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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.

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.

In 2017, the Supreme Court struck down the disparagement clause of § 2(a) of the Lanham Act as contravening the First Amendment. Against the backdrop of the Washington Redskins controversy, Matal v. Tam foreclosed the question of challenging federal registrations of disparaging trademarks. The case, however, opened up the opportunity to explore how disparaged groups could work within the framework of federal trademark law to restrict the right to exclusive use that owners of disparaging trademarks possess. Just as offending groups have a constitutional right to free speech, disparaged groups should be allowed to counter disparaging trademarks with “reappropriation use”—unauthorized uses of disparaging trademarks with the purpose of reclaiming “the thought that we hate”—and still be protected under the First Amendment against infringement claims. This Note proposes a novel, three-step reappropriation use defense for courts to apply, demonstrating how federal trademark law could ensure that groups like The Slants have a platform to reclaim terms and still protect disparaged groups seeking to reappropriate disparaging trademarks.