First Amendment Commons^™

The Private Abridgment Of Free Speech, Erin L. Miller

William & Mary Bill of Rights Journal

This Article challenges the orthodoxy that First Amendment speech rights can bind only the state. I argue that the primary justification for the freedom of speech is to protect fundamental interests like autonomy, democracy, and knowledge from the kind of extraordinary power over speech available to the state. If so, this justification applies with nearly equal force to any private agents with power over speech rivaling that of the state. Such a class of private agents, which I call quasi-state agents, turns out to be a live possibility once we recognize that state power is more limited than it seems …

Government Counterspeech, Jamal Greene

Faculty Scholarship

We are awash in lies. Misinformation has always been with us, but the endemicity of social media and the depth of political polarization in the United States and elsewhere has enabled falsehoods to be amplified, monetized, microtargeted, and spread around the world at unprecedented speed and scale. The consequences for democracy, public health, and social harmony are emergent and grave.

Misinformation presents one of the most vexing challenges for content moderation on social media (and off it, such as on cable news) for myriad reasons. Because misinformation can be difficult or controversial to define, policing it risks chilling core political …

The Volokh Briefs: Drawing The Line Against Compelled Speech In Public Accommodations, Dale Carpenter

Faculty Journal Articles and Book Chapters

In a series of important amicus briefs (the “Volokh Briefs”) filed over the course of about a decade, Professor Eugene Volokh was the principal architect of an argument for protecting expressive goods and services offered for sale the commercial marketplace.  This free speech protection would override certain applications of state antidiscrimination law.

The argument bore fruit in 303 Creative v. Elenis (2023), which held that under the First Amendment’s Free Speech Clause the state could not force a designer to fashion websites incorporating the designer’s customized text and graphics for the celebration of same-sex weddings. As Volokh and others urged, …

Trademarking Hate Speech: The Dangers Of Inconsistency In The Federal Trademark Registration Process, Michaela A. Giuggio

Lewis & Clark Law Review

In 2017, the United States Supreme Court decided in Matal v. Tam that the Lanham Act’s prohibitions on disparaging trademarks violated the First Amendment of the Constitution. Two years later, it decided in Iancu v. Brunetti that prohibitions on “immoral or scandalous” marks were similarly unconstitutional. In the wake of these decisions, and at a time when hate speech is surging in the United States, this Comment seeks to address the danger of the USPTO’s approach to federal trademark registration. Part I uses the example of the WHITE LIVES MATTER mark to introduce the problems that arise in this new, …

Courting Censorship, Philip A. Hamburger

Faculty Scholarship

Has Supreme Court doctrine invited censorship? Not deliberately, of course. Still, it must be asked whether current doctrine has courted censorship — in the same way one might speak of it courting disaster.

The Court has repeatedly declared its devotion to the freedom of speech, so the suggestion that its doctrines have failed to block censorship may seem surprising. The Court’s precedents, however, have left room for government suppression, even to the point of seeming to legitimize it.

This Article is especially critical of the state action doctrine best known from Blum v. Yaretsky. That doctrine mistakenly elevates coercion …

The Public’S Companies, Andrew K. Jennings

Fordham Journal of Corporate & Financial Law

This Essay uses a series of survey studies to consider how public understandings of public and private companies map into urgent debates over the role of the corporation in American society. Does a social-media company, for example, owe it to its users to follow the free-speech principles embodied in the First Amendment? May corporate managers pursue environmental, social, and governance (“ESG”) policies that could reduce short-term or long-term profits? How should companies respond to political pushback against their approaches to free expression or ESG?

The studies’ results are consistent with understandings that both public and private companies have greater public …

Unifying Concepts: Critical Race Theory, Academic Freedom Of Speech, And Democracy, Jasmine Gonzales Rose

BU Law Presentations

Poster for Jasmine Gonzales Rose's 2023 University lecture.

For Freedom Or Full Of It? State Attempts To Silence Social Media, Grace Slicklen

University of Miami Law Review

Freedom of speech is, unsurprisingly, foundational to the “land of the free.” However, the “land of the free” has undergone some changes since the First Amendment’s ratification. Unprecedented technological evolution has ushered in a digital forum in which the volume, speed, and reach of words transcend the Framers’ visions of the First Amendment’s aims. Social media platforms have become central spaces for public discourse, where opportunities to create—and repress—speech are endless. From enabling individuals to freely express their views, to allowing state actors to limit open exchanges, it is about time that the Supreme Court tackles this complex issue of …

Disrupting The Narrative: Diving Deeper Into Section 230 Political Discourse, Koustubh “K.J.” Bagchi, Elizabeth Banker, Ife Ogunleye

Pepperdine Law Review

Online spaces have undoubtedly played a significant role in facilitating discourse and the exchange of information. With this increased discourse, however, digital platforms have also seen a rise in harmful or problematic content shared online––including health misinformation, hate speech, and child sex abuse material, among others. Many commentators have put the blame for this trend on Section 230, arguing that Section 230 has enabled the spread of harmful content and suggesting that Section 230 ought to be amended or replaced. This Essay, by contrast, argues that the current narrative about Section 230 gets it wrong. In reality, Section 230 has …

The Mindful First Amendment, Gary Myers

Faculty Publications

The mindfulness movement has begun to play an expanding role in personal well-being and in society more generally. Although there is an active push for mindfulness in law, its primary focus is on ways in which mindfulness techniques can help lawyers in their personal and professional lives. This article explores the possible contributions of mindfulness to the widely recognized challenges facing freedom of speech and freedom of the press in an era of severe cultural and political polarization.

