Law Commons^™

“We Do No Such Thing”: 303 Creative V. Elenis And The Future Of First Amendment Challenges To Public Accommodations Laws, David Cole

Georgetown Law Faculty Publications and Other Works

In 303 Creative v. Elenis, the Supreme Court ruled that a business had a right to refuse to design a wedding website for a same-sex couple. But properly understood, the decision’s parameters are narrow, and the decision should have minimal effect on public accommodations laws.

Courting Censorship, Philip A. Hamburger

Faculty Scholarship

Has Supreme Court doctrine invited censorship? Not deliberately, of course. Still, it must be asked whether current doctrine has courted censorship — in the same way one might speak of it courting disaster.

The Court has repeatedly declared its devotion to the freedom of speech, so the suggestion that its doctrines have failed to block censorship may seem surprising. The Court’s precedents, however, have left room for government suppression, even to the point of seeming to legitimize it.

This Article is especially critical of the state action doctrine best known from Blum v. Yaretsky. That doctrine mistakenly elevates coercion …

Beyond Social Media Analogues, Gregory M. Dickinson

Faculty Articles

The steady flow of social-media cases toward the Supreme Court shows a nation reworking its fundamental relationship with technology. The cases raise a host of questions ranging from difficult to impossible: how to nurture a vibrant public square when a few tech giants dominate the flow of information, how social media can be at the same time free from conformist groupthink and also protected against harmful disinformation campaigns, and how government and industry can cooperate on such problems without devolving toward censorship.

To such profound questions, this Essay offers a comparatively modest contribution—what not to do. Always the lawyer’s instinct …

Comment, Francesca Procaccini

Vanderbilt Law School Faculty Publications

Let's start with the antecedent question that both the theme of this conference and all three papers in this session present. That is, before we ask how law schools might better advance the freedom of expression on campus, and even before asking what role law schools play in protecting or suppressing free speech more generally, we must ask the first order question: whether freedom of expression at U.S. law schools is indeed imperiled?

There is an underlying assumption in all three papers that something is amiss, that things are not quite at their optimal, that improve- ment is needed. And …

The Disembodied First Amendment, Nathan Cortez, William M. Sage

Faculty Scholarship

First Amendment doctrine is becoming disembodied—increasingly detached from human speakers and listeners. Corporations claim that their speech rights limit government regulation of everything from product labeling to marketing to ordinary business licensing. Courts extend protections to commercial speech that ordinarily extended only to core political and religious speech. And now, we are told, automated information generated for cryptocurrencies, robocalling, and social media bots are also protected speech under the Constitution. Where does it end? It begins, no doubt, with corporate and commercial speech. We show, however, that heightened protection for corporate and commercial speech is built on several “artifices” - …

Campbell V. Reisch: The Dangers Of The Campaign Loophole In Social Media Blocking Litigation, Clare R. Norins, Mark Bailey

Scholarly Works

Since 2016, social media blocking by government officials has been a lively battleground for First Amendment rights of free speech and petition. Government officials increasingly rely on social media to communicate with the public while ever greater numbers of private individuals are voicing their opinions and petitioning for change on government officials' interactive social media accounts. Perhaps not surprisingly, this has prompted many government officials to block those users whose comments they deem to be critical or offensive. But such speech regulation by a government actor introduces viewpoint discrimination—a cardinal sin under the First Amendment.

In 2019, three United States …

Disciplining Doctors: A Call For Caution When Responding To Physicians' Counter-Consensus Speech In The Time Of Covid-19, Timothy Macdonnell

Scholarly Articles

The COVID-19 pandemic affected nearly every aspect of life in the United States, including most notably, work-life, home-life, and community-life. During the pandemic, the government took extraordinary steps to try and reduce the spread of the disease by closing businesses, mandating the wearing of masks, and requiring vaccines. Government officials repeatedly justified their actions by stating that they were "following the science." However not all members of the scientific/medical community agreed with these actions. Some of these counter-consensus opinions were labeled mis/dis/mal/information.

As the COVID-19 pandemic dragged on, calls to punish doctors for COVID-19 misinformation increased. Some doctors who claimed …

States Have Long Tried To Ban Ideas From The Classroom: The Current Road Brings A Fresh Evil, Leonard Niehoff

Other Publications

Efforts by state and local officials to ban ideas and books from public school classrooms are nothing new. Recent attempts to do so, however, have a uniquely pernicious characteristic. The current wave of bans doesn’t just seek to censor thoughts or words; it seeks to censor identity.

