Law Commons^™

Hate Speech, Public Assurance, And The Civic Standing Of Speakers And Victims, Vincent A. Blasi

Faculty Scholarship

Jeremy Waldron and James Weinstein have opened up a promising line of inquiry regarding the legitimacy and propriety of hate speech regulation. In doing so, they have succeeded in reinvigorating a subject that had grown academically formulaic even while becoming alarmingly more salient politically and culturally. Together they have enriched our understanding with their specificity of argumentation, intellectual courage, fairminded attentiveness to critics and counter-arguments, comparative law perspective, and genuine originality of conception. I find that each has shown me at least one significant problem in the other’s analysis, a symmetry that I consider a tribute to both.

The Early Years Of First Amendment Lochnerism, Jeremy K. Kessler

Faculty Scholarship

From Citizens United to Hobby Lobby, civil libertarian challenges to the regulation of economic activity are increasingly prevalent. Critics of this trend invoke the specter of Lochner v. New York. They suggest that the First Amendment, the Religious Freedom Restoration Act, and other legislative "conscience clauses" are being used to resurrect the economically libertarian substantive due process jurisprudence of the early twentieth century. Yet the worry that aggressive judicial enforcement of the First Amendment might erode democratic regulation of the economy and enhance the economic power of private actors has a long history. As this Article demonstrates, anxieties …

Uncivil Obedience, Jessica Bulman-Pozen, David E. Pozen

Faculty Scholarship

Scholars and activists have long been interested in conscientious law-breaking as a means of dissent. The civil disobedient violates the law in a bid to highlight its illegitimacy and motivate reform. A less heralded form of social action, however, involves nearly the opposite approach. As a wide range of examples attest, dissenters may also seek to disrupt legal regimes through hyperbolic, literalistic, or otherwise unanticipated adherence to their formal rules.

This Article asks how to make sense of these more paradoxical protests, involving not explicit law-breaking but rather extreme law following. We seek to identify, elucidate, and call attention to …

Supreme Court Amicus Brief Of 19 Corporate Law Professors, Friedrichs V. California Teachers Association, No. 14-915, John C. Coates, Iv, Lucian A. Bebchuk, Bernard S. Black, John C. Coffee Jr., James D. Cox, Ronald J. Gilson, Jeffrey N. Gordon, Lawrence A. Hamermesh, Henry Hansmann, Robert J. Jackson Jr., Marcel Kahan, Vikramaditya S. Khanna, Michael Klausner, Reinier Kraakman, Donald C. Langevoort, Edward B. Rock, Mark J. Roe, Helen S. Scott

Faculty Scholarship

The Supreme Court has looked to the rights of corporate shareholders in determining the rights of union members and non-members to control political spending, and vice versa. The Court sometimes assumes that if shareholders disapprove of corporate political expression, they can easily sell their shares or exercise control over corporate spending. This assumption is mistaken. Because of how capital is saved and invested, most individual shareholders cannot obtain full information about corporate political activities, even after the fact, nor can they prevent their savings from being used to speak in ways with which they disagree. Individual shareholders have no “opt …

Irb Licensing, Philip A. Hamburger

Faculty Scholarship

This chapter examines conflicting norms in the government's licensing of speech and the press on “human-subjects research” through institutional review boards (IRBs). It begins by discussing licensing and why the prohibition of it is so fundamental and prroceeds by providing an overview of the structure of institutional review board licensing. It then highlights the unconstitutionality of IRB laws, arguing that the use of IRBs violates the principles of academic freedom. It asserts that licensing of speech or the press was a method of controlling the press employed by the Inquisition and the Star Chamber, and the First Amendment unequivocally barred …

Market Structure And Political Law: A Taxonomy Of Power, Zephyr Teachout, Lina M. Khan

Faculty Scholarship

The goal of this Article is to create a way of seeing how market structure is innately political. It provides a taxonomy of ways in which large companies frequently exercise powers that possess the character of governance. Broadly, these exercises of power map onto three bodies of activity we generally assign to government: to set policy, to regulate markets, and to tax. We add a fourth category – which we call "dominance," after Brandeis – as a kind of catchall describing the other political impacts. The activities we outline will not always fit neatly into these categories, nor do all …

That We Are Underlings: The Real Problems In Disciplining Political Spending And The First Amendment, Jedediah S. Purdy

