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First Amendment law is heavily influenced by a familiar set of policy considerations. Courts often defend their First Amendment rulings by referencing speech’s place within a “marketplace of ideas.” They consider whether speech facilitates self- governance or furthers society’s search for truth. They weigh the relative value of certain types of speech. And so on.

The Supreme Court has used these policy arguments to resolve and craft rules for many free speech dilemmas. But in some situations, existing policy arguments have generated rules and rulings that are incoherent, ineffective, or insufficient to address the underlying free speech problem. In this Article, we propose a new policy approach to aid courts in these situations. Specifically, we argue that in addition to traditional policy arguments, courts could and should use constitutive rhetorical theory when addressing and resolving today’s novel free speech dilemmas. Constitutive rhetorical theory views language as a process of meaning-making and culture building. It does not treat language only as a tool for persuasion or communication but instead emphasizes the ways language assigns value, creates communities, forges shared identities, and mediates human experiences. In this Article, we suggest that courts and legislatures should use constitutive rhetorical theory to supplement their traditional policy considerations. If judges take seriously the idea that language creates, rather than simply communicates, they might choose to restrict or protect speech not only because of its message or persuasive effects but also because of its constitutive, creative potential.

Our argument proceeds in four parts. In Part I, we review existing First Amendment policy arguments and describe their rhetorical underpinnings. We then present constitutive rhetorical theory as an alternative approach. In Part II, we discuss several contexts where the Court has hinted at, though not explicitly adopted, a constitutive rhetorical approach. In Part III, we apply a constitutive rhetorical lens to three First Amendment problems—hate speech, fighting words, and nonconsensual pornography—to show how the constitutive model might clarify or improve the law in those areas. In Part IV, we discuss the implications and limitations of our argument.

Since our nation’s founding, the private sex lives of politicians have been a consistent topic of public concern. Sex scandals, such as those involving Alexander Hamilton, Bill Clinton, and Donald Trump, have consumed the focus of the public. With the advent of the internet and social media, details of a politician’s sex life often come accompanied by photo or video evidence. Outside of the election context, when someone shares an individual’s private explicit material without their consent, the leaker has committed the crime of “revenge porn.”

Recent high-profile incidents have raised the question of whether the crime of revenge porn can still be prosecuted when the disclosure of private explicit materials involves a political candidate. In the election context, unique First Amendment concerns about chilling political speech result in heightened speech protections. Before prosecuting a case, prosecutors must grapple with the question: Does the First Amendment protect revenge porn when it is used to influence an election? This Essay argues that the special First Amendment concerns about elections are diminished in the revenge porn context: The statutes are already tailored to address those concerns, and the state’s independent interest in enforcing revenge porn laws is still compelling. As such, it concludes that the First Amendment should not have extra force in a revenge porn case just because the disclosure occurred in the context of an election.

This Article surveys how a growing rivalry between the United States and China is changing the American legal system. It argues that U.S.-China conflict is reproducing, in attenuated form, the same politics of threat that has driven wartime legal development for much of our history. The result is that American law is reprising familiar patterns and pathologies. There has been a diminishment in rights among groups with imputed ties to a geopolitical adversary. But there has also been a modest expansion in rights where advocates have linked desired reforms with geopolitical goals. Institutionally, the new global conflict has at times fostered executive overreach, interbranch agreement, and interparty consensus. Legal-culturally, it has in places evinced a decline in legal rationality. Although these developments do not rival the excesses of America’s wartime past, they evoke that past and may, over time, replay it. The Article provides a framework for understanding legal developments in this new era, contributes to our understanding of rights and structure in times of conflict, and reflects on what comes next in the new global conflict, and how best to shape it.

Over the last few years, numerous states and school boards have passed laws aimed at limiting curricula related to diverse communities. Anti-Critical Race Theory and “Don’t Say Gay” laws have threatened to restrict the teaching of race and LGBTQ issues in K-12 schools. These laws are troubling from a policy standpoint because inclusive curricula ensure that students receive a proper education and are taught in a supportive school environment. They are also likely an infringement upon a student’s First Amendment right to receive information, first recognized in Board of Education v. Pico, and, as such, courts have begun to entertain constitutional claims against curricular restrictions. However, there is no binding precedent on this issue, and the circuits are split as to what standard they should use when addressing these challenges.

This Note argues that courts should follow the approach developed by the Ninth Circuit in Arce v. Douglas. Courts should extend Pico beyond its library context to hold that students have a First Amendment right to receive information in the curriculum they are taught. In evaluating whether a curriculum decision violates this right, courts should apply the standard laid out in Hazelwood School District v. Kuhlmeier: Courts should first require that state and local educational bodies justify that their curriculum restriction decisions were motivated by a “legitimate pedagogical concern” and courts should then inquire if such restrictions are “reasonably related” to that concern. This standard properly respects the deference states and localities are due in educational matters, while protecting students’ constitutional free speech rights. The standard also follows basic requirements of constitutional law: requiring justifications, reasonableness in those justifications, and proper process.

The steady flow of social media cases to the Supreme Court reveals a nation reworking its fundamental relationship with technology. The cases raise a host of questions ranging from difficult to impossible: how to nurture a vibrant public square when a few tech giants dominate the flow of information, how social media can be at the same time free from conformist groupthink and protected against harmful disinformation campaigns, and how government and industry can cooperate on such problems without devolving toward censorship.

