First Amendment

4 posts

The Freedom of Tweets: The Intersection of Government Use of Social Media and Public Forum Doctrine

Issues Volume 52, Issue 1

By Samantha Briggs

In recent years, American presidents and other government actors have moved much of their communications with the general public online, through their use of social media. President Donald Trump is particularly known for his use of Twitter and his extensive communications via his account, @realDonaldTrump. Such government social media usage has historically gone unchecked by the courts, but that changed when the Knight Institute brought suit against President Trump for violating the First Amendment rights of users blocked by @realDonaldTrump.

This litigation is an illuminating example of why First Amendment analysis must extend to government social media pages, and yet raises new challenges. There are logical reasons why government actors may want to exert certain controls over their social media pages, though these controls will potentially run against the First Amendment. As such, this Note not only argues why First Amendment analysis must extend to government use of social media, but also proposes methods for how government actors might structure their online presences to avoid First Amendment rebuke.

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“Religious” Secularism and Legitimacy in American Democracy

Issues Volume 57, Issue 2

By Julia E. Fay

This Note seeks to contribute to scholarship on the growing tension between secularism and religion in the United States by considering the claim, made by some commentators, that secular liberalism should be considered a religion for the purposes of the First Amendment. Part I explains the historical background of the First Amendment’s Religion Clauses and surveys what little jurisprudence there is from the U.S. Supreme Court and lower courts regarding secular liberalism’s potential status as a religion. Part II lays out the landscape of current scholarship on the status of secularism, secular liberalism, and adjacent nontheistic belief systems as religions, including: (1) arguments made by some conservative Christians who maintain that secular liberalism is a religion; (2) related but distinct arguments made by scholars who argue that non-theistic beliefs should be accorded respect equal to that granted religions under the First Amendment; and (3) arguments from scholars who believe religion should continue to be treated as “special” and separate from non-religious, secular belief systems. Part III argues that, even if secular liberalism could be defined as a religion, it should not be, for two reasons. First, the proposition that secular liberalism is a religion is conceptually incoherent because it conflates strong moral conviction with religious belief. Advocates of this position misconstrue passion as transcendent commitment and treat “religion” as a functionalist label. Second, if accepted as true, this proposition would be problematic for legal theory and for the Constitution. This Note argues that the answer to the question of whether secular liberalism is a religion implicates the legitimacy of our government, because without a neutral principle of governance a democracy cannot justify its use of force against its citizens.

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He/She/They “Say Gay”: A First Amendment Framework for Regulating Classroom Speech on Gender and Sexuality

Issues Volume 57, Issue 1

By Zachary A. Kayal

In an era of profound polarization over the nature of gender and sexuality, and children’s exposure to discussions thereof, states and school boards of all political inclinations are moving swiftly to regulate educators’ speech about such topics in public classrooms. Liberal authorities enact “pronoun policies” requiring teachers to use transgender and non-binary students’ gender-affirming names and pronouns. Conservative authorities, meanwhile, largely prohibit teachers from talking about gender and sexuality through anti-queer curriculum (or “Don’t Say Gay”) laws. Despite their opposing goals, these policies seem constitutionally indistinguishable on their face—both are regulations of educators’ classroom speech, subject to the same First Amendment standards.

This Note argues that constitutional lines can and should be drawn between these policies based on the effect of the regulated speech on third parties. Part I reviews the First Amendment standards that could apply to pronoun policies and anti-queer curriculum laws. Part II argues that these types of policies regulating educators’ classroom speech can be distinguished from one another using an egalitarian framework, which accounts for the impact of the regulated speech on students’ expression and the overall expressive environment of the classroom. Though First Amendment jurisprudence usually forecloses such arguments about third-party expressive interests, the standards governing classroom speech uniquely allow for their consideration. Part III applies that egalitarian framework to the two kinds of policies at issue. It posits that the negative effects of misgendering—chilling the protected expression of transgender students and poisoning the classroom speech environment—justify pronoun policies. But anti-queer curriculum laws regulate speech that poses no such risks, so they violate the First Amendment.

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Lethal Paralytics and the Censorship of Suffering

Issues Volume 57, Issue 1

By Drew S. Brazer

Approximately two dozen states utilize a three-drug lethal injection method to execute condemned persons.  This protocol consists of (i) an anesthetic or sedative; (ii) a paralytic; and (iii) potassium chloride (which stops the heart).  The purpose of the paralytic is purely cosmetic: it prevents witnesses from having to watch the condemned person convulse as they die.

This Note argues that when a condemned person chooses to refuse a lethal paralytic, they are engaging in First Amendment-protected expressive speech.  State regulations requiring the use of a paralytic warrant strict scrutiny because they (i) restrict speech based on subject matter; (ii) are a form of prior restraint; (iii) discriminate based on viewpoint; and (iv) compel speech.  The state’s interest in requiring the paralytic—to censor the violence of the condemned person’s death—is neither legitimate nor compelling.  As such, lethal paralytic requirements fail strict scrutiny and violate the First Amendment.

Part I of this Note outlines the history of capital punishment and the advent of lethal injection in the United States.  It details the various constitutional challenges that have been brought to bear against lethal injection protocols generally, and the use of paralytics specifically.  Part II examines the constitutional rights of incarcerated persons and considers whether an individual’s decision to refuse a paralytic can be considered expressive speech under the Spence-Johnson test.  Next, it contemplates the appropriate standard of review for regulations requiring the use of a paralytic.  Finally, it examines whether lethal paralytic requirements can survive strict scrutiny or any lesser standard of review.  Part III explores the policy implications of recognizing a condemned person’s right to refuse lethal paralytics.  Not only would acknowledging such a right advance the fundamental values of the First Amendment, it would also help to prevent needless pain and suffering.

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