First Amendment Law

Ryan Sila

In 2012, the Second Circuit held that under the First Amendment, pharmaceutical manufacturers have a right to promote their drugs for uses for which that they have neither been clinically tested nor FDA-approved. Weighing heavily in the Second Circuit’s analysis was the argument that the FDA’s prohibition on so-called “off-label speech” inhibited physicians’ access to complete information, thereby harming public health. That line of reasoning has also created skepticism within Congress of the FDA’s policy. Others argue that the prohibition on off-label speech is necessary in order to incentivize manufacturers to clinically test their drugs for all intended uses—a process that not only allows the FDA to certify the drug as safe and effective in each of its uses, but also creates a larger data set about a drug’s effects before it begins to be marketed and prescribed. If manufacturers can market their pharmaceutical products for unapproved uses, they have reduced incentives to seek FDA approval, especially because the required clinical tests are extremely costly. Whatever one believes about a policy of permitting off-label promotion, it is clear that it not only creates benefits, but it also creates costs. This Note considers regulatory and common-law tools to reduce those costs. It rejects available regulatory tools, because either they are too weak to change manufacturers’ incentives to conduct clinical tests, or they suffer from the same constitutional questions that troubled the Second Circuit. Instead, this Note argues that courts can hold manufacturers to a common-law duty to test their drugs for each use for which they market them, and it outlines what such a duty might entail. Such a solution, if properly implemented, would not only mitigate the concerns about the liberalization of off-label promotion, but it would also be supported by modern products liability doctrine.

Amanda Shanor

Neither courts nor scholars have articulated a coherent theory of the scope of the First Amendment’s “freedom of speech.” Most First Amendment jurisprudence and scholarship has focused on the justification for the freedom of speech or questions of constitutional protection—essentially, how much scrutiny should apply in various contexts. Largely ignored is the often-dispositive threshold question of whether activities are “covered” by the First Amendment at all. Many activities that are colloquially considered “speech” are not traditionally subject to constitutional review. For instance, the regulation of contracts, commercial fraud, perjury, conspiracy, workplace harassment, the compelled speech of tax returns, and large swaths of regulation by the administrative state have all historically been treated as beyond the ambit of the First Amendment.

Today, however, the boundaries of the First Amendment are in a period of transformation. Plaintiffs across the country contend that the regulation of areas of social and economic life that never before were thought relevant to the Constitution is in violation of it. Courts are increasingly confronted with cases that raise the question: Does the First Amendment apply? This makes the need for a theory of the scope of the right of free speech—of the First Amendment’s boundaries—ever more pressing.

This Article develops, first, a descriptive and sociologically-based theory of First Amendment coverage. By analyzing differences between free speech sub-doctrines, I argue that the animating difference between what falls within the First Amendment’s reach and what is excluded from it does not rest on the distinction between speech and conduct, as is often thought. Instead, coverage depends on whether or not social norms about a given practice are (or courts believe should be) sufficiently strong to make the anticipated consequences of the speech—how it works and what it does—clear. Coverage depends, in short, on whether or not the audience of the activity is pluralistic.

Second, this Article develops a prescriptive theory of how courts should analyze questions of the boundaries of free speech. I argue that, at the borders of the First Amendment, courts must analyze the social context of the activity in question as well as the normative and institutional implications of charting First Amendment coverage.

I conclude by exploring the issues at stake in current and emerging First Amendment coverage questions. I argue that the scope of the First Amendment reflects and defines the areas of social life in which we need or want cohesive, non-pluralistic, social norms and relationships. In short, the boundaries of the First Amendment track not only the space of pluralistic contestation, but also the expectation of and desire for social cohesion.

 

Amanda Shanor

Neither courts nor scholars have articulated a coherent theory of the scope of the First Amendment’s “freedom of speech.” Most First Amendment jurisprudence and scholarship has focused on the justification for the freedom of speech or questions of constitutional protection—essentially, how much scrutiny should apply in various contexts. Largely ignored is the often-dispositive threshold question of whether activities are “covered” by the First Amendment at all. Many activities that are colloquially considered “speech” are not traditionally subject to constitutional review. For instance, the regulation of contracts, commercial fraud, perjury, conspiracy, workplace harassment, the compelled speech of tax returns, and large swaths of regulation by the administrative state have all historically been treated as beyond the ambit of the First Amendment.

Today, however, the boundaries of the First Amendment are in a period of transformation. Plaintiffs across the country contend that the regulation of areas of social and economic life that never before were thought relevant to the Constitution is in violation of it. Courts are increasingly confronted with cases that raise the question: Does the First Amendment apply? This makes the need for a theory of the scope of the right of free speech—of the First Amendment’s boundaries—ever more pressing.