To such profound questions, this Essay offers a comparatively modest contribution— what not to do. Always the lawyer’s instinct is toward analogy, considering what has come before and how it reveals what should come next. Almost invariably, that is the right choice. The law’s cautious evolution protects society from disruptive change. But almost is not always, and with social media, disruptive change is already upon us. Using social media laws from Texas and Florida as a case study, this Essay suggests that social media’s distinct features render it poorly suited to analysis by analogy and argues that courts should instead shift their attention toward crafting legal doctrines targeted to address social media’s unique ills.

Under pressure to turn away noncitizens who fabricate religious affiliation to improve their chances of gaining asylum, immigration judges are known to ask asylum seekers doctrinal questions about their purported religions to assess their overall credibility. Immigration judges administer these “religious tests” with broad statutory authority to make credibility determinations and without meaningful review by the Board of Immigration Appeals or the federal Courts of Appeals. Although “religious tests” are currently allowed in immigration court, they are strictly forbidden in federal court because of an Establishment Clause principle called the “religious question doctrine,” which forbids government tribunals from weighing in on intrafaith doctrinal disputes or holding claimants’ beliefs and practices to judicial standards of orthodoxy. This Note highlights the difference in how religious tests are treated in these two adjudicative contexts and argues that for both constitutional and institutional reasons—that is, because of the Establishment Clause’s mandates and the government’s incompetence in adjudicating intimate issues of personal identity—appellate courts should forbid religious testing in asylum proceedings just as they do in federal courtrooms. To the extent that the government has a legitimate interest in preventing so-called “religious imposters” from gaining asylum, immigration judges can further that interest by gauging the sincerity and not the orthodoxy of applicants’ beliefs, just as federal judges do.

In the tempestuous process of defining communities of interest for legislative redistricting—a process that will inevitably spark disagreement, dissatisfaction, and dissent—deferring boundary-setting to a physical, objective metric established by a community itself would appear to be a safe harbor, insulating line-drawers from criticism. The eruv—a physical structure encircling a Jewish community which
allows observant Jews to carry items outside the home on Shabbat—presents redistricters with an attractive way to craft districts that give political voice to the Jewish community. However, this Note argues that rather than serving as a safe harbor, this use of the eruv in redistricting presents a constitutional hazard, as it may run afoul of the Establishment Clause. The Supreme Court’s Establishment Clause jurisprudence clearly forbids a state from “delegat[ing] its civic authority to a group chosen according to a religious criterion.” The use of an eruv as a basis for redistricting, this Note argues, is precisely such a delegation: The state delegates its power to determine the boundaries of a community and the resultant district lines to religious authorities and a religious community, bucking the neutrality commanded by the Establishment Clause. While the precise shape of a particular district and the inputs leading to its creation will determine the presence of an Establishment Clause violation, the potential for such a violation in the case of eruv-based districts—and the concomitant potential for the politicization of religion and increased political division—has heretofore gone unnoticed.

Sarah Ludington is a Clinical Professor of Law and the Director of the First Amendment Clinic at the Duke University School of Law. Lauren Smith is...

Florida adopted a statute in 2021 barring large social media sites from deplatforming—removing from their sites—candidates running for state and local office. Soon thereafter, Texas adopted its own anti-deplatforming statute. A trade association representing several major social media companies is now challenging the laws in federal court for violating the platforms’ First Amendment speech rights. A central issue in both NetChoice, LLC v. Moody (targeting Florida’s statute) and NetChoice, LLC v. Paxton (attacking Texas’s law) is the significance of the U.S. Supreme Court’s 1974 decision in Miami Herald Publishing Co. v. Tornillo. In Tornillo, the Court struck down a Florida statute that compelled print newspapers that published attacks on political candidates’ character or record to provide access in their pages for those political candidates’ replies. This Article examines the relevance of Tornillo’s aging precedent in conferring print newspapers with a right of editorial autonomy and a right not to be compelled to speak in today’s social media, anti-deplatforming cases. The Article avers that while Tornillo may help the platforms with their legal challenges, its impact is cabined by several crucial factual and legal distinctions. The Article concludes that dicta regarding both access and social media platforms in the U.S. Supreme Court’s 2017 decision in Packingham v. North Carolina could play a surprising role in pushing back against Tornillo.

Prostitution is illegal while pornography is constitutionally protected. Modern technology, however, is complicating the relationship between prostitution and pornography. Recent technological advances make the creation and distribution of recorded material more accessible. Within our smart phones we carry agile distribution networks as well as the technical equipment required to produce low-budget films. Today, sex workers may be paid to engage in sexual activities as part of performances that are recorded and broadcast to a public audience. No longer confined to the pornography industry, this form of sexual performance can be created by anyone with a cell phone and access to the internet. In addition, modern popular culture recognizes the expressive value of reality and ordinary life. Technological advances will only continue to make broadcasting and sharing everyday life possible, raising the possibility that there will be a growing audience for, and communities organized around, sexually expressive materials online. This Article is the first to analyze this increasingly important and common phenomenon that it defines as reality porn. It argues that reality porn is pornographic paid sex work that should be accorded First Amendment recognition, notwithstanding the criminalization of the underlying act of prostitution. This Article redefines pornography and provides a framework for analyzing this sexual expression. As long as the conduct is consentable—both consented to in fact and consensual in nature—it should not be deprived of constitutional protection.