First Amendment News

First Amendment News 278: Special scholars’ issue on free speech — Tebbe, Volokh, Lakier, Post, Weinrib, Rabban, Blocher, Neuborne, Schauer, Weinstein, Waldron and others

November 18, 2020

This issue of First Amendment News highlights a rich array of legal scholarship on free speech ranging from equality and free speech to non-First Amendment free speech law, from the First Amendment and the right of publicity to eleven essays on Justice Holmes’s Abrams dissent, and seven forthcoming books.

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In a new, thoughtful, and provocative article in the Cornell Law Review, Professor Nelson Tebbe argues for a conception of the First Amendment “sensitive to distributive justice.” It is just the kind of scholarship that invites informed and robust discussion as exemplified in his video exchange with Professor Eugene Volokh (presented below).

Prof. Nelson TebbeProf. Nelson Tebbe

A burgeoning literature argues that First Amendment freedoms of speech and religion are serving a political economy that resists economic redistribution. This Article builds on that work by constructing a less regressive conception of freedom of speech and freedom of religion. Obstacles stand in way of that project, however. In constitutional theory, First Amendment freedoms, like other social and political rights, are taken to trump ordinary economic regulation. In liberal political theory, similarly, basic liberties are understood to have priority over policies that effectuate distributive justice. In sum, it is unclear whether and how any interpretation of free speech or free exercise could work to ameliorate, rather than worsen, economic inequality.

I argue that First Amendment freedoms can and should be interpreted in a manner that is sensitive to distributive justice in significant respects. What connects individual rights to economic redistribution is a robust conception of democracy. In brief, people who are suffering from deprivation and disadvantage will find it impossible to exercise the basic rights that are essential to the project of cooperative government. Without adequate primary goods, people may be unable to exercise their fundamental liberties, and their status in the political community may be degraded. No democracy can function well under those conditions, and every democracy must interpret religious liberty and freedom of speech in ways that respond in certain respects to the material circumstances of its people. Moreover, people have an obligation to support the political community, for instance by paying taxes.

In this Article, I specify exactly how the First Amendment should be interpreted in light of these considerations, and I illustrate the argument with concrete examples taken not only from the courts, but also from legislation and administrative regulation.

Related: A Dialogue: Free Speech and Inequality with Profs Volokh and Tebbe

Professors Nelson Tebbe (Cornell Law) and Eugene Volokh (UCLA Law) participated in a conversation regarding how and whether current applications of free speech doctrines affect disparities in income, wealth, and other goods; whether those applications should be altered; and the disagreements and controversies arising from some of the proposed changes.

This spirited—but friendly!—dive into one of the most important issues of our time was moderated by Texas Law Professor Steven Collis.

The event was sponsored by The Bech-Loughlin First Amendment Center at The University of Texas School of Law.

Lakier on non-First Amendment free speech law 

Prof. Genevieve LakierProf. Genevieve Lakier

The First Amendment dominates popular and scholarly debate about freedom of speech in the United States. Yet it is not the only legal instrument that protects expressive freedom, the rights of the institutional press, or the democratic values that these rights facilitate. A rich body of local, state, and federal laws also does so, and does so in ways the First Amendment does not.

This Article explores the history, and the present-day operation of what it calls the non-First Amendment law of freedom of speech. Doing so changes our understanding of both the past and the present of the American free speech tradition. It reveals that the nineteenth century was not a period in which there was little legal protection for freedom of speech, as scholars have long assumed. It also makes evident that the contemporary system of free expression is much more majoritarian, and much more pluralist in its conception of what freedom of speech means and requires than we commonly assume. Recognizing as much is important not only as a descriptive matter but as a doctrinal one. This is because in few other areas of constitutional law does the Court look more to history to guide its interpretation of the meaning of the right. And yet, the Court’s view of the relevant regulatory history is impoverished.

Missing from the Court’s understanding of freedom of speech is almost any recognition of the important non-constitutional mechanisms that legislators have traditionally used to promote it. The result is a deeply inconsistent body of First Amendment law that relies on a false view of both our regulatory present, and our regulatory past — and, as a result, is able to proclaim a commitment to laissez-faire principles that, in reality, it has never been able to sustain.

Related: State & Federal codifications of clear and present danger test

In light of Professor Lakier’s forthcoming article, the following related information may be of some interest to lawyers and scholars.

Some 46 states have codified, in one way or another, Holmes’s clear and present danger formula for either civil or criminal liability. This codification, found in 209 state statutes, is not limited to criminal advocacy cases. For example, the formula has been statutorily adopted in the following areas, among others:

  • parental rights;
  • food and drug safety;
  • witness protection;
  • bullying in schools;
  • gun safety;
  • therapist and counselor privilege;
  • building safety; and
  • environmental reports.

