First Amendment Commons^™

Gag Clauses And The Right To Gripe: The Consumer Review Fairness Act Of 2016 & State Efforts To Protect Online Reviews From Contractual Censorship, Clay Calvert

UF Law Faculty Publications

This article examines new legislation, including the federal Consumer Review Fairness Act, signed into law in December 2016, targeting non-disparagement clauses in consumer contracts. Such “gag clauses” typically prohibit or punish the posting of negative reviews of businesses on websites, such as Yelp and TripAdvisor. This article asserts that state and federal statutes provide the best means, from a pro-free-expression perspective, of attacking such clauses, given the disturbingly real possibility that the First Amendment has no bearing on contractual obligations between private parties.

Filtering Fake News Through A Lens Of Supreme Court Observations And Adages, Clay Calvert, Austin Vining

UF Law Faculty Publications

This Essay analyzes multiple issues affecting fake news. It does so through a prism of seven observations by the U.S. Supreme Court concerning the First Amendment, free speech, and other matters. The Court's wisdom in these quotations provides propitious points of entree for exploring how to address and remedy problems many fear fake news causes. The Essay concludes that because fake news will never be eradicated from the metaphorical marketplace of ideas, greater effort must be spent making real news - fake news's constructive flipside - more appetizing to the public.

Beyond Headlines & Holdings: Exploring Some Less Obvious Ramifications Of The Supreme Court's 2017 Free-Speech Rulings, Clay Calvert

UF Law Faculty Publications

Digging behind the holdings, this Article analyzes less conspicuous, yet highly consequential aspects of the United States Supreme Court’s First Amendment rulings during the opening half of 2017. The four facets of the opinions addressed here— items both within individual cases and cutting across them—hold vast significance for future free-speech battles. Nuances of the justices’ splintering in Matal v. Tam, Packingham v. North Carolina, and Expressions Hair Design v. Schneiderman are examined, as is the immediate impact of Justice Anthony Kennedy’s Packingham dicta regarding online social networks. Furthermore, Justice Sonia Sotomayor’s solo concurrence in the threats case of …

Categorizing Student Speech, Alexander Tsesis

Faculty Publications & Other Works

No abstract provided.

Constitutional Law: Protecting Our Youth: A Necessary Limit On The First Amendment—State V. Muccio, Richard A. Podvin

Mitchell Hamline Law Review

No abstract provided.

The Formulary Fix Buries Fritz & Harvey: Drug Promotion Escapes Its Past Constraints, James T. O'Reilly

Washington and Lee Law Review

No abstract provided.

Reconciling The Lanham Act And The Fdca: A Comment On Chris Hurley’S Note, Christopher B. Seaman

Washington and Lee Law Review

No abstract provided.

What Did The First Amendment Originally Mean?, Jud Campbell

Law Faculty Publications

The First Amendment says that “Congress shall make no law … abridging the freedom of speech, or of the press.” For Americans, this language is familiar. But what exactly does it mean? How far do the speech and press clauses restrict governmental power? The founders, as we will see, answered these questions very differently than we typically do today. And the reasons why highlight fundamental shifts in American constitutional thought.

Robotic Speakers And Human Listeners, Helen Norton

Publications

In their new book, Robotica, Ron Collins and David Skover assert that we protect speech not so much because of its value to speakers but instead because of its affirmative value to listeners. If we assume that the First Amendment is largely, if not entirely, about serving listeners’ interests—in other words, that it’s listeners all the way down—what would a listener-centered approach to robotic speech require? This short symposium essay briefly discusses the complicated and sometimes even dark side of robotic speech from a listener-centered perspective.

Panel 1: Robotic Speech And The First Amendment, Bruce E. H. Johnson, Helen Norton, David Skover

Publications

Moderator: Professor Gregory Silverman.

Book discussed: Ronald L. Collins & David M. Skover, Robotica: Speech Rights and Artificial Intelligence (Cambridge Univ. Press 2018).

The First Queer Right, Scott Skinner-Thompson

Publications

Current legal disputes may lead one to believe that the greatest threat to LGBTQ rights is the First Amendment’s protections for speech, association, and religion, which are currently being mustered to challenge LGBTQ anti-discrimination protections. But underappreciated today is the role of free speech and free association in advancing the well-being of LGBTQ individuals, as explained in Professor Carlos Ball’s important new book, The First Amendment and LGBT Equality: A Contentious History. In many ways the First Amendment’s protections for free expression and association operated as what I label “the first queer right.”

