Analysis and Commentary on Speech and Religion
Gawker Media Versus Hulk Hogan: A Court Fight Over a Sex Tape

Justia columnist and attorney Julie Hilden comments on the Florida state court litigation between wrestler Hulk Hogan and the Gawker website regarding Hogan's sex tape. Hilden comments on the First Amendment, copyright, and tort issues that the litigation involves. Interestingly, the litigation has intersected with considerable publicity for Hogan, suggesting that he may not be solely a victim here.

The Ninth Circuit Holds—Correctly—That a Blogger Has the Same Defamation Protection as a Journalist

Justia columnist and attorney Julie Hilden comments on the January 17 decision by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit that ruled, as a matter of first impression, that First Amendment defamation rules apply equally to both the institutional press and to individual speakers and writers, such as bloggers.

Obamacare and Participation in Evil

Cornell law professor and Justia columnist Michael Dorf comments on the Supreme Court’s Obamacare/RFRA cases, which he notes present a number of important legal issues, as well as a fundamental question for any liberal democracy: To what extent should people be exempted from laws that they regard as requiring them to participate in evil?

A Battle Between A Rapper And A Notorious Former Cocaine Dealer Over Intellectual Property Rights Ends Up in a California Court

Justia columnist and attorney Julie Hilden comments on a recent California Court of Appeals decision that involved a rapper, and an infamous former cocaine dealer. The court held that a person’s name and public persona are First Amendment-protected if they incorporate significant creative elements, and thus count as a transformative use of the original name and/or persona. Hilden argues that the court was correct in its holding in the case.

Why a Texas Appellate Court Struck Down a Ban on Certain Sexual Communications Online

Justia columnist and attorney Julie Hilden comments on a Texas Appellate Court decision from October. The decision was based on a Texas man’s being charged under the State’s penal code for the third-degree felony of communicating in a sexually-explicit manner with a person whom he believed to be a minor, with intent to arouse or gratify his sexual desire. The Texas appellate court, however, deemed the statute to be overbroad and therefore struck it down for First Amendment reasons, noting that content-based regulations of speech, such as the one at issue here, are presumably invalid, and citing the law's potential to reach even great works of literature.

The Question of Disparate Speech Impact in the Court’s Upcoming McCullen v. Coakley Case

Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, analyze a very intriguing issue raised by a case that will be heard by the U.S. Supreme Court next month, McCullen v. Coakley, in which the plaintiffs challenge a Massachusetts law limiting pedestrian traffic near abortion clinics, because they seek to speak with women who are about to have an abortion and to attempt to deter them from doing so. Amar and Brownstein focus on how such laws ought to be categorized under Supreme Court precedent.

A Festivus for the Rest of Us

Justia columnist and Cornell law professor Michael Dorf explains why government officials around the country feel compelled to permit Festivus poles as part of their official holiday celebrations. How did we get to this point? The short answer, Dorf explains, is that Festivus poles in state capitols are an unexpected side effect of the Supreme Court’s Establishment Clause jurisprudence.

The Bishops Versus Women’s Health: The Gloves Are Off

Justia columnist and Cardozo law professor Marci Hamilton contends that we are in the midst of a war over whether the U.S. Catholic Bishops and those who agree with them, or individual women, will control women’s bodies and health. Hamilton comments on the influence of Pope Francis. She also argues that there are two major battlefields in this war right now: one in the workplace, and the other in Catholic hospitals. Hamilton ends, too, with an account of the terrible labor of a woman who suffered unnecessarily due to these conflicts.

The Risks of Defamation on Blogs, Twitter, and Facebook, and the Corsi/Esquire Magazine Case

Justia columnist and attorney Julie Hilden comments on a case from November 26, in which a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit held that a posting on Esquire Magazine’s Politics Blog, claiming falsely—but in jest and temporarily—that a conservative publisher had had the entire print run of 200,000 copies of a conservative book pulled from the shelves and pulped, and that it was offering full refunds to buyers, fit into the First Amendment's protection for satire. Hilden also remarks upon defamation risks on Twitter, Facebook, and blogs.

Can a Trial Court, Consistent with the First Amendment, Order an Attorney to Take Down Part of Her Website During Trial?

Justia columnist and attorney Julie Hilden comments on a recent case in which a judge ordered an attorney to take down that part of her website regarding prior, similar victories. The judge reasoned that jurors might see the website, but Hilden notes that jurors in the case were admonished not to go online. Accordingly, Hilden contends that the judge erred in directing the lawyer to change the site.

There Is Really Only One Issue in Town of Greece v. Galloway

Justia columnist and Cardozo law professor Marci Hamilton comments on the recently argued Supreme Court case that asks whether it is constitutional for a small town to open its town council meetings with prayer. Hamilton’s conclusion is that the case ultimately turns on a single factual question: Can there be, in 21st Century America, such a thing as a “nonsectarian” prayer? The short answer, according to Hamilton, is “No way.”

