a.k.a) W - #Americans with Disabilities Act (ADA)

Taking stock: The contribution of policy studies to our understanding of gun policy

AbstractIn the summer of 2022, the tragic mass shooting in Uvalde, Texas once again thrust firearms policy onto the public agenda and opened an agenda window for bipartisan gun reforms in the Senate. Almost simultaneously, the Supreme Court struck down restrictions on concealed carry in New York state in the first major ruling on Second Amendment Rights since MacDonald v. Chicago. Given the salience of firearms policy to contemporary policy debates, it is important to take stock of how the discipline of policy studies has contributed to our understanding of this pressing area of policy. As we see, scholars of policy studies have largely left discussions of firearms policy to disciplines like criminology, sociology, economics, and public health. Despite this, a small group of scholars has used the theoretical toolkit of our discipline to better understand this issue. This short review article will present the contribution of policy studies to our understanding of firearms policy from Sandy Hook to Uvalde and provide suggestions for areas where the discipline can contribute to our understanding of this vitally important regulatory issue. Most importantly, more work is needed to develop robust and multidimensional evaluations of firearms policies.Related ArticlesCook, Philip J., and Jens Ludwig. 2019. “Understanding Gun Violence: Public Health vs. Public Policy.” Journal of Policy Analysis and Management 38(3): 788–95. https://doi.org/10.1002/pam.22141.Haider‐Markel, Donald P., and Mark R. Joselyn. 2017. “Special Issue Editors' Introduction: Gun Politics.” Social Science Quarterly 98(2): 377–81. https://doi.org/10.1111/ssqu.12415.

Anti-science conspiracies pose new threats to US biomedicine in 2023.

Anti-science conspiracies pose new threats to US biomedicine in 2023.

Satan Shoes or Satan Speech? Balancing Trademark and First Amendment Rights in the Altered Authentic Goods Context

Satan Shoes or Satan Speech? Balancing Trademark and First Amendment Rights in the Altered Authentic Goods Context

Save Your Rights: How Florida and Other States Have Targeted Voting Access Following the 2020 Election

Following the 2020 general election, Florida’s Republican led legislature introduced Senate Bill 90 (“S.B. 90”), which seeks to put many restrictions on various aspects of the voting process. S.B. 90 limits ballot drop-off boxes, restricts mail-in voting, proscribes “line-warming,” increases registration difficulty, and expands identification requirements. Despite lauding Florida’s election as a gold standard for the rest of the country, Governor Ron DeSantis approved this bill in May of 2021, explaining that Florida should not become complacent despite its success. The Republican Governor approved this law against the backdrop of record voter turnout for Black and Latino voters and record mail-in voting by Democrats. Florida Rising Together, a grassroots organization working alongside other similar organizations, has filed suit against the State of Florida. Florida Rising Together’s suit alleges that this law intends to discriminate against Black, Latino, and elderly Florida voters by suppressing their vote. Florida Rising Together sought to introduce three professors from University of Florida as expert witnesses in their case against Florida. In response, the university—a public institution and organ of the Florida State government—barred all three professors from serving as expert witnesses for a party adverse to the State’s interests. While unprecedented, experts assert that the university’s conduct implicates violations of the professors’ First Amendment rights, despite any likelihood of a conflict of interest existing between them and their employer. By using the Pickering balancing test, the United States District Court for the Northern District of Florida should find that any conflict of interest the professors’ expert testimony may create in their relationship as state employees is far outweighed by the professors’ interest, as citizens, to comment upon matters of public concern—whether Florida’s newly implemented law violates the Fifteenth Amendment of the Constitution and the Voting Rights Act. Furthermore, Florida Rising Together (“Florida Rising”) should bring a Section 1985 claim against University of Florida officials for intimidating witnesses in a civil rights case.