Amendment Rights Research Articles

Lawyer Speech, Investigative Deception, and the First Amendment

It seems unassailable that attorneys must refrain from deception or dishonesty of any kind as a condition of professional licensure. But this principle, one of the foundational norms of the legal profession, may well infringe upon First Amendment rights, at least in certain applications. In this Article, we confront the tension between an attorney’s expressive and associational rights and her professional duty of absolute honesty. We explain that the latter must yield to the former in the unique circumstances presented by undercover investigations, where attorneys work side-by-side with journalists, civil rights testers, political activists, and others who seek to expose information of profound public concern. Deception about the investigator’s identity or purpose is often necessary to obtain access to information that has been deliberately concealed from the public. That attorneys should be permitted to provide counsel, notwithstanding the deceptive element of the investigation, may seem like a surprising conclusion for a profession that pervasively regulates attorney speech and has long assumed that any kind of deception must be categorically off limits for lawyers. Nonetheless, a close examination of rapidly evolving First Amendment principles reveals that lawyers have a right to provide counsel, advice, and supervision to individuals and entities engaged in investigations – even the deceptive kind.

First Amendment Rights in Higher Education: Implications for Nursing Education

First Amendment Rights in Higher Education: Implications for Nursing Education

The Disappearing First Amendment (Preface and Chapter 10)

The standard account of the First Amendment posits that the U.S. Supreme Court consistently has expanded the scope of free speech rights over time. This account holds true in some areas, but not in others. For example, the contemporary Supreme Court rigorously enforces the rules against content and viewpoint discrimination for those who possess the wherewithal to speak. At the same time, however, the Justices have been considerably less willing than their predecessors to interpret the First Amendment to impose affirmative obligations on the government to facilitate speech when it has the ability, but not the will, to do so. For citizens who need the government’s assistance in order to speak – for example, would-be speakers who require access to public property to engage in protest activity – free speech rights have declined significantly under the Roberts and Rehnquist Courts. The Warren Court, and to some extent the Burger Court as well, embraced open-ended balancing tests to decide First Amendment cases that implicated the government’s managerial domain. Using this approach, the Warren Court pioneered First Amendment protection for government employees, students and faculty members at the nation’s public schools, colleges, and universities, and transborder speech activity. It also greatly expanded constitutionally-mandated access to public property for protest and even recognized free speech easements to private property. In all of these areas, the Warren Court developed and deployed balancing tests that weighed the interests of would-be speakers against the government’s legitimate interests in exercising managerial control over its resources. This approach had the decided benefit of making it possible for more citizens, many possessed of average means, to participate meaningfully in the process of democratic self-government. The Disappearing First Amendment advances an empirical claim, a doctrinal claim, and a normative claim. First, as an empirical matter, careful consideration of the relevant lines of authority shows that in many important areas, First Amendment rights have declined, rather than expanded, over time. Second, in a wide variety of areas, existing First Amendment rules could be significantly improved and strengthened to better protect would-be speakers from government efforts to distort the political marketplace of ideas. Third, and finally, open-ended balancing tests that facilitate the ability of ordinary citizens to participate meaningfully in the process of democratic deliberation should be preferred, at least in some contexts, to bright line, categorical rules that produce consistent results but a far less vibrant political marketplace of ideas. If free and open democratic deliberation is essential to making elections an effective means of securing government accountability, then the First Amendment should be interpreted and applied to protect more speech, rather than less speech.

The role of anaesthesiologists in lethal injection: a call to action.

