The area where social media has undoubtedly been most actively regulated is in their data and privacy practices. While no serious critic has proposed a flat ban on data collection and use (since that would destroy the algorithms that drive social media), a number of important jurisdictions including the European Union and California have imposed important restrictions on how websites (including social media) collect, process, and disclose data. Some privacy regulations are clearly justified, but insofar as data privacy laws become so strict as to threaten advertising-driven business models, the result will be that social media (and search and many other basic internet features) will stop being free, to the detriment of most users. In addition, privacy laws (and related rules such as the “right to be forgotten”) by definition restrict the flow of information, and so burden free expression. Sometimes that burden is justified, but especially when applied to information about public figures, suppressing unfavorable information undermines democracy. The chapter concludes by arguing that one area where stricter regulation is needed is protecting children’s data.

I combine a national dataset on high-profile education culture wars – dealing with school mascots, curriculum, religion, sexuality, and evolution – with information on student achievement on standardized tests to examine how adult political conflicts impact student learning in the classroom. I show that student achievement declines after an outbreak of controversy, an effect that persists for several years and appears driven mostly by controversies involving evolution and race. In addition to a large-N, “difference in differences” analysis, the chapter provides two detailed case studies, over a controversial school mascot in California and a federal court case involving a Pennsylvania’s district policy to teach intelligent design.

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 first goal of this chapter is to argue that the press as an institution is entitled to special solicitude under the First Amendment, not only because it is textually specified in the Constitution or because it serves important roles such as checking public and private power, but because it can contribute to the marketplace of ideas in ways that a healthy democracy needs. In other words, the press as an institution can provide an important link between the First Amendment’s epistemic and democratic values. The chapter’s second goal is to provide a rough and preliminary sketch of the relationship between press freedom, violence, and public discourse. Some elements seem straightforward enough. Violence and harassment obstruct the press’s function, including its traditional role in constituting and shaping public discourse. Distrust, disinformation, violence, and press degradation exist in a mutually reinforcing ecosystem. And even as violence shapes the media, the media shapes the social conditions, understandings, and practice of violence in return. Journalism, albeit in different ways than legal interpretation, “takes place on a field of pain and death,” to repurpose Robert Cover’s famous phrase – not only in describing it but in making it real. This, it should go without saying, is no excuse for violence against media members. The point is, rather, that a healthy press can be a bulwark not only for knowledge and democracy but against the kinds of private and public violence that threaten both.

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.

Chapter 6, Branding Birth Control, examines how birth-controllers used claims about medical works’ vulnerability to destruction under the Hicklin test to distance contraception from immorality, frame its advocacy as a free speech issue, and generate publicity for the cause. Contraception pamphlets first published by radicals in the 1820s and 1830s had long been sold by both social reformers and pornographers. In 1876, a figure with feet in both domains was arrested for selling Charles Knowlton’s Fruits of Philosophy (1832). The following year, Annie Besant and Charles Bradlaugh engineered their own arrest for selling it. The chapter examines the selective publication history that Bradlaugh and Besant constructed to divorce Fruits from its associations with promoscuity and promote contraception advocacy as a respectable, progressive cause, and shows that birth-controllers went on to sell huge volumes of literature on contraception. Although they encountered relatively little legal opposition, they often claimed that selling such works was very risky. These claims operated as a way of generating further publicity for the cause, and branding it as brave, modern, and progressive.

At some point, the necessary interpretation of vague, abstract, and nonspecific provisions in constitutions, including the United States Constitution, places appellate courts, including the United States Supreme Court, in a jurisprudential position very similar to the one they occupy when engaged in traditional common law analysis and lawmaking. Working out the specific doctrinal meaning of constitutional phrases such as “free speech,” “establishment of religion,” and “equal protection” is a jurisprudential task not unlike working out the specific doctrinal meaning of “duty,” “breach,” or “causation” in the common law of negligence.

This means that as a practical judicial matter, the development of constitutional law is often very similar in nature to traditional common law lawmaking. Thus, a court such as the United States Supreme Court can accurately be thought of as often operating like a common law court, despite the relative paucity of federal common law.

This chapter takes advantage of this insight to apply the nature of the paradigm shift from formalism to instrumentalism, and its many consequences, to the area of constitutional law. More specifically, it offers an example of instrumentalist common law analysis applied to the constitutional law free speech doctrine of prior restraint.

