Free Speech

Speaking About Politics, A Fireable Offense? The Legality of Employee Speech Restrictions in the Entertainment Industry

Speaking  About Politics, A Fireable Offense? The Legality of Employee Speech Restrictions in the  Entertainment Industry

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Chloe L. Kaufman*

Despite the commonly shared belief that Americans have an undeniable right to freedom of speech, private-sector employees receive no constitutional protection for employer regulations of or reactions to their speech and federal and state statutes provide extremely limited protections. Consequently, on-air professionals in the entertainment industry, including Curt Schilling, Kathy Griffin, Colin Kaepernick, Jemele Hill and Tomi Lahren have been terminated, suspended or otherwise retaliated against after making expressions of political speech deemed controversial by the public and their respective employers.

Tomi Lahren’s dispute against her employer demonstrates the severity of a private employer’s ability to restrict political speech under U.S. law. By analyzing Lahren’s complaint and the existing legal framework, this Note highlights how private employers’ unrestricted power disproportionately affects employees in the entertainment industry, risks a chilling effect on private employee speech across industries, and consequently cuts against the foundational values of American democracy.

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The Hybrid Trademark and Free Speech Right Forged From Matal v. Tam

The Hybrid Trademark and Free Speech Right Forged From Matal v. Tam
By Timothy T. Hsieh* Download a PDF version of this article here More →

Encryption and the Press Clause

Encryption and the Press Clause
Download a pdf version of this article here. Almost twenty years ago, a hostile debate over whether government could regulate encryption—later named the Crypto Wars—seized the country. At the center of this debate stirred one simple question: is encryption protected speech? This issue touched all branches of government percolating from Congress, to the President, and eventually to the federal courts. In a waterfall of cases, several United States Court of Appeals appeared to reach a consensus that encryption was protected speech under the First Amendment, and with that the Crypto Wars appeared to be over, until now. Nearly twenty years later, the Crypto Wars have returned. Following recent mass shootings, law enforcement has once again questioned the legal protection for encryption and tried to implement “backdoor” techniques to access messages sent over encrypted channels. In the case, Apple v. FBI, the agency tried to compel Apple to grant access to the iPhone of a San Bernardino shooter. The case was never decided, but the legal arguments briefed before the court were essentially the same as they were two decades prior. Apple and amici supporting the company argued that encryption was protected speech. While these arguments remain convincing, circumstances have changed in ways that should be reflected in the legal doctrines that lawyers use. Unlike twenty years ago, today surveillance is ubiquitous, and the need for encryption is no longer felt by a seldom few. Encryption has become necessary for even the most basic exchange of information given that most Americans share “nearly every aspect of their lives—from the mundane to the intimate” over the Internet, as stated in a recent Supreme Court opinion.* Given these developments, lawyers might consider a new justification under the Press Clause. In addition to the many doctrinal concerns that exist with protection under the Speech Clause, the Press Clause is normatively and descriptively more accurate at protecting encryption as a tool for secure communication without fear of government surveillance. This Article outlines that framework by examining the historical and theoretical transformation of the Press Clause since its inception. ————————— * Riley v. California, 134 S. Ct. 2473, 2490 (2014).

Choking the Channel of Public Information: Re-Examination of an Eighteenth-Century Warning about Copyright and Free Speech

Choking the Channel of Public Information: Re-Examination of an Eighteenth-Century Warning about Copyright and Free Speech
By Edward L. Carter* A pdf version of this article may be downloaded here. More →