In 2006, Michael Angelo Morales, a California death-row inmate, was scheduled to be executed by lethal injection. 1 Gawande A When law and ethics collide–why physicians participate in executions. N Engl J Med. 2006; 354: 1221-1229 Crossref PubMed Scopus (68) Google Scholar Morales challenged the state's lethal injection protocol in court, arguing that administration of pharmaceutical drugs without oversight by personnel with medical expertise or training would violate his Eighth Amendment rights. 2 Michael Angelo Morales v Roderick Q Hickman. Number C 06 219 JF. District Court, Northern District of California, CA, USA. Feb 14, 2006. Google Scholar The basis of his claim was that the protocol created foreseeable and undue risk of excessive pain, given the potential for consciousness during drug administration. 2 Michael Angelo Morales v Roderick Q Hickman. Number C 06 219 JF. District Court, Northern District of California, CA, USA. Feb 14, 2006. Google Scholar The California protocol called for an injection of a three-drug cocktail: thiopental, a barbiturate intended to render the inmate unconscious; pancuronium, a neuromuscular blocking drug that induces paralysis and causes cessation of breathing; and potassium chloride, to induce cardiac arrest. 3 Schwarzenegger A Tilton JE State of California lethal injection protocol review. https://files.deathpenaltyinfo.org/legacy/files/pdf/CALethInject.pdfDate accessed: August 6, 2019 Google Scholar Morales argued that the potential for consciousness during the administration of pancuronium and potassium chloride constituted cruel and unusual punishment. 2 Michael Angelo Morales v Roderick Q Hickman. Number C 06 219 JF. District Court, Northern District of California, CA, USA. Feb 14, 2006. Google Scholar

It’s No Breakfast Club: A Look at the Due Process Requirements of Children in Private Residential Treatment Centers

In many states, youths are put into private residential treatment centers (RTC) without the youths’ consent or judicial review of the admission decision. Every state has a statute that addresses the due process rights of a person being civilly committed to a state-run psychiatric institute. While some states have statutorily extended those rights to youth, and some states have gone as far as to expand the statutes to include private institutions, there remains a gap in the protections for many youth in all states. This purpose of this article is to argue that a federal statute should be enacted to ensure equal protections across states lines that will prevent private hospitals from admitting youth without meeting the admission criteria for civil commitments. As the Supreme Court has recognized that these youth are entitled to due process rights, the statute should extend protections to the youth. The federal government has the power to enact legislation that protects citizens’ Fifth and Fourteen Amendment rights. Private residential treatment centers must be treated as state actors when determining patient rights. Children have a substantial liberty interest in not being confined unnecessarily. All involuntary civil commitments must be required to conform to the civil commitment requirements that an individual is found to pose a risk of self-harm or harm to others.

How does Soft Information Affect External Firm Financing? Evidence from Online Employee Ratings

We analyze how employees’ online ratings of firms’ affect their corporate financing and investment policies. We hypothesize that, while employees are unlikely to have access to inside information, their ratings, being driven by their day-to-day interactions with their employers, are likely to be correlated with long-run firm value and performance. This means that employee ratings are likely to affect the external financing behavior of firms in a setting where potential equity investors have access to online employee ratings (and firm insiders are aware of such access). We develop and test hypotheses based on the above assumptions using a large sample of around 1.1 million employee ratings from the Glassdoor website covering a sample of 2842 public firms. We find that firms with higher average online employee rating realizations are associated with algebraically greater abnormal stock returns upon an equity issue announcement; a greater propensity to have positive abnormal stock returns upon such an announcement; a greater propensity to issue equity rather than debt to raise external financing; higher annual investment expenditures; greater participation by institutional investors in their equity offerings (SEOs); and better long-run post-SEO operating performance. We demonstrate causality by making use of a difference-in-differences (DID) methodology relying on the staggered implementation of laws protecting the First Amendment Rights of citizens (anti-SLAPP laws) across US states.

Sovereignty and First Amendment rights of higher education institutions: An affirmative and institutional approach

ABSTRACT This article offers an analysis of how, and to what extent, public institutions of higher learning, as agents of one sovereign, could assert free speech rights against the federal government, another sovereign. This work expands the First Amendment and government speech discourse by contributing a novel examination of Supreme Court precedent and the Court’s language addressing the expressive activities of universities under academic freedom. This work also situates itself theoretically in the Madisonian conception of the First Amendment Free Speech Clause, and makes the case that public universities should be recognized as institutions that occupy a special constitutional status within the doctrine. The article’s significance is underscored by the fact that the current political climate raises the specter of increased regulation and policing of the expressive activities of universities.

