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First Amendment Scrutiny: Realigning First Amendment Doctrine Around Government Interests
Get PDFThis article proposes a simpler way to frame judicial analysis of First Amendment claims: a government restriction on First Amendment expression or action must advance a compelling interest through narrowly tailored means and must not excessively burden the expression or action relative to the interest advanced. The test thus has three prongs: (1) compelling interest; (2) narrow tailoring; and (3) proportionality. Part I explores how current First Amendment doctrine too often minimizes or ignores a meaningful assessment of the government’s purported interest in limiting First Amendment liberties. Part II shows how First Amendment inquiry is further confused by threshold inquiries into coverage, categories, and content. Part III suggests how a uniform strict scrutiny test could better focus courts on government interests and related analyses. Part IV defends this test against possible objections. Taken seriously, a uniform strict scrutiny test could eliminate cumbersome doctrinal tests and detours that have emerged over the past sixty years. These tests and doctrines are not unprincipled or illogical. In most cases, they emerged out of tough cases and hard issues, with judges and scholars attempting to draw reasonable distinctions and sensible boundaries. But along the way, these approaches became bloated, unwieldy, and difficult to hold together. The result has been a great deal of confusion and head-scratching, including by lower courts attempting to apply Supreme Court precedent. This Article shows why these tests and detours are neither necessary nor desirable for First Amendment analysis and how a more simplified analysis better protects our most important civil liberties
Serving Up the Truth on America’s Failing Organic Food System
Get PDFThe organic food market in the United States has grown from a niche subset into an integral component of American food consumption. The current laws regulating the organic industry, including the recently adopted Strengthening Organic Enforcement (SOE) final rule, do not align with the average consumer’s understanding as they navigate the many options in grocery stores. This note analyzes the history and evolution of the organic food market in the United States, the process by which food producers become organic certified, and the pitfalls of the current system, which relies on definitions crafted by politicians, not scientists, and allows many producers to slip through the regulatory cracks while still profiting from labels that confuse consumers into thinking the product is organic. This note is also one of the first to unpack the shortcomings of the new SOE rule, and proposes solutions that put American consumers first. Although there are various benefits to the organic food market, including health, environmental, and ethical benefits, this note also points out the fallacies, concerns, and discrepancies within the organic sector. While Americans wait for necessary reforms, the US Department of Agriculture, which largely controls the organic food market, should collaborate with institutional leaders and organic advocacy groups to educate consumers about organic farming methods and quality. This note also provides health-conscious shoppers with ways to save money by shopping organic selectively, rather than entirely. Americans should be able to trust the organic food system and have confidence in the government to uphold the integrity of the organic seal, and it is up to the government to make these necessary changes
“Finfluencers in the Wild” A Call for Regulation Addressing the Growth of Online Investment Advice
Get PDFIllustrated in part by the abnormal market volatility that resulted from the popularity of meme stocks in early 2021, a new era of securities trading is taking place. With increasing frequency, investors look to social media discourse for investment advice. The current regulatory regime in the United States fails to address the increasing prominence of a new type of market participant—the “finfluencer.” This new breed of advisor is the social media influencer who provides investment advice to other users online. This note discusses the global conversations surrounding the emergence of this group, examines the US governance framework, specifically the Investment Adviser’s Act of 1940, compares US oversight practices with those implemented in New Zealand, and proposes the adoption of more pointed regulation directed at online investment advice. More specifically, this note argues that by not properly responding to the needs of the modern trading markets, US regulators are leaving a growing amount of investment advice—primarily targeting unsophisticated retail investors— unregulated. This not only places individual investors at risk but also threatens the efficiency and integrity of the broader securities market
Policing the Police: Establishing the Right to Record and Civilian Oversight Boards to Oversee America’s Police
Get PDFPolice misconduct is a persistent issue in the United States that undermines public trust in law enforcement and the criminal justice system as a whole. The video of George Floyd’s arrest and murder played an irreplaceable role in bringing attention to the case and sparking nationwide discussions about the state of policing in America. The video, showing former Minneapolis police officer Derek Chauvin kneeling on Mr. Floyd’s neck for several minutes, also helped convict Mr. Chauvin of murder at trial. Recording police activity is an important means of holding officers accountable for their actions and protecting citizens from abuse of power. Despite this, many people are hesitant to record the police due to fear of retaliation or legal consequences. While there been an increase in the number of videos of police misconduct being recorded and shared, police officers are rarely held accountable. Democratizing investigation procedures, establishing civilian oversight boards with independent prosecutors, is crucial in ensuring police accountability and building public trust. This note posits that a legislative solution be enacted to provide a uniform framework for affirming the right to record police and establishing civilian oversight boards. Its goal is to flip the current surveillance state, which prioritizes the privacy rights of police officers over those of citizens, on its head and provide civilians a meaningful tool with which they may hold their law enforcement officers accountable. In light of the lack of accountability, transparency, and systemic bias resulting from internal investigations, the civilian oversight boards will be tasked with overseeing misconduct investigations. Such oversight boards should be granted broad investigatory power and equipped with an independent prosecutor. By empowering citizens, this solution will help address the surveillance imbalance and hold our government officials accountable
False Speech and the First Amendment: The Problem with Free Speech in a Fake News Crisis
