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Free Speech Originalism: Unconstraining in Theory and Opportunistic in Practice
Get PDFCourts should not apply originalism in freedom of expression cases. Originalists claim that originalism prevents judges from imposing their own views. It does not-not in theory and not in practice. Instead, as the treatment of hate speech bans suggests, it is not principles but outcomes that determine whether and which version of originalism is used. Moreover, a true originalist First Amendment would likely lead to impoverished free speech protections.
Part I provides background on original public meaning originalism, the iteration of originalism currently favored by scholars. It also explains how the theory falls short of its original promise of limiting judicial discretion and instead tends to entrench the privilege of historically powerful groups.
Part II explains why originalism as a theory particularly fails when applied to free speech cases: because the original meaning of the First Amendment is notoriously elusive, it enables judges to select an interpretation that yields their desired outcome. Moreover, what little we can confidently conclude about the original meaning suggests a cramped view of free speech protections at the Founding and at Reconstruction.
Part III demonstrates that free speech originalism in practice is an opportunistic affair. Actual judging provides at least two additional occasions to exercise discretion: deciding whether to use originalism and which version to use. Part III starts by exploring how sometimes the Supreme Court applies originalism to speech cases but more often it does not, especially in its deregulatory free speech Lochnerism decisions. Part III next demonstrates that different types of originalism applied to hate speech bans can yield different outcomes, further demonstrating how originalism provides cover for motivated results-results that too often favor the powerful at the expense of the marginalized.
Although there exists an extensive literature on both originalism and hate speech, this Article makes several novel contributions: surprisingly few scholars have considered free speech originalism and fewer still, if any, with an eye toward questions of power and privilege. The analysis of original meaning extends beyond the Founding to include Reconstruction, an era regularly overlooked. Finally, the originalist analysis of hate speech is the first of its kind
The Evolution of Immigration Policy and Law Within the Democratic Party: A Comparative Analysis of Immigration Law and Policy Between The Obama and Biden Administrations
Get PDFA New Frontier: The Music Industry’s Struggle Against Generative AI
Get PDFSince the modern notion of artificial intelligence emerged in 2014, AI has rapidly developed into a technology with vast generative capabilities. This technology has allowed for the creation of copious amounts of AI-generated media content. One of the most impacted industries by this evolution is the music industry. In April of 2023, an unidentified user produced a viral AI-generated song titled “Heart on My Sleeve” in the vocal likeness of both Drake and The Weeknd. The song’s instant popularity among consumers shattered the music industry’s long-held belief that listeners would always prefer human creativity over artificial creation. This shift in perception has led to an inundation of AI-generated music across various music platforms, through which many current artists’ voices are being artificially replicated.
As artists’ voices are being used without permission and AI voice models are being trained using unlicensed copyrighted music, the music industry has begun to push back. Current intellectual property law is ill-equipped and unprepared to handle the rise of generative AI. Consequently, many music rights holders find themselves legally constrained from protecting their intellectual property from a technology that is generating commercial content that directly encroaches on their creativity and music.
This Comment will address possible current IP protections for music rights holders, via copyright law, trademark law, and the right of publicity. Additionally, it will examine current actions taken by the music industry to combat AI through litigation, legislative lobbying, and self-regulation. Lastly, this Comment will offer several potential short-term and long-term solutions for the music industry as it confronts the challenges posed by unregulated generative AI
\u3cem\u3eNo Conozco a Ninguna Miranda y Quiero Mi Abogado:\u3c/em\u3e The Constitutional Inadequacies of Translated \u3cem\u3e“Miranda Cards”\u3c/em\u3e in Police Interrogations
Get PDFThis article explores the challenges and complexities surrounding the application of the Miranda warning in the United States and specifically addresses its impact on non– English–speaking immigrants. While many Americans are familiar with these rights, recent immigrants may not fully understand them, particularly if they come from countries that do not offer equivalent legal protections. This article performs a comparative analysis of the right to silence and counsel in Cuba, Haiti, and Colombia—three countries with the largest immigrant populations in Miami, FL. Furthermore, this article examines how Miami-Dade Police address the linguistic barriers inherent in translated “Miranda Cards,” and argues that these cards alone are insufficient in ensuring a “knowing, intelligent, and voluntary” waiver. This article concludes by proposing more effective strategies to ensure non–English–speaking individuals understand their rights and that their waivers meet constitutional muster
Florida’s Privacy Paradox
Get PDFFor almost half a century, Floridians have enjoyed a right to privacy specially guaranteed to them by the Florida constitution. This broad right to privacy, pre-Dobbs, guaranteed several specific rights like the right to have an abortion, the right to be left alone in one’s own home, and the right to be able to direct the upbringing of one’s children, amongst other rights. Despite the fact that these specific rights were nestled in the same broad right to privacy, their treatment has been far from similar in recent years in Florida.
This Note examines the evolution of Florida’s treatment of two of these specific rights—the right to have an abortion and the right to have a say in one’s child’s upbringing—and argues that recent trends in Florida’s laws showcase a narrowing of the former and an expansion of the latter. This Note further argues that this contrasting treatment is not because of some deeply rooted tradition and history. Rather, the disparate treatment is nothing more than a political move by those in power