Reckless Abandon: The Shadow of Model Rule 8.4(g) and a Path Forward

The ABA’s 2016 promulgation of Model Rule of Professional Conduct 8.4(g) has stoked an unnecessary culture war between the First Amendment and anti-discrimination. Thus far, the overarching trend of states has been to reject the rule in light of its potential infringement of lawyer First Amendment rights. Nevertheless the promulgation of the rule has led to the proliferation of legal scholarship that discards lawyer First Amendment rights in the shadow of defending Model Rule 8.4(g). This body of scholarship has dire potential consequences in diverse disciplinary and regulatory contexts and can be relied upon by state bars and judiciaries to punish lawyers without recourse to the First Amendment. By protecting lawyer speech, association, and petitioning, the First Amendment works to protect the lawyer’s role in the system of justice and cannot be discarded without undermining justice itself. Importantly, neither the ABA nor the states needs to cut down the First Amendment to appropriately curb lawyer discrimination and harassment. The recent redrafting and adoption of anti-discrimination rules by Maine and New Hampshire demonstrate that drafting such a rule can be done without jettisoning the First Amendment rights of lawyers. Rather than continuing to inflame the culture war by forcing people to take sides in a false dichotomy between the First Amendment and anti-discrimination, the ABA and defenders of Model Rule 8.4(g) should own the constitutional deficiencies of the rule and work to redraft a constitutionally sound rule. Taking such a course would work to actually curb harassment and discrimination because an appropriately narrowed rule would be far more likely to be adopted by states and to remain law after enactment without constitutional challenge.

Doctor, Doctor, Give Me The News: First Amendment Empowers Display and Describe Requirements for Purposes of Informed Consent and Commercial Speech

A woman has recognized rights under the Constitution to obtain an abortion, but she also has a right to personal autonomy. To preserve this right, the state must regulate the disclosures regarding an abortion procedure to ensure the patient is getting the information needed to make an informed decision about what happens to her body during an abortion. As history shows, courts have dealt with abortions with care by honoring the woman’s autonomy. As the right to choose to get an abortion is fundamental, the right of the woman to be apprised of all of the facts and all of the risks associated with the procedure is equally as fundamental when looking at our nation’s history. One of the ways to advocate for the woman’s right to an abortion and to consent to what happens to her body is to uphold the constitutionality of the display and describe requirements and grant the power to compel disclosures in this context to the state. There is a circuit split between the Fourth, Eighth, Fifth, and Sixth Circuits over the constitutionality of the display and describe requirements of their respective states. The Fourth Circuit has held that the display and describe requirement violates the physician’s First Amendment rights by compelling the physician to disclose an ideological message. Whereas the Eighth, Fifth, and Sixth Circuits have upheld the requirements on the basis that they are medically necessary and thereby do not infringe on the constitutional rights of the physicians. The Supreme Court has denied review and subsequently, the answer is not clear. Abortion is a prevalent topic and upholding the display and describe statutes on constitutional grounds is vital to ensuring the continuing evolution of abortion litigation and legislation toward a more cohesive and united approach. The Supreme Court has held that a woman has the right to obtain an abortion and the state may not enact regulations that place an undue burden on that right. However, the state has the authority to reasonably regulate physician speech because the state has an interest in human life and maintaining the standards in the medical industry. The state may not compel a speaker to disclose an ideological message, but the state can compel the physician to apprise the patient of the risks and the alternatives, if any, of a medical procedure in order to obtain informed consent from the patient. The Fourth, Fifth, Sixth, and Eighth circuits disagree on the constitutionality of the display and describe requirements that North Carolina, Texas, Kentucky, and South Dakota, respectively, have enacted. This Article is the first to advocate for the woman’s right to be informed and to consent to the surgical procedure and urge the Supreme Court to resolve the circuit split and hold the display and describe requirements of the states’ abortion statutes as not violating the physician's First Amendment right to free speech. As all physicians are required to reveal information in order for the patient to give informed consent, displaying the ultrasound and explaining what the ultrasound depicts is medically necessary to obtain the woman’s informed consent; therefore, does not violate the physician's constitutional rights. This speech is commercial speech because it is speech involved in a commercial transaction and is subject to reasonable regulations. Individuals can differ on their beliefs regarding abortion and still agree that the woman has a right to know and consent to what happens to her body. This Article is not divisive; it protects to the woman’s right to an abortion, her right of access to information, and her right of personal autonomy.

