Free Speech & Press

Already famous for abusing the legal system to stifle critics, President Trump has reduced press access, assailed leakers, and threatened his critics and political opponents.

Inside the Doomed Union Refund Lawsuits, Part II

7/24/18  //  Uncategorized

Shortly after I posted my initial take on the headline-grabbing set of class action lawsuits seeking millions of dollars in refunds from public sector unions after Janus, two interesting things happened.

Aaron Tang

UC Davis School of Law

The Doomed—And Dangerous—Demand for Refunds from Public Sector Unions

7/19/18  //  Commentary

Sending unions into bankruptcy because they mistakenly trusted the Supreme Court when it stood by Abood in 2012 (and declined to overrule it again in 2014) would be more than a blow to middle class workers; it would be a serious danger to the rule of law.

Aaron Tang

UC Davis School of Law

Compulsion and Complicity

7/12/18  //  In-Depth Analysis

By Catherine Fisk: The conservative majority's deregulatory use of the First Amendment will weaken it as a safeguard against tyranny

Take Care

Elusive Silver Linings & The Deregulatory First Amendment

7/9/18  //  Commentary

Sometimes the oncoming storm is easier to spot than the silver linings.

The Recyclable Sentences of the Deregulatory First Amendment

7/5/18  //  In-Depth Analysis

There are a few recyclable sentences lurking in lower-profile cases that may offer the best guidance to where the Court is heading next

Nikolas Bowie

Harvard Law School

The Deregulatory First Amendment Strikes Back

7/3/18  //  Commentary

The first in a series of posts on the uses and abuses of the First Amendment as a deregulatory tool

Charlotte Garden

Seattle University School of Law

Updates | The Week of January 22, 2018

1/28/18  //  Daily Update

Hundreds of thousands of people participated worldwide in Women's Marches on Saturday, protesting the first year of the Trump administration and supporting women's rights.

Updates | The Week of January 15, 2018

1/14/18  //  Daily Update

President Trump vows to strengthen libel laws after the release of Fire and Fury.

Zachary Piaker

Columbia Law School

Updates | The Week of December 18, 2017

12/24/17  //  Daily Update

A federal district court in Michigan has upheld a right to display signs depicting aborted fetuses. Environmental Protection Agency employees who publicly criticized the Trump administration had their e-mails scrutinized by a Republican campaign research group.

Update | The Week of November 27, 2017

12/4/17  //  Daily Update

Internet libel takedown orders may violate search engines' First Amendment rights. President Trump continues to criticize CNN.

Jeffrey Stein

Columbia Law School

Updates | The Week of October 23, 2017

10/31/17  //  Daily Update

Commentary continued on President Trump's hostility toward the press. The federal government released thousands of documents relating to the JFK assassination.

Updates | The Week of October 30, 2017

10/29/17  //  Daily Update

The Sixth Circuit granted President Trump's appeal of a denial of a motion to dismiss a complaint alleging that he incited violence at a rally in Kentucky, and new federal legislation includes protections for whistleblowers.

NIFLA v. Becerra: The Conservative Attack on Disclosure

3/15/18  //  Commentary

Disclosure laws further First Amendment values by ensuring that consumers have access to accurate information about their rights to state-funded care and how to access these benefits.

Versus Trump: The FOIA Spectacular!

9/21/17  //  Commentary

On this week’s episode of Versus Trump, Easha and Charlie discuss all things FOIA—that is, the Freedom of Information Act. Listen now!

Charlie Gerstein

Civil Rights Corps

Easha Anand

San Francisco

Jason Harrow

Equal Citizens

Neo-Nazis, Wedding Cakes, and Compelled Speech

8/24/17  //  Commentary

Here I explore the interests asserted by GoDaddy and Google in denying service to neo-Nazis and their ilk. I then consider implications of my analysis for the pending Supreme Court case of Masterpiece Cake Shop v. Colorado Civil Rights Comm'n.

Michael C. Dorf

Cornell Law School

The Bully Podium: Is the First Amendment Defenseless?

9/19/17  //  In-Depth Analysis

Trump has besieged freedoms of speech and press. We must prepare to fight back and defend our liberties.

