Publications and Briefs
Calvert, C. (2020). The First Amendment and Speech Urging Suicide: Lessons from the Case of Michelle Carter and the Need to Expand Brandenburg’s Application. Tulane Law Review, 94 (1), 79 – 97.
Calvert, C. (2019). Wither Zauderer, Blossom Heightened Scrutiny? How the Supreme Court’s 2018 Rulings in Becerra and Janus Exacerbate Problems with Compelled-Speech Jurisprudence. Washington and Lee Law Review, 76 (4), 1395 – 1441. https://scholarlycommons.law.wlu.edu/wlulr/vol76/iss4/3/
Calvert, C. (2019). Testing the First Amendment Validity of Laws Banning Sexual Orientation Change Efforts on Minors: What Level of Scrutiny Applies After Becerra and Does a Proportionality Approach Provide a Solution? Pepperdine Law Review, 47 (1), 1 – 44. http://lawcomm.pepperdine.edu/blogs/review/wp-content/uploads/2020/01/Calvert_Proof-for-LS.pdf
Calvert, C. (2019). Iancu v. Brunetti’s Impact on First Amendment Law: Viewpoint Discrimination, Modes of Offensive Expression, Proportionality and Profanity. Columbia Journal of Law & the Arts, 43 (1), 37 – 84. https://journals.library.columbia.edu/index.php/lawandarts/article/view/4125
Calvert, C. (2019). Contextual Cues tMeaning in Communications Law and First Amendment Jurisprudence: True Threats and Beyond. Journalism and Communication Monographs, 21 (3), 259 – 263. https://journals.sagepub.com/doi/pdf/10.1177/1522637919859597
Calvert, C. (2019). Certifying Questions in First Amendment Cases: Free Speech, Statutory Ambiguity and Definitive Interpretations. Boston College Law Review, 60 (5), 1349 – 1377. https://lawdigitalcommons.bc.edu/bclr/vol60/iss5/3/
Calvert, C. (2019). Merging Offensive Speech Cases with Viewpoint-Discrimination Principles: The Immediate Impact of Matal v. Tam on TwStrands of First Amendment Jurisprudence. William & Mary Bill of Rights Journal, 27 (3), 829 – 842. https://scholarship.law.wm.edu/wmborj/vol27/iss3/9/
Calvert, C. (2019). Is Everything a Full-Blown First Amendment Case After Becerra and Janus? Sorting Out Standards of Scrutiny and Untangling “Speech as Speech” Cases From Disputes Incidentally Affecting Expression. Michigan State Law Review, 2019, 73 – 138. https://digitalcommons.law.msu.edu/lr/vol2019/iss1/3/
Calvert, C. (2019). The FCC and Profane Language: The Lugubrious Legacy of a Moral Panic and A Grossly Offensive Definition that Must be Jettisoned. First Amendment Law Review (University of North Carolina, Chapel Hill), 17, 147 – 185. https://falrunc.files.wordpress.com/2019/03/symposium-issue-vol.-17-2019-1.pdf
Calvert, C. (2019). First Amendment Envelope Pushers: Revisiting the Incitement-to-Violence Test with Messrs. Brandenburg, Trump & Spencer. Connecticut Law Review, 51 (1), 117 – 154. https://tinyurl.com/r7tp42g
LoMonte, F., & Calvert, C. (2018). The Open-Mic, Unplugged: Challenges tViewpoint-Based Constraints on Public-Comment Periods. Case Western Reserve Law Review, 69 (1), 19 – 63. https://scholarlycommons.law.case.edu/caselrev/vol69/iss1/4/
Calvert, C. (2018 – 2019). The First Amendment, Compelled Speech
& Minors: Jettisoning the FCC Mandate for Children’s Television Programming. Kentucky Law Journal, 107 (1), 35 – 59.