Blackness as Fighting Words

The resurgence of worldwide protests by activists of the Movement for Black Lives (BLM) has ushered a global reckoning with the meaning of this generation’s rallying cry – “Black Lives Matter.” As citizens emblazon their streets with this expression in massive artistic murals, the Trump administration has responded with the militarized policing of non-violent public demonstrations, revealing not merely a disregard for public safety, but far worse, a concerted dismantling of protestors’ First Amendment rights. Nevertheless, BLM protests have persisted. Accordingly, this Essay considers the implications of this generation’s acclamation of Black humanity amidst the social tensions exposed during the era of COVID-19. What does the Trump administration’s militarized response to BLM protests mean in a world mutilated by the scars of racial oppression, a wound laid bare by America’s racially biased, aggressive, and supervisory culture of policing?In response, much in the way Cheryl Harris revealed Whiteness as Property, this Essay suggests and defends Black identity itself, or Blackness – whether articulated by the pure speech of racial justice activists who affirm Black humanity, or embodied by the symbolic speech of Black bodies assembled in collective dissent in the public square – as “fighting words” in the consciousness of America, a type of public speech unprotected by the Constitution. The very utterance of the phrase “Black Lives Matter” tends to incite imminent violence and unbridled rage from police in city streets across America. Discussions of “Black Lives Matter” by pundits conjure images of subversion, disorder, and looting, the racialized narratives of social unrest commonly portrayed by the media. Yet, the words “Black Lives Matter” and the peaceful assembly of Black protestors also encapsulate the fire of righteous indignation burning in the hearts of minoritized citizens. This dynamic reflects unresolved tensions in the First Amendment’s treatment of race relations in America. Even more, it exposes the role of policing in smothering the Constitutional rights of Black and Brown citizens. This Essay provides three contributions to the ongoing discourse on policing in the United States. First, it reveals how unresolved racial tensions in the First Amendment – focusing specifically on ambiguities in the fighting words doctrine – perpetuate the racially biased, aggressive, and supervisory culture of American policing. Second, it analyzes how such unresolved racial tensions cast a dark shadow over the liberty of Black and Brown citizens who experience racism at the hands of police officers, yet avoid acts of protest for fear of bodily harm or arrest. Third, it illuminates the embeddedness of racism in American policing culture, more generally; a culture that not only constructs and reconstitutes the racial social order, but also degrades the dignity of Black and Brown citizens. Collectively, these insights lend support toward demands for police abolition from BLM activists. As this Essay concludes, until we as a nation wrestle with the unresolved racial subtext of modern policing – a racist culture woven into law that not only silences the legitimate protests of minoritized citizens in violation of their First Amendment rights, but also rationalizes callous violence at the hands of law enforcement – Black America will remain a peril to the veil of white supremacy that looms over the American constitutional order.

A Double-Filter Provision for Expanded Red Flag Laws: A Proposal for Balancing Rights and Risks in Preventing Gun Violence.

