First Amendment Law


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.

Rethinking Judicial Attitudes Toward Freedom of Association Challenges to Teen Curfews: The First Amendment Exception Explored

Todd Kaminsky

Circuit court decisions in the cases of Qutb v. Strauss and Hutchins v. District of Columbia signal a change in judicial attitude towards associational challenges to teen curfews: If a curfew contains an exception for activities protected by the First Amendment, then it will not be struck down as unconstitutional for infringing on a teenager’s right to associate. At first blush, a First Amendment exception appears sufficiently protective of a teenager’s right to associate. But as Todd Kaminsky demonstrates in this Note, the exception may in fact not go far enough. Certain activities that fall outside the scope of the exception—most notably, public discussion-are necessary antecedents for activities within the scope of the exception, such as protest. By examining sociological accounts of Freedom Summer, the Velvet Revolution, and other similar movements, he establishes the link between public discussion and protest and brings into sharp relief the negative First Amendment consequences of curtailing public discussion. In addition, he explores how a curfew, even with an exception, may make it more difficult for expressive teen organizations to recruit new members, by reducing the time available for teens to socialize and develop informal social networks. As such, Kaminsky concludes, courts should give due regard to associational challenges and scrutinize carefully teen curfews, despite the inclusion of First Amendment exceptions. Otherwise, courts may inadvertently erode teenagers’ right to associate by choking off the conditions necessary for the vigorous exercise of that right.

Striving for Herd Immunity

Andrew Janet

This Comment argues in favor of large-scale reform that would make it much more difficult to avoid immunizing children. Part I provides background on the sources of this problem and contends that there is an extremely strong state interest in eradicating diseases to which the countervailing individual interest in pursuing an adherence to junk science should pale in comparison. Part II argues that the state exemptions for religious and personal beliefs are both unnecessary and, again, misguided given the strong state interest in eradicating diseases. Part III explores the possibility of universal state-level or federal-level mandates for vaccination. The country has allowed the destructive impact of Jenny-McCarthyism to run rampant for far too long.

Andrew Janet, Striving for Herd Immunity, 90 N.Y.U. L. Rev. Online 1 (2015).