NewYorkUniversity
LawReview

Topics

First Amendment Law

Results

First Amendment Battles over Anti-Deplatforming Statutes: Examining Miami Herald Publishing Co. v. Tornillo’s Relevance for Today’s Online Social Media Platform Cases

Clay Calvert

Florida adopted a statute in 2021 barring large social media sites from deplatforming—removing from their sites—candidates running for state and local office. Soon thereafter, Texas adopted its own anti-deplatforming statute. A trade association representing several major social media companies is now challenging the laws in federal court for violating the platforms’ First Amendment speech rights. A central issue in both NetChoice, LLC v. Moody (targeting Florida’s statute) and NetChoice, LLC v. Paxton (attacking Texas’s law) is the significance of the U.S. Supreme Court’s 1974 decision in Miami Herald Publishing Co. v. Tornillo. In Tornillo, the Court struck down a Florida statute that compelled print newspapers that published attacks on political candidates’ character or record to provide access in their pages for those political candidates’ replies. This Article examines the relevance of Tornillo’s aging precedent in conferring print newspapers with a right of editorial autonomy and a right not to be compelled to speak in today’s social media, anti-deplatforming cases. The Article avers that while Tornillo may help the platforms with their legal challenges, its impact is cabined by several crucial factual and legal distinctions. The Article concludes that dicta regarding both access and social media platforms in the U.S. Supreme Court’s 2017 decision in Packingham v. North Carolina could play a surprising role in pushing back against Tornillo.

Reality Porn

I. India Thusi

Prostitution is illegal while pornography is constitutionally protected. Modern technology, however, is complicating the relationship between prostitution and pornography. Recent technological advances make the creation and distribution of recorded material more accessible. Within our smart phones we carry agile distribution networks as well as the technical equipment required to produce low-budget films. Today, sex workers may be paid to engage in sexual activities as part of performances that are recorded and broadcast to a public audience. No longer confined to the pornography industry, this form of sexual performance can be created by anyone with a cell phone and access to the internet. In addition, modern popular culture recognizes the expressive value of reality and ordinary life. Technological advances will only continue to make broadcasting and sharing everyday life possible, raising the possibility that there will be a growing audience for, and communities organized around, sexually expressive materials online. This Article is the first to analyze this increasingly important and common phenomenon that it defines as reality porn. It argues that reality porn is pornographic paid sex work that should be accorded First Amendment recognition, notwithstanding the criminalization of the underlying act of prostitution. This Article redefines pornography and provides a framework for analyzing this sexual expression. As long as the conduct is consentable—both consented to in fact and consensual in nature—it should not be deprived of constitutional protection.

Fostering Discrimination: Religious Exemption Laws in Child Welfare and the LGBTQ Community

Adrianne M. Spoto

In response to increasing rights for LGBTQ individuals in the United States, particularly the Supreme Court’s affirmation of the right to same-sex marriage in Obergefell v. Hodges, eleven states have imposed laws or policies permitting child welfare organizations to deny services in accordance with their religious beliefs. These measures generally prohibit the state from “discriminating against” religious child welfare organizations by denying them funding or program participation when they refuse to provide services based on their religious beliefs. This Note provides an overview of these religious exemption laws and ultimately argues that, by requiring government funding of discriminatory child welfare organizations, the laws are unconstitutional under the Establishment Clause. The Note begins by considering relevant details about adoption and foster care systems in the United States. It then turns to the laws and policies in question, discussing their provisions, motivations, and impact. Then, taking two specific laws as examples, it analyzes these laws’ constitutionality, arguing for their invalidity under several approaches to understanding the Establishment Clause. By favoring certain religious viewpoints over others, permitting religion to dictate who receives government benefits and services, and imposing burdens on third parties (particularly LGBTQ prospective parents and youth), religious exemption laws ignore the line between church and state in violation of the Establishment Clause.

Protecting Local News Outlets from Fatal Legal Expenses

Nicole J. Ligon

As lawsuits targeting the press continue to rise in response to today’s political climate, local news outlets are more likely to find themselves facing unexpected legal expenses. Although the national news media can generally weather the costs of libel lawsuits and subpoena requests, smaller news outlets have gone bankrupt or barely escaped such a fate while paying off legal fees, even when these outlets have ultimately been successful in their legal battles. Because local news outlets serve a critical role in underserved communities and are powerful agents of positive social change, they ought to be protected against fatal legal expenses. This Article examines the important functions of local journalism, explains the recent legal challenges that local news outlets have been facing and their resulting impact, and exposes the problematic gaps of statutory frameworks that fail to adequately protect local news outlets from fatal legal expenses. In so doing, this Article argues that enacting strong state anti-SLAPP statutes and reporter’s shield laws is necessary to combat recent costly attacks against the press and to preserve the vitality of the local media.

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.