Faculty Scholarship

We’re gathered at the intersection of professional reason and popular passion. The roughly two-thirds of Americans who have said they strongly oppose Citizens United don’t have a theory of the First Amendment; they have a felt sense that the decision is an emblem of the political condition that unites Tea Partiers, Occupiers, and the Warren wing of the Democratic Party in shared disgust: the superior political influence and access of big business and great fortunes. This is the condition, or a subset of the condition, that Larry Lessig and Zephyr Teachout call corruption rightly understood: structural corruption that tethers the …

The Administrative Origins Of Modern Civil Liberties Law, Jeremy K. Kessler

Faculty Scholarship

This Article offers a new explanation for the puzzling origin of modern civil liberties law. Legal scholars have long sought to explain how Progressive lawyers and intellectuals skeptical of individual rights and committed to a strong, activist state came to advocate for robust First Amendment protections after World War I. Most attempts to solve this puzzle focus on the executive branch's suppression of dissent during World War I and the Red Scare. Once Progressives realized that a powerful administrative state risked stifling debate and deliberation within civil society, the story goes, they turned to civil liberties law in order to …

Snake Oil Salesman Or Purveyors Of Knowledge: Off-Label Promotions And The Commercial Speech Doctrine, Constance E. Bagley, Joshua Mitts

Faculty Scholarship

The Second Circuit’s December 2012 decision in United States v. Caronia striking down the prohibition on off-label marketing of pharmaceutical drugs has profound implications for economic regulation in general, calling into question the constitutionality of restrictions on the offer and sale of securities under the Securities Act of 1933, the solicitation of shareholder proxies and periodic reporting under the Securities Exchange Act of 1934, mandatory labels on food, tobacco, and pesticides, and a wide range of privacy protections. In this Article we suggest that Caronia misconstrues the Supreme Court’s holding in Sorrell v. IMS Health, which was motivated by concerns …

Can Moving Pictures Speak? Silent Film, Free Speech, And Social Science In Early 20th Century Law, Jennifer Petersen

Studio for Law and Culture

When the Supreme Court was first confronted with a First Amendment case involving film, it was confronted with a difficult and fascinating question: were silent films speech? The decision in the case, Mutual v. Ohio (1915), famously answered no. The decision is usually understood to be part of a tradition of interpretations of the First Amendment as applying primarily to political opinion; in this reading, film was not protected because it was entertainment and/or commerce. However, Mutual also contains a set of arguments about the nature of film as more akin to action than to speech — arguments embedded in …

Machine Speech, Tim Wu

Faculty Scholarship

Computers are making an increasing number of important decisions in our lives. They fly airplanes, navigate traffic, and even recommend books. In the process, computers reason through automated algorithms and constantly send and receive information, sometimes in ways that mimic human expression. When can such communications, called here “algorithmic outputs,” claim First Amendment protection?

Hate Speech And The Demos, Jamal Greene

Faculty Scholarship

It is sometimes said that the statist and aristocratic traditions of Europe render its political institutions less democratic than those of the United States. Richard Posner writes of “the less democratic cast of European politics, as a result of which elite opinion is more likely to override public opinion than it is in the United States.” If that is true, then there are obvious ways in which it figures into debates over the wisdom of hate-speech regulation. The standard European argument in favor of such regulation may easily be characterized as antidemocratic: Restrictions on hate speech protect unpopular minority groups …

Subsidizing The Press, David M. Schizer

Faculty Scholarship

Through beat reporting and investigative journalism, reporters monitor the foundational institutions of our society. This reporting has value even to those who never buy a newspaper or read a website. For example, subscribers and nonsubscribers alike benefit when government officials respond to a critical news story by eliminating an abusive practice. Yet unfortunately, the professional press is experiencing a severe economic crisis. Layoffs are pervasive, and news organizations across the nation are on the brink of insolvency. As a result, a number of commentators have proposed government subsidies for the press. Yet if the press becomes financially dependent on the …

Shouting "Fire!" In A Theater And Vilifying Corn Dealers, Vincent A. Blasi

Faculty Scholarship

Five years ago, Fred Schauer published an article with the intriguing title: "Do Cases Make Bad Law?" Playing off Holmes' observation that "[g]reat cases like hard cases make bad law," Schauer explored the possibility, as he put it, that "it is not just great cases and hard cases that make bad law, but simply the deciding of cases that makes bad law.” His concern, confirmed and deepened by his characteristically balanced inquiry, was that general principles forged in the resolution of specific legal disputes can suffer by virtue of that provenance. Because such principles by definition are meant to carry …

