Volume 93, Number 2

May 2018

First Amendment Coverage

Amanda Shanor

Neither courts nor scholars have articulated a coherent theory of the scope of the First Amendment’s “freedom of speech.” Most First Amendment jurisprudence and scholarship has focused on the justification for the freedom of speech or questions of constitutional protection—essentially, how much scrutiny should apply in various contexts. Largely ignored is the often-dispositive threshold question of whether activities are “covered” by the First Amendment at all. Many activities that are colloquially considered “speech” are not traditionally subject to constitutional review. For instance, the regulation of contracts, commercial fraud, perjury, conspiracy, workplace harassment, the compelled speech of tax returns, and large swaths of regulation by the administrative state have all historically been treated as beyond the ambit of the First Amendment.

Today, however, the boundaries of the First Amendment are in a period of transformation. Plaintiffs across the country contend that the regulation of areas of social and economic life that never before were thought relevant to the Constitution is in violation of it. Courts are increasingly confronted with cases that raise the question: Does the First Amendment apply? This makes the need for a theory of the scope of the right of free speech—of the First Amendment’s boundaries—ever more pressing.

This Article develops, first, a descriptive and sociologically-based theory of First Amendment coverage. By analyzing differences between free speech sub-doctrines, I argue that the animating difference between what falls within the First Amendment’s reach and what is excluded from it does not rest on the distinction between speech and conduct, as is often thought. Instead, coverage depends on whether or not social norms about a given practice are (or courts believe should be) sufficiently strong to make the anticipated consequences of the speech—how it works and what it does—clear. Coverage depends, in short, on whether or not the audience of the activity is pluralistic.

Second, this Article develops a prescriptive theory of how courts should analyze questions of the boundaries of free speech. I argue that, at the borders of the First Amendment, courts must analyze the social context of the activity in question as well as the normative and institutional implications of charting First Amendment coverage.

I conclude by exploring the issues at stake in current and emerging First Amendment coverage questions. I argue that the scope of the First Amendment reflects and defines the areas of social life in which we need or want cohesive, non-pluralistic, social norms and relationships. In short, the boundaries of the First Amendment track not only the space of pluralistic contestation, but also the expectation of and desire for social cohesion.

The Parity Principle

Luke P. Norris

The Supreme Court has interpreted the Federal Arbitration Act of 1925 (FAA) in a broad way that has allowed firms to widely privatize disputes with workers and consumers. The resulting expansive growth of American arbitration law has left commentators both concerned about the structural inequalities that permeate the regime and in search of an effective limiting principle. This Article develops such a limiting principle from the text and history of the FAA itself. The Article reinterprets the text and history of section 1 of the statute, which, correctly read, excludes individual employee-employer disputes from the statute’s coverage. The Article argues that section 1, though targeted at employees, is based on a parity principle that holds that the state has reason to regulate and limit the enforcement of arbitration agreements where deep economic power imbalances exist between the parties— that is, where relative parity is lacking. The parity principle underlying section 1 can best be understood through the lens of Progressive-Era thought at the time of the FAA’s enactment that focused on the regulatory responsibility of the state, through public adjudication and legislation subject to judicial interpretation, to publicly oversee the resolution of disputes and distribution of rights between parties of highly disparate economic power. This Article develops the logic and theory of the parity principle, and explores its implications for how courts should interpret the FAA and for legislative and administrative reforms targeted at workers and consumers.

Constitutional Law in an Age of Alternative Facts

Allison Orr Larsen

Objective facts—while perhaps always elusive—are now an endangered species. A mix of digital speed, social media, fractured news, and party polarization has led to what some call a “post-truth” society: a culture where what is true matters less than what we want to be true. At the same moment in time when “alternative facts” reign supreme, we have also anchored our constitutional law in general observations about the way the world works. Do violent video games harm child brain development? Is voter fraud widespread? Is a “partial-birth abortion” ever medically necessary? Judicial pronouncements on questions like these are common, and—perhaps more importantly—they are being briefed by sophisticated litigants who know how to grow the factual dimensions of their case in order to achieve the constitutional change that they want.

The combination of these two forces—fact-heavy constitutional law in an environment where facts are easy to manipulate—is cause for serious concern. This Article explores what is new and worrisome about fact-finding today, and it identifies constitutional disputes loaded with convenient but false claims. To remedy the problem, we must empower courts to proactively guard against alternative facts. This means courts should push back on blanket calls for deference to the legislative record. Instead, I suggest re-focusing the standards of review in constitutional law to encourage fact-checking. It turns out some factual claims can be debunked with relative ease, and I encourage deference when lower courts rise above the fray and do just that.