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First Amendment Law

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The First Amendment and Regulatory Responses to Workplace Sexual Misconduct: Clarifying the Treatment of Compelled Disclosure Regimes

Elizabeth A. Aronson

In response to revelations about the pervasiveness of workplace sexual misconduct, legislators have proposed a variety of regulatory solutions. Among those responses are proposals to require companies to disclose information related to the settlement of sexual misconduct allegations made by employees. This proposal merits special attention because it conceivably compels speech, making it vulnerable to a First Amendment challenge. While such a claim appears surprising, recent developments in First Amendment law have taken the idea from laughable to plausible. This Note situates the proposals in light of recent First Amendment challenges to compelled disclosure regimes, using the proposals as a lens to examine how courts have addressed such challenges. The analysis demonstrates the need for greater clarity in the treatment of information-forcing regulations. A suggested approach is for courts to explicitly recognize regulatory exceptions to compelled speech claims when the compelled speech is only incidental to the broader purpose of the regulation.

Are Universities Schools? The Case for Continuity in the Regulation of Student Speech

Chad Flanders

Are universities schools? The question seems almost silly to ask: of course universities are schools. They have teachers and students, like schools. They have grades, like schools. There are classes and extracurricular activities, also like schools. But recent writings on the issue of “free speech on campus” have raised the improbable specter that universities are less educational institutions than they are public forums like parks and sidewalks, where a free-wheeling exchange of ideas and opinions takes place, unrestricted by any sense of academic mission or school discipline. My short essay has three parts. In the first part, I examine and explain the rhetoric advancing what I call the “break” view of speech at universities, which situates universities as types of institutions that are more similar to traditional public forums than they are to high schools or middle schools. In the second part, I look at how lower courts have applied the principles of the Court’s educational cases (the Tinker line) in contexts other than universities to see how the weighing and balancing of interests proceeds in those cases. In the third part, I argue for the “continuity” view, which advocates for applying the Tinker line of cases to universities in a way that takes seriously the idea that universities are in fact schools and not pure “marketplaces of ideas,” where speech generally goes unregulated, and restrictions on speech can only be made in the face of imminent threats.

Incentivizing Pharmaceutical Testing in an Age of Off-Label Promotion

Ryan Sila

In 2012, the Second Circuit held that under the First Amendment, pharmaceutical manufacturers have a right to promote their drugs for uses for which that they have neither been clinically tested nor FDA-approved. Weighing heavily in the Second Circuit’s analysis was the argument that the FDA’s prohibition on so-called “off-label speech” inhibited physicians’ access to complete information, thereby harming public health. That line of reasoning has also created skepticism within Congress of the FDA’s policy. Others argue that the prohibition on off-label speech is necessary in order to incentivize manufacturers to clinically test their drugs for all intended uses—a process that not only allows the FDA to certify the drug as safe and effective in each of its uses, but also creates a larger data set about a drug’s effects before it begins to be marketed and prescribed. If manufacturers can market their pharmaceutical products for unapproved uses, they have reduced incentives to seek FDA approval, especially because the required clinical tests are extremely costly. Whatever one believes about a policy of permitting off-label promotion, it is clear that it not only creates benefits, but it also creates costs. This Note considers regulatory and common-law tools to reduce those costs. It rejects available regulatory tools, because either they are too weak to change manufacturers’ incentives to conduct clinical tests, or they suffer from the same constitutional questions that troubled the Second Circuit. Instead, this Note argues that courts can hold manufacturers to a common-law duty to test their drugs for each use for which they market them, and it outlines what such a duty might entail. Such a solution, if properly implemented, would not only mitigate the concerns about the liberalization of off-label promotion, but it would also be supported by modern products liability doctrine.

