South Texas Law Review Vol.61 No.2

SOUTH TEXAS LAW REVIEW

SOUTH TEXAS COLLEGEOF LAW HOUSTON HOUSTON, TEXAS

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SOUTH TEXAS LAW REVIEW

SUMMER 2021VOL. 61NO. 2

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SOUTH TEXAS LAW REVIEW

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SOUTH TEXAS LAW REVIEW

SUMMER 2021VOL. 61NO. 2

SOUTH TEXAS COLLEGEOF LAW HOUSTON

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SOUTH TEXAS LAW REVIEW

SUMMER 2021VOL. 61NO. 2

SOUTH TEXAS COLLEGEOF LAW HOUSTON FACULTYAND MEMBER ISSUE

ARTICLE

SUBSTANTIVE TOLERATIONAND VIEWPOINT DISCRIMINATION ................................ R. Randall Kelso 97

ESSAY

SOMEBODY’S GOTTO GO FIRST: AN ACKNOWLEDGEMENTOF KENESHA STARLING, THE FIRST AFRICAN-AMERICAN EDITORIN CHIEFOFTHE SOUTH TEXAS LAW REVIEW ..... Michael F. Barry 155

COMMENTS

ETHICAL OBLIGATIONSOF SELF-REGULATING PROFESSIONS: A COMPARISONOF ABA MODEL RULESAND AMA CODEOF MEDICAL ETHICS OPINIONS GOVERNING PROFESSIONAL DISCRETIONAND CONFIDENTIALITYOF INFORMATION, ANDTHE IMPOSITIONSOF HEIGHTENED PROFESSIONAL RESPONSIBILITY .... Kenesha Starling 159

STICKSAND STONES MAY BREAK YOUR BONES, BUT MEAN TWEETS WILL LAST FOREVER: THE CLASHOF TITLE IX ANDTHE FIRST AMENDMENTON COLLEGE CAMPUSES ... Miranda Granchi 199

DEFAMATION, SOCIAL MEDIA, ANDTHE LIMITED PURPOSE PUBLIC FIGURE DOCTRINE Timothy Boman 233

SHOULD WE ACCEPT HARSHER PUNISHMENTS SO LONG AS THEY AREN’T VINDICTIVE? A REVIEWOF NORTH CAROLINA

V. PEARCE ANDITS PROGENY .................. Russell L. Morris 271

A.Four Moral Views Different Than Tolerance as a Substantive Value

1.Pure Egotism: Might Makes Right

2.Equality of Egotism

3.Community Customs of Societal Traditions as a Source of Morality

4. Tolerance as Equality of All Moral Views

B.Tolerance as a Substantive Value

A. Doctrinal Categories

B Modern Application of Doctrine

A. Viewpoint Versus Subject-Matter Discrimination: 1986–2008

1. Typical Cases

2.Exceptional Cases with a Predisposition to Defer to Government Values: 1986–2008

B. Viewpoint Versus Subject-Matter Discrimination: 2009–2020

1. Decisions Based on Procedural Toleration of Ideas

2.Problems with 2009–2020 Procedural Toleration Doctrine

A.The Problem with a Categorical Approach to Viewpoint Discrimination

B The Problem of Mischaracterizing Speech as Conduct

C. Versus Traditional Content-Based Versus Content-Neutral Doctrine

D. Public Forum Regulation of Anti-Substantive Toleration Speech

1. Truth Versus Falsehood

2.Hate Speech Regulation

A.The Problem with Mischaracterizing Speech as Government Speech

B Government Aid in the Form of Grants, Subsidies, Trademark & Copyright Protection

C. Nonpublic Forum Cases Involving School Curriculum or School-Sponsored Events

D.Anti-Substantive Toleration Speech

1. Truth Versus Falsehood in a Nonpublic Forum

2.Hate Speechin Nonpublic Forum

Boos v. Barry National Endowment for the Arts v.

Id

Thinking About Content: Can It Play An Appropriate Role in Government Funding of the Arts?

See See, e.g Compare with id

Finley Morse v. Frederick Matal v.

Tam Iancu v. Brunetti Walker v. Texas Division, Sons of Confederate Veterans, Inc.

Compare with id and id Rosenberger

Compare with id

Compare

Boos

Central Hudson Gas with id and id.

Compare

Finley with id and id

Compare with id See infra

A. Four Moral Views Different Than Tolerance as a Substantive Value

See infra See infra

See infra

See infra

See infra

See infra

See infra See infra

B Tolerance as a Substantive Value

See generally Mapping the Limits of Skepticism in Law and Morals

See generally Modern Moral Reasoning and Emerging Trends in Constitutional & Other Rights Decision-Making Around the World

See generally see also Between Scholar and Jurist: The Controversy over the Research of Jewish Law Using Comparative Methods at the Early Time of the Field

see also The World of the Framers: A Christian Nation?

see also Justice and Equality in Muslim Family Laws: Challenges, Possibilities, and Strategies for Reform

see also What is Islamic Law?

see also Tolerance, Society, and the First Amendment: Reconsiderations

See, e.g

See generally The Challenge of Religious Fundamentalism to the Liberty and Equality Rights of Women: An Analysis Under the United Nations Charter

see also

Separation, Accommodation and the Future of Church and State

See supra inter alia

A. Doctrinal Categories

See supra

See generally The Structure of Modern Free Speech Doctrine: Strict Scrutiny, Intermediate Review, and “Reasonableness” Balancing

.

See, e.g.

See, e.g see also

.Perry Educ. Ass’n

Id

See, e.g

Ass’n see also

see also Perry Educ.

