Law Commons^™

The ‘Weaponized’ First Amendment At The Marble Palace And The Firing Line: Reaction And Progressive Advocacy Before The Roberts Court And Lower Federal Courts, Seth F. Kreimer

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It once seemed that the First Amendment doctrine developed by the Supreme Court stood as a bulwark protecting grassroots struggles for social change. In the twenty-first century, however, particularly since the appointments of Chief Justice Roberts and Justice Alito in 2005, a number of observers have begun to view the Supreme Court’s First Amendment work as a “weaponized” redoubt of reaction.

This sense of the rightward tilt of Supreme Court decisions is rooted in reality. Examining 104 Supreme Court First Amendment cases decided during the 2005–2020 Terms, it turns out that successful litigants are four times as likely to come …

Brief Of Professor Tobias B. Wolff As Amicus Curiae In Support Of Respondents In U.S. Supreme Court Case 303 Creative Llc V. Elenis, Tobias Barrington Wolff

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This amicus brief, filed in support of the Colorado anti-discrimination law in 303 Creative v. Elenis, is the product of about ten years of work on these First Amendment issues as a scholar and advocate. Its arguments rest on a core proposition: When a business sells goods and services in the public marketplace, it is not a street corner speaker engaging in a personal act of expression, it is a vendor engaged in commerce. Customers do not pay for the privilege of promoting a commercial vendor’s own personal message, they pay for goods and services chosen by them and …

The Supreme Court And The Pro-Business Paradox, Elizabeth Pollman

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One of the most notable trends of the Roberts Court is expanding corporate rights and narrowing liability or access to justice against corporate defendants. This Comment examines recent Supreme Court cases to highlight this “pro-business” pattern as well as its contradictory relationship with counter trends in corporate law and governance. From Citizens United to Americans for Prosperity, the Roberts Court’s jurisprudence could ironically lead to a situation in which it has protected corporate political spending based on a view of the corporation as an “association of citizens,” but allows constitutional scrutiny to block actual participants from getting information about …

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

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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 …

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

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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 …

Valuing The Freedom Of Speech And The Freedom To Compete In Defenses To Trademark And Related Claims In The United States, Jennifer E. Rothman

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This book chapter appears in the CAMBRIDGE HANDBOOK ON INTERNATIONAL AND COMPARATIVE TRADEMARK LAW, edited by Jane C. Ginsburg & Irene Calboli (Cambridge Univ. Press 2020). The Chapter provides an overview of the defenses to trademark infringement, dilution, and false endorsement claims that serve the goals of free expression and fair competition. In particular, the Chapter covers the defenses of genericism, functionality, descriptive and nominative fair use, the Rogers test, statutory exemptions to dilution claims, and the questions of whether and how an independent First Amendment defense applies in light of recent Supreme Court decisions.

In addition to providing a …

Fiduciary Blind Spot: The Failure Of Institutional Investors To Prevent The Illegitimate Use Of Working Americans' Savings For Corporate Political Spending, Leo E. Strine Jr.

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For decades, American workers have been subjected to increasing pressure to become forced capitalists, in the sense that to provide for retirement for themselves, and to pay for college for their children, they must turn part of their income every month over to mutual funds who participate in 401(k) and 529 programs. These “Worker Investors” save for the long term, often hold portfolios that are a proxy for the entire economy, and depend on the economy’s ability to generate good jobs and sustainable growth in order for them to be able to have economic security. In recent years, there has …

The Right Of Publicity's Intellectual Property Turn, Jennifer E. Rothman

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The Article is adapted from a keynote lecture about my book, THE RIGHT OF PUBLICITY: PRIVACY REIMAGINED FOR A PUBLIC WORLD (Harvard Univ. Press 2018), delivered at Columbia Law School for its symposium, “Owning Personality: The Expanding Right of Publicity.” The book challenges the conventional historical and theoretical understanding of the right of publicity. By uncovering the history of the right of publicity’s development, the book reveals solutions to current clashes with free speech, individual liberty, and copyright law, as well as some opportunities for better protecting privacy in the digital age.

