Recent Publications

Recent briefs

In June 2016, the Marion B. Brechner First Amendment Project filed a friend-of-the-court brief with the U.S. Supreme Court in the case of Expressions Hair Design v. Schneiderman ​coming out of the U.S. Court of Appeals for the Second Circuit. The petitioners and the amicus brief urge the Court to hear a First Amendment challenge to the constitutionality of New York's no-surcharge statute, which prohibits merchants from imposing surcharges for credit card payments but allows them to offer discounts for customers who pay with cash. "The law negatively affects what merchants can say to customers and, in turn, the speech that consumers can receive to make better informed choices affecting how they spend their money," said First Amendment Project director Clay Calvert. A nearly identical Florida statute was enjoined by the Eleventh Circuit Court of Appeals in 2015 for violating the First Amendment speech rights of merchants in the Sunshine State, but the Second Circuit upheld New York's statute in 2015 and ruled that it did not affect freedom of speech. The amicus brief urges the Supreme Court to hear the appeal of Expressions Hair Design and other merchants.

In June 2016, Clay Calvert was one of 18 journalism scholars from across the nation to file a "journalism scholars" friend-of-the-court brief with the U.S. Court of Appeals for the Ninth Circuit in the case of National Abortion Federation v. Center for Medical Progress. The brief urges the Ninth Circuit to affirm a district court decision holding that David Daleiden was not using or following widely accepted and ethical principles of investigative journalism during his efforts to make secret recordings at the National Abortion Federation's annual meetings. Other journalism scholars joining Calvert on the brief include Todd Gitlin of Columbia University, Theodore Glasser of Stanford University and Tom Goldstein of the University of California, Berkeley.

On April 26, 2016, the Marion B. Brechner First Amendment Project, along with the ACLU Foundation of Florida and multiple medical societies, filed a friend-of-the-court brief with the U.S. Court of Appeals for the Eleventh Circuit in the long-running case of Wollschlaeger v. Florida. The case centers on a First Amendment challenge to a Florida statute that negatively affects the ability of physicians in the Sunshine State to discuss firearm possession with their patients. The brief argues the Florida statute should be subject to the rigorous strict scrutiny standard of judicial review and, in turn, should be struck down as an unconstitutional instance of viewpoint based censorship.

The Marion B. Brechner First Amendment Project filed an amicus brief in March 2016 with the Supreme Court of Nevada in an anti-SLAPP statute case called Fellhauer v. Pope. The brief argues that local matters of neighborhood safety and residential privacy constitute issues of “public interest” within the scope of the Silver State’s anti-SLAPP statute.

The Marion B. Brechner First Amendment Project filed a friend-of-the-court brief on December 9, 2015, with the U.S. Supreme Court in the case of Bell v. Itawamba County School Board. The case involves the First Amendment speech rights of public high school students who post messages to social media sites while off campus, using their own communication devices and during non-school hours, yet who nonetheless are punished on campus by school authorities. “This is a constant, Orwellian problem of school officials trying to stretch their jurisdiction far beyond campus and into the homes and bedrooms of minors across the country,” said Clay Calvert, Brechner Eminent Scholar in Mass Communication and director of the Brechner First Amendment Project.

In October 2015, the Marion B. Brechner First Amendment Project filed a friend-of-the-court brief with a Texas appellate court in the case of AusPro Enterprises, Inc. v. Texas Dep’t of Transportation.  The brief challenges the constitutionality of a Texas sign ordinance that discriminates based upon the content of signs.  The brief was prepared with the assistance of the UCLA School of Law First Amendment Amicus Brief Clinic directed by Professor Eugene Volokh.  “After the U.S. Supreme Court’s ruling this summer in Reed v. Town of Gilbert involving a very similar Arizona sign ordinance, laws such as the one we are challenging in Texas are almost certainly unconstitutional and should be struck down,” said Clay Calvert, director of the Marion B. First Amendment Project.

In September 2015, the Marion B. Brechner First Amendment Project, along with the ACLU of San Diego & Imperial Counties, the Cato Institute and several other organizations, filed a friend-of-the-court brief with the U.S. Court of Appeals for the Ninth Circuit in California in a case involving limitations imposed by a judge on the First Amendment rights of an individual as part of the conditions for his supervised release from prison. The issue is whether the limitations on speech that are part of the supervision conditions violate Darren Chaker's First Amendment rights.

In March 2015, the Marion B. Brechner First Amendment Project was one of five leading non-profit First Amendment organizations from across the nation to file an amicus brief with the U.S. Court of Appeals for the Second Circuit in the so-called “Cannibal Cop” case of United States v. Valle.