Seana Shiffrin's Thinker-Based Freedom Of Speech: A Response, Vincent A. Blasi

Faculty Scholarship

As an instinctive consequentialist so far as First Amendment theory is concerned, I have to admit that I have never been so tempted by a non-consequentialist account as I am by what Professor Shiffrin has produced. My principal interest is the history of ideas regarding the freedom of speech. I have long been struck by how so many of the canonical writers on the subject have built their arguments from the starting point of the central importance of the freedom of thought. This is true of Milton and Mill in a basic, explicit, straightforward way (if Milton can ever be …

Democratic Participation And The Freedom Of Speech: A Response To Post And Weinstein Responses, Vincent A. Blasi

Faculty Scholarship

I think it is useful to search for a theory that has as one of its justifications its superior fit with either the case law or the fundamental commitments and shared understandings of the political community, preferably with both. So even if someone were to convince me that she has in hand a normatively superior theory of free speech, whether grounded in the commitment to democracy or otherwise, I would still be interested in what Professors Post and Weinstein are trying to do.

Fundamental Questions About The Religion Clauses: Reflections On Some Critiques, Kent Greenawalt

Faculty Scholarship

This essay responds to some major critiques of my work on the religion clauses. The effort has seemed worth undertaking because many issues the critics raise lie at the core of one’s approach to free exercise and nonestablishment, and some of those issues matter greatly for constitutional adjudication more broadly. Like any author, perhaps, my reaction to reading some comments has been that I did not quite say that, but I shall not bore you with these quibbles about how well I explained myself in the past. Rather, I shall try to confront the genuinely basic questions that many of …

In Celebration Of Steven Shiffrin's The Religious Left And Church-State Relations, Kent Greenawalt

Faculty Scholarship

Steven Shiffrin's The Religious Left and Church-State Relations is a truly remarkable book in many respects. I shall briefly note a few of its striking features, including some illustrative passages, and outline a number of its central themes, before tackling what for me is its most challenging and perplexing set of theses – the relations between constitutional and political discourse, and between religious liberals, on the one hand, and religious conservatives and secular liberals on the other.

We might well think of this as two books in one: a book about the constitutional law of free exercise and non-establishment, and …

Corporate Political Speech: Who Decides, Lucian A. Bebchuk, Robert J. Jackson Jr.

Faculty Scholarship

The Supreme Court spoke clearly this Term on the issue of corporate political speech, concluding in Citizens United v. FEC' that the First Amendment protects corporations' freedom to spend corporate funds on indirect support of political candidates. 2 Constitutional law scholars will long debate the wisdom of that holding, as do the authors of the two other Comments in this issue.3 In contrast, this Comment accepts as given that corporations may not be limited from spending money on politics should they decide to speak. We focus instead on an important question left unanswered by Citizens United: who should have the …

The Alchemy Of Dissent, Jamal Greene

Faculty Scholarship

On July 10, 2010, the Orange/Sullivan County NY 912 Tea Party organized a "Freedom from Tyranny" rally in the sleepy exurb of Middletown, New York. Via the group's online Meetup page, anyone who was "sick of the madness in Washington" and prepared to "[d]efend our freedom from Tyranny" was asked to gather on the grass next to the local Perkins restaurant and Super 8 motel for the afternoon rally. Protesters were encouraged to bring their lawn chairs for the picnic and fireworks to follow.

There was a time when I would have found an afternoon picnic a surprising response to …

How Does "Equal Liberty" Fare In Relation To Other Approaches To The Religion Clauses?, Kent Greenawalt

Faculty Scholarship

As one of four contributors to an issue celebrating Christopher Eisgruber and Lawrence Sager's Religious Freedom and the Constitution, I have chosen to write an Essay that differs from an ordinary review. I compare the authors' approach with two other recent formulations of what should be central for the jurisprudence of the Religion Clauses. Since I have recently published my own treatment of the Free Exercise Clause, and a second volume on the Establishment Clause is in the pipeline toward publication, I do not here present my own positive views (though I provide references for interested readers). Those views …

Two-Dimensional Doctrine And Three-Dimensional Law: A Response To Professor Weinstein, Philip A. Hamburger

Faculty Scholarship

Professor Weinstein examines how the IRB laws would fare under Supreme Court doctrine, and whereas it is my view that these laws should be considered unconstitutional, he reaches largely the opposite conclusion. His article therefore offers a valuable opportunity for further exploration of the constitutional questions, and although there is not sufficient space here to discuss all of his analysis, it seems important at least to draw attention to the major points on which we take different perspectives.

