Law Commons^™

Speech Regulation And Tobacco Harm Reduction, Jonathan Adler, Jacob James Rich

Faculty Publications

Regulation of commercial speech is a major component of federal regulation of tobacco products. Since adoption of federal tobacco legislation, the Food and Drug Administration has asserted regulatory authority over ENDS and other vaping products as “tobacco products,” subjecting them to the same regulatory regime as traditional tobacco products even though such projects appear to pose less of a threat to public health. Such regulation, and the restriction on truthful speech in particular, may be having negative consequences for public health. Barring producers from informing consumers about the relative risks of vaping products and their potential to reduce smoking eliminates …

History's Speech Acts, Jessie Hill

Faculty Publications

This Essay considers the historic relationship between symbolic public expressions of racial and religious identity—in particular, Confederate symbols and Christian religious displays. These displays sometimes comprise shared symbology, and the adoption of this symbology overlaps at distinct moments in U.S. history in which Confederate and Christian symbolism converged to express messages of combined religious and racial superiority. This Essay argues that these forms of expression can best be understood as “speech acts” that seek to construct a particular social reality, often in defiance of political and social fact. They thus not only express but also enact social hierarchies. It further …

Professional Speech At Scale, Cassandra Burke Robertson, Sharona Hoffman

Faculty Publications

Regulatory actions affecting professional speech are facing new challenges from all sides. On one side, the Supreme Court has grown increasingly protective of professionals’ free speech rights, and it has subjected regulations affecting that speech to heightened levels of scrutiny that call into question traditional regulatory practices in both law and medicine. On the other side, technological developments, including the growth of massive digital platforms and the introduction of artificial intelligence programs, have created brand new problems of regulatory scale. Professional speech is now able to reach a wide audience faster than ever before, creating risks that misinformation will cause …

Free Speech & Abortion: The First Amendment Case Against Compelled Motherhood, Raymond Shih Ray Ku

Faculty Publications

The most important lessons are taught by example. Children learn the fundamental values that guide them throughout their lives from the examples set by their parents, especially their mothers. Even before they understand a language, they learn by observing and imitating the actions of their parents. For almost fifty years Roe v Wade guaranteed pregnant women the freedom to determine whether to carry their pregnancy to term. The right to obtain a safe abortion prior to viability is the most significant and controversial aspect of this freedom. The Supreme Court is now poised to overturn what it previously described as …

Reconsidering Hostile Takeover Of Religious Organizations, B. Jessie Hill

Faculty Publications

Beginning in 2016, the headlines of major publications began announcing that Donald Trump had successfully completed a “hostile takeover” of the Republican Party. Whether this appraisal is accurate or not, it reflects concern about the associational integrity of a voluntary private organization—the Republican Party—and it suggests that some forms of organizational transformation are problematic. Moreover, the same concern might arise regarding other private associations, including religious associations. Yet, given that some transformation is inevitable and universal within religious and other voluntary organizations, it would be unwarranted to assume that all change within a religious organization is necessarily problematic.

This Article …

The Deliberative Privacy Principle, B. Jessie Hill

Faculty Publications

In this article, I propose that there is a deep connection among at least three seemingly disparate types of constitutional rights claims. Those three rights claims are the right to make the abortion decision for any reason one chooses; the right against compelled ideological speech; and the right of religious institutions to freely hire and fire their ministers (also known as the “ministerial exception”). In particular, there is a thread that unites all of these types of claims. That unifying thread is the concept of deliberative privacy. The connection among these rights claims has not been previously made explicit by …

Sex, Lies, And Ultrasound, B. Jessie Hill

Faculty Publications

State-mandated falsehoods are rampant in the context of abortion regulation. State legislatures have required doctors, before performing abortions, to provide scientifically unsupported information to women, such as that having an abortion increases the risk of breast cancer, or that it has negative mental health effects. Given the lack of evidence to sustain these sorts of claims, it seems reasonable to refer to such statements as government-mandated lies. However, this article argues that government mandated lies in the abortion context are unique in several ways that make them unlikely to be found unconstitutional, despite the fact that they obviously hinder patients’ …