Should a Public Middle School Grammar Teacher Be Able to Teach a Lesson About the “N Word”?

Justia columnist and attorney Julie Hilden comments on a case from the U.S. District Court of the Northern District of Illinois, which involved a public school grammar teacher who—after intercepting a student's note that included rap music lyrics—continued the discussion, which then moved on to the use of the “N Word.” Hilden argues that the teacher should not have been suspended without pay as a result of the “N Word,” the use of which, by a teacher, in context, should not have resulted in the teacher's punishment.

A Breakdown of this Week’s Supreme Court Oral Argument in the Town of Greece v. Galloway Case Involving Prayer at Town Board Meetings

Justia columnist and U.C. Davis law professor Vikram David Amar, and Justia guest columnist and U.C. Davis law professor Alan Brownstein comment on the Supreme Court oral argument in the Town of Greece Establishment Clause case. As Amar and Brownstein explain, the case involves the interesting issue of the constitutionality of prayer at town board meetings.

The “Me Me Me Generation” of Believers

Justia columnist and Cardozo law professor Marci Hamilton argues that a narcissistic worldview has infected debates over religious liberty in America, where, she notes, individuals are now demanding the right to construct their workplaces, communities, and schools in the image of their personal religious viewpoints. This is religious narcissism, Hamilton argues, and she compares it to the narcissistic viewpoint that critics of the Millennials say that many members of their generation often hold.

Should Revenge Porn Be Illegal? Victims Say Yes, and so Does the California Legislature

Justia columnist and attorney Julie Hilden comments on “revenge porn,” which occurs when a person agrees to provide nude photos to his or her partner during a relationship, but after the breakup, the partner posts the nude photos online, at times connected to the partner’s name or other information. Hilden notes that California now has a relevant law on this topic, but some think that the law is not sufficiently strong.

Some Flaws in California’s New Law Regarding Paparazzi’s Harassment of Celebrities’ Children

Justia columnist and attorney Julie Hilden comments on an updated California law that protects celebrities' children from the paparazzi, with penalties of jail time and hefty fines. Hilden suggests that the new law ignores serious First Amendment concerns, and that civil remedies, rather than criminal sanctions, might have been enough, particularly in light of those concerns.

When Is a Public School Student’s Online Speech About School Violence Cause for Concern?

Justia columnist and attorney Julie Hilden comments on a recent Ninth Circuit case regarding the tension between the right to free speech and fears that such speech might spur school violence. Another issue that the case raises is whether the well-known Tinker test for public school student speech needs to be modified or augmented in the Internet Age.

Does the First Amendment Protect Begging?

Justia columnist and attorney Julie Hilden comments on the U.S Court of Appeals for the Sixth Circuit’s decision invalidating Michigan’s criminal anti-begging statute. The ACLU successfully argued in court that begging is protected, as speech, by the First Amendment. Hilden agrees with the ruling, but also raises the more difficult question of aggressive begging’ and how it can be regulated to strike an appropriate free speech balance.

Precisely How Much Academic Freedom Should (Does) the First Amendment Afford to Professors and Teachers at Public Schools? The Ninth Circuit’s Take in the Recent Demers v. Austin Case

Justia columnist Vikram Amar and Justia guest columnist Alan Brownstein, both U.C. Davis law professors, analyze an important and interesting decision, Demers v. Austin, involving the First Amendment academic-freedom rights of public school and university faculty members that was handed down last week by the United States Court of Appeals for the Ninth Circuit. Amar and Brownstein argue that that a more concrete and categorical framework for resolving academic freedom disputes than the Ninth Circuit's needs to be fashioned.

A Colorado Case Raises Key Questions About When a Demonstration Becomes A Private Nuisance, and How Much Gory Material Children Should Be Able to Be Exposed To

Justia columnist and attorney Julie Hilden comments on a recent Colorado case which raises two very interesting questions: When does a protest become a private nuisance? And, is it legal to expose young children to gory and disturbing images? The case at issue arose from protests near a church, in which protesters' signs included some that depicted graphic images of aborted fetuses. Hilden describes the factors that divide a protest from a mere public nuisance, and considers whether, in the Internet Age, young people may be more inured to graphic images that would have shocked their parents when they were their children's age.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is a Distinguished Professor of Law at UC Davis School of Law and a Professor... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, is a visiting professor at both Osgoode Hall... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He... more

Samuel Estreicher
Samuel Estreicher

Samuel Estreicher is the Dwight D. Opperman Professor, Director, Center for Labor and Employment... more

Leslie C. Griffin
Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School... more

Marci A. Hamilton
Marci A. Hamilton

Professor Marci A. Hamilton is a Professor of Practice in Political Science at the University of... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Government at Cornell University. He was Counsel of Record in... more

Austin Sarat
Austin Sarat

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at... more

Laurence H. Tribe
Laurence H. Tribe

Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus at Harvard University and... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately... more