Getting Permission, Philip A. Hamburger

Faculty Scholarship

Institutional Review Boards ("IRBs") are the instruments of a system of licensing – a system under which scholars, students, and other researchers must get permission to do research on human subjects. Although the system was established as a means of regulating research, it regulates research by licensing speech and the press. It is, in fact, so sweeping a system of licensing speech and the press that it is reminiscent of the seventeenth century, when Galileo Galilei had to submit to licensing and John Milton protested against it. Accordingly, it is necessary to examine the constitutionality of IRB licensing and, more …

Holmes And The Marketplace Of Ideas, Vincent A. Blasi

Faculty Scholarship

At least five basic values might be served by a robust free speech principle: (1) individual autonomy; (2) truth seeking; (3) self-government; (4) the checking of abuses of power; (5) the promotion of good character. Free speech might serve one or more of these values by functioning in at least three different ways: (1) as a privileged activity; (2) as a social mechanism; (3) as a cultural force. My contention is that the conventional understanding of the most familiar metaphor in the First Amendment lexicon, the "marketplace of ideas," has had the undesirable effect of focusing attention too much on …

The New Censorship: Institutional Review Boards, Philip A. Hamburger

Faculty Scholarship

Do federal regulations on Institutional Review Boards violate the First Amendment? Do these regulations establish a new sort of censorship? And what does this reveal about the role of the Supreme Court?

The First Amendment's Original Sin, Lee C. Bollinger

Faculty Scholarship

Times of war place considerable stress on civil liberties, especially ones protected by the First Amendment. When the nation must gather itself to fight an enemy who is intent on killing us, it is perhaps only natural that our tolerance for the usual disorder of dissent will decline. When everyone has to sacrifice for the common good, when fellow citizens are dying in that cause, the costs of speech are visible and serious. Dissent may dissuade or discourage soldiers from fighting; sowing doubt may weaken resolve just when it's needed most; falsehoods and misinformation may lead to catastrophic shifts of …

Against Separation, Philip A. Hamburger

Faculty Scholarship

In 1802, in a letter to the Danbury Baptist Association, Thomas Jefferson wrote that the First Amendment had the effect of "building a wall of separation between Church & State." As it happens, when Congress drafted the First Amendment in 1789, Jefferson was enjoying Paris. Nonetheless, his words about separation are often taken as an authoritative interpretation of the First Amendment's establishment clause. Indeed, in the 1947 Everson v. Board of Education decision, the Supreme Court quoted Jefferson's pronouncement to justify its conclusion that the First Amendment guarantees a separation of church and state. Not only the justices but …

More Is Less, Philip A. Hamburger

Faculty Scholarship

Is the First Amendment's right of free exercise of religion conditional upon government interests? Many eighteenth-century Americans said it was utterly unconditional. For example, James Madison and numerous contemporaries declared in 1785 that "the right of every man to exercise ['Religion'] ... is in its nature an unalienable right" and "therefore that in matters of Religion, no mans right is abridged by the institution of Civil Society." In contrast, during the past forty years, the United States Supreme Court has repeatedly conditioned the right of free exercise on compelling government interests. The Court not merely qualifies the practice of the …

Judicial Campaign Codes After Republican Party Of Minnesota V. White, Richard Briffault

Faculty Scholarship

The vast majority of judicial offices in the United States are subject to election. The votes of the people select or retain at least some judges in thirty-nine states, and all judges are elected in twenty-one states. By one count, 87% of the state and local judges in the United States have to face the voters at some point if they want to win or remain in office. Judicial elections, however, differ from elections for legislative or executive offices in a number of significant ways. In nineteen states, most judges are initially appointed but must later go before the voters …

Application-Centered Internet Analysis, Tim Wu

Faculty Scholarship

There is a now-standard debate about law and the Internet. One side asserts that the Internet is so new and different that it calls for new legal approaches, even its own sovereign law. The other side argues that, although it is a new technology, the Internet nonetheless presents familiar legal problems. It is a battle of analogies: One side refers to Cyberspace as a place, while the other essentially equates the Internet and the telephone.

In my view, these two positions are both wrong and right: wrong in their characterization of the Internet as a whole, yet potentially right about …