Towards a New Standard for First Amendment Review of Structural Media Regulation

Michael J. Burstein

The Supreme Court’s decisions in the Turner Broadcasting cases ushered in a new era of rigorous judicial oversight of regulations aimed at shaping the economic structure of the media industry. The Turner decisions, and especially their application by lower courts, have expanded the range of regulations subject to heightened First Amendment scrutiny, consistently granted lower levels of deference to legislative and administrative judgments, and applied a degree of economic scrutiny of regulatory choices unseen since the Lochner era. In this Note, Michael Burstein argues that such scrutiny is inappropriate in light of the quickening pace of technological and economic change that marks the modern information environment. He observes that the technological balkanization of First Amendment jurisprudence has outlived its usefulness and that applying a unitary standard to all activities of a particular type of media fails to focus judicial attention on the entity’s core speech activities. Instead, Burstein proposes that courts draw a distinction between regulations that impact content production or editorial choices and those which aim to structure the distribution of information. The former remain deserving of heightened scrutiny, but the latter implicate a long tradition of allowing government regulation to improve the information order. Because government necessarily must make choices among competing instrumental arrangements, none of which implicates a particular normative theory of the First Amendment, such choices are entitled to judicial deference. As technology blurs the lines between different media outlets, this framework should provide the needed flexibility to protect the First Amendment interests of both media entities and the public they serve.

The Imperial Presidency Strikes Back: Executive Order 13,233, the National Archives, and the Capture of Presidential History

Stephen H. Yuhan

In November 2001, after delaying the release of President Reagan’s presidential papers, President Bush issued Executive Order 13,233, which limits the ability of the public to access presidential documents by giving the sitting president and former presidents an effective veto over the release of their records. In this Note, Stephen H. Yuhan argues that Executive Order 13,233 is an impermissible aggrandizement of presidential power at the expense of Congress, the National Archives, and the public. In an effort to find the outer limits of the President’s power to issue executive orders, Yuhan looks first to the watershed case of Youngstown Sheet & Tube Co. v. Sawyer. Finding that Youngstown fails to yield any definitive answers, Yuhan then draws on case law and legal scholarship on the President’s appointment and removal powers. Yuhan contends that preventing arbitrary decisionmakinginterested considerations rather than the public good, Yuhan concludes, the executive order violates separation of powers.

Girls! Girls! Girls!: The Supreme Court Confronts the G-String

Amy Adler

What is it about the nude female body that inspires irrationality, fear, and pandemonium, or at least inspires judges to write bad decisions? This Article offers an analysis of the Supreme Court’s nude dancing cases from a perspective that is surprising within First Amendment discourse. This perspective is surprising because it is feminist in spirit and because it is literary and psychoanalytic in methodology. In my view, this unique approach is warranted because the cases have been so notoriously resistant to traditional legal logic. I show that the legal struggles over the meanings and the dangers of the gyrating, naked female body can be fully understood only when placed within a broader context: the highly charged terrain of female sexuality. By rereading the cases as texts regulating gender and sexuality and not just speech, a dramatically new understanding of them emerges: The nude dancing cases are built on a foundation of sexual panic, driven by dread of the female body. Ultimately, this analysis reveals a previously hidden gender anxiety that has implications not only for the law of nude dancing, but for First Amendment law more broadly. By presenting the ways in which irrational cultural forces shape the Court’s supposedly rational analysis in the nude dancing cases, in the end I point toward an unusual conception of First Amendment law: Free speech law governs culture, yet in surprising ways, culture also governs free speech law.

Stopping “Winks and Nods”: Limits on Coordination as a Means of Regulating 527 Organizations

Meredith A. Johnston

The 2004 federal elections witnessed an unprecedented rise in activity by independent political organizations called “527s.” The current campaign finance regime limits how much individuals and groups may contribute to candidates, parties, and political committees, but leaves 527s virtually unregulated. As a result, wealthy donors were able to circumvent federal contribution limits by giving large amounts to 527 groups. In 2004, these groups raised millions of dollars, which they spent on highly influential advertisements and voter mobilization campaigns. The groups were so successful that they are expected to play a significant role in the 2006 and 2008 elections, and both Congress and the Federal Election Commission (FEC) have considered regulating the groups more closely.

This Note examines the role of 527 organizations in the 2004 election and proposes ways to prevent future circumvention of the campaign finance regime. It argues that Congress should address the 527 problem by passing legislation regulating coordination between outside groups and political campaigns. A statute regulating coordination presents several benefits over current proposals for 527 reform. First, it is more likely to satisfy the constitutional limits on campaign finance regulation. Second, it provides a long-term solution that is not dependent on how a group is classified under tax or campaign finance law. Third, it will encourage donors seeking to buy influence over candidates to give smaller, “hard money” contributions. Finally, congressional legislation will avoid the delay and confusion seen in recent FEC efforts to regulate coordination.

