First Amendment Commons^™

Vaccines, Religious Liberty, And The Gvr As Doctrinal Signal, Zalman Rothschild

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This Essay proceeds in four Parts. Part I traces the doctrinal baseline, showing that vaccines have long functioned as the limit case for religious liberty. Part II briefly describes the doctrinal changes of the COVID-19 era — the Supreme Court’s expansion of religious equality doctrine, and its emergency-docket denials that left vaccine mandates formally unresolved — before explaining why the GVR in Miller signals a different move: the extension of the religious liberty framework to vaccine mandates, bypassing the comparability analysis that had allowed most courts to sustain them under the equality model. Part III turns to Miller itself and …

When Constitutional Protection For Religious Liberty Gets Lost In Translation: A Case Study From Washington State, Robert W. Gomulkiewicz

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Protecting religious liberty can present difficult challenges when religious liberty conflicts with laws prohibiting discrimination. Balancing religious liberty and nondiscrimination requires courts to accurately apply the U.S. Supreme Court’s complex First Amendment jurisprudence, including cases that address compelled speech, expressive association, and church autonomy. Amidst all the complexity, protection for religious liberty can get lost in translation. One important venue where protection can get lost in translation is in religious liberty cases decided by state supreme courts. The decisions of state supreme courts are especially significant because they provide the authoritative construction for state statutes and the state constitution. In …

The President's Orders Targeting Law Firms As Unconstitutional Bills Of Attainder-- Damning Lessons From The Past, Gary Simson

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“Sentence first, verdict afterwards,” the Queen in Alice in Wonderland insisted at the trial of the Knave of Hearts for stealing the Queen’s tarts. Such an upsidedown process obviously leaves quite a bit to be desired, but compared to the process provided by President Donald Trump’s executive orders announcing and inflicting debilitating penalties on particular law firms, it’s not all that bad. After all, the Knave of Hearts, unlike the targeted firms, at least got some sort of trial before punishment was announced.

Also, it’s one thing to be punished for stealing the Queen’s tarts—something that any law-abiding citizen of …

Lessons For The Trump Administration From The Biden U.S. National Strategy To Counter Antisemitism, Lili Levi

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In May 2023, the Biden Administration issued the first-ever U.S. National Strategy to Counter Antisemitism [hereinafter National Strategy] with a goal of hindering further normalization of antisemitism by increasing public awareness of antisemitism and highlighting positive Jewish contributions to America. Recent events, however-particularly the social and political upheaval over protests of the war in Gaza-have led to public contestation over Israel, increased instances of antisemitism, and the partisan politicization of Jewish issues. Now, the Trump Administration explicitly purports to fight antisemitism by widespread attacks on universities over antisemitism on campus. Does this mean that the National Strategy has become anachronistic, …

Abortion Ally Or Abettor: Accomplice And Conspiracy Liability After Dobbs, Mary Fan

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The bristle of state laws criminalizing abortion after Dobbs v. Jackson Women’s Health Organization raises important questions about accomplice and conspiracy liability for helping people pursue reproductive freedoms out of state. Abortion funds, grassroots organizations, pilots, and other humanitarian volunteers are vital for people in need of abortions, who often are trapped by a lack of resources in abortion criminalization jurisdictions. Threats of prosecution are chilling and even shutting down assistance by abortion funds for travel to pursue reproductive freedoms. The liability questions after Dobbs arise against a backdrop of increasing prosecutions in Europe and the United States for crimes …

The Question Not Presented: Government And Social Media Corruption After Murthy V. Missouri, Richard Painter

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The Supreme Court in Murthy v. Missouri in 2024 dismissed a suit by multiple plaintiffs alleging that the Biden Administration’s efforts to persuade social media platforms to monitor content violated the First Amendment. Although the Court did not directly decide the constitutionality of the government policy, the Court imposed a high bar for plaintiffs other than social media platforms to show standing to challenge the constitutionality of government pressure on the platforms. But the coercion problem is not the only troubling aspect of this government policy. The question not presented to the Court was the corruption problem. What happens when …

Beyond The Editorial Analogy: First Amendment Protections For Platform Content Moderation After Moddy V. Netchoice, Alan Rozenshtein, Kyle T. Langvardt