In response to the continued expansion of "red flag" laws allowing broader classes of people to petition a court for the removal of firearms from individuals who exhibit dangerous conduct, this paper argues that state laws should adopt a double-filter provision that balances individual rights and government public safety interests. The main component of such a provision is a special statutory category - "reporting party" - that enables a broader social network, such as co-workers or school administrators, to request that a law enforcement officer file a petition for an Extreme Risk Protection Order (ERPO). A double-filter provision would not give reporting parties a right to file a court petition directly. Instead, parties would file a request for petition with law enforcement officers (first filter), who must seek an ERPO from the court if they find the reporting party's information credible. That information is then transmitted to the court (second filter) as a sworn affidavit of the reporting party. The goal is to facilitate a balanced policy model that (1) widens the reporting circle in order to feed more potentially life-saving information into the system, (2) mitigates the risk of erroneous deprivation of constitutionally protected due process and Second Amendment rights.

Katz among the Pigeons: The Erosion of the Fourth Amendment of the Constitution of the United States of America

In Katz v. United States the Supreme Court of the United States considered Fourth Amendment rights. This decision is seen as bolstering rights, as it rolled back previous decisions which restricted the scope of the Fourth Amendment. However, it did so by conceptualising the Fourth Amendment as a right to privacy when the text of the Amendment states it is to protect “the right of the people to be secure…”. This re-writing of the Fourth Amendment reduced a public “right of the people”, which reflects the broad societal perspective, to a merely personal right or interest. The Right was given broader scope but it was made weaker. In most circumstances a personal interest will be trumped by a public interest, such as law and order, because the latter will engage the interests of more people. What is lost is the public interest in restraining state power.

A More Perfect Pickering Test: Janus v. AFSCME Council 31 and the Problem of Public Employee Speech

n June 2018, the Supreme Court issued its long-awaited—and, for the American labor movement, long-feared—decision in Janus v. AFSCME Council 31. The decision is expected to have a major impact on public sector employee union membership but could have further impact on public employees’ speech rights in the workplace. Writing for the majority, Justice Samuel Alito’s broad interpretation of whether work-related speech constitutes a “matter of public concern” may have opened the floodgates to substantially more litigation by employees asserting that their employers have violated their First Amendment rights. Claims that would have previously been unequivocally foreclosed may now be permitted. This Note proposes a test to allow courts to meaningfully respond to this influx of claims. By explicitly incorporating the “social value” of public employee speech into the Pickering balance test as a factor of equal weight alongside the existing factors—the individual employee’s right to speech and the employer’s interest in operating an effective workplace—courts can make meaningful sense of the doctrinal conflict Janus created while also respecting and promoting the unique role public employee speech plays in public discourse.

Those Who Know Don't Say: The Nation of Islam, the Black Freedom Movement, and the Carceral State by Garrett Felber