How Damaging is Clinton v Jones to Trump's Defense Against Various Lawsuits?

5/1/17  //  Commentary

Unless and until the Supreme Court overrules Clinton v. Jones, that rule is that the president lacks immunity, regardless of where he is sued. Thus, Clinton v. Jones is indeed very damaging to Trump's defense against the various lawsuits against him on the basis of his pre-presidential conduct.

Michael C. Dorf

Cornell Law School

UPDATE 2: The President’s Twitter Account & the First Amendment

7/12/17  //  Quick Reactions

The Knight First Amendment Institute at Columbia University and seven Twitter users filed suit yesterday against the President, the White House Press Secretary, and the White House Director of Social Media.

Amanda Shanor

Yale Law School

The President’s Twitter Account & the First Amendment

6/12/17  //  In-Depth Analysis

There are strong First Amendment arguments against President Trump blocking Twitter followers due to disagreement with their views.

Amanda Shanor

Yale Law School

State Action Doctrine Under An Autocrat

9/26/17  //  Commentary

President Trump’s autocratic, anti-speech tendencies are blurring one of the key boundaries in existing First Amendment law, which draws a line between government suppression of speech and private suppression of speech.

Leah Litman

U.C. Irvine School of Law

Versus Trump: 2017 Scorecard

1/4/18  //  Uncategorized

On the first episode of Versus Trump of 2018, Jason and Charlie look back at Versus Trump cases in 2017 and score them as Administration wins, losses, or not-yet-decided. They also look ahead at big issues to come in 2018. Listen now!

Charlie Gerstein

Civil Rights Corps

Jason Harrow

Equal Citizens

Versus Trump, Episode 2: "Get 'Em Out!" + Richard Primus

4/27/17  //  Commentary

The second episode of Versus Trump, Take Care's podcast, features discussion of a lawsuit against President Trump for inciting violence, the Muslim travel ban, and more. Listen or subscribe now!

Easha Anand

San Francisco

Jason Harrow

Equal Citizens

Charlie Gerstein

Civil Rights Corps

Court Affirms Government’s Interest in Protecting Voting Process

6/14/18  //  Commentary

By Adav Noti: In Minnesota Voters Alliance v Mansky, the Supreme Court avoided the pitfall of expanding its conceptually unsound campaign finance jurisprudence into a new area

Take Care

Protecting Free Speech and Free Press From Motivated Malignancy

9/28/17  //  In-Depth Analysis

Trump’s potential violations of free speech and press have much in common with his apparent violations of other constitutional limits

Michael C. Dorf

Cornell Law School

The First Amendment and Soliciting Crimes of Migration

11/2/17  //  In-Depth Analysis

By Daniel I Morales: Can the federal government make it a crime to encourage or induce a noncitizen to illegally enter or reside in the United States?

Take Care

SCOTUS Crisis Pregnancy Center Case Shows Originalist Justices Are Originalist Except When They're Not

6/26/18  //  Commentary

Let's not kid ourselves. Today's decision in NIFLA is an ideological decision.

Michael C. Dorf

Cornell Law School

A Free Press Requires a Strong and Independent Judiciary

10/20/17  //  In-Depth Analysis

A free press and a strong judiciary are among the best bulwarks against authoritarianism, and we need one to have the other.

Nancy Leong

Sturm College of Law

Protecting Against Arbitrary Government

9/27/17  //  In-Depth Analysis

Executive bullying creates a potential taint of illegitimacy, of arbitrariness, that could color the political and moral legitimacy of future governmental actions

K. Sabeel Rahman

Brooklyn Law School

The Bully and the Press

10/5/17  //  In-Depth Analysis

By Sonja West: In response to Trump's attacks, we should embrace the unique constitutional status of journalists and mount defenses based on the First Amendment Press Clause.

Take Care

Forum on Defending the First Amendment from Trump

10/6/17  //  Latest Developments

Take Care and Protect Democracy have teamed up to host a forum in which leading scholars consider how we can use the law (and litigation) to protect against Trump's use of the 'bully podium.'

