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...
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,...
This Note assesses First Amendment freedom of speech claims with regard to online civil rights testing. Transactions that have conventionally occurred in person are now more often completed online, and providers transacting online have been increasingly using algorithms that synthesize users’ data. While these algorithms are helpful tools, they may also be yielding discriminatory results, whether intentionally or unintentionally.
In...
This Essay argues that the Supreme Court’s political party jurisprudence is predicated on a set of theoretical assumptions that do not hold true in the real world of contemporary American politics. The Court’s jurisprudence is grounded in a theory of democratic accountability—known as “responsible party government”—which views political parties primarily as speakers and presumes that electoral accountability emerges from the choice...