Reviewed by: Those Who Know Don't Say: The Nation of Islam, the Black Freedom Movement, and the Carceral State by Garrett Felber Jimmy Butts (bio) Those Who Know Don't Say: The Nation of Islam, the Black Freedom Movement, and the Carceral State. By Garrett Felber. (Chapel Hill: University of North Carolina Press, 2020. Pp. 272. $90.00 cloth; $22.95 paper; $12.99 ebook) Aiming to correct the narrative about the Nation of Islam (NOI), Garrett Felber demonstrates the significant role the group played in the Black freedom struggle as they challenged the carceral state. To put the NOI in its proper historical context, Felber makes use of newspapers, trial transcripts, speeches, telegrams, FBI files, and other sources. Moreover, the chronological structure of the book lends itself to identifying the presence of the NOI at every stage of the civil rights movement. [End Page 661] The author traces how two popularized depictions of the NOI negatively influenced the perception of the group among the public. The 1959 documentary entitled "The Hate That Hate Produced" situated the NOI as a hate group calling for "Black supremacy" (pp. 18, 36). Furthermore, the 1961 publishing of the book The Black Muslims in America by C. Eric Lincoln caused the religious validity of the NOI to be questioned (pp. 18–19). These two sources assisted what Felber describes as "epistemic violence" against the group by the state. In particular, the state "created ways of knowing the Nation of Islam that distorted our understanding of its politics to this day" (p. 14). Thus, carceral officers accused the Nation of reverse racism and argued the incompatibility of "Blackness" with true Islam. Felber offers a useful theoretical conception he calls the "dialectics of discipline." This theory suggests interplay between NOI's responses to "state repression and the paradoxical acceleration of the expansion of the carceral state through new technologies of violence" (p. 2). For example, in the New York prison system, the state obtained control by prison transfers, religious literature confiscation, solitary confinement, and the loss of good time. In response, Muslim prisoners performed hunger strikes, filled solitary confinement, and filed complaints. Having laid out this theoretical tool, Felber then concentrates on various aspects of the civil rights movement to emphasize the significant ways the NOI participated. The author introduces diverse ways that the NOI challenged the carceral state both inside and outside of prison. In response to the draft during WWII, members of the NOI refused to fight in a war for what they perceived as a white supremacist nation. As a result, by 1945 nearly two hundred men from the NOI served time for draft evasion. These conscientious objectors came ready to challenge Jim Crow in prison. Because the Thirteenth Amendment to the U.S. Constitution relegated imprisoned people to slaves, the government followed a hands-off approach to how prison officials treated them. Therefore, although prison officials sought to suppress the NOI, the litigation and organizing of Muslims resulted in the 1961 Supreme [End Page 662] Court ruling that the federal government can intervene based on the denial of an individual's Fourteenth Amendment rights by the state and protect the rights of the incarcerated. The state used similar tactics to suppress the NOI outside prison. In response to police brutality, the NOI worked to create a Black united front across religious affiliation. The NOI endured police violence, home and mosque invasions, and racial profiling. However, they responded by using the courtroom as a political battleground to build Black unity against police violence. Thus, both inside and outside of prison the NOI played a significant role in Black resistance to state aggression. Whether one points to the Watts or Attica uprisings, members of the NOI played an instrumental role in these expressions of resistance. The state also responded to these acts with increasing surveillance and violence. This reflects the dialectics of discipline. Although this work helps to broaden the historiography on the NOI, it would benefit from a more critical analysis of the claims of religious authenticity made by the NOI. Felber highlights the eventual validation of the group's religious legitimacy by the courts and some "orthodox" Muslims (pp. 30–34...

Constitutional amendment and international human rights standards: a multilevel approach with particular focus on the Spanish case

The present paper focuses on the influence of international human rights standards in constitutional review procedures, by taking the internationalisation of the constituent function as the main premise in parallel with the internationalisation of human rights. With this in mind, the author submits to scrutiny the positive impact of both universal (United Nations) and regional human rights standards (including comparative approaches to the European and Inter-American human rights) on the adoption of new constitutional provisions (with special focus on Spain). From this perspective, the author also emphasises the complementary synergies between international and national jurisdictions as an ordinary mechanism to defend the national constitutional order in the light of international human rights instruments. The paper concludes that, while international human rights standards are modified to adjust themselves to new needs and realities, such external modifications may require constitutional amendments via a positive exercise of the constituent function.

Constitutional amendment and international human rights standards: a multilevel approach with particular focus on the Spanish case

The present paper focuses on the influence of international human rights standards in constitutional review procedures, by taking the internationalisation of the constituent function as the main premise in parallel with the internationalisation of human rights. With this in mind, the author submits to scrutiny the positive impact of both universal (United Nations) and regional human rights standards (including comparative approaches to the European and Inter-American human rights) on the adoption of new constitutional provisions (with special focus on Spain). From this perspective, the author also emphasises the complementary synergies between international and national jurisdictions as an ordinary mechanism to defend the national constitutional order in the light of international human rights instruments. The paper concludes that, while international human rights standards are modified to adjust themselves to new needs and realities, such external modifications may require constitutional amendments via a positive exercise of the constituent function.

