First Amendment Commons^™

Constitutional Moral Hazard And Campus Speech, Jamal Greene

Faculty Scholarship

One underappreciated cost of constitutional rights enforcement is moral hazard. In economics, moral hazard refers to the increased propensity of insured individuals to engage in costly behavior. This Essay concerns what I call “constitutional moral hazard,” defined as the use of constitutional rights (or their conspicuous absence) to shield potentially destructive behavior from moral or pragmatic assessment. What I have in mind here is not simply the risk that people will make poor decisions when they have a right to do so, but that people may, at times, make poor decisions because they have a right. Moral hazard is not …

Global Platform Governance: Private Power In The Shadow Of The State, Hannah Bloch-Wehba

Faculty Scholarship

Online intermediaries—search engines, social media platforms, even e-commerce businesses—are increasingly required to make critical decisions about free expression, individual privacy, and property rights under domestic law. These requirements arise in contexts that include the right to be forgotten, hate speech, “terrorist” speech, and copyright and intellectual property. At the same time, these disputes about online speech are increasingly borderless. Many laws targeting online speech and privacy are explicitly extraterritorial in scope. Even when not, some courts have ruled that they have jurisdiction to enforce compliance on a global scale. And governments are also demanding that platforms remove content—on a global …

Of Bee Stings, Mud Pies, And Outhouses: Exploring The Value Of Satire Through The Theory Of Useful Untruths, Leonard M. Niehoff

Other Publications

In this article, I attempt to fill this conceptual gap within Hustler by offering a theory of how satire functions and why it has a distinctively important place in our public discourse. That theory draws on the work of philosophers like Kwame Anthony Appiah, Hans Vaihinger, Kendall Walton, and Lon Fuller, who have discussed the concept of “useful untruths”—lines of thought where we proceed as if something we know to be false is in fact true, because doing so serves a useful and valuable purpose. In my view, the philosophy of useful untruths can help us understand the complexity of …

The Invention Of First Amendment Federalism, Jud Campbell

Law Faculty Publications

When insisting that the Sedition Act of 1798 violated the First Amendment, Jeffersonian Republicans cast their argument in historical terms, claiming that the Speech and Press Clauses eliminated any federal power to restrict expression. Scholars, in turn, have generally accepted that Republicans had a consistent understanding of the First Amendment throughout the 1790s. But Founding Era constitutionalism was dynamic in practice, even while often conservative in rhetoric, and scholars have missed the striking novelty of the principal argument against the Sedition Act. Republicans had taken a rights provision and transformed it into a federalism rule.

Mostly ignored in the literature, …

Regulating Bot Speech, Madeline Lamo, Ryan Calo

Articles

We live in a world of artificial speakers with real impact. So-called “bots” foment political strife, skew online discourse, and manipulate the marketplace. Concerns over bot speech have led prominent figures in the world of technology to call for regulations in response to the unique threats bots pose. Recently, legislators have begun to heed these calls, drafting laws that would require online bots to clearly indicate that they are not human.

This work is the first to consider how efforts to regulate bots might run afoul of the First Amendment. At first blush, requiring a bot to self-disclose raises little …

Legislator-Led Prayer: A Harmless Historical Tradition Or An Unconstitutional Establishment Of Religion?, Krista Ellis

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Paypal Or Plastic, Don't Matter The Court Won't Have It: Why The Case For Removing "In God We Trust" From The Dollar May Still Gain Traction Under The Religious Freedom Restoration Act, Olivia Firmand

American University Journal of Gender, Social Policy & the Law

No abstract provided.

The Right To Be An Asshole: The Need For Increased First Amendment Public Employment Protections In The Age Of Social Media, Alexis Martinez

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Examining The Unconstitutionality Of Dilution By Tarnishment After Tam, Ryder Hogan

American University Journal of Gender, Social Policy & the Law

No abstract provided.