Reconciling the PROTECT Act with the First Amendment

Rosalind E. Bell

This Note explores the recent expansion of child pornography law and its impact on socially valuable art and film. It focuses on how the federal government regulates “virtual child pornography”—both computer-generated materials that are produced without real children and authentic images made with seemingly young adult actors. First, I trace the history of child pornography doctrine from the Supreme Court’s foundational case, New York v. Ferber, to its recent discussion of virtual child pornography in Ashcroft v. Free Speech Coalition. I argue that modern laws and court decisions have become increasingly untethered from Ferber’s limiting interest in protecting children from physical and emotional harm. In Free Speech Coalition, the Supreme Court added a key limitation to child pornography doctrine, categorically protecting non-obscene virtual child pornography. As with all sexually themed materials, the obscenity test established in Miller v. California applies as a backstop, allowing the government to regulate material that violates community standards of decency and that lacks serious literary, artistic, political, or scientific value. Yet Congress’s post-Free Speech Coalition statute, the Prosecutorial Remedies and Other Tools Against the Exploitation of Children Today (PROTECT) Act, threatens to undermine the First Amendment by once again shifting focus from punishing crimes against children to preventing disturbing but nevertheless protected private thoughts. Despite United States v. Williams, a recent, narrow Supreme Court decision upholding the PROTECT Act’s pandering provision, I argue that Congress should reexamine the PROTECT Act as a whole. Looking for guidance in the Supreme Court’s foundational child pornography cases, as well as recent decisions in other First Amendment contexts, I conclude that Congress should amend the Act to comport with established doctrine.

The Child Paradox in First Amendment Doctrine

Yotam Barkai

Courts have increasingly scaled back children’s First Amendment rights and deferred to schools’ fear of disruption; today, children face discipline for even off-campus expression. Meanwhile, in the name of others’ free speech rights, the Supreme Court has discounted the state’s claimed interest in children’s welfare and has repeatedly rejected restrictions on third parties’ abilities to approach children with sexually explicit, commercial, and violent speech. These dueling trends have created a paradox: Although First Amendment principles indicate that children’s ability to speak is more important than their access to others’ speech, the doctrine errs in the wrong direction and protects speech to children more strongly than it protects children’s own expression. Therefore, the Court should both allow for greater government restrictions on speech to children and more strongly protect children’s speech rights, especially outside school. This modified doctrine would be more sensitive to the government’s regulatory interest in children and to the principles behind the First Amendment.

Pussy Riot and the First Amendment: Consequences for the Rule of Law in Russia

Dusty Koenig

On February 21, 2012, members of the Russian punk band Pussy Riot stormed the historic Cathedral of Christ the Savior in Moscow and performed a “punk prayer” to protest the policies of Vladimir Putin’s government. The band members’ subsequent arrests and prosecutions set off a global firestorm of criticism. While some critics focused on the disproportionate sentences handed down by the court following the band’s convictions, or the meaning of justice meted out by an unjust regime, the mainstream reaction was by and large one of disbelief at such an apparently egregious crackdown on free speech. This Note argues that such criticism largely missed the mark by casting the Pussy Riot affair in terms of free speech, despite the likelihood that the punk rockers would have faced a similar fate even under American free speech law—a tradition of protected speech more robust than any other. Instead, criticism of the injustice perpetrated by the prosecutions is better aimed at the inadequate procedural protections of a Russian judiciary in desperate need of reform. As Russians are already aware of the deficiencies in their judicial system, they would likely be much more amenable to international criticism that acknowledges that the Pussy Riot prosecutions did not trample on free speech rights but were nonetheless unjust due to the lack of procedural safeguards accorded to the band members. Such an approach, by more accurately criticizing the real issues Russia’s fledgling democracy faces, promises to further Russia’s development by keeping lines of communication open between the Russian electorate and the West.