Disinformation And The First Amendment: Fraud On The Public, Wes Henricksen

St. John's Law Review

(Excerpt)

Following the 2020 presidential election, the losing candidate, Donald Trump, along with most of the Republican Party, spread the false claim that the election had been stolen by Democrats. Joe Biden, so the claim went, had not been legitimately elected, and was therefore an illegitimate President and needed to be removed. This profitable falsehood6 became known as the “Big Lie.” It was not only baseless, but it was in fact made in spite of and in direct conflict with the overwhelming evidence debunking it. This did not stop people from believing it. Millions bought into the Big Lie, which …

Nft For Eternity, Hadar Y. Jabotinsky, Michal Lavi

University of Michigan Journal of Law Reform

Non-fungible tokens (NFTs) are unique tokens stored on a digital ledger – the blockchain. They are meant to represent unique, non-interchangeable digital assets, as there is only one token with that exact data. Moreover, the information attached to the token cannot be altered as on a regular database. While copies of these digital items are available to all, NFTs are tracked on blockchains to provide the owner with proof of ownership. This possibility of buying and owning digital assets can be attractive to many individuals.

NFTs are presently at the stage of early adoption and their uses are expanding. In …

Raising The Threshold For Trademark Infringement To Protect Free Expression, Christine Haight Farley, Lisa P. Ramsey

American University Law Review

The First Amendment right to free speech limits the scope of rights in trademark law. Congress and the courts have devised various defenses and common law doctrines to ensure that protected speech is exempted from trademark infringement liability. These defensive trademark doctrines, however, are narrow and often vary by jurisdiction. One current example is the speechprotective test first articulated by the Second Circuit in Rogers v. Grimaldi, expanded by the Ninth Circuit, and recently restricted by the Supreme Court in Jack Daniel’s Properties v. VIP Products to uses of another’s mark within an expressive work that do not designate the …

A Pleasure To Burn: How First Amendment Jurisprudence On Book Banning Bolsters White Supremacy, Amy Anderson

Mitchell Hamline Law Review

No abstract provided.

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

Articles

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.

Autonomy And Disciplinarity: Can Pseudoprofessional Speakers Select Their Own Constitutional Categorization?, Joseph Blocher

Faculty Scholarship

No abstract provided.

Incitement And Social Media-Algorithmic Speech: Redefining Brandenburg For A Different Kind Of Speech, Anna Rhoads

William & Mary Law Review

Assuming that these scholars are correct and that social media algorithms’ decisions qualify as speech to which the First Amendment applies (social media-algorithmic speech), this Note proposes a legal solution to the increasing problem of violence stemming from social media. This Note asserts that the incitement standard for social media-algorithmic speech should be less stringent because the Brandenburg standard does not apply well to new media, social media-algorithmic speech is much more likely than other speech to actually produce lawless action, and the traditional First Amendment justifications do not apply to social media algorithms’ speech. Therefore, the Supreme Court should …

Consider Freedom Of Speech: Perspectives On How To Hold Difficult Conversations With Respect, Vivian E. Hamilton, Andrew D. Stelljes

Popular Media

No abstract provided.

Fighting Words Today, R. George Wright

Pepperdine Law Review

For some time, the familiar free speech exception known as the “fighting words” doctrine has been subject to severe judicial and scholarly critique. It turns out, though, that the fighting words doctrine, in general, is neither obsolete nor in need of radical limitation. The traditionally neglected “inflict injury” prong of the fighting words doctrine can and should be vitalized, with only a minimal loss, if not an actual net gain, in promoting the basic purposes of freedom of speech in the first place. And the “reactive violence” prong can and should be relieved of its historic biases and dubious assumptions. …

Republication Liability On The Web, Jeffrey Standen

Marquette Law Review

The tort of defamation evolved in an era where defamatory speech was published in books, magazines, newspapers, or other printed documents. The doctrines that are antecedent to the tort, such as publication, fault, defamation per se, presumed damages, and republication liability, similarly presumed that most defamation would appear in written form in a published work. Similarly, the significant limitations on defamation liability that were produced by a succession of Supreme Court constitutional precedent, including restrictions on prior restraint, heightened fault standards, expanded “public” classes, the “fact/opinion” dichotomy, and the “truth/substantial truth” burden shifting, also were based on a publishing world …

The Coddling Of The American Worker's Mind: The Anti-Free Speech Nature Of Popular Labor Law Reforms, Daniel V. Johns