Take Care

Defending Civil Rights in Starkville, Mississippi

2/27/18  //  Latest Developments

A new lawsuit seeks to protect freedom of speech and equal protection for LGBT people in Mississippi

Joshua Matz

Publisher

An Analysis of DOJ's Brief in Masterpiece Cakeshop

10/18/17  //  In-Depth Analysis

DOJ's effort to to transform this case into a freedom of speech decision threatens the integrity of First Amendment rights. It should be rejected.

Robert Post

Yale Law School

The Slants, Government Speech, and Elane Photography

6/22/17  //  In-Depth Analysis

Thanks to the Supreme Court's ruling in Matal v. Tam, the government speech doctrine will not swallow the First Amendment.

Michael C. Dorf

Cornell Law School

Complicity and Speech: The Right’s New Effort to Rewrite the First Amendment

12/4/17  //  In-Depth Analysis

Conservative legal activists have pushed a sweeping view of the First Amendment’s protection against compelled speech. These new complicity claims should fail.

The Debate Over Confederate Monuments

8/25/17  //  In-Depth Analysis

Why State Anti-Removal Laws are Oppressive and Unconstitutional

Ira C. Lupu

George Washington University Law School

Robert W. Tuttle

George Washington University Law School

What About the Free Speech Clause Issue in Masterpiece?

6/13/18  //  Commentary

Robert Post of Yale Law considers the status of free speech objections to serving same-sex couples in light of the Court's opinion.

Robert Post

Yale Law School

Protecting Protesters'—And The President's—Freedom Of Speech

5/12/17  //  Commentary

Some people are trying to sue the President for violence that erupted at his campaign rallies. But if they're successful, it might make life more difficult for many others, like Black Lives Matter, who regularly speak passionately about controversial issues.

Jason Harrow

Equal Citizens

Versus Trump: Manafort Sues, and Trump Threatens

1/11/18  //  Uncategorized

On a new episode of Versus Trump, Jason, Easha, and Charlie tackle an unexpected new lawsuit against the Trump Administration by, of all people, Paul Manafort. And they discuss the President's threats to sue the publisher of Fire and Fury for defamation. Listen now!

Charlie Gerstein

Civil Rights Corps

Jason Harrow

Equal Citizens

Easha Anand

San Francisco

Versus Trump: Waking Dream(host)

8/31/17  //  Commentary

On this week’s episode of Versus Trump, we talk about web-hosting company Dreamhost's refusal to cooperate fully with the Trump Administration's broad request for information about the visitors to DisruptJ20.org, a website allegedly used by those involved in an Inauguration Day riot. Listen now!

Jason Harrow

Equal Citizens

Easha Anand

San Francisco

Charlie Gerstein

Civil Rights Corps

Friends, Enemies, and Trump's First Amendment Violations

9/26/17  //  In-Depth Analysis

Trump’s intemperate attacks on political speech he dislikes are inconsistent with democratic self-government.

Robert Post

Yale Law School

Constitutional Arithmetic Post-Charlottesville: Sometimes One Plus One Equals Zero

8/20/17  //  Commentary

No, the First and Second Amendments do not add up to a right to publicly protest while carrying assault rifles.

Michael C. Dorf

Cornell Law School

Versus Trump: [This Episode Blocked]

9/28/17  //  Commentary

On this week’s episode of Versus Trump, Easha, Jason, and Charlie dive into the merits of a lawsuit brought by Twitter users who have been blocked by @realDonaldTrump. They claim the President's blocking violates the First Amendment. Listen now!

Easha Anand

San Francisco

Charlie Gerstein

Civil Rights Corps

Jason Harrow

Equal Citizens

Aiming the Bully Podium at Minority Communities

10/11/17  //  In-Depth Analysis

By Mark Joseph Stern: From the NFL to Puerto Rico to the impending ban on transgender troops, Trump uses his “free speech rights” to bully minority communities into silence.

Take Care

Jason Harrow is Wrong About the First Amendment

5/12/17  //  Uncategorized

Freedom of speech is great. Nobody denies it. But the lawsuit against Trump for inciting violence at a campaign rally is legally meritorious, at least at the motion to dismiss stage. And the notion that finding liability against Trump here would imperil protests for all Americans just doesn't hold water.