Calvert, C., Hampton, A.T., & Vining, A. (2018). Defamation Per Se and Transgender Status: When Macro-Level Value Judgments About Equality Trump Micro-Level Reputational Injury. Tennessee Law Review, 85, 1029 – 1072. https://tennesseelawreviewdotcom.files.wordpress.com/2019/03/7-calvert-macros-v5.pdf
Calvert, C. (2018). College Campuses as First Amendment Combat Zones and Free-Speech Theatres of the Absurd: The High Price of Protecting Extremist Speakers for Shouting Matches and Insults. First Amendment Law Review (University of North Carolina, Chapel Hill), 16, 454 – 465. https://falrunc.files.wordpress.com/2018/05/falr-volume-16-spring-issue.pdf
Calvert, C. (2018). Reconsidering Incitement, Tinker and the Heckler’s Veton College Campuses: Richard Spencer and the Charlottesville Factor. Northwestern University Law Review Online, 112, 109 – 132. https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1254%20&context=nulr_online%20&preview_mode=1%20&z=1516859046
Calvert, C. (2018). Beyond Headlines & Holdings: Exploring Some Less Obvious Ramifications of the Supreme Court’s 2017 Free-Speech Rulings. William
& Mary Bill of Rights Journal, 26 (4), 899 – 937. http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1856&context=wmborj
Calvert, C., & Vining, A. (2018). Filtering Fake News Through a Lens of Supreme Court Observations and Adages. First Amendment Law Review (University of North Carolina, Chapel Hill), 16, 153 – 177. https://www.jou.ufl.edu/wp-content/uploads/2018/03/CalvertandVining_Final.pdf https://falrunc.files.wordpress.com/2018/03/falr-volume-16-symposium-issue3.pdf
Calvert, C. (2018). Gag Clauses and the Right tGripe: The Consumer Review Fairness Act of 2016 & State Efforts tProtect Online Reviews from Contractual Censorship. Widener Law Review, 24 (2), 203 – 234. http://widenerlawreview.org/files/2008/10/Calvert_FINAL.pdf
“Communicating Artificial Intelligence: Theory, Research, and Practice,” Communication Studies, forthcoming 2020, w/Seungahn Nah, Jang Hyun Kim, and Jungseock Joo.
“Blockchain for Good: Special Issue on Democracy and Civic Technology,” Frontiers in Blockchain, forthcoming 2020, w/Nichola Cooper and Marta Poblet Balcell.
Refereed Journal Articles
Mullis, Michaela Devyn* & McNealy, Jasmine E. (2020) “Freeing the Nipple One Broadcast at a Time: FCC Indecency Regulations of Nudity,” Wisconsin Journal of Law, Gender & Society (forthcoming)
McNealy, Jasmine E. & Mullis, Michaela Devyn.(2019) “Tea and Turbulence: Communication privacy management and celebrity gossip sites,” Computers in Human Behavior, 92(1), 110-118.
“Twitter Reactions to Hurricane Irma: Mining social media for inferences,” for UF Public Utility Research Center, February 2018.
Threat Index – April 2019, Shorenstein Center on Media, Politics, and Public Policy, Harvard University Kennedy School, Privacy Forecast 2019.
“Newsworthiness, the First Amendment, and Platform Transparency,” Concurring Opinions FAN 200, September 12, 2018.
“What is doxxing and why is it so scary?” The Conversation, May 16, 2018, available at: http://theconversation.com/what-is-doxxing-and-why-is-it-so-scary-95848
Reviewed by Jasmine McNealy (2018) Carter G. Woodson: History, The Black Press, and Public Relations, by Burnis R. Morris, Mass Communication and Society, DOI: 10.1080/15205436.2018.1471872
In January 2020, Prof. Clay Calvert, acting in his individual capacity, was one of several professors from across the nation who collectively filed a friend-of-the-court merits brief with the U.S. Supreme Court in the case of Carney v. Adams. The case addresses the First Amendment freedom of association and the interpretation of the Supreme Court’s anti-patronage doctrine as it affects the composition of Delaware Supreme Court and lower courts in that state.
In December 2017, the Marion B. Brechner First Amendment Project and the Brechner Center for Freedom of Information jointly filed a friend-of-the-court brief with the U.S. Supreme Court in the case of Lozman v. City of Riviera Beach, Florida. The case centers on the First Amendment speech and petition rights of Fane Lozman, a Florida resident, who argues that he was arrested in retaliation for exercising those rights by speaking in a manner critical of both the City of Riviera Beach and government officials. The case hinges largely on whether the existence of probable cause to make an arrest automatically defeats a First Amendment-based retaliatory arrest claim. A decision by the Supreme Court is expected in May or June 2018.
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.
Elonis v. United States
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.