Nonprofits, Taxes, And Speech, Lloyd H. Mayer

Journal Articles

Federal tax law is of two minds when it comes to speech by nonprofits. The tax benefits provided to nonprofits are justified in significant part because they provide nonprofits great discretion in choosing the specific ends and means to pursue, thereby promoting diversity and pluralism. But current law withholds some of these tax benefits if a nonprofit engages in certain types of political speech. Legislators have also repeatedly, if unsuccessfully, sought to expand these political speech restrictions in various ways. And some commentators have proposed denying tax benefits to groups engaged in other types of disfavored speech, including hate speech …

Content Moderation As Surveillance, Hannah Bloch-Wehba

Faculty Scholarship

Technology platforms are the new governments, and content moderation is the new law, or so goes a common refrain. As platforms increasingly turn toward new, automated mechanisms of enforcing their rules, the apparent power of the private sector seems only to grow. Yet beneath the surface lies a web of complex relationships between public and private authorities that call into question whether platforms truly possess such unilateral power. Law enforcement and police are exerting influence over platform content rules, giving governments a louder voice in supposedly “private” decisions. At the same time, law enforcement avails itself of the affordances of …

Columbia Law Experts Submit Two Briefs To Supreme Court In Free Speech/Lgb Rights Case, Law, Rights, And Religion Project

Center for Gender & Sexuality Law

Columbia Law School faculty and policy teams submitted amicus briefs to the Supreme Court on Friday in 303 Creative v. Elenis, a case the Court will decide next term.

The Power Of Vulnerability In Promoting A Sense Of Belonging: The Perspective Of A First-Generation American, Karin Mika

Law Faculty Articles and Essays

It is my intention that students teach each other through really getting to know one another and finding commonality in each other’s experiences. Most of us live in a social bubble, partially because we feel vulnerable in worlds where we perceive that we do not belong. By sharing vulnerabilities, we are able to expand our world to not only understand our commonalities, but to get a new view of what we thought was inalterable. By sharing my own experience as an out-sider, I am better able to encourage students to consider more deeply the opinions of others and to learn …

Anti-Speech Acts And The First Amendment, Richard K. Sherwin

Articles & Chapters

In many states today, there are laws on the books designed to protect the legitimacy and fairness of elections by barring the knowing or reckless dissemination of demonstrably false statements. Regulating this kind of deliberate deception protects the public against the erosion of First Amendment freedoms – such as the freedom to think and express one’s own thoughts and to meaningfully deliberate in an electoral process free from deliberate efforts to flood the zone of public discourse with confusion and mistrust based on deliberate and provable falsehoods. Some of these regulations, however, have been successfully challenged on First Amendment grounds. …

Free Speech On Social Media: Unrestricted Or Regulated?, Alessandra Garcia Guevara

Student Writing

Social media has evolved into an essential mode of communication in recent years, allowing people to express their thoughts with the audience of their choice by sending private messages, posting their thoughts, or sharing their opinions. Such audiences can come from all over the world because this online technology breaks down geographic, linguistic, and cultural barriers. As a result, social media has evolved into a powerful tool for self-expression, allowing anyone with an Internet connection to participate in global debates. However, its misuse has had disastrous consequences in the real world, such as the attack on the Capitol that occurred …

Aba Model Rule 8.4(G), Discriminatory Speech, And The First Amendment, Bruce Green, Rebecca Roiphe

Articles & Chapters

The ABA adopted Model Rule 8.4(g), which targets certain speech and conduct that are based on “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.” In particular, according to the accompanying comment, Rule 8.4(g) reaches speech that is “derogatory and demeaning” or that “manifests bias or prejudice towards others” and is “harmful” (including, presumably, emotionally harmful). This rule targets a significant amount of speech that would be constitutionally protected if it were uttered by a nonlawyer. This article argues that there is no justification for treating lawyers differently from others in many …

Lost In The Bubble, Jethro K. Lieberman

Other Publications

No abstract provided.

Manipulation And The First Amendment, Helen Norton

Publications

No abstract provided.

Distrust, Negative First Amendment Theory, And The Regulation Of Lies, Helen Norton

Publications

This symposium essay explores the relationship between “negative” First Amendment theory—rooted in distrust of the government’s potential for regulatory abuse—and the government’s regulation of lies. Negative First Amendment theory explains why many lies are protected from governmental regulation—even when the regulation neither punishes nor chills valuable speech (as was the case, for example, of the statute at issue in United States v. Alvarez). But negative theory, like any theory, also needs limiting principles that explain when the government’s regulation is constitutionally justifiable.

In my view, we engage in the principled application of negative theory when we invoke it in (the …

Calls For Change: Seeing Cancel Culture From A Multi-Level Perspective, Tomar Pierson-Brown

Articles

Transition Design offers a framework and employs an array of tools to engage with complexity. “Cancel culture” is a complex phenomenon that presents an opportunity for administrators in higher education to draw from the Transition Design approach in framing and responding to this trend. Faculty accused of or caught using racist, sexist, or homophobic speech are increasingly met with calls to lose their positions, titles, or other professional opportunities. Such calls for cancellation arise from discreet social networks organized around an identified lack of accountability for social transgressions carried out in the professional school environment. Much of the existing discourse …

No Exit: Ten Years Of "Privacy Vs. Speech" Post-Sorrell, G. S. Hans

Vanderbilt Law School Faculty Publications

A decade has passed since the U.S. Supreme Court held in Sorrell vs. IMS Health that a Vermont privacy law violated the First Amendment. Somewhat surprisingly, the debate about the intersection between privacy laws and free speech protections has not progressed much in the intervening years. If anything, the concerns that some privacy advocates had following Sorrell-that the First Amendment could be used as a tool to overturn privacy regulations-have extended to other areas of economic regulation. As a public interest attorney working on technology law and policy, I entered into practice not long after Sorrell was decided, when it …

