Chapter Four contends that the electronic amplification of false and misleading election-related claims poses a significant threat to American democracy. To address that threat, we urgently need government regulation of companies that provide electronic amplification services. However, the Supreme Court has created a body of First Amendment doctrine that places Congress in a constitutional straightjacket, making it almost impossible for Congress to enact the type of legislation that is urgently needed to protect our democracy. This chapter sketches the outlines of a proposed federal statute that would restrict the electronic amplification of election-related misinformation. It explains why any statute along those lines – indeed, any statute that might be moderately effective in protecting American democracy from the threat posed by the electronic amplification of misinformation – would almost certainly be deemed unconstitutional under the Court’s current First Amendment doctrine. Therefore, the Court must revise its First Amendment doctrine to help save American democracy.

This chapter traces a series of stark, occasionally stunning historical reversals by the Supreme Court in interpreting the Free Speech Clause. It highlights doctrines under which the Court treats almost all content-based regulation of speech as constitutionally suspect. That position, which draws little support from research into original constitutional understandings, reflects a commitment – increasingly embraced by conservative justices of a libertarian stripe – to the principle that the Free Speech Clause bars the government from censoring speech based on fears that the speech might prove persuasive to its audience. The resulting doctrine, which makes the United States an outlier among liberal democracies, provides robust protection for a good deal of “hate speech,” some outright lies, commercial advertising, and corporate expenditures to promote political candidates. This chapter also discusses cases that have held that the Free Speech Clause protects a right to “freedom of association” that lacks any clear textual basis. It concludes by considering cases involving speech rights in “managerial domains” in which the government performs functions, such as providing public education, that it could not perform successfully without engaging in content-based regulation of speech.

Chapter 4 identifies one of the most troubling developments in copyright law over the past generation: the surprising and remarkable story of how its exemption from First Amendment scrutiny has enabled powerful interests to cynically weaponize copyright as a forceful, state-backed vehicle of censorship to silence critics and suppress dissent. Thus, copyright has a growing free speech problem – one that threatens to undermine both the vitality of our regime governing the use of creative works and our most basic free speech rights. After surveying the growing use of copyright law to stifle legitimate discourse on issues of racism, religious discrimination, reproductive rights, gay rights, corruption, torture, and police brutality, the chapter examines the conditions empowering such lawfare and considers how we might better ensure that copyright law stops serving as a transparent censorial proxy enabling the powerful to silence the powerless and, instead, returns its focus to vindicating the appropriate economic interests of rightsholders.

The text of the First Amendment explicitly protects two foundational social institutions: religion and the press. Since 2021, however, the Supreme Court has increasingly granted one of these two institutions – religion – a status of heightened constitutional privilege. In contrast, current law treats the other First Amendment institution – the press – as wholly unexceptional. However, the press is defined – from newspapers to television and bloggers in pajamas to professional journalists – it receives no greater constitutional protections than any other speaker. The Court has essentially read the Press Clause out of the Constitution, voiding its specific textual commitment, despite the absence of any countervailing constitutional provision parallel to the Establishment Clause. Until religion law’s recent exceptional turn, the law’s treatment of religion and the press were in some sense parallel. Recently, they have diverged, as press law has not kept pace with changes in religion law. In this chapter, I argue that the press should be treated at least as constitutionally exceptional as religion, and I explore what such press exceptionalism might mean in practice.

What work could an independent Press Clause do apart from the work already done by the Speech Clause? This question requires us to think about why and how the press is different from other speakers for First Amendment purposes: what distinct functions does the press perform and what distinct vulnerabilities does the press possess? The press serves the public through its unique watchdog, educator, and proxy roles. These functions, in turn, explain the press’s distinct vulnerabilities to government retaliation: because the press’s primary purpose is to scrutinize the government for the public’s benefit, the government has long perceived the press as inherently threatening to its political self-interest. Rooted in distrust of the government’s self-interested efforts to punish and thus silence the press, negative theory offers an important tool for understanding the Press Clause as providing an especially robust shield from the government’s retaliation. By directing judicial attention to the reasons to distrust the government’s adverse treatment of the press, this chapter demonstrates how negative First Amendment theory can reinvigorate Press Clause doctrine by informing courts’ choices of legal rules, and by informing their application of those rules once chosen.

This chapter aims to articulate a positive-rights paradigm that marshals contemporary, historical, and international legal frameworks to argue that government should have an affirmative duty to guarantee meaningful access to news and information for everyone. Drawing from democratic, legal, and economic theories, the chapter builds on a long lineage of argumentation – from Alexander Meiklejohn and Jerome Barron to more recent arguments advanced by C. Edwin Baker and Martha Minow – for why the First Amendment does not forbid government interventions that promote journalism. If we assume that press freedom is rendered meaningless without a press to protect, we arguably should go even further to compel the government to make targeted and democratically determined interventions into the media marketplace to guarantee public alternatives when private commercial media institutions fail to serve democratic needs.

