First Amendment

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….

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…