Decades before the Supreme Court would …

Is It Bad Law To Believe A Politician? Campaign Speech And Discriminatory Intent, Shawn E. Fields

University of Richmond Law Review

No abstract provided.

The New Governors: The People, Rules And Processes Governing Online Speech, Kate Klonick

Faculty Publications

Private online platforms have an increasingly essential role in free speech and participation in democratic culture. But while it might appear that any internet user can publish freely and instantly online, many platforms actively curate the content posted by their users. How and why these platforms operate to moderate speech is largely opaque.

This Article provides the first analysis of what these platforms are actually doing to moderate online speech under a regulatory and First Amendment framework. Drawing from original interviews, archived materials, and internal documents, this Article describes how three major online platforms — Facebook, Twitter, and YouTube — …

Decisive Win For Lesbians In Oregon Cake Case, Arthur S. Leonard

Other Publications

No abstract provided.

Suing The President For First Amendment Violations, Sonja R. West

Scholarly Works

On any given day, it seems, President Donald Trump can be found attacking, threatening, or punishing the press and other individuals whose speech he dislikes. His actions, moreover, inevitably raise the question: Do any of these individuals or organizations (or any future ones) have a viable claim against the President for violating their First Amendment rights?

One might think that the ability to sue the President for violation of the First Amendment would be relatively settled. The answer, however, is not quite that straightforward. Due to several unique qualities about the First Amendment and the presidency, it is not entirely …

Remedies And The Government's Constitutionally Harmful Speech, Helen Norton

Publications

Although governments have engaged in expression from their inception, only recently have we begun to consider the ways in which the government’s speech sometimes threatens our constitutional rights. In my contribution to this symposium, I seek to show that although the search for constitutional remedies for the government’s harmful expression is challenging, it is far from futile. This search is also increasingly important at a time when the government’s expressive powers continue to grow—along with its willingness to use these powers for disturbing purposes and with troubling consequences.

More specifically, in certain circumstances, injunctive relief, declaratory relief, or damages can …

Government Lies And The Press Clause, Helen Norton

Publications

This essay considers a particular universe of potentially dangerous governmental falsehoods: the government's lies and misrepresentations about and to the press.

Government's efforts to regulate private speakers' lies clearly implicate the First Amendment, as many (but not all) of our own lies are protected by the Free Speech Clause. But because the government does not have First Amendment rights of its own when it speaks, the constitutional limits, if any, on the government's own lies are considerably less clear.

In earlier work I have explored in some detail the Free Speech and Due Process Clauses as possible constraints on certain …

Corporations As Conduits: A Cautionary Note About Regulating Hypotheticals, Douglas M. Spencer

Publications

No abstract provided.

(At Least) Thirteen Ways Of Looking At Election Lies, Helen Norton

Publications

Lies take many forms. Because lies vary so greatly in their motivations and consequences (among many other qualities), philosophers have long sought to catalog them to help make sense of their diversity and complexity. Legal scholars too have classified lies in various ways to explain why we punish some and protect others. This symposium essay offers yet another taxonomy of lies, focusing specifically on election lies — that is, lies told during or about elections. We can divide and describe election lies in a wide variety of ways: by speaker, by motive, by subject matter, by audience, by means of …

The Government's Manufacture Of Doubt, Helen Norton

Publications

“The manufacture of doubt” refers to a speaker’s strategic efforts to undermine factual assertions that threaten its self-interest. This strategy was perhaps most famously employed by the tobacco industry in its longstanding campaign to contest mounting medical evidence linking cigarettes to a wide range of health risks. At its best, the government’s speech can counter such efforts and protect the public interest, as exemplified by the Surgeon General’s groundbreaking 1964 report on the dangers of tobacco, a report that challenged the industry’s preferred narrative. But the government’s speech is not always so heroic, and governments themselves sometimes seek to manufacture …

No First Amendment Shield For Homophobic Prof, Arthur S. Leonard

Other Publications

No abstract provided.

When Should The First Amendment Protect Judges From Their Unethical Speech?, Lynne H. Rambo

Faculty Scholarship

Judges harm the judicial institution when they engage in inflammatory or overtly political extrajudicial speech. The judiciary can be effective only when it has the trust of the citizenry, and judicial statements of that sort render it impossible for citizens to see judges as neutral and contemplative arbiters. This lack of confidence would seem especially dangerous in times like these, when the citizenry is as polarized as it has ever been.