This chapter examines the continuing impact of Food Lion v. Capital Cities/ABC, Inc., a case in which a large grocery store chain sued ABC and its news producers for conducting an undercover investigation that resulted in a nationally broadcast television news story showing serious concerns about Food Lion’s food handling and sanitation practices. Although the court’s decision affirmed only a nominal damages verdict against the producers who investigated the story, the court rejected the defendants’ contention that Food Lion’s tort claims were in any way limited by the First Amendment. The chapter argues that Food Lion has had an ongoing, significant chilling effect on undercover investigations, particularly those where an investigator secures employment with the investigation’s target. Such investigations are critical to the discovery and dissemination of truthful information on matters of profound public concern. Drawing on limited public data and published information as well as interviews of those who conducted the Food Lion investigation, the chapter shows the reduction in undercover investigation since the case was decided. It concludes by contending that reconsideration of Food Lion’s legal analysis is long overdue and sets out the groundwork for recognition of a limited First Amendment newsgathering privilege for undercover investigations.

Social media and the internet are the most important changes in communication since the development of the printing press. They democratize the ability to reach a mass audience, but they can also quickly spread harmful information and threaten the viability of traditional media that are essential for newsgathering. Courts have thus far largely approached these media by applying existing doctrines of freedom of the press and freedom of speech. But these doctrines are often, though not always, inadequate to deal with the issues posed by social media and the internet. It is important to identify those areas where traditional doctrines are inadequate and to begin to develop new First Amendment and statutory approaches.

This chapter examines how government entities determine who is a journalist to allocate resources under conditions of scarcity and to assure that the press can conduct its functions without undue government regulation and interference. Using a new dataset of 172 laws, rules, and procedures that different government entities have used to define the press, it describes the most common tests government entities use for identifying journalists and compares them to each other. The chapter then makes four normative recommendations about the tests government entities should use to define journalists. First, government entities should have explicit and meaningful standards for press exceptionalism. Second, most press exceptionalism should be limited to professional journalists who regularly produce news stories or commentary. Third, press exceptionalism should not turn on the type of technology used to communicate. Fourth, government entities should continue to have the power to grant press exceptionalism to “bona fide correspondents of repute in their profession” so long as they do not engage in viewpoint discrimination.

This chapter explores this last possibility but discounts the role federalism plays in forcing private ordering. Courts have generally proved unreceptive to arguments that the federal government lacks power to regulate the practice of medicine. Even if courts were receptive to such arguments, federalism merely divides responsibilities between federal public ordering and state public ordering; it is agnostic on whether private ordering is superior to both those alternatives. Federalism thus cannot explain the outsized role private ordering plays in health care. This chapter focuses instead on constitutional speech protections, which bind the federal and state governments alike and which leave room for private actors to oversee medical speech and information flows in ways public agencies cannot do.

Judges often speak of “freedom of thought” as a liberty central to American constitutional jurisprudence. But why does thought need protection even when it remains unexpressed in speech and hidden? This chapter explores two possible answers. One is that understanding a principle of freedom of thought explains why speech is strongly shielded by the First Amendment of the US Constitution: Our thought, judges and scholars stress, is central to how we define ourselves and speech is the key means of conveying thought and shaping it. Yet a right to freedom of thought might also stand on its own. The Court’s 1969 decision in Stanley v. Georgia provides two possible accounts of how it might do so. The first reaffirms and modestly expands the long-standing principle that officials may not target and punish us solely because of our thoughts. The second reading of Stanley goes further: It protects us not only against state action aimed at controlling thought but also that which interferes with certain environments or resources that allow us to shape our thought. This second account, the chapter explains, is more suited than the first to address certain challenges raised by emerging neurotechnologies.

This case study provides a comprehensive analysis of the intricate political risks faced by TikTok, the Chinese social media giant, within the complex US political landscape. Beginning with an exploration of the security concerns articulated by the US government, the discussion centers on TikTok’s data collection practices and their perceived impact on US national security. The narrative unfolds by elucidating the multifaceted strategies employed by TikTok and its parent company, ByteDance, to address these challenges, including litigation, endeavors toward Americanization, and technological adaptations. It also examines the evolution in the US government’s stance as well as TikTok’s adaptive strategies aimed at sustaining and expanding its presence in the US market. The study depicts the responses of the Chinese government to US policies, unraveling the broader implications of these developments on the global political-economic landscape, exploring the dynamics involved in US-China relations, and providing a deeper understanding of the complexities inherent in such interactions. Finally, this case study invites readers to engage in contemplation on the broader themes of political risks faced by multinational corporations, the challenges inherent in navigating global legal frontiers, and the intricate nature of US-China relations.