Charlie Gerstein

Civil Rights Corps

The First Amendment Belongs Only to Americans? Wrong

3/29/17  //  Commentary

The First Amendment makes America great for everyone, not just for citizens.

Nikolas Bowie

Harvard Law School

Leah Litman

U.C. Irvine School of Law

Our Imperiled Absolutist First Amendment

10/3/17  //  Commentary

Recent developments could imperil constitutional protections for expressive freedom.

Zachary Price

U.C. Hastings College of the Law

UPDATE: The President’s Twitter Account & the First Amendment

6/22/17  //  Commentary

Recent developments bolster claims that President Trump has violated the First Amendment by blocking people on Twitter.

Amanda Shanor

Yale Law School

Free Speech Solidarity

10/6/17  //  In-Depth Analysis

Collective action has proven an effective response to the President’s attempted interference with the employment of Jemele Hill and NFL players.

Charlotte Garden

Seattle University School of Law

Hate Speech Is Free Speech, But Maybe It Shouldn't Be

4/25/17  //  In-Depth Analysis

Given enough time, a movement to treat hate speech as beyond the pale, perhaps as part of a backlash against Trumpism, could result in political changes and transformative judicial appointments that redefine the protections of the First Amendment.

Michael C. Dorf

Cornell Law School

Remembering Buckley's Mistakes

1/31/18  //  In-Depth Analysis

By Stuart McPhail: Money isn't speech. It's time to revision Supreme Court cases that say otherwise.

Take Care

Protecting Real News: The Best Solution to the Fake News Panic

10/12/17  //  In-Depth Analysis

Especially in light of Trump's recent remarks, we must better protect media companies from targeted, life-threatening defamation suits

Versus Trump: Updates, Y'all!

11/9/17  //  Commentary

You want updates, so we've got updates! On this week’s episode of Versus Trump, Jason and Easha revisit several important cases and news items that we've previously mentioned so that you have the latest information on them. Listen now!

Jason Harrow

Equal Citizens

Easha Anand

San Francisco

Trump & Libel

5/16/17  //  Commentary

A particularly brazen part of Trump’s attack on the press has been his assertion—both as a candidate and as President—that he will change the libel laws to make it easier to sue the media for unfavorable coverage. That won't work, for many reasons. But Trump’s outrageous threats are brilliantly successful in other ways, no matter how unlikely they are to formally succeed.

Amanda Shanor

Yale Law School

A First Amendment for All? Free Expression in an Age of Inequality

2/28/18  //  Latest Developments

Announcing a conference on how the First Amendment can advance the pursuit of social and economic equality

Jeffrey Stein

Columbia Law School

When Free Speech Suits the President

4/6/17  //  Commentary

A federal judge has refused to dismiss a suit alleging that President Trump incited violence against protesters at one of his campaign rallies last year. The bitter irony to Trump's defense is that it seeks to expand free speech rules; usually, he prefers to trash them.

Amanda Shanor

Yale Law School

Ethics Complaints Against Lying Trump-Administration Lawyers

4/7/17  //  Commentary

There might still be some lies that people won't tolerate. Even from lawyers. And even from lawyers who are also politicians. Should those lies be the basis for discipline under legal ethics rules?

Charlie Gerstein

Civil Rights Corps

If You’re Minnesota Nice, You Can Wear Whatever You Want to the Polls

6/14/18  //  Quick Reactions

By Ilya Shapiro: SCOTUS has ruled that a Minnesota law banning 'political' apparel at polling places violates the First Amendment

Take Care

Trump Threat To Sue Over 'Fire & Fury' Includes Bogus Inducement to Breach Claim Re Bannon

1/8/18  //  Commentary

Can the author or publisher of a book be held liable for inducing the breach of a nondisclosure agreement (NDA)? Spoiler alert: The answer is almost certainly no.

Michael C. Dorf

Cornell Law School

Sanctionable

4/25/17  //  Quick Reactions

In a civil suit against Trump for inciting violence at a campaign rally, Trump's lawyer argues that Trump is immune from suit as President of the United States (citing Clinton v. Jones). His argument is not simply wrong. It is sanctionable.