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This Article examines the Supreme Court’s 2024 decision in Moody v. NetChoice and its implications for social media platform regulation. In Moody, which addressed state laws requiring platforms to host certain content, the Court issued a complex set of opinions that left the scope of platforms’ First Amendment rights uncertain. On the procedural question of how such laws may be challenged, the Court provided a clear holding: it rejected facial challenges to broad content-moderation laws, instead requiring case-by-case analysis of how specific regulations affect different platform features—a shift that undermines the tech industry’s longstanding litigation strategy. But on the …

Free Speech And Incorporation: A Reassessment, Ilan Wurman

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Many of the Supreme Court’s most controversial free speech decisions involve state laws. In Gitlow v. New York, the Court assumed that the First Amendment’s guarantee of freedom of speech applied directly against the states via the Fourteenth Amendment, a doctrine today referred to as incorporation. Yet there is reason to doubt incorporation is correct as a matter of the original meaning of the Fourteenth Amendment. Indeed, much of the historical evidence involves debates over the freedom of speech, but none of the historical actors seemed to think the First Amendment applied against the states. This short essay evaluates the …

The Fox Effect? Implications Of Recruiting Corporate Law To Combat Misinformation, Lili Levi

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In 2023, Fox Corporation settled U.S. Dominion’s defamation action over Fox News’ broadcast of false election fraud claims after the 2020 presidential election for the staggering sum of $787.5 million. Now, a shareholder derivative action is pending in Delaware against the company’s board of directors for breach of state corporate law fiduciary oversight duties for their failure to prevent such defamatory programming. Beyond the specifics of the case, this development portends the emergence of a new politico-legal strategy—using corporate governance requirements as a weapon to promote press accountability and combat misinformation in public discourse. The question addressed in this Essay …

The Impossibility Of Religious Equality, Zalman Rothschild

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The Supreme Court has recently adopted a new rule of religious equality: Laws unconstitutionally discriminate against religion when they deny religious exemptions but provide secular exemptions that undermine the law’s interests to the same degree as would a religious exemption. All the Justices and a cadre of scholars have agreed in principle with this approach to religious equality. This Essay argues that this new rule of religious equality is inherently unworkable, in part because it turns on treating that which is religious the same as its secular “comparators.” But religion is not comparable to anything neither in terms of its …

Reynolds Revisited: The Original Meaning Of Reynolds V. United States And Free Exercise After Fulton, Clark B. Lombardi

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This Article calls for a profound reevaluation of the stories that are being told today about the Supreme Court’s free exercise jurisprudence starting with the Court’s seminal 1879 decision in Reynolds v. United States and proceeding up to the present day. Scholars and judges today agree that the Supreme Court in Reynolds interpreted the Free Exercise Clause of the First Amendment to protect only religious belief and not religiously motivated action. All casebooks today embrace this interpretation of the case, and the Supreme Court has regularly endorsed it over the past twenty years, most recently in 2022. However, this Article …

Defeat Fascism, Transform Democracy: Mapping Academic Resources, Reframing The Fundamentals, And Organizing For Collective Actions, Francisco Valdes

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No abstract provided.

Religious Clause Challenges To Early Abortion Bans, Caroline Mala Corbin

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The substantive due process right to abortion is gone. But other parts of the Constitution may also protect women’s right to control their bodies and live as equals in the United States. This Essay addresses what role the two religion clauses may play in advancing reproductive autonomy. Because religion and reproduction are intertwined, the religion clauses may provide some measure of constitutional protection.

The Establishment Clause bars the government from imposing religion onto those who do not share it. It also forbids the government from taking sides in theological disputes. Early abortion bans not only favor one religious belief on …

The Government Speech Doctrine Ate My Class: First Amendment Capture And Curriculum Bans, Caroline Mala Corbin

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Because of the government speech doctrine, public school curriculum restrictions like “Don’t Say Gay” mandates and bans on teaching critical race theory may escape free speech review. This exemplifies “First Amendment capture.” The term “capture” comes from “agency capture,” which occurs when regulated entities effectively gain control over the agency meant to oversee them. First Amendment capture occurs when speech becomes controlled by the government when the Free Speech Clause should be regulating the government.

