JCL Online

Penn JCL Online

The official online companion to the Journal of Constitutional Law

JCL Online is part of the Journal’s larger strategic vision of fostering academic discourse on cutting-edge issues in constitutional law.  Volume 14 established JCL Online, originally called Heightened Scrutiny, as the Journal’s online supplement, and Volume 15 was the first edition to be formally published as a companion to our print edition.  

Essays published on JCL Online in Volume 16 or earlier may be cited as U. Pa. J. Const. L. Height. Scrutiny. Thereafter, cite to U. Pa. J. Const. L. Online. 

Recent Online Exclusives

Universities as Constitutional Law Makers (And Other Hidden Actors in Our Constitutional Orders)

Adam J. MacLeod

October 2014

In the stories told by opinion makers and many law professors, American constitutional law is concerned with two things—individual rights and the powers of government—and it is settled by the Court which was established by Article III of our national Constitution. But these stories are not entirely accurate. For one thing, much of what we know as constitutional law is settled by institutions other than the Supreme Court and derives from sources other than the written Constitution. Public law is built upon the foundation laid by the common law using materials constructed not only by legislatures but also by institutions of private ordering. Furthermore, the written Constitution does not answer every question. The Framers gave us a Constitution that leaves much of the definition of rights, wrongs, duties, and obligations to private law and state common law.

Prominent among private makers of constitutional law are universities, which shape the rights and duties not only of their constituent members but also of many people within their political communities. We ought to consider how these actors exercise their considerable power.

Truthiness and the First Amendment

Ilya Shapiro, Trevor Burrus, & Gabriel Latner

May 2014

Ohio has a law that criminalizes making false statements about a political candidate or a ballot initiative. For dogged supporters of the First Amendment such as the Cato Institute, this law seems like it was ripped from the pages of Orwell’s 1984. What is this Ministry of Truth that sits in judgment over political discourse? Aren’t truthiness, insinuations, and allegations core parts of American public debate? In this article, adapted from an amicus brief filed in the Supreme Court in Susan B. Anthony List v. Driehaus (2014), the authors exercise their right to satire to show how Ohio’s law chills speech by denying people the right to mock their would-be leaders and to be just as foolish as they wish during election campaigns.

Paroline, Restitution, and Transferred Scienter: Child Pornography Possessors and Restitution Based on a Commerce Clause-Derived, Aggregate Proximate Cause Theory

Adam Lamparello & Charles E. MacLean 

March 2014

On January 22, 2014, the Supreme Court heard oral argument in Paroline v. United States. Paroline addresses a circuit split over whether the federal restitution statute requires a victim of child pornography to show a causal connection between the underlying harm and the acts of those who possess, but do not manufacture, the sexually explicit images. In this Essay, Professors Lamparello and MacLean adopt a middle ground approach based upon a theory of aggregation that is often involved in the Court’s commerce clause jurisprudence. Their approach aims to strike a balance between the victim’s right to full restitution and the possessor’s due process rights. 

What Happens if Data is Speech?

Josh Blackman

February 2014

Recently, courts have grappled with the question of whether data is speech for purposes of the First Amendment. Google, and other tech giants, have defended their algorithmic outputs under the guise of free speech. This essay considers the next question in this emerging area of the law. What happens if data is speech?

Josh Blackman explores how affording constitutional scrutiny to data-based outputs impacts the validity of data privacy laws. He then considers whether the lack of regulation of search engines or the regulations themselves pose a greater threat to free expression. The essay concludes by offering a framework of how courts should treat algorithmic output for purposes of the First Amendment.