Minnesota Voters Alliance v. Mansky,

Rosenberger v. Rector and Visitors of the University of Virginia

See infra See, e.g see also see, e.g

See, e.g see also

See supra Perry Educ. Ass’n

Rosenberger

Agency for International Development v. Alliance for Open Society International, Inc.,

Rosenberger See, e.g

Rosenberger Id . Compare Rosenberger Rust Rust with Rust

But see Rust

B Modern Application of Doctrine

Patterson v. Colorado

previous restraints Abrams v. United States

Patterson

Abrams

See Playing a “Labeling Game”: Classifying Expression as Conduct as a Means of Circumventing First Amendment Analysis

See, e.g

See infra

See generally

Procunier v. Martinez

See generally The Brandeis Gambit: The Making of America’s “First Freedom,” 1909–1931 see also

Justice Oliver Wendell Holmes, Jr., Zechariah Chafee, Jr., and the Clear and Present Danger Test for Free Speech: The First Year, 1919

Id see generally supra

see also The Empirical Basis of First A

The Constitution of the United States: Contemporary Ratification

mendment Principles overruling

Alvarez

Beauharnais v. Illinois

Beauharnais

Terminiello v. Chicago

Central Hudson Gas & Electric Corp. v. Public Service Commission

Compare id with Alvarez

See generally supra

see also id

see also id

see also id

See Beauharnais supra

Beauharnais

Beauharnais

But cf. When to Regulate Hate Speech

See

Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio

United States v. O’Brien

See, e.g

potentially Central Hudson Gas

See Clarifying Viewpoint Discrimination in Free Speech Doctrine

see also supra

A. Viewpoint Versus Subject Matter Discrimination: 1986

2008

National Endowment for the Arts v. Finley Finley

Id

See, e.g supra Boos

See, e.g

See, e.g

See supra Boos

see also

see also

Legal Services v. Velasquez

Finley i.e.

v. City of New York

Brooklyn Institute of Arts and Sciences

Id

Finley

Finley Compare id

Rust with Velasquez

Velasquez

Finley

Rust Velasquez and supra

Finley

Finley Bethel School District

No. 403 v. Fraser

Hazelwood School District v. Kuhlmeier Hazelwood Fraser

disassociate itself

Id Id Id Id Id

Tinker see also id see also id Tinker see also id Id

Fraser

biased or prejudiced

Fraser Hazelwood Morse v. Frederick

Hazelwood Morse

Id Id Id

Tinker see also id

Tinker

Id

Harlow see also id

Id

Tinker

Tinker

see also supra

Fraser Finley Hazelwood Morse,

B Viewpoint Versus Subject-Matter Discrimination: 2009 –2021

Boos Finley Hazelwood Morse

See infra

See supra Finley Hazelwood Morse see, e.g

Hair

Compare id

id with id

See supra Finley Hazelwood Morse See, e.g Culture Wars on Campus: Academic Freedom, the First Amendment, and Partisan Outrage in Polarized Times see also Protecting Diverse Thought in the Free Marketplace of Ideas: Conservatism and Free Speech in Higher Education

Pompeo v. Board of Regents of the University of New Mexico

Keefe v. Adams

Iancu v. Brunetti

Pompeo Keefe

Matal v. Tam

Central Hudson Gas

Iancu v. Brunetti

Boos v. Barry

Id

Id

Id see id

See id see also

id see also supra

Boos

aff’g

Id Id id

Fraser

Finley Morse

Brunetti

Brunetti

Finley Morse

Hazelwood

Brunetti Tam

Tam Brunetti

Finley, Hazelwood, Morse

Brunetti

Rosenberger v. Rector and Visitors of the University of Virginia

R.A.V. v. City of St. Paul

See supra

See supra

See supra

Id

See supra

Brunetti id id

See supra

Brunetti

Holder v. Humanitarian Law Project

Holder Holder

Brunetti

Holder Holder

Brunetti

Mansky Brunetti

Iancu v. Brunetti

Hazelwood disassociate itself

biased or

Holder

See supra

See supra

See supra see also Brunetti

See supra Brunetti

prejudiced

Pompeo v. Board of Regents of the University of New Mexico

see also supra Hazelwood

see also supra Pompeo

See supra

See supra See, e.g

See supra

see also

Between Tradition and Progress: A Comparative Perspective on Polygamy in the United States and India

Theory

See supra

See generally

The “End” of: Science, Philosophy, and Legal

See supra Gödel, Escher, Bach: More

Darkness, or Day for Night

See supra supra

See infra

See infra

See infra

See infra

See supra

A. The Problem with a Categorical Approach to Viewpoint Discrimination

Holder v. Humanitarian Law Project

Board of Education v. Barnette

in Holder v. Humanitarian Law Project

West Virginia State

See supra

See infra

See infra

See supra

See supra

See supra

Humanitarian L Project

Id

Terminiello v. City of

See generally supra Lemon

McCreary County Marsh see also id see also see also

Chicago Terminiello

Brandenburg Virginia v.

Black Chaplinsky Holder v.

Humanitarian Law Project

Id See See See See See Contra Scalia, Thomas, and Gorsuch: Originalists Should Adopt a Living

Constitution see also id

B The Problem of Mischaracterizing Speech as Conduct

Holder v. Humanitarian Law Project

supra

Holder v. Humanitarian Law Project

see also id

see also id

see also

see also Narcissism, Generation X, the Corporate Elite, & the Religious Right Within the Modern Republican Party: A Set of “Friendly” Observations for President Bush

See supra

Hobgood

Holder

See generally supra

See, e.g see also

King

C Versus Traditional Content-Based Versus ContentNeutral Doctrine

Reed v. Town of Gilbert, Arizona

Reed

e.g.

Central Hudson abrogated by

See, e.g

see also

See “Don’t You Say That!”: Injunctions Against Speech Found to Violate Title VII Are Not Prior Restraints

see also Id

Reed

Renton v. Playtime Theatres, Inc. Reed

Renton Reed

Packingham v. North Carolina

O’Brien Renton

Reed

Id Id Id Reed see also id Cf

But see Reed

Reed

Id Compare

Renton Reed with Reed and rev’d

See see also

Tinker

Reed and Reed Cf.