God Is A Woman: Feminism As A Religion Protected Under The Free Exercise Clause Of The First Amendment, Lalita Moskowitz

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Tweeting With A Purpose: Interpreting "Corrupt Persuasion" In 18 U.S.C. § 1512(B), Jessica Ochoa

American University Journal of Gender, Social Policy & the Law

No abstract provided.

The Case Against Expanding Defamation Law, Yonathan A. Arbel, Murat Mungan

Articles

It is considered axiomatic that defamation law protects reputation. This proposition--commonsensical, pervasive, and influential-- is faulty. Underlying this fallacy is the failure to appreciate audience effects: the interaction between defamation law and members of the audience.

Defamation law seeks to affect the behavior of speakers by making them bear a cost for spreading untruthful information. Invariably, however, the law will also affect members of the audience, as statements made in a highly regulated environment tend to appear more reliable than statements made without accountability. Strict defamation law would tend to increase the perceived reliability of statements, which in some cases …

Born In Dissent: Free Speech And Gay Rights, Dale Carpenter

SMU Law Review

It is no stretch to say that Justice Oliver Wendell Holmes created the modern First Amendment a hundred years ago in his opinions in Schenck and Abrams. It is equally true that the First Amendment created gay America. For advocates of gay legal and social equality, there has been no more reliable and important constitutional text. The freedoms it guarantees protected gay cultural and political institutions from state regulation designed to impose a contrary vision of the good life. Gay organizations, clubs, bars, politicians, journals, newspapers, radio programs, television shows, web sites—all of these—would have been swept away in …

Free Speech And Justified True Belief, Joseph Blocher

Faculty Scholarship

Law often prioritizes justified true beliefs. Evidence, even if probative and correct, must have a proper foundation. Expert witness testimony must be the product of reliable principles and methods. Prosecutors are not permitted to trick juries into convicting a defendant, even if that defendant is truly guilty. Judges’ reasons, and not just the correctness of their holdings, are the engines of precedent. Lawyers are, in short, familiar with the notion that one must be right for the right reasons.

And yet the standard epistemic theory of the First Amendment—that the marketplace of ideas is the “best test of truth”—has generally …

Doctrinal Dynamism, Borrowing, And The Relationship Between Rules And Rights, Joseph Blocher, Luke Morgan

Faculty Scholarship

The study of "Rights Dynamism," exemplified in Timothy Zick' s new book on the First Amendment's relationship with the rest of the Bill of Rights, can enrich our understanding of constitutional rights. It also opens a door to another potentially fruitful arena: what we call "Doctrinal Dynamism." Constitutional rights often interact and generate new meanings and applications by way of importing and exporting one another's doctrinal rules, even when the rights themselves do not intersect directly in the context of a single case. Focusing on these doctrinal exchanges can illuminate the strengths and weaknesses of various rules, the specific interests …

Who Tells Your Story: The Legality Of And Shift In Racial Preferences Within Casting Practices, Nicole Ligon

Faculty Scholarship

Expressing racial preferences in casting calls and hiring practices is nothing new. Producers of television shows, movies, and Broadway musicals have regularly and explicitly sought to hire actors and actresses with certain physical characteristics, including race, in casting their productions. And, given that the industry seemingly accepted this standard when it favored white talent, the public heard little about it. To the extent controversy arose, courts quelled concerns in a swift and easy fashion, without consideration of the societal harms or impacts that stereotyped or limited portrayals of minorities in entertainment could have on the public’s perception of people of …

Taking Data, Michael C. Pollack

Articles

Technological development has created new forms of information, altered expectations of privacy, and given law enforcement more tools to examine that information and intrude on that privacy. One crucial facet of these changes involves internet service providers (ISPs): as people expose more of their lives to their ISPs—all the websites they visit, people they communicate with, emails they send, files they store, and more—law enforcement efforts to access that data become more and more common. But scholars and policymakers alike recognize that the existing statutory frameworks governing those efforts are based on obsolete technology and strike balances that are difficult …

Intermediaries And Private Speech Regulation: A Transatlantic Dialogue - Workshop Report, Tiffany Li

Faculty Scholarship

The Wikimedia/Yale Law School Initiative on Intermediaries and Information (WIII) at Yale Law School has released a comprehensive report synthesizing key insights from intermediary liability and online speech and expression experts in Europe and the United States.