The lecture (as adapted for this Article) explores …

Citizens United As Bad Corporate Law, Leo E. Strine Jr., Jonathan Macey

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In this Article we show that Citizens United v. FEC, arguably the most important First Amendment case of the new millennium, is predicated on a fundamental misconception about the nature of the corporation. Specifically, Citizens United v. FEC, which prohibited the government from restricting independent expenditures for corporate communications, and held that corporations enjoy the same free speech rights to engage in political spending as human citizens, is grounded on the erroneous theory that corporations are “associations of citizens” rather than what they actually are: independent legal entities distinct from those who own their stock. Our contribution to the literature …

Petitioning And The Making Of The Administrative State, Maggie Blackhawk

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The administrative state is suffering from a crisis of legitimacy. Many have questioned the legality of the myriad commissions, boards, and agencies through which much of our modern governance occurs. Scholars such as Jerry Mashaw, Theda Skocpol, and Michele Dauber, among others, have provided compelling institutional histories, illustrating that administrative lawmaking has roots in the early American republic. Others have attempted to assuage concerns through interpretive theory, arguing that the Administrative Procedure Act of 1946 implicitly amended our Constitution. Solutions offered thus far, however, have yet to provide a deeper understanding of the meaning and function of the administrative state …

Applying Strict Scrutiny: An Empirical Analysis Of Free Exercise Cases, Caleb C. Wolanek, Heidi H. Liu

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Strict scrutiny and the free exercise of religion have had an uneasy relationship in American jurisprudence. In this Article, we trace the history of strict scrutiny in free exercise cases and outline how it applies today. Then, using a unique dataset of cases from a 25-year period, we detail the characteristics of these cases. Finally, we discuss the implications for future cases. Our research indicates that even though claimants currently win a large percentage of cases, those victories might not be durable.

Lobbying And The Petition Clause, Maggie Blackhawk

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Contrary to popular opinion, the Supreme Court has not yet resolved whether lobbying is constitutionally protected. Belying this fact, courts, Congress, and scholars mistakenly assume that lobbying is protected under the Petition Clause. Because scholars have shared the mistaken assumption that the Petition Clause protects the practice of “lobbying”, no research to date has looked closely at the Petition Clause doctrine and the history of petitioning in relation to lobbying. In a recent opinion addressing petitioning in another context, the Supreme Court unearthed the long history behind the right to petition and argued for the importance of this history for …

Discrimination As Disruption: Addressing Hostile Environments Without Violating The Constitution, Cara Mcclellan

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In early March 2015, a video surfaced showing members of the Sigma Alpha Epsilon (SAE) fraternity at the University of Oklahoma chanting: “There will never be a nigger at SAE . . . you can hang him from a tree, but he’ll never sign with me.” Following the wide circulation of this video, the university’s president expelled two students leading the chants in the video for creating a hostile racial environment on campus. Legal commentators criticized this disciplinary action, arguing that it violated the First Amendment and principles of academic freedom. On the other hand, a review of Title VI …

Commercial Speech, Commercial Use, And The Intellectual Property Quagmire, Jennifer E. Rothman

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The commercial speech doctrine in First Amendment jurisprudence has frequently been criticized and is recognized as a highly contested, problematic and shifting landscape. Despite the compelling critique within constitutional law scholarship more broadly, Intellectual Property (“IP”) law has not only embraced the differential treatment of commercial speech, but has done so in ways that disfavor a much broader swath of speech than traditional commercial speech doctrine allows. One of the challenges for courts, litigants, and scholars alike is that the term “commercial” is used to mean multiple things, even within the same body of IP law. In this Article, I …

Veiled Women In The American Courtroom: Is The Niqab A Barrier To Justice?, Anita L. Allen

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U.S. courts and policy-makers have recently authorized laws and practices that interfere with the wearing of religious modesty attire that conceals the hair or face in contexts such as courtroom testimony or driver’s license issuance. For example, in response to a court’s dismissal of the case of a woman who refused to remove her niqab in the courtroom, the Michigan Supreme Court decided that judges can exercise “reasonable control” over the appearance of courtroom parties. But what degree of control over religious attire is reasonable? The Constitution will not allow a blanket niqab removal policy based on any of the …

New Technologies And Constitutional Law, Thomas Fetzer, Christopher S. Yoo

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No abstract provided.

First Amendment Privacy And The Battle For Progressively Liberal Social Change, Anita L. Allen

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No abstract provided.

Not As Bad As You Think: Why Garcetti V. Ceballos Makes Sense, Kermit Roosevelt Iii

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No abstract provided.

Technologies Of Control And The Future Of The First Amendment, Christopher S. Yoo

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The technological context surrounding the Supreme Court’s landmark decision in FCC v. Pacifica Foundation allowed the Court to gloss over the tension between two rather disparate rationales. Those adopting a civil libertarian view of free speech could support the decision on the grounds that viewers’ and listeners’ inability to filter out unwanted speech exposed them to content that they did not wish to see or hear. At the same time, Pacifica also found support from those who more paternalistically regard indecency as low value (if not socially harmful) speech that is unworthy of full First Amendment protection. The arrival of …

Associational Privacy And The First Amendment: Naacp V. Alabama, Privacy And Data Protection, Anita L. Allen

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No abstract provided.

