Law Commons^™

Public Accommodations And The Right To Refrain From Expressing Oneself, Mark Strasser

Cleveland State Law Review

The United States Supreme Court has been unable to articulate a coherent position when addressing the right of individuals to refrain from expressing themselves. The Court has applied various tests inconsistently—emphasizing principles in some cases, ignoring them in subsequent cases, and then emphasizing them again in later cases as if those principles had always been applied. The Court’s approach is incoherent, offering little guidance to lower courts except to suggest that public accommodations laws may soon be found inconsistent with First Amendment guarantees.

The Antidote Of Free Speech: Censorship During The Pandemic, Christopher Keleher

Catholic University Law Review

Free speech in America stands at a precipice. The nation must decide if the First Amendment protects controversial, unconventional, and unpopular speech, or only that which is mainstream, fashionable, and government-approved. This debate is one of many legal battles brought to the fore during Covid-19. But the fallout of the free speech question will transcend Covid-19.

During the pandemic, the federal government took unprecedented steps to pressure private entities to push messages it approved and squelch those it did not. The Supreme Court will soon grapple with the issue of censorship during the pandemic. This article examines this litigation, along …

“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.

The Violence Of Free Speech And Press Metaphors, Erin C. Carroll

Washington and Lee Law Review

Today, our free speech marketplace is often overwhelming, confusing, and even dangerous. Threats, misdirection, and lies abound. Online firestorms lead to offline violence. This Article argues that the way we conceptualize free speech and the free press are partly to blame: our metaphors are hurting us.

The primary metaphor courts have used for a century to describe free speech—the marketplace of ideas—has been linked to violence since its inception. Originating in a case about espionage and revolution, in a dissent written by Oliver Wendell Holmes, a thrice-injured Civil War veteran, the marketplace has been described as a space where competition …

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 …

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 …

Aba Standard 303(C) And Divisive Concepts Legislation And Policies: Challenges And Opportunities, Sherley Cruz, Becky L. Jacobs, Karen L. Tokarz, Kendall Kerew, Andrew King-Ries, Carwina Weng

Scholarly Works

This article by six clinicians discusses the challenges and opportunities of new ABA Standard 303 (c), including the implications of and interactions between Standard 303(c) and “divisive concepts” laws and other threats to representation, academic freedom, and free speech in legal education. The article also highlights the intersection of Standard 303(c) and Standard 303(b)(3), which addresses professional identity formation; discusses opportunities to adapt current curriculum and teaching and create new curricular responses to meet the new accreditation standards and interpretations; and explores ways to resist increasing limitations and find a supportive academic community to sustain hope and resilience.