The Supreme Court’s “weaponized” First Amendment has been its strongest antiregulatory tool in recent decades, slashing campaign-finance regulation, public-sector union financing, and pharmaceutical regulation, and threatening a broader remit. Along with others, I have previously criticized these developments as a “new Lochnerism.” In this Essay, part of a Columbia Law Review...
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Over the past four decades, the political economy of the First Amendment has undergone a significant shift. If in the early twentieth century winners in First Amendment cases tended to be representatives of the marginalized and the disenfranchised, these days, they are much more likely to be corporations and other powerful actors. This Essay excavates the causes of that change and suggests how it might be remedied. It argues that the shift in...
What can the First Amendment accomplish in society? In particular, can it foster equality? This Essay, written for Columbia Law Review’s 2018 Symposium on equality and the First Amendment, argues that, if the question is whether freedom of speech could serve equality, the answer is yes. Freedom of speech can serve nearly...
Any progressive agenda for change will require robust exercise of speech and associational rights that law currently restricts for labor unions. Although the Supreme Court’s conservative First Amendment judicial activism has raised doubts about whether constitutional protection for free speech can serve progressive ends, this Essay identifies a silver lining to the deregulatory use of the First Amendment. The Roberts Court’s extension of heightened...
The vision of free expression that characterized much of the twentieth century is inadequate to protect free expression today.
The twentieth century featured a dyadic or dualist model of speech regulation with two basic kinds of players: territorial governments on the one hand, and speakers on the other. The twenty-first-century model is pluralist, with multiple players. It is easiest to think of it as a triangle. On one corner are nation-states...
Over the past decade, the Roberts Court has handed down a series of rulings that demonstrate the degree to which the First Amendment can be used to thwart economic and social welfare regulation—generating widespread accusations that the Court has created a “new Lochner.” This introduction to the Columbia Law Review’s...
Increased use of the cloud and its international scope raise significant challenges to traditional legal authorities that permit access to data stored outside the United States. The resulting stakes are high. This area of law affects a wide range of important matters concerning law enforcement, national security, and civil litigation.
Up until now, however, policymakers in this area have failed to fully appreciate the technological distinctions...
Federal campaign finance law prohibits foreign nationals from making contributions or expenditures of “money or other thing of value” in connection with American elections and prohibits anyone from soliciting such a contribution or expenditure. The revelation that officials from Donald Trump’s 2016 presidential campaign met with Russian nationals after being told they would receive “information that would incriminate” Hillary Clinton,...
In the 2017 case Pena-Rodriguez v. Colorado, the Supreme Court held that the jury no-impeachment rule must yield to a criminal defendant’s Sixth Amendment right to an impartial jury when a court is faced with clear evidence that racial animus played a significant role in the jury’s decision to convict. Despite the Supreme Court notably cabining its decision to instances of racial bias alone, commentators have questioned whether...
The #MeToo movement has shaken corporate America in recent months, leading to the departures of several high-profile executives as well as sharp stock price declines at a number of firms. Investors have taken notice and taken action: Shareholders at more than a half dozen publicly traded companies have filed lawsuits since the start of 2017 alleging that corporate fiduciaries breached state law duties or violated federal securities laws in connection...