Ethical codes across the country (based on the Model Code of Judicial Conduct) prohibit judges from making these partisan, prejudicial or otherwise improper remarks. Any discipline can be undone, …

Playing Word Games With New York’S No Surcharge Law, Katie Coggins

Touro Law Review

No abstract provided.

Forward Into The Past: Speech Intermediaries In Television And Internet Ages Symposium: Falsehoods, Fake News, And The First Amendment: Panel 3: The Brave New World Of Free Speech, Gregory P. Magarian

Scholarship@WashULaw

Communication constructs society. By speaking to, with, and among one another, people and groups build relationships that allow us all to live more fully, understand the world better, and govern ourselves collectively. As societies grow, expression and engagement become more challenging. The presence of more ideas, larger and more diverse potential audiences, and more powerful and remote institutions threatens to reduce communication to a futile exercise. Whatever normative goals different people and groups may want public discourse to serve, pursuing those goals gets harder.

Transparency's Ideological Drift, David E. Pozen

Faculty Scholarship

In the formative periods of American "open government" law, the idea of transparency was linked with progressive politics. Advocates of transparency understood themselves to be promoting values such as bureaucratic rationality, social justice, and trust in public institutions. Transparency was meant to make government stronger and more egalitarian. In the twenty-first century, transparency is doing different work. Although a wide range of actors appeal to transparency in a wide range of contexts, the dominant strain in the policy discourse emphasizes its capacity to check administrative abuse, enhance private choice, and reduce other forms of regulation. Transparency is meant to make …

Free Speech And Generally Applicable Laws: A New Doctrinal Synthesis, Dan T. Coenen

Scholarly Works

A longstanding mystery of constitutional law concerns how the Free Speech Clause interacts with “generally applicable” legal restrictions. This Article develops a new conceptual framework for working through this puzzle. It does so by extracting from prior Supreme Court rulings an approach that divides these restrictions into three separate categories, each of which (at least presumptively) brings into play a different level of judicial scrutiny. An example of the first and most closely scrutinized category of generally applicable laws—that is, laws that place a “direct in effect” burden on speech—is provided by breach-of-the-peace statutes. These laws are generally applicable because …

Favoring The Press, Sonja R. West

Scholarly Works

In the 2010 case of Citizens United v. Federal Election Commission, the United States Supreme Court caught the nation’s attention by declaring that corporations have a First Amendment right to independently spend unlimited amounts of money in political campaigns. The Court rested its 5-4 decision in large part on a concept of speaker-based discrimination. In the Court’s words, “the Government may commit a constitutional wrong when by law it identifies certain preferred speakers.”

To drive home its point that speaker-based distinctions are inherently problematic, the Court focused on one type of speaker distinction — the treatment of news media corporations. …

Stop Defending Discrimination: Anti-Boycott, Divestment, And Sanctions* Statutes Are Fully Constitutional, Mark Goldfeder

Scholarly Works

No abstract provided.

Beyond The Bosses' Constitution: The First Amendment And Class Entrenchment, Jedediah S. Purdy

Faculty Scholarship

The Supreme Court’s “weaponized” First Amendment has been its strongest antiregulatory tool in recent decades, slashing campaign-finance regulation, public-sector union financing, and pharmaceutical regulation, and threatening a broader remit. Along with others, I have previously criticized these developments as a “new Lochnerism.” In this Essay, part of a Columbia Law Review Symposium, I press beyond these criticisms to diagnose the ideological outlook of these opinions and to propose an alternative. The leading decisions of the antiregulatory First Amendment often associate free speech with a vision of market efficiency; but, I argue, closer to their heart is antistatist fear of entrenchment …

The Purpose (And Limits) Of The University, John D. Inazu

Scholarship@WashULaw

Scholars of the university have written volumes about contemporary challenges to higher education. Meanwhile, legal scholars writing about the university have typically focused on its First Amendment dimensions rather than on those challenges. This Article links insights from these two groups of scholars to clarify and defend the purpose of the public university against growing technological, ideological, and cultural pressures. It argues that a better understanding of the relationship between the First Amendment and the public university can help strengthen the coherence of the university’s purpose against growing technological, ideological, and cultural pressures. The connection between the First Amendment and …