In March 2015, the director of the Marion B. Brechner First Amendment Project was one of 12 First Amendment scholars from across the country, including Irwin Chemerinsky and Vincent Blasi, to file an amicus brief with the U.S. Court of Appeals for the Eighth Circuit in the defamation case of Ventura v. Kyle.

In August 2014, the Marion B. Brechner First Amendment Project, along with the ACLU Foundation of Florida and multiple medical societies, joined in the filing of a friend-of-the-court brief with the U.S. Court of Appeals for the Eleventh Circuit in a case affecting the First Amendment speech rights of physicians and healthcare providers called Wollschlaeger v. Governor of Florida.

In August 2014, the Marion B. Brechner First Amendment Project, along with rap music scholars Erik Nielson and Charis E. Kubrin, filed a friend-of-the-court merits brief with the United States Supreme Court in the true threats case Elonis v. United States.

In 2014, the Marion B. Brechner First Amendment Project, along with the Thomas Jefferson Center for the Protection of Free Expression at the University of Virginia, filed a friend-of-the-court brief with the United States Supreme Court in the true threats case of Elonis v. United States.

In June 2013, the Marion B. Brechner First Amendment Project, along with the Thomas Jefferson Center for the Protection of Free Expression at the University of Virginia, filed a friend-of-the-court brief with the United States Supreme Court in the political speech case of Hunter v. Virginia State Bar.

In November 2011, the Marion B. Brechner First Amendment Project, along with the Pennsylvania Center for the First Amendment, filed a friend-of-the-court brief with the United States Supreme Court in the broadcast indecency case of FCC v. Fox Television Stations.

In October 2011, the Marion B. Brechner First Amendment Project filed a friend-of-the-court brief with the United States Supreme Court in the student speech case of Kowalski v. Berkeley County Schools.

In September 2010, the Marion B. Brechner First Amendment Project, along with the Pennsylvania Center for the First Amendment, filed a friend-of-the-court brief with the United States Supreme Court in the violent video game case of Schwarzenegger v. Entertainment Merchants Association.

In July 2010, the Marion B. Brechner First Amendment Project, along with Thomas Jefferson Center for the Protection of Free Expression at the University of Virginia, the National Coalition Against Censorship and the Pennsylvania Center of the First Amendment at Pennsylvania State University, filed a friend-of-the-court brief in a free speech case centering on military funeral protests by members of the Westboro Baptist Church.  The case is Snyder v. Phelps.

In March 2010, the Marion B. Brechner First Amendment Project, along with Student Press Law Center and the Pennsylvania Center of the First Amendment, filed a friend-of-the-court brief in a student speech case that tests the ability of school officials to censor online student speech that is created off campus.  The case is J.S. v. Blue Mountain School District.

In early 2010, the Marion B. Brechner Project filed a friend-of-the-court brief with the United States Supreme Court in a case centering on the right of citizens to collect signatures for ballot petitions. The case is called Citizens for Police Accountability Political Committee v. Browning, No. 09-861.

Recent law journal articles

"The Government Speech Doctrine in Walker’s Wake: Early Rifts and Reverberations on Free Speech, Viewpoint Discrimination and Offensive Expression." William & Mary Bill of Rights Journal, 25 (4), 1239 – 1299 (2017).

"Reining in Internet-Age Expansion of Exemption 7(C): Towards a Tort Law Approach for Ferreting Out Legitimate Privacy Concerns and Unwarranted Intrusions Under FOIA." SMU Law Review, 70 (2), 255 – 292 (2017).

"Can the Undue Burden Standard Add Clarity and Rigor to Intermediate Scrutiny in First Amendment Jurisprudence?: A Proposal Cutting Across Constitutional Domains for Time, Place & Manner Regulations."  Oklahoma Law Review, 69 (4), 623 - 662.

"Speech v. Conduct, Surcharges v. Discounts: Testing the Limits of the First Amendment and Statutory Construction in the Growing Credit Card Quagmire." New York University Journal of Legislation and Public Policy, 20 (1), 149 – 189 (2017).​

"Fake News, Free Speech, & the Third-Person Effect: I’m No Fool, But Others Are​." Wake Forest Law Review Online, 7, 12 (2017).

"Indecency Four Years After Fox Television Stations: From Big Papi to a Porn Star, an Egregious Mess at the FCC Continues." University of Richmond Law Review, 51 (2), 329 - 369 (2017).

"Underinclusivity and the First Amendment: The Legislative Right to Nibble at Problems After Williams-Yulee." Arizona State Law Journal, 48 (3), 525 - 577 (2016).

"The Right to Record Images of Police in Public Places: Should Intent, Viewpoint, or Journalistic Status Determine First Amendment Protection." UCLA Law Review Discourse, 64, 230 - 253 (2016).