Tinker

Kowalski

See, e.g

see also ex rel.

see also

See, e.g

amended and superseded on denial of reh’g en banc see also ex rel.

see also

Tinker

But see

Fraser Tinker see also ex rel.

; see also

Renton

Reed

O’Brien v. Welty

Reed

Welty see also See see also

see, e.g Regulating

Hate Speech: Nothing Customary About It see also Burning Crosses on Campus: University Hate Speech Codes see also Stopping Hate Without Stifling Speech: Re-Examining the Merits of Hate Speech Codes on University Campuses see also

See supra Reed Renton)

D. Public Forum Regulation of Anti-Substantive Toleration Speech

See supra

See, e.g Facts and Values in Pragmatism and Personhood

See, e.g CNN ‘This is An Apple’ Not a ‘Banana’ Ad Gets 125,000 Views in 2 Hours: CNN Slams Trump’s Fake News [Video]

See supra See supra

Cohen v. California

See generally supra inter alia , see The Cost of Free Speech: Combatting

Fake News or Upholding the First Amendment

See supra

See, e.g Hate Speech, Fighting Words, and Beyond—Why American

Law is Unique see also supra

Hate Speech and the Epistemology of Justice Jeremy Waldron: The Harm in Hate Speech

Free, Hateful, and Posted: Rethinking First Amendment Protection of Hate Speech in a Social Media World see also

The Risk it Takes to Bloom: The Freedom of Speech and its Limits in the United States and France: A Comparative Examination

See supra see also The Harm in Hate Speech: A Critique of the Empirical and Legal Bases of Hate Speech Regulation

See supra

Resisting Hate with Free Speech

A. The Problem with Mischaracterizing Speech as Government Speech

Walker v. Texas Division, Sons of Confederate Veterans, Inc.

See supra

Id

Walker

See supra

Compare with

B Government Aid in the Form of Grants, Subsidies, Trademark & Copyright Protection

Iancu v. Brunetti

Finley Matal v. Tam

Finley Finley Tam

Brunetti

Finley

See supra Brunetti aff’g

See supra Finley

See supra Tam

Id

see also id

Brunetti

Brunetti

C Nonpublic Forum Cases Involving School Curriculum or SchoolSponsored Events

Hazelwood School District v. Kuhlmeier

disassociate itself

biased or prejudiced

Morse v. Frederick

See supra

see also

Countering the “Thought We Hate” with Reappropriation Use Under Trademark Law

Tam Brunetti

Hazelwood

also supra Morse

see also supra

see

D. Anti-Substantive Toleration Speech

Fraser Hazelwood Tinker

Id

See supra

Morse

See supra

See supra

See supra

See supra

Fraser Hazelwood

See supra Tinker

Hazelwood Morse, Morse

Morse

Morse

Twitter Unveils Final Details for Political Ad Ban, but It’s Still Looking Murky

see also Facebook critics torch its do-nothing stance on false political advertising

Hateful conduct policy

see also Community Standard 12. Hate Speech

See, e.g More than 200 Major Businesses File Landmark Amicus Brief in Support of LGBTQ Workers

Carnival’s New Dress Policy Change to Ban ‘Offensive’ Clothing

Chick-fil-A to End Donations to Groups That Oppose Gay & Transgender Rights

SOUTH TEXAS LAW REVIEW

Vice President Kamala Harris

At The Court: O’Connor On Being The First Female Justice

NASA Scraps First All-Female Spacewalk For Want Of A Medium Size Spacesuit

Ruth Bader Ginsburg’s Lace Collar Wasn’t an Accessory, It Was a Gauntlet

Prophetic City

South Texas Law Review

South Texas Law Review

. See generally

South Texas Law Review

Read Kamala Harris’s Vice President-Elect Acceptance Speech,

A.Overview and Background

B.Issues with Attorney–Client Privilege

1.When the Client Admits Guilt

2.Third-Party Presence

C.Disclosure

1.Confidentiality in General

2.Similar, Yet Different

3.Confidentiality: Current and Prospective Clients

4.Confidentiality: Post-Mortem Societal Concerns and Ethical Obligations

South Texas Law Review

A.Special Obligations for Prosecutors and Medical Specialists

B.Effects of a Heightened Burden

C.The Saga Continues

A.State Modifications: The Model Rules

1. The Prosecutor’ s Rule and Prosecutorial Misconduct

2. Attorney–Client Privilege

B.State Modifications: The Medical Ethics Opinions

A.High Cost of the Status Quo

1.Client Cost of Non-Reform: Attorney–Client Privilege

2.Client Cost of Non-Reform: The Prosecutor’ s Rule

B.A Systematic Issue Warrants Reform

A.Proposed Reform of Model Rule 1.6 — Confidentiality and Attorney–Client Privilege

1. Pros

2. Cons

B. Proposed Reform of Model Rule 3.8 — The Prosecutor’ s Rule

1. Pros

2. Cons

A.Self-Regulating Professions

B.Responding to Change

. See generally Hippocratic Oath

. American Medical Association Code of Ethics History

American Medical Association Principles of Medical Ethics Code of Medical Ethics Overview

. Code of Medical Ethics Overview

. E.g.

Sanctions Imposed for Revealing Attorney–Client Confidences available at

Discovery Audits: Model Rule 3.8(d) and the Prosecutor’s Duty To Disclose available at

. E.g. Michael Morton Time Served: 24 Years

. See Can Doctors Share Patient Information Without Permission?

Confidentiality, Code of Medical Ethics Op. 3.2.1

see also

. See generally State Medical Records Laws see also

HIPPA for Professionals

Confidentiality Post Mortem, Code of Medical Ethics Op. 3.2.2

Confidentiality

see also

see also When to Break Doctor–Patient

. Privacy in Health Care Code of Medical Ethics Op. 3.1.1

A. Overview and Background should may should may should shall may can should

. Confidentiality Code of Medical Ethics Op. 3.2.1

. Id. . Id.