"Hot News": The Enduring Myth Of Property In News, Shyamkrishna Balganesh

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No abstract provided.

Free Speech And The Myth Of The Internet As An Unintermediated Experience, Christopher S. Yoo

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In recent years, a growing number of commentators have raised concerns that the decisions made by Internet intermediaries — including last-mile network providers, search engines, social networking sites, and smartphones — are inhibiting free speech and have called for restrictions on their ability to prioritize or exclude content. Such calls ignore the fact that when mass communications are involved, intermediation helps end users to protect themselves from unwanted content and allows them to sift through the avalanche of desired content that grows ever larger every day. Intermediation also helps solve a number of classic economic problems associated with the Internet. …

Best Intentions: Reconsidering Best Practices Statements In The Context Of Fair Use And Copyright Law, Jennifer E. Rothman

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Private ordering is increasingly playing a role in determining the scope of intellectual property rights both as a de facto and a de jure matter. In this essay, I consider the best practices movement and its efforts to use private ordering to limit the scope and enforcement of copyright law. Best practices statements in the copyright context establish voluntary guidelines for what should be deemed fair uses of others’ copyrighted works. I identify some of the de facto successes of the best practices movement, but also raise a number of concerns about the project. As I have discussed elsewhere, the …

Remembering Ed Baker, Tobias Barrington Wolff

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This is a short biographical piece honoring and describing deceased colleague C. Edwin Baker.

Liberating Copyright: Thinking Beyond Free Speech, Jennifer E. Rothman

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Scholars have often turned to the First Amendment to limit the scope of ever-expanding copyright law. This approach has mostly failed to convince courts that independent review is merited and has offered little to individuals engaged in personal rather than political or cultural expression. In this Article, I consider the value of an alternative paradigm using the lens of substantive due process and liberty to evaluate users’ rights. A liberty-based approach uses this other developed body of constitutional law to demarcate justifiable personal, identity-based uses of copyrighted works. Uses that are essential for mental integrity, intimacy promotion, communication, or religious …

Debunking Blackstonian Copyright, Shyamkrishna Balganesh

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This is a review of Neil Weinstock Netanel’s Copyright’s Paradox (2008).

The First Amendment And Commercial Speech, C. Edwin Baker

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After a quick summary of constitutional treatment of commercial speech, this essay outlines four reasons why commercial speech should be denied First Amendment protection. Working from the claim that the primary rationale for constitutional protection of speech is the mandate that government respect individual freedom or autonomy, the essay argues: 1) that the individual does not choose, but rather the market dictates the content of commercial speech; 2) that the commercial speech should be attributed to an artificial, instrumentally entity – the business enterprise – rather than the flesh and blood person whose liberty merits protection; 3) market exchanges involve …

Hate Speech, C. Edwin Baker

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This paper describes the rationale that a full protection theory of free speech, a theory based on respect for individual autonomy, would give for protecting hate speech. The paper then notes that such a rationale will be unpersuasive to many (including this author) if the harms associated with a failure to outlaw hate speech are as great as often suggested – most dramatically, if the failure to prohibit makes a substantial contribution to the occurrence of serious racial/ethnic violence or genocide. The article then attempts to outline what empirical evidence would be needed to support this conclusion and gives reasons …

Censorship By Proxy: The First Amendment, Internet Intermediaries, And The Problem Of The Weakest Link, Seth F. Kreimer

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The rise of the Internet has changed the First Amendment drama, for governments confront technical and political obstacles to sanctioning either speakers or listeners in cyberspace. Faced with these challenges, regulators have fallen back on alternatives, predicated on the fact that, in contrast to the usual free expression scenario, the Internet is not dyadic. The Internet's resistance to direct regulation of speakers and listeners rests on a complex chain of connections, and emerging regulatory mechanisms have begun to focus on the weak links in that chain. Rather than attacking speakers or listeners directly, governments have sought to enlist private actors …

Initial Interest Confusion: Standing At The Crossroads Of Trademark Law, Jennifer E. Rothman

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While the benchmark of trademark infringement traditionally has been a demonstration that consumers are likely to be confused by the use of a similar or identical trademark to identify the goods or services of another, a court-created doctrine called initial interest confusion allows liability for trademark infringement solely on the basis that a consumer might initially be interested, attracted, or distracted by a competitor's, or even a non-competitor's, product or service. Initial interest confusion is being used with increasing frequency, especially on the Internet, to shut down speech critical of trademark holders and their products and services, to prevent comparative …