"Copyright in Inanimate Characters: The Disturbing Proliferation of Microworks and the Negative Effects on Copyright and Free Expression." Communication Law & Policy, 21 (3), 281 - 300 (2016).​

"Newsgathering Takes Flight in Choppy Skies: Legal Obstacles Affecting Journalistic Drone Use." Fordham Intellectual Property, Media & Entertainment Law Journal, 26 (3), 535 - 571 (2016).

"The First Amendment Right to Record Images of Police in Public Places: The Unreasonable Slipperiness of Reasonableness & Possible Paths Forward." Texas A&M Law Review, 3, 131-178 (2015).

"Legal Lessons in On-Stage Character Development: Comedians, Characters, Cable Guys & Copyright Convolutions." Berkeley Journal of Entertainment and Sports Law, 4 (1), 12 - 37 (2015).

“Public Concern and Outrageous Speech: Testing the Inconstant Boundaries of IIED and the First Amendment Three Years After Snyder v. Phelps.” University of Pennsylvania Journal of Constitutional Law, 17 (2), 437 – 478.

“Rap Music and the True Threats Quagmire: When Does One Man’s Lyric Become Another’s Crime?” Columbia Journal of Law & the Arts, 38 (1), 1 – 27.

"The Future of Privacy and the Press." Communication Law & Policy, 19 (1), 119 - 128 (2014).

“A Familial Privacy Right Over Death Images: Critiquing the Internet-Propelled Emergence of a Nascent Constitutional Right that Preserves Happy Memories and Emotions.” Hastings Constitutional Law Quarterly, 40 (3), 475 – 523 (2013).

“To Defer or Not to Defer? Deference and Its Differential Impact on First Amendment Rights Under the Roberts Court.” Case Western Reserve Law Review, 63 (1), 13 – 55 (2012).

"Past Bad Speakers, Performance Bonds & Unfree Speech: Lawfully Incentivizing 'Good' Speech or Unlawfully Intruding on the First Amendment?" Harvard Journal of Sports & Entertainment Law, 3 (2), 245 - 276.

"Big Censorship in the Big House—A Quarter-Century After Turner v. Safley: Muting Movies, Music & Books Behind Bars." Northwestern Journal of Law & Social Policy, 7 (2), 257 - 300 (2012).

“Framing a Semantic Hot-News Quagmire in Barclays Capital v. Theflyonthewall.com: Of Missed Opportunities and Unresolved First Amendment Issues.” Virginia Journal of Law & Technology, 17 (1), 50 – 74 (2012).

“Defining 'Public Concern' After Snyder v. Phelps: A Pliable Standard Mingles With News Media Complicity.” Villanova Sports & Entertainment Law Journal, 19 (1), 39 – 71 (2012).

“Dying for Privacy: Pitting Public Access Against Familial Interests in the Era of the Internet.”  Northwestern University Law Review Colloquy, 105, 18-30 (2010).

"Judicial Erosion of Protection for Defendants in Obscenity Prosecutions?: When Courts Say, Literally, Enough is Enough and When Internet Availability Does Not Mean Acceptance."  Harvard Journal of Sports & Entertainment Law, 1 (1), 7-37 (2010).

“Contrasting Concurrences of Clarence Thomas: Deploying Originalism and Paternalism in Commercial and Student Speech Cases.”  Georgia State University Law Review, 26 (2), 321-359 (2010).

"All the News That's Fit to Own: Hot News on the Internet and the Commodification of Digital Culture."  Wake Forest Intellectual Property Law Journal, 10 (1), 1-29 (2009).

“Sex, Cell Phones, Privacy, and the First Amendment: When Children Become Child Pornographers and the Lolita Effect Undermines the Law” CommLaw Conspectus, 18, 1-65 (2009).

“Tinker’s Midlife Crisis: Tattered and Transgressed But Still Standing” American University Law Review, 58, 1167-1191 (2009).

Recent op-ed commentaries

"Supreme Court Should Decide Whether Rap Lyrics Are Free Speech" (Huffington Post, Apr. 3, 2014).

"Blackout Rules Keeping Pro Football Fans in the Dark" (Gainesville Sun, Jan. 11, 2014, at 7A).

“Students Can Speak Up, Too” (Pittsburgh Post-Gazette, Feb. 11, 2010).

Book Reviews

“Reporting Always: Writings From The New Yorker.” Journalism and Mass Communication Quarterly, 93 (2) , 471-473 (2016).

“Petty: The Biography” Journalism and Mass Communication Quarterly, 93 (2) , 481-482 (2016).