. See, e.g. May

. See, e.g. Should see also Shall see also What’ s the Only Word that Means Mandatory? Here’ s What Law and Policy Say About “Shall, Will, May, and Must.”

.

Confidentiality Post Mortem, Code of Medical Ethics Op. 3.2.2

Privacy in Health Care, Code of Medical Ethics Op. 3.1.1

if shall . See, e.g. Shall

. Compare Confidentiality, Code of Medical Ethics Op. 3.2.1 with

B. Issues with Attorney–Client Privilege

. See Ethics, Morality, Law – What’ s the Difference?

. Patient Privacy and Outside Observers to the Clinical Encounter, Code of Medical Ethics

3.1.2

C. Disclosure

. See The New Attorney–Client Privilege . . . How Will These Issues Play Out in Litigation?

why see also

Upjohn

. Id. see also

. Compare with Patient Privacy and Outside Observers to the Clinical Encounter, Code of Medical Ethics Op. 3.1.2

. Compare with Confidentiality, Code of Medical Ethics Op. 3.2.1

serious physical harm identifiable should when feasible should consider may should

. Industry-Employed Physicians & Independent Medical Examiners, Code of Medical Ethics Op. 3.2.3

Access to Medical Records by Data Collection Companies, Code of Medical Ethics Op. E-3.2.3

. Id.

. Confidentiality, Code of Med. Ethics Op. 3.2.1

. Id.

. Compare Confidentiality, Code of Med. Ethics Op. 3.2.1 with

. Confidentiality, Code of Med. Ethics Op. 3.2.1

reasonable belief serious injury only prevent reasonably certain death substantial mitigate or rectify substantial injury

reasonably certain death

substantial harm or injury reasonably certain belief injury

. Compare Confidentiality, Code of Medical Ethics Op. 3.2.1 with

see also Disclosure

. Confidentiality, Code of Medical Ethics Op. 3.2.1

aff’d in part, rev ’d in part see also Serious Compare Injury with Death

physical harm identified or identifiable individual(s) a person physical financial property

any specific physical

. Compare Confidentiality, Code of Medical Ethics Op. 3.2.1 with . Id. see also

. See Confidentiality, Code of Medical Ethics Op. 3.2.1

. See see also see generally

Ghosts and Goblins Can Haunt Your Practice, Be Careful of Those Implied-in-fact Attorney–client Relationships

. See, e.g. Lawyer Reveals Client’ s Communications—How did Disciplinary Board React?

So Long, Farewell Not So Fast: Duties Owed to Former Clients

see generally Protecting Confidential Legal Information: A Handbook for Analyzing Issues Under The Attorney–Client Privilege and The Work Product Doctrine

. See Terminating a Patient–Physician Relationship Code of Medical Ethics Op. 1.1.5

. Prospective Patients, Code of Medical Ethics Op. 1.1.2

. See Terminating a Patient–Physician Relationship, Code of Medical Ethics Op. 1.1.5

see also Prospective Patients, Code of Medical Ethics Op. 1.1.2

consider

E THICAL OBLIGATIONS

. See Confidentiality Post Mortem, Code of Medical Ethics Op. 3.2.2

see also Societal Concerns and Risk Decisions

see also Disclosure of Deceased Person’ s Medical Records

. Confidentiality Post Mortem supra

. Id.

. See

see also Confession Failed to Free NC Man, Who Has Died as a Prisoner

When Innocence Is Confidential: A New and Essential Exception to Attorney–Client Confidentiality I Served 26 Years for Murder Even Though the Killer Confessed

supra

Time Runs Out for Double Murder Convict Trying to Prove Innocence

. Id. Id. . Id.

. See id. see generally supra

. See generally After 39 Years of Wrongful Imprisonment, Ricky Jackson is Finally Free

Prosecutors had the Wrong Man. They Prosecuted Him Anyway

As Prosecutors Take Larger Role in Reversing Wrongful Convictions, Philadelphia DA Exonerates 10 Men Wrongfully Imprisoned for

A. Special Obligations for Prosecutors and Medical Specialists

Murder

They Spent 36 Years Behind Bars for Murder. Someone Else Did It.

The Man Who Spent 35 Years in Prison Without a Trial

Innocent Man Released After 21 Years in Prison for a Crime Committed by the Star Witness in the Case

. Compare with Surgical Ethics

. Terminating a Patient–Physician Relationship Code of Medical Ethics Op. 1.1.5

. Research and Innovation, Code of Medical Ethics

. Id. . Id.

Rule 3.8 Special Responsibilities of a Prosecutor – Comment

see also Model Rule of Professional Conduct 3.8: The ABA Takes a Stand Against Wrongful Convictions Criminal Justice Standards for the Prosecution Function

. See generally Rule 3.8 Special Responsibilities of a Prosecutor

see also Rules of Professional Conduct: Rule 3.8-Special Responsibilities of a Prosecutor

see also Rule 3.8 Special Responsibilities of a Prosecutor

see also Texas Disciplinary Rules of Professional Conduct, Rule 3.09 Special Responsibilities of a Prosecutor

. See, e.g. Research and Innovation, Code of Medical Ethics

see also Xenotransplantation, Code of Medical Ethics

B. Effects of a Heightened Burden

. Research and Innovation supra

. Xenotransplantation supra see also supra

Ex-Prosecutor Gets 10 Days in Jail Over Michael Morton Case

. Duke Lacrosse Prosecutor Disbarred

. Id.

. See see also Some States Now Require All Attorneys to Report Wrongful Convictions

C. The Saga Continues . . .

. See, e.g Rodney Reed Given a Stay of Execution, New Trial Judge

. See, e.g Rodney Reed

. See, e.g Rodney Reed Presses for DNA Tests on Murder Weapon see also Hank Skinner

. See, e.g Justice is Served: Rodney Reed’ s Life No Longer at Risk

2018: A Record Year in Exonerations

The Wrongly Convicted Why More Falsely Accused People are Being Exonerated Today Than Ever Before see also Misconduct by Government Officials is a Factor in 54% of Wrongful Convictions, Study Finds

. See More Exonerations are Driven by Police and Prosecutor Misconduct

What, Exactly, is “Prosecutorial Misconduct”?