This Article develops, first, a descriptive and sociologically-based theory of First Amendment coverage. By analyzing differences between free speech sub-doctrines, I argue that the animating difference between what falls within the First Amendment’s reach and what is excluded from it does not rest on the distinction between speech and conduct, as is often thought. Instead, coverage depends on whether or not social norms about a given practice are (or courts believe should be) sufficiently strong to make the anticipated consequences of the speech—how it works and what it does—clear. Coverage depends, in short, on whether or not the audience of the activity is pluralistic.

Second, this Article develops a prescriptive theory of how courts should analyze questions of the boundaries of free speech. I argue that, at the borders of the First Amendment, courts must analyze the social context of the activity in question as well as the normative and institutional implications of charting First Amendment coverage.

I conclude by exploring the issues at stake in current and emerging First Amendment coverage questions. I argue that the scope of the First Amendment reflects and defines the areas of social life in which we need or want cohesive, non-pluralistic, social norms and relationships. In short, the boundaries of the First Amendment track not only the space of pluralistic contestation, but also the expectation of and desire for social cohesion.

Mark C. Bennett

This Note asks whether computer source code, when developed as a means to an end—as distinct from source code intended for third-party review—is covered speech under the First Amendment. I argue it is not. My argument has two parts. First, I describe case law treating First Amendment challenges to regulations of source code to demonstrate courts’ failure to address the status of purely functional source code. Second, I describe how courts should address such a question, by referencing an array of theories used to explain the scope of the First Amendment. I conclude no theory alone or in combination with others justifies the constitutional coverage of purely functional source code. I thereby undermine a key constitutional argument by technology manufacturers contesting, in the context of criminal investigations, the government-compelled creation of software to circumvent encryption technologies. 

Aaron Tang

Labor laws in twenty-two states permit government employers to compel all employees to pay “fair share fees” to support a union’s collective bargaining activities, even if the union advocates policies to which some workers are ideologically opposed. Thousands of collective bargaining agreements include provisions to this effect, and hundreds of thousands of objecting workers are forced to pay such fees each year.

At its core, this practice implicates a significant tension between two important principles: the First Amendment’s objective of protecting individuals from compelled support of unwanted messages, and labor law’s concern with fostering the collective benefits of worker representation. When confronted with a challenge to fair share fees nearly forty years ago in Abood v. Detroit Board of Education, the Supreme Court held that labor law takes precedence, such that the First Amendment intrusions produced by fair share fees are constitutionally justified. Twice in the past four years, however, the Supreme Court has indicated that it is poised to reverse course and strike down fair share fee clauses under the First Amendment, overruling Abood in the process. And on the last day of the 2014 Term, the Court granted certiorari in a case presenting just that opportunity.

In this Article, I challenge the conventional wisdom that public sector union financing implicates an inevitable trade-off between First Amendment principles and labor law’s core objectives. There is a simple alternative to the fair share fee union financing model that would permit public employers to pursue their broad interests in effective workplace representation without sacrificing the individual expressive interests of objecting employees: In lieu of fair share fee clauses, government employers can negotiate provisions under which they reimburse a union for its collective bargaining costs directly. Such an approach would free objecting workers of the compulsion to support an objectionable message and ensure that unions have the financial security they need to zealously represent worker interests. Moreover, the government can implement this alternative in a cost-neutral fashion, reducing future wage raises or gratuitous benefits to offset the added costs of union reimbursement.

But this government-payer alternative is not just a theoretical solution to what has been widely understood as an intractable debate—it has doctrinal significance, too. For once identified, the government-payer workaround becomes part of the constitutional analysis itself. That is to say, under First Amendment doctrine, the government’s ability to reimburse a union for its bargaining costs directly is a less restrictive alternative that renders fair share fees unconstitutional by comparison.

This Article explores the theoretical and doctrinal consequences of the government-payer alternative to fair share fees. In doing so, it proposes an answer to a longstanding puzzle in the Court’s First Amendment jurisprudence regarding the proper standard of scrutiny for compelled fees—a puzzle that the Supreme Court has explicitly recognized yet left unresolved. The Article concludes by offering a few observations concerning the impact of the government-payer alternative for the future of public sector labor unions and the First Amendment more broadly.

Dusty Koenig
On February 21, 2012, members of the Russian punk band Pussy Riot stormed the historic Cathedral of Christ the Savior in Moscow and performed a “punk prayer” to protest the policies of Vladimir Putin’s government. The band members’ subsequent arrests and prosecutions set off a global firestorm of criticism. While some critics focused on the disproportionate sentences handed down by the court following the band’s convictions, or the meaning of justice meted out by an unjust regime, the mainstream reaction was by and large one of disbelief at such an apparently egregious crackdown on free speech. This Note argues that such criticism largely missed the mark by casting the Pussy Riot affair in terms of free speech, despite the likelihood that the punk rockers would have faced a similar fate even under American free speech law—a tradition of protected speech more robust than any other. Instead, criticism of the injustice perpetrated by the prosecutions is better aimed at the inadequate procedural protections of a Russian judiciary in desperate need of reform. As Russians are already aware of the deficiencies in their judicial system, they would likely be much more amenable to international criticism that acknowledges that the Pussy Riot prosecutions did not trample on free speech rights but were nonetheless unjust due to the lack of procedural safeguards accorded to the band members. Such an approach, by more accurately criticizing the real issues Russia’s fledgling democracy faces, promises to further Russia’s development by keeping lines of communication open between the Russian electorate and the West.
Margo Kaplan

Sexual pleasure is a valuable source of happiness and personal fulfillment. Yet several areas of law assume just the opposite—that sexual pleasure in itself has negligible value, and we sacrifice nothing of importance when our laws circumscribe it. Many laws even rely on the assumption that sexual pleasure merits constraint because it is inherently negative. These assumptions are so entrenched in our law that they remain largely unquestioned by courts, legislatures, and legal scholarship.


