Professor of Law, University of Chicago. Thinks a lot about freedom of speech. Still figuring out her Twitter self.
Sep 20, 2022 • 40 tweets • 8 min read
There has been a lot of discussion about the opinion the Fifth Circuit released last Friday upholding Texas’s new social media law. Lots of people have criticized the decision for getting the law wrong. 🧵 reason.com/wp-content/upl…
Indeed, the opinion engages in an unapologetic, dramatic, sometimes bizarre rereading of precedents we thought we knew. For First Amendment lawyers—well, for me—reading it feels like entering the upside down. But why exactly?
Sep 23, 2021 • 5 tweets • 3 min read
I am really looking forward to this conversation tomorrow at 1pm EST with @qjurecic@mashagessen and Sophia Rosenfeld about democracy, lies and the problem of truth. Register to attend in person or via zoom.
The panelists have written a series of fantastic short essays on these questions to set the groundwork for the conversation. Even if you can’t make it tomorrow, you should check them out.
Jul 2, 2021 • 5 tweets • 1 min read
Dear law twitter: I have lots of QUESTIONS about SCOTUS’s decision yesterday in AFP v Bonta. Can you help? 1st, is Bonta a case about compelled disclosures that implicate associational freedom or about disclosures that implicate any 1A rights? 1/5
2nd, does Bonta’s exacting scrutiny standard apply even to laws that compel the disclosure of info to the govt, not to the public, and there is no reason to think that the govt is going to make that info public (as California did, bad California!)? 2/5
Jul 2, 2021 • 11 tweets • 3 min read
I don't actually agree with @daphnehk that the Florida Ct was wrong that market power is irrelevant to 1A analysis. I wish the Ct was wrong! But I think it was just a bit simplified. ...
The courts are generally insensitive to market power in 1A cases. How else to explain Tornillo, Pacific Gas, Hurley. In all those cases, Ct totally disregarded the very sig market power the 1A rights holders possessed.
Jun 7, 2021 • 14 tweets • 3 min read
This article is interesting (tho it overstates I think how much ACLU has sidelined 1A litigation. ACLU continues to litigate lots of impt cases!) Nevertheless, there are clearly internal tensions. Short thread on why this may be a GOOD thing ... nytimes.com/2021/06/06/us/…
1st, views of freedom of speech can and do change over time. As Laura Weinrib has shown, ACLU’s own view of free speech has evolved. An org formed to defend labor speech became the defender of a content-neutral right of free speech for all. amazon.com/dp/B01L7NJO8W/…
May 10, 2021 • 16 tweets • 3 min read
My new article, The Non-First Amendment Law of Freedom of Speech, was published today in HLR. You should all read it ASAP!! But, since it is quite long, I wrote a short tweet thread summarizing its main args and why it matters. (1/16)
The main arg is that, in the US, we should not equate legal protection for freedom of speech with the First Amendment, as many people tend to do. In fact, the First A is only one of many laws that promote expressive freedom.
May 5, 2021 • 13 tweets • 3 min read
A thread on why I think the decision the FOB handed down today in the Trump deplatforming case is a good decision, not what Margaret Sullivan described as a “fig leaf meant to avoid real accountability.” washingtonpost.com/lifestyle/medi…
First, on the merits: the decision does not let FB off the hook. It leaves the Q of the permissibility of Trump’s suspension up in the air, and demands that FB do a lot more to justify it—by among other things, defining what an indefinite suspension is in its community standards.
Apr 6, 2021 • 18 tweets • 4 min read
Thomas’s opinion in Biden v Knight suggesting that social media platforms might be regulated as common carriers without violating 1A generated a strong reaction yesterday. Now that I've had time to digest, a thread on what I think it got right & wrong, & why it matters. 1/18
The opinion is here: supremecourt.gov/opinions/20pdf… 2/18
Apr 5, 2021 • 5 tweets • 2 min read
@evelyndouek and @blakereid: remember that convo we were having about reimagining the First A. It is happening... A few years ago, the dominant conservative judicial position was that net neutrality violates First A. But winds keep shifting! (1/2)
What is interesting here is the use of history to support the point. History does help! This is b/c the current laissez faire view of the First A is historically extraordinary. But up until like 5 seconds ago that (almost) never stopped Thomas from joining in. (2/2)
Feb 14, 2021 • 18 tweets • 5 min read
Since the detailed and ambivalent account of the FOB that @klonick recently published in @NewYorker is generating so much discussion, I thought it might be useful to place the FOB in a broader historical trajectory: what is new here and what isn’t? h/t @rickhills 1/15
First, most obvious pt: we have dealt with similar problems before! We tend to regard the FB prob--a private corp controlling the mass public sphere—as unprecedented, but that is just not the case. At the Founding, the fed gov was primary regulator of the mass public. 2/15
Jan 19, 2021 • 13 tweets • 3 min read
A quick thread for those worried about the impact of the Great Deplatforming on freedom of speech in the US: the platforms are not the only private companies that control who gets to speak in the mass public sphere. Radio and television companies do too! 1/12
Today SCOTUS will hear args in a case raising the Q : what kinds of evidence must the FCC have before it can lift caps on radio and TV ownership meant to guard against the domination of the mass public by any one viewpt or actor. 2/ scotusblog.com/case-files/cas…
Jan 13, 2021 • 8 tweets • 2 min read
It is interesting to me, apropos my earlier thread,
that one of the things those arguing for impeachment keep emphasizing is Trump’s lies.
Rep Newhouse, for example, to explain why he favors impeachment stated that the mob that invaded the Capitol was “inflamed by the language and misinformation of the President of the United States.”
A thread on Trump’s deplatforming and why I think the debate about it reveals the bankruptcy of contemporary free speech law. 1/17
Many of those who approve of the platforms’ decisions to ban Trump argue that current First A law grants speakers no right of access to privately owned property. and conclude that there is no free speech issue here. 2/17
Nov 1, 2020 • 4 tweets • 1 min read
A disturbing report on the continuing aftermath of the BLM protests. theguardian.com/us-news/2020/o…
It's disturbing in part because it's not obvious that existing First Amendment doctrine provides any protection to protestors who are prosecuted for resisting arrest or brandishing a weapon like a liquor bottle but who are really prosecuted because of their speech.
