First Amendment

Unbundling the First Amendment: Lessons from an Impeachment

March 1, 2021

A broad consensus of legal analysts—joined, it seems, by most senators of both political parties—recognizes that former President Donald Trump did not have a valid First Amendment defense at his second impeachment trial.  But the discussion that the trial occasioned about First Amendment defenses in impeachment trials suffered from a lack of precision about what…

Recent Case: U.S. WeChat Users Alliance v. Trump

October 14, 2020

On August 6, 2020, the Trump Administration issued Executive Order 13943, banning the use of WeChat, a Chinese social media app, in the United States starting on September 20, 2020.  Under the order, consumers in the United States will not be able to download or update WeChat, or engage in transactions such as sending or…

What’s Really at Stake in the Supreme Court’s Religious School Vouchers Case?

February 4, 2020

The Supreme Court has just heard oral argument in Espinoza v. Montana Department of Revenue, a high-profile case involving a Montana private school voucher program that a number of families used to enroll their children in religious schools.  The Montana Supreme Court struck down the program, ruling that it violates a Montana constitutional provision that forbids any public funding to be…

The Supreme Court Is Killing Contribution Limits Softly; A Few Years from Now They Likely Will Be Dead.

December 29, 2019

The Thompson v. Hebdon per curium opinion is the latest example of the Roberts Supreme Court’s hostility to reasonable money in politics reforms like contribution limits, and its insistence on ignoring empirical data about campaign finance. In Thompson v. Hebdon, the Court remanded the case so that the Ninth Circuit could “revisit whether Alaska’s contribution…

Recent Case: Calzone v. Summers

December 5, 2019

Where do courts draw the line between lobbyists and politically involved individuals in determining the constitutionality of lobbyist registration laws? Recently, the en banc Eight Circuit addressed this question in Calzone v. Summers by holding that Missouri’s lobbyist registration law violated the First Amendment as applied to an uncompensated lobbyist who incurred no expenditures. As…

Recent Case: NLRB v. International Ass’n of Bridge, Structural, Ornamental, and Reinforcing Iron Workers, Local 229

November 22, 2019

Labor law holds a precarious place within First Amendment jurisprudence.  Since the 1930s, unions have enjoyed both protections and constraints that appear to push the boundaries of constitutionality.  Recently, cases like Janus v. AFSCME have threatened labor law’s uneasy equilibrium of worker power and individual rights.  With union-protective legislation falling under First Amendment challenge, scholars…

Recent Case: Palin v. New York Times Co.

November 2, 2019

“This case is ultimately about the First Amendment, but the subject matter implicated in this appeal is far less dramatic: rules of procedure and pleading standards.” So began Judge Walker’s opinion reversing the district court’s dismissal of Sarah Palin’s defamation suit against the New York Times (“the Times”). The Second Circuit’s decision did turn on…

Recent Case: Speech First v. Schlissel

October 7, 2019

Campus speech wars have been flaring up over the issue of offensive speech and the appropriateness of schools’ responses to it. Recently, the Sixth Circuit weighed in on the First Amendment implications of the matter. The specific battle had already ended by the time the court found itself in the speech wars’ trenches. But the…

Following the New Soft Money

November 5, 2018

Campaign finance law is as much a product of the U.S. Supreme Court as of Congress. For more than four decades, the Court has actively superintended campaign finance regulation through its interpretation of the First Amendment. The ultimate consequence of the Court’s free speech decisions is to enhance the voice of the wealthy while stifling…

Protesting on the Supreme Court’s Front Porch

October 23, 2018

Some dressed as characters from The Handmaid’s Tale, the dystopian novel about a society in which women are valued only if their ovaries are viable. Others chanted “This isn’t over” while holding signs that said “WE DO NOT CONSENT” and “UNFIT TO SERVE.” That was the scene that greeted Justice Brett Kavanaugh when he arrived…

Counterfeit Campaign Speech

October 16, 2018

On September 28th, California Governor Jerry Brown signed a new law that forbids the surreptitious use of bots to, among other things, influence Californians’ votes in an election. The law is a disclosure rule: the bot may speak, but it must clearly identify itself as nonhuman. Critics have suggested that California’s new law is vague…

Janus and Public Pension Funds

September 17, 2018

In last Term’s Janus v. AFSCME, the Supreme Court ruled that union agency fees—payments that all public employees were required to make to labor unions—violated the employees’ First Amendment rights. Since Janus, several commentators have pointed out that agency fees are not the only mandatory payments deducted from public employees’ paychecks. In most states, public…

Janus and the Law of Opt-Out Rights

July 2, 2018

A great deal of time will be spent scrutinizing the core holding in Janus v. AFSCME, Council 31, that the First Amendment forbids public employers to require workers to financially support a union’s costs of collective bargaining.  Still more time will be spent debating state legislative approaches to soften Janus’s blow or neutralize it altogether.  What I…

The Travel Ban Arguments and the President’s Words

April 27, 2018

Coming out of Wednesday’s arguments in Trump v. Hawaii, the dominant view—see, for example, here, here, and here—was that the federal government was likely to prevail and the Proclamation would be upheld. I was less sure; my impression was that if the Court reached the Establishment Clause question—a big if—there was a good chance that…

The Meaning of Marriage

December 1, 2017

Laws banning discrimination on the basis of sexual orientation — like laws banning discrimination on the grounds of race, sex, and other significant statuses — are a moral and social good, properly expressing the intrinsic and radical equality of every human person. Marriage, however, by law and by custom, is not a statement about an…

Fake News and the First Amendment

November 10, 2017

Last week, representatives of several social media companies appeared before Congress to testify about mounting evidence that Russian government sponsored groups sought to influence U.S. elections and American political sentiment by propagating false or misleading news stories, artificially driving online popularity of those stories, and actually fomenting violent demonstrations and clashes. These hearings were only…