This Article exposes and challenges the law’s unspoken assumption that sexual pleasure has negligible or negative value and examines how rejecting this assumption requires us to reconceptualize several areas of law. Until now, legal scholarship has lacked a robust analysis of how deeply this assumption runs through various areas of law and how fundamentally the law must change if we reject it. This Article fills that gap and provides a framework for “sex-positive” law that appropriately recognizes the intrinsic value of sexual pleasure. Such an approach transforms the debate surrounding several areas of law and requires lawmakers and legal scholars to undertake a more honest assessment of what we choose to regulate, what we fail to regulate, and our justifications for those choices.

Rosalind E. Bell

This Note explores the recent expansion of child pornography law and its impact on socially valuable art and film. It focuses on how the federal government regulates “virtual child pornography”—both computer-generated materials that are produced without real children and authentic images made with seemingly young adult actors. First, I trace the history of child pornography doctrine from the Supreme Court’s foundational case, New York v. Ferber, to its recent discussion of virtual child pornography in Ashcroft v. Free Speech Coalition. I argue that modern laws and court decisions have become increasingly untethered from Ferber’s limiting interest in protecting children from physical and emotional harm. In Free Speech Coalition, the Supreme Court added a key limitation to child pornography doctrine, categorically protecting non-obscene virtual child pornography. As with all sexually themed materials, the obscenity test established in Miller v. California applies as a backstop, allowing the government to regulate material that violates community standards of decency and that lacks serious literary, artistic, political, or scientific value. Yet Congress’s post-Free Speech Coalition statute, the Prosecutorial Remedies and Other Tools Against the Exploitation of Children Today (PROTECT) Act, threatens to undermine the First Amendment by once again shifting focus from punishing crimes against children to preventing disturbing but nevertheless protected private thoughts. Despite United States v. Williams, a recent, narrow Supreme Court decision upholding the PROTECT Act’s pandering provision, I argue that Congress should reexamine the PROTECT Act as a whole. Looking for guidance in the Supreme Court’s foundational child pornography cases, as well as recent decisions in other First Amendment contexts, I conclude that Congress should amend the Act to comport with established doctrine.

Yotam Barkai

Courts have increasingly scaled back children’s First Amendment rights and deferred to schools’ fear of disruption; today, children face discipline for even off-campus expression. Meanwhile, in the name of others’ free speech rights, the Supreme Court has discounted the state’s claimed interest in children’s welfare and has repeatedly rejected restrictions on third parties’ abilities to approach children with sexually explicit, commercial, and violent speech. These dueling trends have created a paradox: Although First Amendment principles indicate that children’s ability to speak is more important than their access to others’ speech, the doctrine errs in the wrong direction and protects speech to children more strongly than it protects children’s own expression. Therefore, the Court should both allow for greater government restrictions on speech to children and more strongly protect children’s speech rights, especially outside school. This modified doctrine would be more sensitive to the government’s regulatory interest in children and to the principles behind the First Amendment.

Meredith A. Johnston

The 2004 federal elections witnessed an unprecedented rise in activity by independent political organizations called "527s." The current campaign finance regime limits how much individuals and groups may contribute to candidates, parties, and political committees, but leaves 527s virtually unregulated. As a result, wealthy donors were able to circumvent federal contribution limits by giving large amounts to 527 groups. In 2004, these groups raised millions of dollars, which they spent on highly influential advertisements and voter mobilization campaigns. The groups were so successful that they are expected to play a significant role in the 2006 and 2008 elections, and both Congress and the Federal Election Commission (FEC) have considered regulating the groups more closely.

This Note examines the role of 527 organizations in the 2004 election and proposes ways to prevent future circumvention of the campaign finance regime. It argues that Congress should address the 527 problem by passing legislation regulating coordination between outside groups and political campaigns. A statute regulating coordination presents several benefits over current proposals for 527 reform. First, it is more likely to satisfy the constitutional limits on campaign finance regulation. Second, it provides a long-term solution that is not dependent on how a group is classified under tax or campaign finance law. Third, it will encourage donors seeking to buy influence over candidates to give smaller, "hard money" contributions. Finally, congressional legislation will avoid the delay and confusion seen in recent FEC efforts to regulate coordination.

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