This paper summarizes the United States’ legal framework governing Internet “platforms” that publish third-party content. It highlights three key features of U.S. law: the constitutional protections for free speech and press, the statutory immunity provided by 47 U.S.C. § 230 (“Section 230”), and the limits on state regulation of the Internet. It also discusses US efforts to impose mandatory transparency obligations on Internet “platforms.”

When analysing disinformation, commentators often focus on major platforms and their influence on content circulation. Some also examine institutional media, especially broadcasting. Platforms and media are both relevant; both are important in the communicative infrastructure underlying public speech. Whatever the focus, there is an almost endless examination of issues and suggestions regarding what to do about disinformation. Commentary defines false or misleading information in different ways, compares it with historic practices of propaganda and persuasion, considers the emergence of large language models and content they could generate, documents varied legal responses, and considers what should be done. Here, I examine something that is relevant to that work but often not considered directly.

The 2024 presidential election in the USA demonstrates, with unmistakable clarity, that disinformation (intentionally false information) and misinformation (unintentionally false information disseminated in good faith) pose a real and growing existential threat to democratic self-government in the United States – and elsewhere too. Powered by social media outlets like Facebook (Meta) and Twitter (X), it is now possible to propagate empirically false information to a vast potential audience at virtually no cost. Coupled with the use of highly sophisticated algorithms that carefully target the recipients of disinformation and misinformation, voter manipulation is easier to accomplish than ever before – and frighteningly effective to boot.

Many legal and political commentators dubbed Donald Trump’s false claim that he was the actual victor of the 2020 American presidential election, ‘the Big Lie’. No matter how he complained and dissembled, he lost. After losing the 2020 election, Trump went on a fundraising binge, asking his supporters to give to his legal defense fund so that he could litigate the results of the 2020 election, which he fraudulently claimed he had won. According to the House of Representatives’ January 6 Select Committee, this fund did not exist. As Select Committee member Congresswoman Zoe Lofgren put it, ‘the Big Lie was also a big rip-off’. Because the 2020 presidential election was not stolen, and the legal defense fund he touted was nonexistent, Trump’s post-2020 election fundraising was a fraud within a fraud – giving rise to a reasonable argument that it violated the federal wire fraud statute and also constituted common law fraud.

Today is a time of retrogression in sustaining rights-protecting democracies, and of high levels of distrust in institutions. Of particular concern are threats to the institutions, including universities and the press, that help provide the information base for successful democracies. Attacks on universities, and university faculties, are rising. In Poland over the last four years, a world-renowned constitutional law theorist, Wojciech Sadurski, has been subject to civil and criminal prosecutions for defamation of the governing party. In Hungary, the Central European University (CEU) was ejected by the government, and had to partly relocate to Vienna, and other attacks on academic freedom followed. Faculty members in a number of countries have needed to relocate to other countries for their own safety.

The ‘marketplace of ideas’ metaphor tends to dominate US discourse about the First Amendment and free speech more generally. The metaphor is often deployed to argue that the remedy for harmful speech ought to be counterspeech, not censorship; listeners are to be trusted to sort the wheat from the chaff. This deep skepticism about the regulation of even harmful speech in the USA raises several follow-on questions, including: How will trustworthy sources of information fare in the marketplace of ideas? And how will participants know whom to trust? Both questions implicate non-regulatory, civil-society responses to mis- and disinformation.

In United States v. Alvarez, the US Supreme Court ruled that an official of a water district who introduced himself to his constituents by falsely stating in a public meeting that he had earned the Congressional Medal of Honor had a First Amendment right to make that demonstrably untrue claim. Audience members misled by the statement might well be considered to have a First Amendment interest in not being directly and knowingly lied to in that way. Other members of the community might be thought to have a First Amendment interest in public officials such as Xavier Alvarez telling the truth about their credentials and experiences. Nevertheless, as both the plurality and the concurring justices who together formed the majority in Alvarez viewed the case, it was the liar’s interest in saying what he wished that carried the day. Why is that? Crucial to answering this question is whether ‘the freedom of speech’ that the First Amendment tolerates ‘no law abridging’ is understood to be primarily speaker-centered, audience-centered, or society-centered.

This chapter details the formation of the MAS movement from the local teachers, students, artists, and activists to the national-level support (e.g., professional/scholarly organizations, hip hop/funk group Ozomatli, and cartoonist Lalo Alcaraz). Of particular importance was the formation of the “Tucson 11” – a group of MAS educators who filed a federal lawsuit challenging the constitutionality of the state law on First and Fourteenth Amendment grounds. Additionally, in this chapter, we explore both the importance of the documentary Precious Knowledge in supporting this movement and how the director’s alleged rape of one of the former MAS students was the beginning of lasting community wounds that ran throughout the movement.