Free Speech and the Confluence of National Security and Internet Exceptionalism

In this Article, I argue that, notwithstanding these contemporary developments, the Court got it mostly right in Brandenburg. Or, I want to at least suggest that it is premature to reconstruct the Brandenburg test to address perceived changes in our global environment. For the most part, Brandenburg has succeeded in mediating the balance between protecting political or ideological advocacy and enabling the government to regulate actual incitement, even in the contemporary era. Moreover, I argue that society should be especially wary of calls to narrow Brandenburg’s speech-protective standard because such changes might be significantly influenced by the confluence of two forms of exceptionalism—national security exceptionalism and internet exceptionalism—both of which are continuing to evolve in real time. In development of this argument, this Article contains three parts

Compelled Speech and the Regulatory State

Since the Supreme Court’s 1943 decision in West Virginia Board of Education v. Barnette, it has been axiomatic that the First Amendment prohibits the government not only from censoring speech, but also from compelling it. The central holding of Barnette itself is largely uncontroversial—it seems obvious that the First Amendment’s free speech clause means that no government may require people to espouse or reproduce an ideological statement against their will. But the Court has extended the compelled speech doctrine to stop the government from forcing people to make even truthful, factual statements. These claims have resulted in some of the most hotly contested free speech disputes the Court has addressed in recent years. For instance, in National Institute of Family & Life Advocates v. Becerra, the Court invalidated provisions of a California law requiring self-styled “crisis pregnancy centers” to post and distribute truthful information about the availability of statesponsored services, including abortion, for pregnant women and, where the centers were not licensed to provide medical services, to disclose that fact. The Court held that the First Amendment prohibits such compelled speech unless the disclosure is “purely factual and uncontroversial,” and that abortion is “anything but an ‘uncontroversial’ topic.” If this is the appropriate legal standard, then the doctrine must grapple with defining what makes facts controversial or not. This is problematic for a number of reasons. First, facts, as opposed to ideas, would not ordinarily be labeled as controversial. Second, because we are now living in a time of epistemic chaos in public discourse, virtually any fact is now open to dispute, and thereby controversial. Finally, because of increasingly polarizing contemporary debates about the very role of government, the controversial fact standard risks devolving into an infinite regress to the point where every fact is controversial because the role of government regulation is itself controversial. If the Court does not articulate clear and substantial limiting principles, widespread application of the compelled speech doctrine ultimately will result in challenges to all government disclosure requirements, undermining critical components of the regulatory state

The Intractability of Qualified Immunity

This Essay offers an internal critique of qualified immunity law that explains why these problems remain intractable and why, unfortunately, there is little hope for resolution of the doctrine’s central dilemmas, short of either abandoning immunity or making it absolute. The Essay breaks down its discussion of qualified immunity into three distinct, but related, categories, and argues that the challenges presented within each category are difficult, if not impossible, to overcome. First, it addresses what can best be described as qualified immunity’s foundational jurisprudential tensions. Embedded in the doctrine are several first-level legal theory problems that can be identified and discussed, but for which there are ultimately no “right” answers. These tensions can be seen, for example, in the operationalization of the doctrine as an open-ended reasonableness standard rather than a bright-line rule, the conceptual challenge of distinguishing pure questions of law from mixed questions of law and fact, and the appropriate level of generality at which “clearly established constitutional rights” are articulated. Indeed, as the latter question suggests, the very meaning of constitutional rights underlies all conversations about qualified immunity. These theoretical and doctrinal tensions are, in turn, translated into real practical challenges for judges and litigators, especially at the federal district court level, who struggle to implement a doctrine that suffers from serious administrability problems. Among these problems are continuing disputes over the degree to which discovery is permissible prior to resolving immunity claims, the coherent implementation of supposedly transsubstantive summary judgment procedures, and the continuing consumption of substantial resources by the adjudication of qualified immunity claims. Finally, the Essay addresses qualified immunity from a public policy perspective, arguing that meaningful reform of the doctrine is impeded in part because of these previously identified tensions, which as suggested are not amenable to easy resolution. Reform is also made more difficult because of insurmountable epistemological problems about how the doctrine operates on the ground. Notwithstanding the emergence of excellent, recent empirical work by several legal scholars, the doctrine likely will remain entrenched in its current form because of the Supreme Court’s reluctance to consider empirical data in revising rules of constitutional enforcement coupled with Congress’s lack of political will. The legal community can continue to argue about qualified immunity at the margins, but should not reasonably expect any transformation of the doctrine’s basic structure over its next fifty years

Due Process as Consumer Protection: State Remedies For Distant Forum Abuse

This article takes the position that distant forum abuse is a practice which should be and can be halted by the employment of state consumer protection statutes. The article first lays out a history of distant forum abuse and its role as a tool for debt collection harassment. Next, it examines legal developments in this area at both the federal and state levels, and explains the need for a more wide-reaching remedy in most jurisdictions. The third section briefly addresses important aspects of procedural waivers under contract law which must be taken into account by policy-makers when fashioning new remedies for distant forum abuse. Finally, there will be a discussion of the use of the Ohio Consumer Sales Practices Act as a remedy for distant forum abuse in Ohio. Ohio is a good example on which to focus because it is a jurisdiction where the issue is still being litigated, and the question of statutory coverage in Ohio is indicative of common problems in statutory interpretation which confront consumers in other states who wish to invoke consumer protection statutes against distant forum debt collectors

Free Speech, Rational Deliberation, and Some Truths About Lies

Could “fake news” have First Amendment value? This claim would seem to be almost frivolous given the potential for fake news to undermine two core functions of the freedom of speech—promoting democracy and facilitating the search for “truth,” as well as the corollary that to be valuable, speech must promote rational deliberation. Some would therefore claim that fake news should be classified as “no value” speech falling outside of the First Amendment’s reach. This Article argues somewhat counterintuitively that fake news has value because speech doctrine should not be focused exclusively on the promotion of rational deliberation, but should also limit the state’s ability to control the way we emotionally experience ideas, beliefs, and even facts. It claims that like art, music, religious expression, and other forms of human communication that do not facilitate rational deliberation in their audiences, fake news can promote a form of expressive experiential autonomy. It can allow individuals to experience individual self-realization and identity formation and also form cultural connections with like-minded people, advancing social cohesion. Drawing on First Amendment theory and on the fields of cognitive and social psychology and political science, this Article views consumers of fake news not simply as uninformed, gullible rubes, but as individuals seeking simultaneously to distinguish themselves through individualization or self-identification and to connect themselves through group association with a community of people with whom they share values. Understood in this way, this inquiry illustrates why the rational deliberation principle is incomplete because it does not explain much of what we ought to recognize as “speech.” This more nuanced understanding of the way that fake news connects with much of its audience has implications for free speech theory, First Amendment doctrine, and policy-making options for addressing the potential harms of fake news. To be clear, this Article is not a defense of fake news or those who intentionally attempt to influence others’ behavior by spreading false facts disguised as legitimate news. Thus, this Article concludes by explaining that while fake news should always be covered by the First Amendment, it should not always be protected