The report focuses on the critical but complicated issue of private speech regulation on the internet and the connections between platform liability laws and fundamental rights, including free expression. The report reflects discussions held at “Intermediaries & Private Speech Regulation: A Transatlantic Dialogue,” an invitation-only workshop convened by WIII, featuring leading internet law experts from the United States and Europe.

This report highlights …

The Upside Of Deep Fakes, Jessica Silbey, Woodrow Hartzog

Faculty Scholarship

It’s bad. We know. The dawn of “deep fakes” — convincing videos and images of people doing things they never did or said — puts us all in jeopardy in several different ways. Professors Bobby Chesney and Danielle Citron have noted that now “false claims — even preposterous ones — can be peddled with unprecedented success today thanks to a combination of social media ubiquity and virality, cognitive biases, filter bubbles, and group polarization.” The scholars identify a host of harms from deep fakes, ranging from people being exploited, extorted, and sabotaged, to societal harms like the erosion of democratic …

Digitizing Brandenburg: Common Law Drift Toward A Causal Theory Of Imminence, J. Remy Green

Faculty Scholarship

The Supreme Court’s Brandenburg v. Ohio test provides an exception to the First Amendment’s broad guarantee of freedom of speech. Where speech is (1) directed to inciting or producing imminent lawless action, and (2) is likely to incite or produce such action, the First Amendment withdraws its promise of protection. Thus, where the “imminence” of lawless action cannot be shown, free speech cannot be restricted. Since Brandenburg, Courts have applied a test for imminence that turns on proximity in space and in time — that is, the test evaluates how spatiotemporally imminent lawless activity is. In this Article, I argue …

Let All Voters Vote: Independents And The Expansion Of Voting Rights In The United States, Jeremy Gruber, Michael A. Hardy, Harry Kresky

Touro Law Review

No abstract provided.

A Skeptical View Of Information Fiduciaries, Lina M. Khan, David E. Pozen

Faculty Scholarship

The concept of “information fiduciaries” has surged to the forefront of debates on online-platform regulation. Developed by Professor Jack Balkin, the concept is meant to rebalance the relationship between ordinary individuals and the digital companies that accumulate, analyze, and sell their personal data for profit. Just as the law imposes special duties of care, confidentiality, and loyalty on doctors, lawyers, and accountants vis-à-vis their patients and clients, Balkin argues, so too should it impose special duties on corporations such as Facebook, Google, and Twitter vis-à-vis their end users. Over the past several years, this argument has garnered remarkably broad support …

Holmes, Humility, And How Not To Kill Each Other, John D. Inazu

Scholarship@WashULaw

Oliver Wendell Holmes’s dissent in Abrams v. United States is one of the intellectual anchors of modern First Amendment doctrine. In the century since Abrams, we have witnessed changes in society, technology, and politics that have shaped and reshaped the contours of our First Amendment landscape. But not everything has changed — some aspects of our human experience remain remarkably similar to the context in which Holmes wrote. One unchanged aspect of the human condition is our inability to know with certainty. Confronted with this reality in his own day, Holmes at times gestured toward a foundationless relativism. But even …

Speech And Exercise By Private Individuals And Organizations, Kent Greenawalt

Faculty Scholarship

A central issue about redundancy concerns how far the exercise of religion is simply a form of speech that is, and should be, constitutionally protected only to the extent that reaches speech generally. Insofar as a constitutional analysis leaves flexibility, we have questions about wise legislative choices. To consider these issues carefully, we need to have a sense of what counts as relevant speech and the exercise of religion. That is the focus of this article.