Neil J. Kinkopf

George State University College of Law

Versus Trump, Episode Two

4/27/17  //  Commentary

This Week's Episode: "Get 'Em Out!" + Richard Primus

Jason Harrow

Equal Citizens

Easha Anand

San Francisco

Charlie Gerstein

Civil Rights Corps

When the Supreme Court Takes Sides

6/28/18  //  Commentary

The Constitution protects all speakers equally. Until it doesn’t – as the Supreme Court just made clear in Janus v. AFSCME.

Amanda Shanor

Yale Law School

Trump's Politicization of Law Enforcement is Authoritarian in Nature

3/9/18  //  In-Depth Analysis

Trump’s actions to quash the independence of federal law enforcement mirror the approach of autocratic leaders around the globe.

Versus Trump: ACS Live Show Preview + Twitter Case Update

6/7/18  //  Commentary

On this week's episode of Versus Trump, Easha and Jason preview their live show at the ACS National Convention and then discuss the recent decision concluding that President Trump violated the First Amendment when he blocked seven Twitter users from responding to his tweets. Listen now!

Jason Harrow

Equal Citizens

Easha Anand

San Francisco

A Reprieve for Texas’s Sanctuary Cities

8/31/17  //  Commentary

Cities need to be recognized as constitutional actors in their own right, worthy of protection and capable of self-determination.

Richard C. Schragger

UVA School of Law

Versus Trump: #MeToo vs. Trump

12/14/17  //  In-Depth Analysis

On this week’s episode of Versus Trump, Charlie, Jason, and Easha talk about a defamation lawsuit brought by Summer Zervos, a woman who alleges that she was sexually assaulted by President Trump in a hotel room in 2007. Listen now!

Jason Harrow

Equal Citizens

Charlie Gerstein

Civil Rights Corps

Easha Anand

San Francisco

Versus Trump: Movin' Right Along

4/12/18  //  In-Depth Analysis

On a new episode of Versus Trump, Jason and Charlie revisit two lawsuits in which the Plaintiffs have recently successfully fought off motions to dismiss and been allowed to proceed. And in a new installment of "Sanctions Corner with Uncle Charlie," Charlie answers questions about the FBI raid on the office of Trump lawyer Michael Cohen. Listen now!

Jason Harrow

Equal Citizens

Charlie Gerstein

Civil Rights Corps

Where are the Facts?

3/1/18  //  Commentary

At oral argument in Janus v. AFSCME, Council 31, an important case about public sector unions, there were a lot of empirical questions—but not a lot of answers.

Brianne J. Gorod

Constitutional Accountability Center

Constructing the Press as Enemy

9/28/17  //  In-Depth Analysis

The Trump administration—in word and in deed—has engaged in enemy construction of the press.

Take Care

Versus Trump: Trump The Trustbuster (Interview with Lina Khan)

11/30/17  //  In-Depth Analysis

On this week’s episode of Versus Trump, Charlie has an interview with antitrust expert Lina Khan, Director of Legal Policy of the Open Markets Institute, about the lawsuit filed by the Trump Administration to block the proposed AT&T/Time Warner merger. Listen now!

Charlie Gerstein

Civil Rights Corps

The Easy Take And The Right Take On The Charlottesville Lawsuit

10/16/17  //  Commentary

There are two ways to look at one of the recent lawsuits against the organizers of the Charlottesville rally, the easy way and the right way.

Leah Litman

U.C. Irvine School of Law

Can a Sitting President be Sued in a State Court?

12/21/17  //  Commentary

A pending defamation suit against President Trump in New York state court raises this important question.

Richard Primus

University of Michigan Law School

The Bearable Lightness of Janus

6/27/18  //  Quick Reactions

The Supreme Court's ruling in Janus sounds like a pretty big problem for organized labor. But it doesn’t have to be.

Aaron Tang

UC Davis School of Law

Trump on Compelled Speech: Unconstitutional for Bakers; Fine for NFL Players

9/25/17  //  Commentary

Can Trump's Justice Department's position on Masterpiece Cakeshop be reconciled with his own views about professional athletes?

Michael C. Dorf

Cornell Law School

Partisan Gerrymandering Returns to the Supreme Court

3/27/18  //  In-Depth Analysis

Partisan gerrymandering at its core is viewpoint discrimination pure and simple, and it cannot be squared with our Constitution’s promise that voters choose their representatives, not the other way around.