Although still facing a myriad of social issues, three decades since the abolition of Apartheid have seen South Africa establishing itself as a liberal democracy with a highly respected judiciary. It boasts a progressive constitution with a robust Bill of Rights, which specifically includes the right to freedom of thought albeit as part of the right to freedom of religion, belief and opinion in Section 15. Relevant case law indicate that freedom of thought is not yet seen as a fundamental right on its own, but rather understood as part of the right to freedom of religion, or as some prefer, freedom from religion. At first glance it may seem that coercive proselytising, archaic witchcraft and blasphemy legislation comprise the main related issues. The chapter argues that this is too narrow an interpretation, and that the right also forms part and parcel of other fundamental rights such as equality, speech, and privacy. To that end, the chapter uses the four attributes of the right to freedom of thought as formulated by the Special Rapporteur on freedom of religion or belief and considers to what extent, in aggregate, South Africa lives up to the ideal. It concludes that an enabling environment for freedom of thought not only exists, but has the potential to be further developed in South Africa.

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.”

The world has muddled through with limited and ambiguous understandings of the scope of national jurisdiction in a number of private and public law areas. In order to reduce the barriers of legal difference in the field of platform responsibility, states may begin by reducing areas of overlapping application of law, by agreeing on rules of exclusive jurisdiction. They may also agree on rules of national treatment, most favored nation treatment, and proportionality, or they may agree to harmonize rules. These incursions on national regulatory autonomy will require detailed, sector-specific negotiations, recognizing both the importance of global communications, and the importance of national regulatory autonomy.

A broad consensus has emerged in recent years that although rumours, conspiracy theories and fabricated information are far from new, in the changed structure and operating mechanisms of the public sphere today we are faced with something much more challenging than anything to date, and the massive scale of this disinformation can even pose a threat to the foundations of democracy. However, the consensus extends only to this statement, and opinions differ considerably about the causes of the increased threat of disinformation, whom to blame for it, and the most effective means to counter it. From the perspective of freedom of speech, the picture is not uniform either, and there has been much debate about the most appropriate remedies. It is commonly argued, for example, that the free speech doctrine of the United States does not allow for effective legal action against disinformation, while in Europe there is much more room for manoeuvre at the disposal of the legislator.

In April 2023, the Government of India amended a set of regulations called the Information Technology Rules, which primarily dealt with issues around online intermediary liability and safe harbour. Until 2023, these rules required online intermediaries to take all reasonable efforts to ensure that ‘fake, false or misleading’ information was not published on their platforms. Previous iterations of these rules had already been challenged before the Indian courts for imposing a disproportionate burden on intermediaries, and having the effect of chilling online speech. Now, the 2023 Amendment went even further: it introduced an entity called a ‘Fact Check Unit’, to be created by the government. This government-created unit would flag information that – in its view – was ‘fake, false or misleading’ with respect to ‘the business of the central government’.

This chapter analyses the ways in which the government sought to respond to the mounting administrative and political pressures on the treason trials in 1946 and 1947 and how the courts adjudicated on a wide range of offences, gradually producing a vast corpus of verdicts against the backdrop of a rapidly changing political climate. By this stage, the legal apparatus was struggling with the workload and the trials were being subjected to increasing social and political scrutiny, with many groups now cautioning that the trials were too harsh. These pressures, coupled with the need for legal consistency, produced an enormous dilemma for the authorities in charge. The complex balancing act between legal consistency and political and societal change, this chapter argues, reflected how the initial consensus around the trials was beginning to collapse.

This chapter addresses symmetry’s implications for expressive freedom and religious liberty. Symmetry supports maintaining First Amendment law’s current focus on neutrality, notwithstanding emerging critiques that this approach lacks a strong historical foundation and unduly limits governmental regulation of offensive or dangerous ideas. At the same time, symmetric interpretation counsels against expanding the emerging “First Amendment Lochnerism” that threatens to extend constitutional protections for free expression into areas of economic and workplace regulation. A preference for symmetry also supports protecting religious groups, when possible, through more general protections for freedom of expressive association rather than through religion-specific constitutional doctrines. Although religious liberty may once have been a symmetric principle, today religion-specific protections risk placing constitutional law on one side of a fraught political divide over religion’s place in public life.