It addresses the basic categorization of what counts as “speech” for freedom of speech and what counts as religious exercise when each is engaged …

When Audiences Object: Free Speech And Campus Speaker Protests Articles & Essays, Gregory P. Magarian

Scholarship@WashULaw

In March 2017, conservative author Charles Murray arrived to speak at Middlebury College in Vermont, invited by a student affiliate of the American Enterprise Institute. Murray planned to discuss his 2013 book, Coming Apart: The State of White America, 1960-2010. Many Middlebury students and faculty, however, deplored Murray for an earlier book, 1994’s The Bell Curve, where he drew specious connections between race and intelligence. Others simply considered Murray an intellectual lightweight who didn’t warrant a speaking slot at the prestigious college. Murray’s critics objected to the Political Science Department’s co-sponsorship of his ppearance and the college president’s plan to …

Political And Non-Political Speech And Guns, Gregory P. Magarian

Scholarship@WashULaw

Constitutional rights depend on justifications. Some combination of theory, his- tory, and practical reasoning needs to establish why and to what extent a given right warrants legal protection. The justifications that courts and theorists articulate for a given right determine the right’s breadth and the specific contours of its protection. Justification has particular importance at the formative stage of a newly recognized constitutional right. At present, courts are building doctrine around the Second Amendment “right of the people to keep and bear Arms,”1 recognized as an individ- ual right just over a decade ago in District of Columbia v. Heller.2 …

Data-Driven Constitutional Avoidance, Gregory P. Magarian, Lee Epstein, James L. Gibson

Scholarship@WashULaw

This article uses a case study to explain how empirical analysis can promote judicial modesty. In Matal v. Tam, the U.S. Supreme Court invoked the First Amendment to strike down the Lanham Act's bar on federal registration of "disparaging" trademarks. The Tam decision has great constitutional significance. It expands First Amendment coverage into a new field of economic regulation, and it deepens the constitutional prohibition on viewpoint-based speech regulations. This article contends that empirical analysis could have given the Court a narrower basis for the Tam result, one that would have avoided the fraught First Amendment issues the Court decided. …

Janus's Two Faces, Kate Andrias

Faculty Scholarship

In ancient Roman religion and myth, Janus is the god of beginnings, transitions, and endings. He is often depicted as having two faces, one looking to the future and one to the past. The Supreme Court’s Janus v AFSCME case of last Term is fittingly named.Stunning in its disregard of principles of stare decisis, Janus overruled the forty-year-old precedent Abood v Detroit Board of Education.The Janus decision marks the end of the post – New Deal compromise with respect to public sector unions and the First Amendment. Looking to the future, Janus lays the groundwork for further attack on …

Commercial Speech Protection As Consumer Protection, Felix T. Wu

Articles

The Supreme Court has long said that “the extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides.” In other words, consumers—the recipients or listeners of commercial speech—are the ones the doctrine is meant to protect. In previous work, I explored the implications of taking this view seriously in three contexts: compelled speech, speech among commercial entities, and unwanted marketing. In each of those contexts, adopting a listener-oriented approach leads to the conclusion that many forms of commercial speech regulation should receive far less First Amendment scrutiny than …

Pursuing A Universal Threshold For Regulating Incitement To Discrimination, Hostility Or Violence, Rebecca Meyer

Brooklyn Journal of International Law

The International Covenant on Civil and Political Rights (ICCPR) recognizes that although the right to freedom of expression is essential, it is not absolute. The ICCPR prohibits speech that incites to discrimination, hostility, or violence. The provision prohibiting such speech is important to protect individuals and communities. Yet, not all countries are adequately enforcing its mandate. Such countries are letting inciting speech spread and, in some instances, violence has ensued. Conversely, some countries are taking enforcement too far, using the criminalization of inciting speech as a tool to silence political dissent. In light of the divergent interpretations—each problematic in its …