Get PDFSocial media platforms are used daily by millions of Americans to connect with friends and family, shop from home, and stay attuned to current events. But the increasing ease and speed of accessing information on social media leaves its users exposed to misinformation, disinformation, and fake news that is designed to deceive. Because natural cognitive biases make individualized truth-filtering mechanisms unreliable, it is often difficult for the public to distinguish between fact and fiction. Widespread belief in viral fake news stories have caused serious and dangerous consequences to public health, safety, and democracy. However, because false speech remains categorically protected under the First Amendment, courts rely on the counter-speech doctrine as the remedy to harmful fake news rather than content regulation. Nevertheless, in the social media era where fundamentally false information often prevails over factual truths on the information marketplace, it becomes difficult to reconcile theory with reality. There is growing belief among scholars and legislators that a Section 230 amendment imposing civil liability on social media platforms would incentivize platforms to enforce stricter content moderation policies. This note suggests that such legislative action does not go far enough to meaningfully mitigate the foreseeable harm caused by viral fake news. Instead, this note directly challenges the current First Amendment doctrine that categorically protects false speech from regulation. While this note posits a judicial solution to the fake news problem; given the limitations that hinder swift judicial action, this note further posits that private businesses are well-positioned to take immediate preemptive action to fight fake news
The White Supremacist Structure ofAmerican Zoning Law
Get PDFThis article disrupts the false narrative of white supremacism that has, for more than a century, cast American land use law as race neutral. In doing so, this article builds on an important but underdeveloped body of legal scholarship elucidating zoning law’s role in creating and perpetuating a separate and unequal dual housing system. It provides primary historical evidence and a clear narrative demonstrating that the defining feature of American zoning law—a strict residential use taxonomy that privileges neighborhoods of restrictively regulated single-family homes and burdens less restrictively regulated residential areas—emerged directly from the facially race-based and facially neutral, but nevertheless race-based, single-purpose zoning ordinances of the late nineteenth century American West and twentieth century Jim Crow movement. Applying insights from social science and the fields of critical race and critical legal geography, this article interrogates the US Supreme Court’s ultra deference to facially neutral police power laws that enforce racial boundaries and ultimately deprives those harmed by this dual system of a constitutional remedy notwithstanding substantial evidence of the system’s racially discriminatory purpose and effect. This article advances the claim that institutions, reformers, and land-use scholarship and pedagogy have yet to adequately grapple with the racial segregationist design of American zoning law, and consequently contribute to the endurance of this covert Jim Crow mechanism in nearly every major US city. The result is the persistent segregation of cities by race, chronic underinvestment in neighborhoods where People of Color reside and overinvestment in predominantly white neighborhoods, shifting of environmental and climate externalities of the land use system from privileged, predominantly white neighborhoods to neighborhoods of color, and ultimately multigenerational harms for those denied access to America’s protected, amenity rich neighborhoods. To weed out deeply rooted racism within zoning law, the legal academy must also make good on its commitment to diversity. To this end, the article concludes with a set of equity principles designed to help guide activism and the continued development of a scholarly agenda to confront the racialized organization of American land use law and an urgent call to transform land use law pedagogy
To “Opt Out” Go to Court: How the Public Nuisance Doctrine Can Solve the Robotext Circuit Split and Support Plaintiffs
Get PDFText messaging is now one of the predominant modes of communication. Because of this popularity, businesses and fraudsters alike are now consistently communicating with and targeting consumers by text, leading to an uncountable amount of unsolicited text messages. Courts across the country are grappling with how to remedy a wide range of injuries resulting from these messages. As outlined in Article III of the Constitution and later clarified by the Supreme Court in Spokeo v. Robins, to bring a case in federal court, plaintiffs must assert standing. With unsolicited text messages impacting millions of Americans, adequately asserting standing proves to be a significant hurdle. This note argues that plaintiffs will find the best success through use of the public nuisance doctrine’s special injury rule. The special injury rule allows plaintiffs who experience injuries similar to those suffered by the general public to recover so long as they can show that their injury differs from the injury to the general public in a specific way. Not only will this solution provide aggrieved plaintiffs with a route toward recovery, but it will also ensure that the federal court system continues to run smoothly in a time where unsolicited text messages are becoming increasingly harmful
African Courts and International Human Rights Law
Get PDFThe UN General Assembly adopted the Universal Declaration of Human Rights in 1948 and since then, the international community, with the help of the United Nations, has adopted other international human rights instruments designed to recognize and protect human rights. Since international human rights instruments do not automatically confer rights that are justiciable in domestic courts, each African country must domesticate these instruments in order to create rights that are justiciable in its domestic courts. Given the fact that many African countries have not yet domesticated the core international human rights instruments, international human rights law’s ability to positively impact the protection of human rights in these countries is severely limited. National judiciaries, especially if they are granted adequate independence, can use their powers to interpret the constitution and determine the constitutionality of laws, including customary laws, to invalidate and declare null and void, those laws and customs that violate the national constitution and the provisions of international human rights instruments. An examination of cases from the High Court of Tanzania, the Constitutional Court of South Africa, and the Constitutional Court of Zimbabwe provides insight into how progressive judges are using their interpretive powers to declare unconstitutional, statutes and customary laws that violate human rights