William & Mary Bill of Rights Journal

As the nation enters an era in which a new presidential administration will likely push such labor law reforms, it is worth considering whether transparently anti-free speech reform measures make sense for the future of labor policy and law. This Article argues that they do not. Because employee free choice is furthered, not diminished, by hearing both sides of an issue, American workers should have the opportunity to hear and evaluate employer speech in the course of union campaigns. Only then can employees make an informed decision about their workplace future. In the end, freedom of speech furthers employee freedom …

Searching For Truth In The First Amendment's True Threat Doctrine, Renee Griffin

Michigan Law Review

Threats of violence, even when not actually carried out, can inflict real damage. As such, state and federal laws criminalize threats in a wide range of circumstances. But threats are also speech, and free speech is broadly protected by the First Amendment. The criminalization of threats is nonetheless possible because of Supreme Court precedents denying First Amendment protection to “true threats.” Yet a crucial question remains unanswered: What counts as a true threat?

This Note examines courts’ attempts to answer this question and identifies the many ambiguities that have resulted from those attempts. In particular, this piece highlights three frontiers …

Constitutional Rights As Human Rights: Freedom Of Speech, Equal Protection, And The Right Of Privacy, Michael J. Perry

Faculty Articles

Much of my recent scholarly work has addressed questions concerning the political morality - the global political morality of human rights. This essay continues in that vein; I focus on a relationship I began to discuss almost forty years ago, in my first book: the relationship between (some) constitutional rights and (some) human rights. My overarching claim here: There is a significant interface between the constitutional law of the United States and the political morality of human rights. My principal aim in this Essay is to defend (and illustrate) that broad claim by defending three narrower claims:

1. The constitutional …

Restating The "F" Word: The Cursing Cheerleader, The First Amendment, And Proximate Cause, Don Corbett

University of San Francisco Law Review

No abstract provided.

The Everyday First Amendment, Leonard M. Niehoff, Thomas Sullivan

Articles

On June 26 and June 27, 2019, some twenty contenders for the Democratic nomination for President of the United States participated in two evenings of political debate. The outsized group included Rep. Tulsi Gabbard of Hawaii, who was struggling to gain traction with voters. Shortly after the debate, while many viewers were conducting online searches to learn more about the candidates, Google temporarily suspended her campaign’s advertising account.

Google claimed that the interruption occurred because an automated system flagged unusual activity on the account. But Gabbard did not accept this explanation; she believed that Google deliberately had tried to undermine …

Education Is Speech: Parental Free Speech In Education, Philip A. Hamburger

Faculty Scholarship

Education is speech. This simple point is profoundly important. Yet it rarely gets attention in the First Amendment and education scholarship.

Among the implications are those for public schools. All the states require parents to educate their minor children and at the same time offer parents educational support in the form of state schooling. States thereby press parents to take government educational speech in place of their own. Under both the federal and state speech guarantees, states cannot pressure parents, either directly or through conditions, to give up their own educational speech, let alone substitute state educational speech. This abridges …

Protecting Women's Voices: Preventing Retaliatory Defamation Claims In The #Metoo Context, Nicole Ligon

Faculty Scholarship

No abstract provided.

Manipulation And The First Amendment, Helen Norton

William & Mary Bill of Rights Journal

This Article examines new conceptual tools for understanding manipulation and its harms. More specifically, Part I draws from ethicists' insights to explain how manipulation can inflict harms distinct from those imposed by coercion and deception, and to explain why addressing these distinct harms is a government interest sufficiently strong to justify appropriately tailored interventions.

Part II explores how these conceptual tools also help us understand when, how, and why government can regulate manipulation consistent with the First Amendment. As a threshold matter, note that manipulative online interfaces and related design choices may be better understood as conduct, rather than speech …

A “License To Kale”—Free Speech Challenges To Occupational Licensing Of Nutrition And Dietetics, Taylor J. Newman, Angela E. Surrett

St. Mary's Law Journal

State licensing of medical professions has occurred for over a century. Recently, these licensure statutes have been subject to First Amendment challenges, alleging occupational licensure impermissibly restricts freedom of speech. This Comment addresses these free speech challenges, arguing occupational licensure statutes, at least for medical professions, only incidentally impacts free speech—if at all—by permissibly regulating medical professional conduct necessarily requiring speech. Within, the authors ultimately describe, demonstrate, and recommend a legal framework, the other factor/personal nexus approach. This approach helps determine the point at which speech becomes regulable professional conduct subject to licensing, utilizing the nutrition and dietetics profession, and …

Freedom Of Thought In The United States: The First Amendment, Marketplaces Of Ideas, And The Internet, John G. Francis, Leslie Francis

Utah Law Faculty Scholarship

Freedom of thought is not directly protected as a right in the United States. Instead, US First Amendment law protects a range of rights that may allow thoughts to be expressed. Freedom of speech has been granted especially robust protection. US courts have extended this protection to a wide range of commercial activities judged to have expressive content. In protecting these rights, US jurisprudence frequently relies on the image of the marketplace of ideas as furthering the search for truth. This commercial image, however, has increasingly detached expressive rights from the understanding of freedom of thought as a critical forum …