Chapter 1 examines the leading theory of chilling effects – chilling effects as fear of legal harm – a legalistic account most often employed by lawyers and judges in the United States, Canada, and beyond. The author explores its historical and intellectual origins, key actors that have articulated and influenced the theory, and argues this predominant conventional account is too narrow, legalistic, and deeply flawed theoretically and empirically, and cannot explain, predict, or understand chilling effects in a wide variety of contexts. As such, it only contributes to skepticism about chilling effects, rather than dispelling them.

Chapter 2 critically examines privacy-based conventional theories, which approach chilling effects as a result of privacy harms. While privacy-based theories of chilling effects improve on legal accounts, they are also too narrow and cannot explain chilling effects in a variety of contexts, including even forms of privacy-related chilling effects. Moreover, courts and judges have also remained deeply skeptical of privacy-based theories. To address these limitations and fully understand the threat chilling effects pose to freedom, fundamental rights, and democracy we need a new understanding of chilling effects that moves beyond conventional accounts.

Chapter 9 makes the case for critical changes in chilling effects law and doctrine based on the new understanding advanced in this book. The author argues, among other things, that judges should no longer remain skeptical of privacy chilling effects; that chilling effects doctrine should no longer privilege legal and regulatory forms of chilling effects over others; and that standing doctrine and other areas of law should also be reformed to accommodate this new understanding of chilling effects.

This chapter traces the influence of Christianity on politics and society in the first two centuries of the American experiment. It offers an overview of the religion in the original colonies, the religious revivals associated with the First Great Awakening, the role of Christianity shaping the United States Constitution, the Second Great Awakening in an era of westward expansion, religious diversity, and the theological debates surrounding slavery and the Civil War.

The public who acted as unsolicited citizens during the time of the constitution making continued to expect and insist, moreover, that state authorities and politicians open avenues for their participation. The public ensured that in India, there was no idolized constitutional ’moment’, frozen in time. Instead, they turned the making of the constitution into an enduring momentum for India’s democracy and its democratic politics. The constitution became an open site of struggle, never solely within the purview of judges and legislatures. The multiple acts of assembling beyond the Constituent Assembly during the time of the constitution making took on a life of its own, creating organisations and social movements, which animated local politics and sustained a vibrant constitutional culture.

This chapter, by incarcerated writer John J. Lennon, explores the history of prison journalism through the careers of two writers, Wilbert Rideau and Dannie M. Martin. While both became journalists in prison, their writing careers took different forms. Rideau, serving a life sentence for murder in Louisiana, wrote in the typical, detached style of print journalists and helmed one of the most successful prison newspapers of all time, The Angolite, which was nominated for seven National Magazine Awards during his tenure as editor. Martin, serving a thirty-three-year sentence for bank robbery in federal prison, published voice-driven columns and freelanced for the San Francisco Chronicle. Both exposed pressing, overlooked crises behind bars and both risked reprisals from fellow prisoners and the staff responsible for their safety. Their stories of “committing journalism” contain timely lessons for incarcerated writers and prison administrators as the current renaissance of prison journalism continues to grow.

Chapter 20 uses a specific insight from the TTS data – that more tenured-terminations occurred at public rather than private universities – to show why tenure is not the root cause of observed problems and why legislative attacks on tenure do not present a solution. It builds on the narrative and counternarrative analysis provided in Chapter 19 as well as the importance of hierarchy and power differentials first discussed in Chapter 13.

Genevieve Lakier (University of Chicago Law) examines Upsolve v. James, where a district court enjoined the application of New York state’s unauthorized practice of law statutes to the Justice Advocates that the nonprofit organization, Upsolve, planned to train, to assist low-income New Yorkers file for bankruptcy. The opinion represents a clear victory for the access-to-justice movement. But it also represents a potentially significant change in how courts understand the First Amendment to apply in unauthorized-practice-of-law cases. Although the decision may be overturned on appeal, the logic of the opinion thus makes clear the promise that what critics have sometimes described as a “Lochnerized” First Amendment holds out to access-to-justice advocates, as well as some of its perils. In this chapter, Lakier explains why the decision is significant, embeds it within a broader story of doctrinal transformation, and spells out some of the benefits and costs of using a Lochner-like First Amendment to promote access to justice.

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.