But see

A. State Modifications to the Model Rules

Stop Blaming the Prosecutors: The Real Causes of Wrongful Convictions and Rightful Exonerations

. Exonerations by State

. See see see Rule 3.8 Special Responsibilities of a Prosecutor

Rules of Professional Conduct: Rule 3.8: Special Responsibilities of a Prosecutor Rule 3.8. Special Responsibilities of a Prosecutor

Texas

Disciplinary Rules of Professional Conduct, Rule 3.09 Special Responsibilities of a Prosecutor see also supra See Texas Enacts “Michael Morton Act” Intended to Reduce Wrongful Convictions

all both Brady

Wrongful Conviction & Attorney–Client Confidentiality

Convictions of Innocent Persons in Massachusetts: An Overview

Some States Now Require All Attorneys to Report Wrongful Convictions

When the Law Preserves Injustice: Issues Raised by a Wrongful Incarceration Exception to Attorney–Client Confidentiality But see Should There be a Wrongful Incarceration/Execution Exception to Attorney–Client Confidentiality?

. E.g. Perry Signs Michael Morton Act Debra Milke

Beverly Monroe, Brainwashing Led to Statements Misconstrued as a Confession to Murder

. Id.

William Macumber, Arizona Inmate Freed After 37 Years, Dies in Prison

. Id.

see also

The End of a Failed Technique – But Not of a Prison Sentence

. See, e.g. supra

Confession Failed to Free N.C. Man, Who Has Died as a Prisoner

see also

E THICAL OBLIGATIONS

Swidler & Berlin v. United States infra

. See, e.g. How to Lose Attorney–Client Privilege

. See Rules of Professional Conduct Rule 1.6: Confidentiality of Information

see also New Rule Requires All Attorneys to Disclose Evidence of Innocence

. See Proposed Amendment to Rule of Professional Conduct 1.6–Authorizing Disclosure of Confidential Information of Deceased Clients see also supra

. See, e.g. When Innocence is Confidential: A New & Essential Exception to Attorney–Client Confidentiality see also

Unreasonable Risk: Model Rule 1.6, Environmental Hazards, & Positive Law

B. State Modifications to the Medical Ethics Opinions

. Code of Medical Ethics: Professional Self-Regulation

see The Role of State Medical Boards supra

. Id.

. See TMA Board of Councilors Current Opinions

Maryland Lawmakers Aim to Make it Easier for Prosecutors to Overturn Wrongful Convictions

Testimony of Roger C. Cramton

see also supra

A. High Cost of the Status Quo

. See supra see also supra

. See e.g. A Wrongfully Convicted Man Who Was Paid Just $75 for 31 Years in Prison Finally Gets Justice

. See supra . Id. . See supra . See supra

. See . See supra

. See, e.g. New Report: Prosecutorial Misconduct & Wrongful Convictions

. See Exonerations by State supra see also see also supra . Michael Roy Toney

. Id. . Id.

. Darryl Howard Time Served: 24 Years

. Id. Disbarred Duke Lacrosse Prosecutor Mike Nifong is Back, Along with More Misconduct Allegations

B. A Systemic Issue Warrants Reformation

A. Proposed Reform of Model Rule 1.6 – Confidentiality and Attorney–Client Privilege

. See supra see also Rodney Reed, supra see also supra

. See supra see also supra see also New Report: Prosecutorial Misconduct & Wrongful Convictions supra

. See, e.g. Exonerations by State supra see also Rodney Reed upra see also supra

. See, e.g. The Attorney–Client Privilege, Client Confessions & Wrongful Convictions: Immunity as a Statutory Solution

. See, e.g. Overriding the Posthumous Application of the Attorney–Client Privilege: Due Process for a Criminal Defendant see also Ordeal By Innocence: Why There Should Be a Wrongful Incarceration/Execution Exception to Attorney–Client Confidentiality see also supra see also supra

lawyer reasonably believes necessary reasonably certain death or substantial bodily harm

specifically

. See generally supra see generally supra see generally supra see generally supra

. See

. See, e.g The Attorney–Client Privilege, Client Professions & Wrongful Convictions: Immunity as a Statutory Solution

. Substantial

. Harm

. Injury see Injustice

. Harm

. See Bodily see also Rule 1.6 Confidentiality of Information–Comment

. See, e.g. Fraud

. See Financial Interest

see also

E THICAL OBLIGATIONS

. See generally When Innocence is Confidential: A New & Essential Exception to Attorney–Client Confidentiality

. See American Bar Association Model Rules of Professional Conduct

. See Right to Counsel: Mental Health Approaches to Support the Exonerated

reasonably certain

Addressing the Impact of Wrongful Convictions on Crime Victims

B.

Proposed Reform of Model Rule 3.8 – The Prosecutor’ s Rule

all Brady

. Id. see also, e.g.

Rule 5–110 Special Responsibilities of a Prosecutor

Rule 3.8 Special Responsibilities of a Prosecutor

Some States Now Require All Attorneys to Report Wrongful Convictions

. Id.

. See available at

. See supra see also

. See, e.g. How Many Cases Should a Prosecutor Handle

The State (Never) Rests: How Excessive Prosecutorial Caseloads Harm Criminal Defendants

. See generally

. See, e.g. Levels of Scrutiny Under the Equal Protection Clause

. E.g. Duke Lacrosse Case supra Conviction Integrity Units

A. Self- Regulating Professions

B. Responding to Change

Model Rules

. See Greek Medicine see also supra supra

. See supra see also supra

. See, e.g. supra

. See Conviction Integrity Units

E THICAL OBLIGATIONS model

A.Back to the Beginning: The Background of Title IX

B.Sexual Harassment Under Title IX

1.The Early Days

2.Damages as a Remedy

3.The New Notice Standard

4.The Turning Point:

C.Application in Lower Courts

1.Interpretation of the New Standard

2.What Does this Mean for Funding Recipients?

