First Amendment

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The term “hate speech” is a common fixture in modern discourse, often used to describe offensive, bigoted, or hateful expression. But what is its legal standing in the United States? The answer, as many First Amendment scholars will tell you, is far from simple. In short, there is no legal definition of “hate speech” in…

Read More The First Amendment and “Hate Speech”: A Complex Legal Landscape
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In TikTok Inc. et al v. Merrick Garland, Nos. 24-656, 24-657 (January 17, 2025), the U.S. Supreme Court upheld the Protecting Americans from Foreign Adversary Controlled Applications Act against a First Amendment challenge. From the per curiam opinion: As applied to petitioners, the Act is sufficiently tailored to address the Government’s interest in preventing a…

Read More SCOTUS Rejects First Amendment Challenge to TikTok Ban
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In Counterman v. Colorado, 143 S.Ct. 2106, 2113–14, 600 U.S. 66 (U.S. 2023), the U.S. Supreme Court discussed the “true threat” exception to First Amendment free speech protection – specifically, the mental state that the state must demonstrate that the defendant had. The Court summarized the black-letter law as follows: From 1791 to the present,”…

Read More U.S. Supreme Court Clarifies Mental State Required for “True Threat” First Amendment Exception
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In 303 Creative LLC, et al v. Aubrey Elenis, et al, 2023 WL 4277208 (U.S. June 30, 2023), the U.S. Supreme Court upheld (6-3) a challenge by a wedding website designer (Lorie Smith) to the (prospective) enforcement of Colorado’s public accommodation discrimination law, as doing so would violate the First Amendment’s Free Speech Clause. Justice…

Read More SCOTUS: First Amendment Prohibits Colorado From Forcing a Wedding Website Designer to Create Websites For Same-Sex Couples
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In Reynolds v. The City of New York, 22-CV-1910 (VEC), 2022 WL 17792394 (S.D.N.Y. Dec. 19, 2022), the court, inter alia, granted defendant’s motion to dismiss plaintiff’s First Amendment retaliation claim. From the decision: The sole cause of action in Plaintiff’s Amended Complaint alleges that the City violated 42 U.S.C. § 1983 by retaliating against…

Read More First Amendment Retaliation Claim Dismissed; Complaints About Alleged Improper Workplace Conduct Did Not Amount to Speaking as a Citizen on a Matter of Public Concern
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In Brock v. Zuckerberg et al, No. 20-cv-7513, 2021 WL 2650070 (S.D.N.Y. 2021) (Liman, J.), the court dismissed plaintiff’s claims asserting that defendants Facebook, Inc. (as well as Mark Zuckerberg, Sheryl Sandberg, among others) violated his constitutional rights to free speech and due process by allegedly removing and blocking his Facebook posts. This decision is…

Read More Court Rejects First Amendment Claim Against Facebook et al
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On June 23, 2021 the U.S. Supreme Court, in Mahanoy Area School District v. B.L., No. 20-255, 594 U.S. __(2021), affirmed (8-1) a Third Circuit decision that a school’s subjecting a cheerleader to disciplinary action for an off-campus vulgar “Snapchat” post violated her First Amendment rights. Justice Breyer delivered the majority opinion, in which Justices…

Read More SCOTUS Rules in Favor of Snapchat Cheerleader’s First Amendment Rights
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In Vail v. The Town of Cayuta et al, 2021 WL 1788523 (WDNY May 5, 2021), the court held that plaintiff (a public employee and candidate for public office) plausibly alleged a First Amendment retaliation claim. This decision is instructive as to when speech is “on a matter of public concern”, which it must be…

Read More First Amendment Retaliation Claim Survives Motion to Dismiss; Sign-Removal Accusation Was a “Matter of Public Concern”
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