Generally, laws that censor content trigger strict scrutiny under the Free Speech Clause. Curriculum bans, however, may trigger no scrutiny at all. Under the government …

Truth Bounties: A Market Solution To Fake News, Yonathan A. Arbel, Michael D. Gilbert

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False information poses a threat to individuals, groups, and society. Many people struggle to judge the veracity of the information around them, whether that information travels through newspapers, talk radio, TV, or social media. Concerned with the spread of misinformation and harmful falsehoods, much of the policy, popular, and scholarly conversation today revolves around proposals to expand the regulation of individuals, platforms, and the media. While more regulation may seem inevitable, it faces constitutional and political hurdles. Furthermore, regulation can have undesirable side effects and be ripe for abuse by powerful actors, public and private.

This Article presents an alternative …

The Credibility Effect: Defamation Law And Audiences, Yonathan A. Arbel

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What should be the legal response to false statements? In the context of defamation law, courts try to set a standard that balances the interests of speakers and their potential targets. This article empirically demonstrates an unappreciated effect of such decisions on third parties: a credibility effect. Using a series of lab experiments, I find that defamation law makes individuals more trusting of reports from various media. This credibility effect is desirable when the report is true but can lead to unintended consequences in the case of misinformation. In particular, the credibility effect is shown to cast a stigma on …

Defamation With Bayesian Audiences, Yonathan Arbel, Murat C. Mungan

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How strictly should the law regulate false defamatory statements? We first show that the presence of judicial errors often puts defamation law on a Laffer curve: regulation that is too lax or too strict is inferior to moderate regulation. While moderate regulation is ideal, it is not always attainable because of practical and legal constraints. With these constraints, we consider a Bayesian audience that takes the strictness of defamation law into account when evaluating statements. The optimal standard is then taxer than is prescribed by standard models with naive audiences. These findings underscore the importance of accounting for audience effects …

How Law Schools Can Fight For Fearless Speech, Mary Anne Franks

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No abstract provided.

Mandating Repair Scores, Aaron Perzanowski

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Restrictions on the repair of consumer goods have generated no shortage of policy proposals. This Article considers the empirical and legal case for one particular intervention—requiring firms to calculate and disclose their products’ scores on a uniform reparability index. These repair scores would provide consumers with salient information at or before the point of sale, enabling them to compare products on the basis of the ease and cost of repair. There is considerable empirical research, including assessments of France’s implementation of a similar requirement in recent years, suggesting that repair scores would both inform and empower consumers. Despite likely First …

Antimatters: The Curious Case Of Confederate Monuments, Jeremiah Chin

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Confederate monuments sit at a crossroads of speech frameworks as contested government speech, as concrete edifices of hate speech, and as key protest sites. The interplay of state law and speech doctrines in states like Alabama and Florida has cemented monuments as physical representations of government speech that municipal governments cannot speak on. To understand the confounding ways that doctrinal principles take on inverse implications, this Article draws on the concept of antimatter in physics—matter that has the same mass and properties of ordinary matter but with the opposite charge—to analyze doctrinal intersections of constitutional law that are made to …

Policing Protest: Speech, Space, Crime, And The Jury, Jenny E. Carroll

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Speech is more than just an individual right-it can serve as a catalyst for democratically driven revolution and reform, particularly for minority or marginalized positions. In the past decade, the nation has experienced a rise in mass protests. However, dissent and disobedience in the form of such protests is not without consequences. While the First Amendment promises broad rights of speech and assembly, these rights are not absolute. Criminal law regularly curtails such rights - either by directly regulating speech as speech or by imposing incidental burdens on speech as it seeks to promote other state interests. This Feature examines …

Unprecedented Precedent And Original Originalism: How The Supreme Court’S Decision In Dobbs Threatens Privacy And Free Speech Rights, Leonard Niehoff

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The U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has drawn considerable attention because of its reversal of Roe v. Wade and its rejection of a woman’s constitutional right to terminate her pregnancy. The Dobbs majority, and some of the concurring opinions, emphasized that the ruling was a narrow one. Nevertheless, there are reasons to think the influence of Dobbs may extend far beyond the specific constitutional issue the case addresses.