A.The Same Old Song and Dance: Subtweets are Nothing New

B.Sticks and Stones? — Conduct vs. Speech

1.Analysis of a Subtweet: Can it Meet the Standard?

A.The State of First Amendment Jurisprudence

1.State Action Requirement

2.First Amendment Standards of Review

3.Exceptions Under the First Amendment

4.The Qualified Immunity Dilemma Location, Location, Location: The On-Campus v. Off-Campus Distinction

A. Back to the Beginning: The Background of Title IX

. See Subtweet

see also What Is a Subtweet on Twitter?

. ERA History

. The Equal Rights Amendment

B. Sexual Harassment Under Title IX Cannon v. University of Chicago

Franklin v. Gwinnett County Public Schools Gebser v. Lago Vista Independent School District

Franklin v. Gwinnett County Public Schools

Gebser

. See infra Davis

. See id. see also Davis

C. Application in Lower Courts

Davis

Lansberry v. Altoona Area School District.

S TICKS AND S TONES

Lansberry

Lansberry Butler v. Mountain View School District Butler

Lansberry

Lansberry

Davis

Lansberry

Lansberry

Fitzgerald

combined systemic effect

Davis .

S TICKS AND S TONES Gebser Davis

A. The Same Old Song and Dance:114 Subtweets Are Nothing New really

. See supra

. See supra

. See The Same Old Song and Dance on see also

Davis

B. Sticks and Stones?—Conduct vs. Speech

. Subtweet supra see also Subtweet

. Id.

. See Does Your Teen Recognize the Cruelty of Subtweeting?

see also Study

Confirms What you Always Knew: People Who Subtweet are Terrible

. See Here’ s Trump’ s All -White List of Potential Supreme Court Nominees

. See History and Vision

. See supra . Davis

A. The State of First Amendment Jurisprudence

. See Davis see also see also see also see also

. Tarkanain

S TICKS AND S TONES

. See supra . See see also R.A.V one other

. See Johnson see also R.A.V. . R.A.V.

Id.

. See R.A.V.

Id.

Id.

. See The Qualified Immunity Doctrine in the Supreme Court: Judicial Activism and the Restriction of Constitutional Rights available at

S TICKS AND S TONES

Yeasin v. Durham

. Yeasin

see also Restricting Anonymous “Yik Yak” : The Constitutionality of Regulating Students’ OffCampus Online Speech in the Age of Social Media Tinker

. Yeasin . Id.

Id.

Id.

Id.

Id. Yeasin

Papish v. Board of Curators of University of Missouri Widmar v. Vincent Healy v. James about

S TICKS AND S TONES

B. Location, Location, Location: The On-Campus vs. Off-Campus Distinction

Tinker v. Des Moines Independent Community School District

Tinker

Tinker

Tinker .

Yeasin

S TICKS AND S TONES

. See Davis

S TICKS AND S TONES

A.Defamation Online – A Hypothetical

B.Defining the Problem

NEW YORK TIMES

A.Origins of Defamation

B. From Public Officials to Limited Public Figures

C Life After : The Continued Evolution of the Limited Public Figure

D. Further Refining the Test Among the Circuit Courts

A.From “Talkomatic” to the Twitterverse

B.“Slacktavists,”“Doxers,” “Keyboard Warriors,” and “Trolls”

A. Analysis Analysis

B. Analysis Analysis

C. Hypothetical Analysis Analysis

A.A Strict Scrutiny of Actual Malice

B.A Clear and Convincing Intermediate Review

C.Defamation: Reasonable Compromise

“

Social media is something of a double-edged sword. At its best, social media offers unprecedented opportunities for marginalized people to speak and bring much needed attention to the issues they face. At its worst, social media also offers ‘everyone’ an unprecedented opportunity to share in collective outrage without reflection.”–

A. Defamation Online – A Hypothetical

Social Media Quotes ee also Roxane Gay

See generally Miniature Wargaming

B. Defining the Problem

Good name in man and woman, dear my lord, Is the immediate jewel of their souls: Who steals my purse steals trash; ‘tis something, nothing; ‘Twas mine, ‘tis his, and has been slave to thousands: But he that filches from me my good name

Anti–SLAPP Statutes and Commentary

Privileges and Defenses in Defamation Cases

see also Freedom of Speech – Why Satire is Protected

see also Opinion and Fair

Comment Privileges

. See

see also

see also

Robs me of that which not enriches him And makes me poor indeed

A. Origins of Defamation

see also id

. See id

. See id . See id . Id Id see also id

the libelous

New York Times Co. v. Sullivan.

public official

B. From Public Officials to Limited Public Figures

New York Times Co. v. Sullivan

Gertz v. Robert Welch, Inc.

The Constitution of the United States see also

N.Y. Times Co. see also id New York Times Id . See see also

Gertz

New York Times Co. v. Sullivan

newspaper

Rosenblatt v. Baer the publication here

Curtis Publishing Company v. Butts

a publisher’s

see also id

freedom of the press

As-

sociated Press v. Walker Curtis Publishing

Company v. Butts

New York Times the press

New York Times Co. v. Sullivan the press

C Life After Gertz: The Continued Evolution of the Limited Public Figure

Gertz Time

See generally see generally see generally

Time, Inc.

Time, Inc see also id Gertz

New York Times Gertz

Hutchinson v. Proxmire

New York Times, Co. v. Sullivan Wolston

D. Further Refining the Test Among the Circuit Courts

New York Times Co. v. Sullivan Gertz v. Robert Welch, Inc. Time, Inc. v. Firestone Wolston v. Reader’s Digest Ass’n

Hutchinson v. Proxmire

Waldbaum v Fairchild Publications

see also id Rosenbloom . Id Id

see also id . Id

Id see also Wolston

Hutchinson

A.From “Talkomatic” to the Twitterverse

The Jurisdiction of the D.C Circuit see also 10 of Nikola Tesla’s Most Amazing Predictions

Who Invented the Internet?