What is a Vote Worth? A Focused Inquiry to Scaffold Elementary Historical Thinking

Meaningful source work is at the heart of social studies learning, but often a tall order for elementary-aged students. In this article, the authors describe the construction and implementation of a fifth grade inquiry on the Suffrage Movement using a focused version of the Inquiry Design Model (IDM) Blueprint. Using source analysis scaffolds coupled with discussion and organizational tasks, students used primary and secondary sources to create complex evidence-based claims showing the intersection between First Amendment rights, civic engagement, and the Suffrage Movement. This focused inquiry supported meaningful application of learning to an informed civic action project.

Brief of Scholars of the History and Original Meaning of the Fourth Amendment as Amici Curiae in Support of Petitioner in Carpenter v. United States

Obtaining and examining cell site location records to find a person is a “search” in any normal sense of the word — a search of documents and a search for a person and her personal effects. It is therefore a “search” within the meaning of the Fourth Amendment in that it constitutes “examining,” “exploring,” “looking through,” “inquiring,” “seeking,” or “trying to find.” Nothing about the text of the Fourth Amendment, or the historical backdrop against which it was adopted, suggests that “search” should be construed more narrowly as, for example, intrusions upon subjectively manifested expectations of privacy that society is prepared to recognize as reasonable. Entrusting government agents with unfettered discretion to conduct searches using cell site location information undermines Fourth Amendment rights. The Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches.” The Framers chose that language deliberately. It reflected the insecurity they suffered at the hands of “writs of assistance,” a form of general warrant that granted state agents broad discretion to search wherever they pleased. Such arbitrary power was “unreasonable” to the Framers, being “against the reason of the common law,” and it was intolerable because of its oppressive impact on “the people” as a whole. As emphasized in one of the seminal English cases that inspired the Amendment, this kind of general power to search was “totally subversive of the liberty of the subject.” James Otis’s famous speech denouncing a colonial writ of assistance similarly condemned those writs as “the worst instrument of arbitrary power,” placing “the liberty of every man in the hands of every petty officer.” Thus, although those who drafted and ratified the Fourth Amendment could not have anticipated cellphone technology, they would have recognized the dangers inherent in any state claim of unlimited authority to conduct searches for evidence of criminal activity. Cell site location information provides insight into where we go and what we do. Because this information is constantly generated and can be retrieved by the government long after the activities it memorializes have taken place, unfettered government access to cell site location information raises the specter of general searches and undermines the security of “the people.”

Editor's Column: “the beacon thing”: Musings on John Steinbeck, America, and Light

Editor's Column: “the beacon thing”: Musings on John Steinbeck, America, and Light

Student Free Speech and Schools as Public Spaces

AbstractFree speech jurisprudence is caught between crediting the First Amendment rights of students when they resemble adults or restricting such rights when students seemingly act as children. In Morse v. Frederick (2007), the Supreme Court ruled against Joseph Frederick and his “Bong Hits 4 Jesus” banner because Frederick's speech seemed valueless as an adult act, as it lacked any discernible political value. In this essay, Neil Dhingra uses Hannah Arendt's thought to argue that schools should not be interpreted as political spaces but as social spaces where educational authorities should exercise forbearance as students such as Frederick learn to exercise their free speech rights. In particular, students will practice their First Amendment rights by exposing and exploring the discrepancy between appearance and reality, through dark forms of humor, and in forming different types of friendship, all of which schools are unlikely to be able to manage or interpret. Recognizing these unruly and quasi‐humorous forms of First Amendment practice helps make sense of Frederick's banner. Dhingra argues that in order to create space for students to develop freely — that is, without being subject to excessive scrutiny or succumbing to the danger of conformity, or both — schools should show a wide but not unlimited tolerance to speech like that of Frederick, which may otherwise be dismissed as childish and valueless “gibberish.”