The First Amendment Implications Of Copyright's Double Standard, Raymond Shih Ray Ku

Faculty Publications

Beginning with a simple question, “What’s the big deal? It’s just entertainment,” this Article argues that copyright law restricts more than just entertainment - it restricts freedom of artistic expression. Despite copyright’s facial neutrality, courts have interpreted otherwise neutral rules to subject authors to a double standard for expression. Through a series of doctrinal contradictions and hypocrisies, copyright singles out “just entertainment,” imposing greater restrictions upon the freedom of those authors relative to all other authors. By discriminating against “entertainment,” the current doctrine violates its own fundamental tenet of non-discrimination. Moreover, by selectively restricting how authors may choose to engage …

Persistent Threats To Commercial Speech, Jonathan Adler

Faculty Publications

The current Supreme Court is very protective of speech, including commercial speech. Threats to commercial speech persist nonetheless. This paper, prepared for a symposium at Brooklyn Law School, examines two: 1) the use of commercial speech restrictions as a form of rent-seeking; 2) compelled commercial speech. Regulation of commercial speech protect is sometimes used to protect established corporate interests from competitors who are less able to bear the costs of regulation, with consequences that extend beyond the economic marketplace. In the case of commercial speech, courts have been unduly deferential to claims of a consumer “right to know” as a …

(Dis)Owning Religious Speech, B. Jessie Hill

Faculty Publications

To claims of a right to equal citizenship, one of the primary responses has long been to assert the right of private property. It is therefore troubling that, in two recent cases involving public displays of religious symbolism, the Supreme Court embraced property law and rhetoric when faced with the claims of minority religious speakers for inclusion and equality.

The first, Pleasant Grove City v. Summum, is a free speech case in which the defendant evaded a finding that it was discriminating against the plaintiff’s religious speech by claiming a government speech defense. In the process, it claimed as its …

Responding To Political Corruption: Some Institutional Considerations, Jonathan L. Entin

Faculty Publications

This article, written for a conference on "The Scandal of Political Corruption and the Law’s Response," examines some institutional mechanisms (such as open-meetings laws and term limits) that are intended to prevent corruption and others (such as independent counsels, special prosecutors, and ethics commissions) that seek to punish corruption after the fact. The article assesses some of the legal and practical constraints of these devices and, relying on the insights of Durkheim and other social scientists, asks whether some minimum level of corruption might serve the function of helping to define and reinforce social norms and values.

Law School Clinics And The First Amendment, Jonathan L. Entin

Faculty Publications

No abstract provided.

F(R)Ee Expression: Reconciling Copyright & The First Amendment, Raymond Shih Ray Ku

Faculty Publications

This essay explores the relationship between copyright and free speech by critically evaluating the proposition that conflicts between the two can be eliminated because the Framers intended both to be engines for free expression. My purpose is not to set forth a comprehensive theory of copyright and free speech, but is more modest. This essay argues that while useful, reference to the Framers' intent only goes so far in avoiding conflicts between copyright and free speech, and when viewed outside of the facts presented by Harper & Row and Eldred, reliance upon the Framers' intent arguably increases such conflicts. Moreover, …

Copyright Lochnerism, Raymond Shih Ray Ku

Faculty Publications

Part I of this essay outlines the conflict between copyright and the First amendment as well as, the complementary argument for reconciling copyright and free speech, as it has been formulated by scholars and the Supreme Court. Part II discusses what I have referred to as the Framers' copyright and the extent to which arguments based upon the Framers' intent in this area may reconcile copyright and free speech. Lastly, Part III argues that reliance upon the complementary argument to deny any role for heightened First Amendment review in copyright cases is subject to two interrelated criticisms of Lochner. By …