. Social Media

Timeline of Social Media

United States Population (Live)

Share of U.S. Population with a Social Media Profile from 2008–2019

Share of U.S. Adults Using Social Media, Including Facebook, is Mostly Unchanged Since 2018

As Social Media Continue to Evolve, Online Defamation Laws Remain Stagnant

Do Facebook and Twitter Make You a Public Figure?: How to Apply the Gertz Public Figure Doctrine to Social Media

The Anonymity of Social Media: Is Everyone Online Really Who They Pretend to be?

See Twitter Terms of Service see also Terms of Use see also Google Privacy Policy see also Terms of Service

Is Digital Anonymity an Illusion?

. Id Id

see also

. Virtual Private Network

Can We Guess Who You are?

Tor and the Illusion of Anonymity

72 Reputation Management Stats for 2019

Why People are More Likely to See Online Bullying than Offline

Swatting see also An Ohio Gamer Gets Prison Time Over a “Swatting”

that

Gertz supra

See supra Terms of Service

13 Million US Facebook Users Don’t Change Privacy Settings

How Do I Choose Who Can See Previous Posts on My Timeline on Facebook?

Twitter Privacy Policy

Id Privacy Settings & Information

or user

B.“Slacktavists,” “Doxers,” “Keyboard Warriors,” and “Trolls”

Media Matters for America

Communications Decency Act

MoveOn.org

see also Liability for Repeating Defamatory Statement

see also Liability for Repeating Defamatory Statement supra

Watchdog Slams Order Allowing Nunes to Sue Twitter in Virginia

. See These are Sean Hannity’s Leading Advertisers

see also Sean Hannity

Media Matters MoveOn

A Short History of MoveOn

See People–Powered Petitions

see also Search Result for “Save The Kurds

see also Search Result for “Impeach President Trump ”

see also Search Result for “Saudi Arabia”

Hashtag Activism

Hashtag

What is Slacktivism and is it Even Helping?

Dox supra Is it Illegal to Dox Someone?

. Id Id Id. Id

Trump’s Terrifying Online Brigades

GQ

Calling in a New ‘Brigade ’

Id Id

Audience Reviews on Rotten Tomatoes are Easily Manipulated That’s About to Change

Id Keyboard Warrior

per se

Social Media supra . Are You Brutally Honest or Do You Just Lack Tact?

Why No One Likes a Keyboard Warrior

Flame War

The NFL and the Players Association Are Having a Flame War Over Domestic Violence

Tweet

Godwin’s Law

Id

Part 5: Witnessing Harassment Online

Troll

per se

Lulz see also Lol

Internet Trolling: How Do You Spot a Real Life Troll

See, e.g. id.

Trolls and Their Impact on Social Media

Blogger Kat Blaque Tracked Down Her Troll and Got Him Fired

see also id

see also Kat Blaque supra

The Internet Isn ’t the Wild Wild West Anymore. It’s Westworld

“How empty is theory in the presence of fact.” Gertz

See I’ m Sarah Nyberg, and I was a Teenage Edgelord

see also id

Me Too Movement

See id . See generally id

See id see also

per se see also supra

A Connecticut Yankee in King Arthur’s Court

Waldbaum

See Comics Matter w/Ya Boi Zack

see also id

see also Comicsgate

Meyer

Id

Id

see also Mark Waid

Meyer supra

Meyer

Gertz

Gertz

See id .

See Twitter Search Results #comicsgate

See Instagram Search Results #comicsgate

See YouTube Search Results Comicsgate

See Facebook Search Results Comicsgate

Comicsgate

See Google Search Results Comicsgate

See See id

Gertz Waldbaum

WFAA-TV, Inc. v. McLemore

Waldbaum

Id See Google Search Results Richard C. Meyer

See Gertz . Waldbaum Id Id

Waldbaum

Waldbaum

Waldbaum

Gertz

Waldbaum

B.

Id Id Id

Alt–Right Meyer . Anime

Dragon Ball Super: Broly

Id

Risembool Rangers the Official Fan Club of Vic Mignogna

Vic Mignogna

Vic Mignogna supra

Id Viral supra

‘Far from Perfect’: Fans Recount Unwanted Affection from Voice Actor Vic Mignogna

see also id see also Anime Voice Actor Vic Mignogna Accused of Sexual Harassment

see also Fixing the Staircase: Vic Mignogna’s Sexual Assault Allegations and the Voice Actors Who Speak Out

Morose Mononokean

Gertz

Gertz see also Anime Voice Actor Vic Mignogna Accused of Sexual Assault & Homophobia

supra Id Id Thread

supra

Anime Voice Actor Vic Mignogna Loses Big as Judge Drops Final Claims that Dallas–Area Studio and Colleagues Defamed Him

Vic Mignogna Files to Begin Appeals Process Against Dismissal of Defamation Lawsuit

s Firestone

himself

Vic Mignogna

. Gertz

See Gertz see also id Gertz see also see also

see also Catching Jellyfish in the Internet: The Public-Figure Doctrine and Defamation on Computer Bulletin Boards, Gertz

See

see also

see also

see also

see also

Waldbaum

Waldbaum

. See Gertz Anime Gets Its #MeToo Moment in Clash Between Dallas -Area Voice Actors

. See Gertz

. Id Id Gertz

Waldbaum Gertz

Waldbaum

C – Hypothetical

. See Twitter Search Results #istandwithvic

see also Twitter Search Results #kickvic

Waldbaum supra

Id . See supra

Gertz

Waldbaum

Gertz

Waldbaum

Glass, China, and Reputation are easily crack’d, and never well mended

New York Times Co. v Sullivan Gertz

McKee v Cosby

Poor Richard’s Almanac 1750

Times

S OUTH T EXAS L AW REVIEW

Gertz Waldbaum

New York

See supra freedom of speech of the press

See

. Andy Ngo

see also id

see also N.Y. Times Co.