Restoring Student Press Freedoms: Why Every State Needs A 'New Voices' Law, Clare R. Norins, Taran Harmon-Walker, Navroz Tharani

Scholarly Works

Scholastic journalists across America have long provided vital reporting, commentary, and fresh perspective on issues of public concern to their readers. Never has this been more true than in the current age of dwindling print media, where scholastic journalists at both the high school and post-secondary levels are stepping in to populate what would otherwise be news deserts. Yet the Supreme Court’s decision in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), allows school officials to censor both the content and style of school-sponsored media without offending the First Amendment. This essay traces the history of student speech rights …

The First Amendment, Common Carriers, And Public Accommodations: Net Neutrality, Digital Platforms, And Privacy, Christopher S. Yoo

All Faculty Scholarship

Recent prominent judicial opinions have assumed that common carriers have few to no First Amendment rights and that calling an actor a common carrier or public accommodation could justify limiting its right to exclude and mandating that it provide nondiscriminatory access. A review of the history reveals that the underlying law is richer than these simple statements would suggest. The principles for determining what constitutes a common carrier or a public accommodation and the level of First Amendment protection both turn on whether the actor holds itself out as serving all members of the public or whether it asserts editorial …

Free Speech And Democracy: A Primer For Twenty-First Century Reformers, Toni M. Massaro, Helen Norton

Publications

Left unfettered, the twenty-first-century speech environment threatens to undermine critical pieces of the democratic project. Speech operates today in ways unimaginable not only to the First Amendment’s eighteenth-century writers but also to its twentieth-century champions. Key among these changes is that speech is cheaper and more abundant than ever before, and can be exploited — by both government and powerful private actors alike — as a tool for controlling others’ speech and frustrating meaningful public discourse and democratic outcomes.

The Court’s longstanding First Amendment doctrine rests on a model of how speech works that is no longer accurate. This invites …

The Fourth Amendment’S Forgotten Free-Speech Dimensions, Aya Gruber

Publications

No abstract provided.

Race And The First Amendment: A Compendium Of Resources, Solomon F. Worlds, Leonard M. Niehoff

Articles

This article provides summaries of law review articles and books that consider the complex relationship between racial justice and free speech. It seeks to assist law students, legal scholars, judges, and practitioners to think more deeply about the intersection between these critically important values. It describes scholarship that views these values as complementary, but also scholarship that views them as conflicting.

The Interdependence Of Racial Justice And Free Speech For Racists, Nadine Strossen

Articles & Chapters

No abstract provided.

Curing The First Amendment Scrutiny Muddle Through A Breyer-Based Blend Up? Toward A Less Categorical, More Values-Oriented Approach For Selecting Standards Of Judicial Review, Clay Calvert

UF Law Faculty Publications

This Article argues that the United States Supreme Court should significantly alter its current categorical approach for discerning standards of judicial review in free-speech cases. The present system should become nondeterminative and be augmented with a modified version of Justice Stephen Breyer’s long-preferred proportionality framework. Specifically, the Article’s proposed tack fuses facets of today’s policy, which largely pivots on distinguishing content-based laws from content-neutral laws and letting that categorization determine scrutiny, with a more nuanced, values-and-interests methodology. A values-and-interests formula would allow the Court to climb up or down the traditional ladder of scrutiny rungs – strict, intermediate or rational …

The Second Founding And The First Amendment, William M. Carter Jr.

Articles

Constitutional doctrine generally proceeds from the premise that the original intent and public understanding of pre-Civil War constitutional provisions carries forward unchanged from the colonial Founding era. This premise is flawed because it ignores the Nation’s Second Founding: i.e., the constitutional moment culminating in the Thirteenth, Fourteenth, and Fifteenth Amendments and the civil rights statutes enacted pursuant thereto. The Second Founding, in addition to providing specific new individual rights and federal powers, also represented a fundamental shift in our constitutional order. The Second Founding’s constitutional regime provided that the underlying systemic rules and norms of the First Founding’s Constitution …

Panel One: Classification And Access To National Security Information, Mary-Rose Papandrea, Margaret Kwoka, David Pozen, Stephen I. Vladeck

Faculty Scholarship

This article is a transcript of the first panel of First Amendment Law Review’s 2021 Symposium on National Security, Whistleblowers, and the First Amendment, discussing classification and access to national security information.

The First Amendment And The Right(S) Of Publicity, Jennifer E. Rothman, Robert C. Post

All Faculty Scholarship

The right of publicity protects persons against unauthorized uses of their identity, most typically their names, images, or voices. The right is in obvious tension with freedom of speech. Yet courts seeking to reconcile the right with the First Amendment have to date produced only a notoriously confused muddle of inconsistent constitutional doctrine. In this Article, we suggest a way out of the maze. We propose a relatively straightforward framework for analyzing how the right of publicity should be squared with First Amendment principles.

At the root of contemporary constitutional confusion lies a failure to articulate the precise state interests …