Some federal statutes likewise use a clear and present danger formula of one kind or another:

  • Pub. L. No. 110-358, sect. 102, 122 Stat. 4001 (child pornography)
  • 31 USC  sect. 1344  (regulation of agencies’ passenger carriers)
  • 18 USC sect. 2102 (defining riot).

See Ronald Collins, “The Fundamental Holmes: A Free Speech Chronicle and Reader” (Cambridge University Press, 2010), pp. 371-373.

Post & Rothman on the First Amendment and right of publicity 

Prof. Robert PostProf. Robert Post

The right of publicity protects persons against unauthorized uses of their identity, most typically their names, images, or voices. The right is in obvious tension with freedom of speech. Yet courts seeking to reconcile the right with the First Amendment have to date produced only a notoriously confused muddle of inconsistent constitutional doctrine. In this Article, we suggest a way out of the maze. We propose a relatively straightforward framework for analyzing how the right of publicity should be squared with First Amendment principles.

At the root of contemporary constitutional confusion lies a failure to articulate the precise state interests advanced by the right of publicity. We seek to remedy this deficiency by disaggregating four distinct state interests that the right of publicity is typically invoked to protect. We argue that in any given case the right of publicity is characteristically invoked to protect (one or more) of these four interests: the value of a plaintiff’s performance, the commercial value of a plaintiff’s identity, the dignity of a plaintiff, or the autonomous personality of a plaintiff.

Prof. Jennifer RothmanProf. Jennifer Rothman

Plaintiffs’ interests in their identity must always be weighed against defendants’ constitutional interests in their speech. We therefore isolate three constitutional kinds of communication, each with a distinct form of First Amendment protection. A defendant’s misappropriation of a plaintiff’s identity can occur in public discourse, in commercial speech, or in what we call “commodities.” We then discuss how constitutional protections for these three kinds of speech should intersect with the four different interests that right of publicity claims are typically invoked to protect.

The upshot is not a mechanical algorithm for producing correct constitutional outcomes, but an illumination of the constitutional stakes at issue in any given right of publicity action. We hope that by carefully surfacing the constitutional and policy stakes that beset the conflict between right(s) of publicity and the First Amendment, we have sketched a map that might substantially assist those who must navigate this tumultuous terrain.

Seton Hall Law Review symposium on Holmes’s Abrams dissent

Last year, Columbia Law School hosted a conference on Justice Holmes’s famous dissent in Abrams v. United States (1919). The conference of distinguished scholars was organized by Professors Vincent Blasi, Thomas Healy, and James Weinstein. Now, the Seton Hall Law Review has published an entire symposium, one that grew out of the Columbia conference. The contributors and their contributions are listed below:

Seven forthcoming books 

  1. Amy Sohn, “The Man Who Hated Women: Sex, Censorship, and Civil Liberties in the Gilded Age” (Farrar, Straus and Giroux, July 6, 2021)
  2. Brett Gary, “Dirty Works: Obscenity on Trial in America’s First Sexual Revolution” (Stanford University Press, Aug. 10, 2021)
  3. Micheal Knowles, “Speechless: Controlling Words, Controlling Minds” (Regnery Publishing, June 22, 2021)
  4. Leonard S. Marcus, ed., “You Can’t Say That!: Writers for Young People Talk about Censorship, Free Expression, and the Stories They Have to Tell” (Candlewick Press, July 13, 2021)
  5. Cass Sunstein, “Conformity: The Power of Social Influences” (NYU Press, May 21, 2021)
  6. Martin Redish, “Commercial Speech as Free Expression: The Case for First Amendment Protection” (Cambridge University Press, June 30, 2021)
  7. Geoffrey Stone & Lee Bollinger, eds., “Leaks, National Security, and the First Amendment: The Pentagon Papers Fifty Years On” (Oxford University Press, April 1, 2021)

Flak over ACLU lawyer’s tweet (since deleted)

Chase Strangio tweets

2020-2021 SCOTUS term: Free expression & related cases

Cases decided

  • Mckesson v. Doe (per curium, 7-1 with Thomas, J., dissenting) (judgment vacated and remanded to 5th Cir.)

Cases argued

Pending petitions

Cert. denied

First Amendment-related 

Last scheduled FAN

This article is part of First Amendment News, an editorially independent publication edited by Professor Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. Opinions expressed are those of the article's author(s) and may not reflect the opinions of FIRE or of Professor Collins.