Wall Street Journal New York Times

. See Rekieta Law Videos

see also id

see also id

see also id

See id See id

B. A Clear and Convincing Intermediate Review

Rosenbloom v. Metromedia, Inc.

NORTH CAROLINA V.PEARCE

A.The Double Jeopardy Clause: No Acquittal, No Problem!

B.The Double Jeopardy Clause: Same Risk, No Reward!

C.The Due Process Clause: Harsher Punishments Good, Vindictive Punishments Bad!

1.Captain Obvious: Actual Vindictiveness

2.The Sly Devil: Apparent Vindictiveness

a.The Presumption of Judicial Vindictiveness

b.The Presumption of Prosecutorial Vindictiveness

D.The Presumption is a Prophylactic Rule That Requires Restraint

E.Exceptions to the Presumption

1.Unsuccessful Plea Agreements Justify Harsher Punishments

2.“New Evidence” Justifies Harsher Punishments

a.An Increase in Culpability is” NewEvidence”

b.The Finalization of Pending Charges is “New Evidence”

c.An Incorrect Sentence Calculation is not “New Evidence”

3. A “Different Sentencer” Justifies Harsher Punishments

a.A Different Court is a “Different Sentencer”

b. A New Jury is a “Different Sentencer” PEARCE

A.Consistency of the Interpretation and Application of the Framework

B.Forum-Election Defendants Compared to Non-Forum-Election Defendants

A.Due Process Clause

B.Equal Protection Clause

A.The UCMJ Explicitly Limits Harsher Punishments

B.Military Judges are Opposed to Harsher Punishments

C.Comparison of the UCMJ to the Supreme Court’ s Framework

NORTH CAROLINA V.PEARCE either

S OUTH T EXAS LAW REVIEW

Stroud v. United States

North Carolina v. Pearce

United States v. Ball

Pearce, Colten v. Kentucky, Chaffin v. Stynchcombe, Texas v. McCullough

Pearce

overruled on other grounds by Alabama Pearce Simpson v. Rice Simpson Pearce Pearce Rice Alabama

. Pearce Stroud Ball

NORTH CAROLINA V.PEARCE

A. The Double Jeopardy Clause: No Acquittal, No Problem!

. See infra

. See McCullough Chaffin . See infra

United States v. Ball Ball

North Carolina v. Pearce Ball has has

B. The

Double Jeopardy Clause:

Same

Risk, No Reward! Stroud v. United States Stroud

. Id.

. Compare id. with id. Green v. United States supra

. See Pearce Stroud v. United States

. Stroud . Id.

Id. . Id.

C.The Due Process Clause: Harsher Punishments Good, Vindictive Punishments Bad!

. Id. . Id. . Id. . Id. . See Stroud v. United States

overruled by id.

. See, e.g. Pearce see see Perry

. See Pearce see also . Id.

see also Pearce

see also see also Chaffin see also Perry see also see also McCullough

. See Pearce see also Perry

. Id.

. Pearce

. See Perry see also

. See see also

NORTH CAROLINA V.PEARCE

. Goodwin, Goodwin

Criminal Law: Substantive Principles

. See, e.g. see also see also see also

. See China Sentences a Canadian, Robert Lloyd Schellenberg, to Death

North Carolina v. Pearce Blackledge v. Perry

. See see also see also Pearce

. See Wasman Pearce. see also Pearce see also Smith see also Goodwin

. See supra

E. Exceptions to the Presumption

NORTH CAROLINA V.PEARCE

United States v. Goodwin

Bordenkircher v. Hayes

Alabama v. Smith

see also Goodwin Bordenkircher

Jordan v. Fisher

NORTH CAROLINA V.PEARCE

Pepper v. United States

Wasman v. United States

Pearce Texas v. McCullough

Pearce Moon v. Maryland

Pearce Pearce

. Moon . Id. . Id. . Id.

. Id. see also . McCullough . Id.

see also, Pearce

NORTH CAROLINA V.PEARCE

NORTH CAROLINA V.PEARCE

Colten

Pearce

Plumley v. Austin Pearce Plumley Pearce

B. Forum-Election Defendants Compared to Non-Forum-Election Defendants

Pearce

NORTH CAROLINA V.PEARCE

. See generally reprinted in see generally What Do Jurors Think? Using Post-Trial Jury Interviews to Find What Is Important in Trial

. See . But see People v. Van Pelt

Texas v. McCullough

. See , Jury Sentencing as Democratic Practice

see also

see also

. See Applying to Jury Sentencing: Why State Felony Jury Sentencing Threatens the Right to a Jury Trial

. See Felony Sentences

Id Pearce

Bordenkircher v. Hayes United States v. Goodwin, Pearce

See , see also

Pearce

Pearce

NORTH CAROLINA V.PEARCE

v. Stynchcombe

A. Due Process Clause

Chaffin

Pearce

Pearce

B. Equal Protection Clause

Pearce

Pearce

Pearce

Pearce

Miranda v. Arizona, Miranda any Miranda Miranda

A. The UCMJ Explicitly Limits Harsher Punishments expressly shall not exceed or be more severe than the original sentence any lawful sentence

. See . Miranda

NORTH CAROLINA V.PEARCE

B. Military Judges are Opposed to Harsher Punishments

Congress feared . See see also

S OUTH T EXAS LAW REVIEW

Pearce

C. Comparison of the UCMJ to the Supreme Court’ s Framework

Texas v. McCullough Wasman v. United States Perry Pearce

Thigpen v. Roberts

Bordenkircher Goodwin Smith

. See McCullough see also Wasman see also supra

. See . Id.

. See id.

. See supra

NORTH CAROLINA V.PEARCE

. See An Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System available at See see also

. See see also See See overruled by abrogated by

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