This article explains why Dobbs could have significant and unanticipated implications for the law of privacy and the law of free expression. I argue that two …

Terrible Freedom, Ambiguous Authenticity, And The Pragmatism Of The Endangered: Why Free Speech In Law School Gets Complicated, Leonard M. Niehoff

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We idealize colleges and universities as places of unfettered inquiry, where freedom of expression flourishes. The Supreme Court has described the university classroom as “peculiarly the ‘marketplace of ideas.’” It declared: “The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, [rather] than through any kind of authoritative selection.” The exchange of competing ideas takes place not only in classrooms, but also in public spaces, dormitories, student organizations, and in countless other campus contexts.

Trademarks And Censorship In The Time Of Covid-19, Xuan-Thao Nguyen

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During the devastating year of 2020, China quickly conquered the novel coronavirus and roared back economically while the United States faced staggering deaths and economic losses. But underneath the divergent experience of the two countries is an untold story of trademark and censorship in the time of COVID-19. This Article observes that while the United States Supreme Court has lifted the ban on trademark registrations for unconstitutional viewpoint discrimination, opening the door for offensive COVID-19 trademark applications, China has transformed trademark law into the law for censorship as Chinese authorities press forward to achieve twin victories over the coronavirus and …

Juridical Discourse For Platforms, Thomas E. Kadri

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Facebook founder Mark Zuckerberg has created a private "Supreme Court," or so he says. Since 2021, his company's Oversight Board has issued verdicts on a smattering of Facebook's decisions about online speech. Cynics frame the Board as a Potemkin village, but defenders invoke analogies to separation of powers to claim that this new body empowers the public and restrains the company. Some are even calling for a single "platform supreme court" to rule over the entire industry.

Juridical discourse for platforms is powerful, but it can also be deceptive. This Response explores how juridical discourse has legitimized and empowered Facebook's …

Democracy Harms And The First Amendment, Deborah Pearlstein

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The First Amendment tolerates—has long tolerated—the regulation of certain kinds of false speech. Indeed, regulable lies are not limited to traditionally less-protected categories of speech like defamation and commercial deception. They include an array of other established speech regulations, administered by government institutions every day, from criminal laws barring perjury and other lies to government officials, to disciplinary measures by elected bodies sanctioning members for false or otherwise objectionable speech. Yet while it is easy to identify the kinds of lies that existing doctrinal categories make regulable for the personal, physical, or reputational harms they inflict on individuals¸ it has …

Freedom From Speech, Mary Anne Franks

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The importance of freedom of speech in a democratic society is usually taken as a given, but freedom from speech is no less important in safeguarding the values of truth, autonomy, and democracy. Freedom from speech includes both the right of the individual to not be forced to speak and the freedom to avoid the speech of others. This essay attempts to highlight the significance of freedom from speech in order to clarify the importance of the First Amendment right against compelled speech; provide an explanation for when the right of free speech yields to other rights; and offer a …

Afterword: Latcrit At Twenty-Five And Beyond, Part Ii - Challenges And/As Opportunities: Centering "Hybridized" Advocacy Projects In Antisubordination Praxis To Connect Campuses And Communities For Material Long-Term Progress, Francisco Valdes, Steven W. Bender, Jennifer J. Hill

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No abstract provided.

The Pledge Of Allegiance And Compelled Speech Revisited: Requiring Parental Consent, Caroline Mala Corbin

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Since the Supreme Court decided West Virginia State Board of Education v. Barnette in 1943, free speech law has been clear: public schools may not force students to recite the Pledge of Allegiance. Nevertheless, in two states -Texas and Florida- students may decline to participate only with parental permission. The Eleventh Circuit Court of Appeals upheld the law on the grounds that the parental requirement furthered parents' substantive due process right to control the upbringing of their children.

The Eleventh Circuit decision is flawed both in its understanding of the First Amendment right to be free of compelled speech and …

Campaign Finance Reform, Union Dues, And The First Amendment: The Collision Of Politics And Rights, Mark Adams

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No abstract provided.