What if Trump Censors Climate Science?

8/31/17  //  In-Depth Analysis

Are there legal remedies if Trump refuses to officially accept the Climate Science Special Report?

Dov Fox

University of San Diego School of Law

Updates | The Week of June 5, 2017

6/11/17  //  Daily Update

Discussion of President Trump blocking constituents on Twitter, and pro-Trump information spreading on the social media site.

Updates | The Week of September 25, 2017

10/1/17  //  Daily Update

Attorney General Sessions and President Trump both made comments slamming NFL players for protesting during the national anthem.

Updates | The Week of April 17, 2017

4/11/17  //  Daily Update

The Administration threatened Wikileaks with criminal action. Meanwhile, the Administration refused to release its visitor logs.

Updates | The Week of March 20, 2017

3/26/17  //  Daily Update

Developments in the First Amendment for the week of March 20, 2017.

Updates | The Week of June 12, 2017

6/18/17  //  Daily Update

Analysis continues whether the President violates the First Amendment by blocking Twitter followers due to disagreement with their views.

Updates | The Week of June 17, 2017

6/25/17  //  Daily Update

The President's decision to block users on Twitter may not amount to a First Amendment violation.

Updates | The Week of October 2, 2017

10/8/17  //  Daily Update

Commentary continued on the President's relationship to free speech in the wake of his attacks on the NFL protests.

Updates | The Week of May 8, 2017

5/14/17  //  Daily Update

A reporter in West Virginia was arrested after persistently questioning Health and Human Services Secretary Tom Price about the AHCA.

Updates | The Week of July 31, 2017

8/6/17  //  Daily Update

A federal district court ruled that a public official's social media pages can be public forums under the First Amendment.

Updates | The Week of June 19, 2017

6/25/17  //  Daily Update

Newly released Supreme Decisions set boundaries on the extent to which the government may limit speech on social media and in the market place.

Updates | The Week of August 7, 2017

8/13/17  //  Daily Update

The Trump Administration's "War on Leaks" risks journalists' FIrst Amendment rights.

Updates | The Week of September 18, 2017

9/24/17  //  Daily Update

As the Trump administration continues to attack the press and free speech, Take Care highlights legal avenues through which the press can push back.

Updates | The Week of March 27, 2017

4/2/17  //  Daily Update

President Trump highlights the need to fight for truth.

Updates | The Week of April 10, 2017

4/16/17  //  Daily Update

This week, Twitter sued to oppose a demand for the identity of a user critical of the Trump Administration by the Customs and Border Patrol. Erik Wemple writes that President Trump has undermined public trust in the media.

Updates | The Week of April 3, 2017

4/9/17  //  Daily Update

Take Care saw analysis of President Trump's free speech argument in the civil case alleging that he incited violence against protestors by Amanda Shanor, as well as an argument for an active "democracy agenda" by Daniel Tokaji.

Updates | The Week of May 1, 2017

5/7/17  //  Daily Update

Reince Priebus wants to limit American speech against the government, which is probably unconstitutional. President Trump will find no shelter from suit in Clinton v. Jones precedent.

Take Care

Updates | The Week of August 14, 2017

8/20/17  //  Daily Update

DOJ defends the President’s right to block Twitter users, but is seeking identifying information of visitors to an anti-Trump website.

Updates | The Week of July 10, 2017

7/16/17  //  Daily Update

Twitter users blocked by President Trump sued him and other White House aides claiming the Twitter feed is a public forum. The President's personal lawyer argued that Trump's statements on the campaign trail should be held to a different defamation standard.

Updates | The Week of August 21, 2017

8/24/17  //  Daily Update

President Trump sharply criticized the press during remarks in Phoenix, sparking commentary and criticism.

Updates | The Week of April 24, 2017

4/30/17  //  Daily Update

Analysts wrestle with fake news, President Trump's comments at campaign rallies, and his tweets.

Updates | The Week of October 16

10/21/17  //  Daily Update

President Trump is actively stoking culture wars in the United States. President Trump's threats to punish NFL players who kneel may strengthen a free speech argument that works in favor of the players' rights.