Free Speech Law Research Articles

Tackling online false information in the United Kingdom: The Online Safety Act 2023 and its disconnection from free speech law and theory*

ABSTRACT It is commonly recognised that the publication of false information can be harmful to the public sphere. The Online Safety Act 2023 places statutory responsibilities on regulated services to prevent the publication of certain false information. This article interrogates the regime’s compatibility with established free speech law and theory. I argue that there is a disconnect between the legislation and the legal and theoretical principles underpinning free speech, which could have insidious and long-lasting implications for the right and the public sphere.

On Traditionalism in Free Speech Law

On Traditionalism in Free Speech Law

What 21st-Century Free Speech Law Means for Securities Regulation

What 21st-Century Free Speech Law Means for Securities Regulation

Sharpening the Focus of Free Speech Law: The Crucial Role of Government Intent

Contemporary free speech law is typically misfocused. This misfocus serves neither the purposes underlying the institution of free speech nor any broader social rights and interests in conflict with freedom of speech. As a general matter, the adjudication of free speech claims should properly focus, centrally, on the intent of the regulating government. More specifically, courts should focus crucially on whether the government has, in enacting or enforcing its speech regulation, intended to suppress or disadvantage a presumed or actual idea or its expression. This sharpened focus would allow the courts to responsibly address a surprisingly broad range of free speech cases with a substantially diminished need for attention to a number of artificial, if not unnecessary, judicial doctrines that have gradually been incorporated into the free speech case law. This Article first briefly establishes the nature, and the typical costs, of official inhibition of speech in general. The Article then more extensively examines a range of the contemporary case law, with attention, successively, to the recent student speech case of Mahanoy Area School District v. B.L.; to cases involving various sorts of borderline and non-traditional forms of speech; and then to questions of content based and content-neutral regulations of commercial and non-commercial speech, as raised by the case of Reed v. Town of Gilbert, Arizona and the later case law. The Article then addresses the problem of properly inferring, or otherwise ascertaining, any meaningful government intent to suppress or disadvantage a particular idea. A brief conclusion then follows. Throughout, it will be useful to remember that in all sorts of free speech cases, the relevant government’s intentions are likely to have been multiple; partly conflicting; or perhaps mutually linked, if not inseparable. Commonly, a government that is restricting speech may have an intent to suppress or disadvantage an idea where that intent is somehow linked to a more benign intent to discourage some perceived public harm that is thought by the government to result from the speech in question. On our approach, if there is any causally significant government intent to suppress or disadvantage an idea, the speech restriction generally must fail. The result should follow even if the same restriction could have been adopted with no such invidious intent, and for worthy public purposes. Thankfully, not all substantial restrictions on speech involve any intent to suppress an idea. Thus some restrictions on, for example, political speech, along with many instances of restrictions on libelous speech; fraudulent speech; politically favored speech that is irrelevant to the forum; noisy or distracting speech; perjury; or speech that would impair national security can be enacted without any causally significant hostility to any idea that the speaker wishes to express. But again, regardless of the nature of the speech in question, if the restricting government harbors any causally relevant intention to suppress or disadvantage the idea in question, the speech restriction should generally be struck down. The social costs of such a judicial response to such a speech regulatory intent need not be substantial. Such a focus would, on the other hand, helpfully allow for reduced judicial attention to, if not a complete bypass of, a number of currently ubiquitous and largely distracting free speech tests and categories.

The Evolution of Student Free Speech: Tinker and Beyond

There are no secure rights without the right of free speech. Free speech is the right that is necessary to defend all other rights. Student free speech is an essential foundation for societal free speech. We will not have a society that values and protects free speech without valuing and protecting free speech for students. Schools must serve as the essential nurseries of our democracy and as examples of the responsible exercise of rights in a free society including free speech. We cannot expect students to spend most of their waking hours in institutions devoid of meaningful rights to freedom of speech and then emerge as adults prepared to exercise and defend democratic freedoms including free speech. Students who learn to exercise free speech rights in schools are more likely to become adults ready to exercise free speech rights in a civil democracy. This article addresses the ongoing evolution of student free speech rights in the U.S., providing a brief overview of free speech law; a review of student speech law in public K-12 schools and in public higher education institutions; a guide to applying the Tinker test in practice; a discussion of the continuing evolution of student speech law in public educational institutions; a review of freedom of the press in public educational institutions; and conclusions on the evolution of student speech.

Application of European Model to Curtail Hate Speech in the U.S.

As hate speech increases we may need to revisit the question of how to respond to it and whether to limit it within free speech or other areas of law. This article compares free speech law in the United States and the European Union in an effort to explore how one might improve our care of ourselves and each other in the realm of free speech.

How Speech Lost Its Voice: The Informational Turn in US Free Speech Law

AbstractIn influential strains of late twentieth-century US legal discourse on free speech, speech and language have been disconnected from sound, and speech rendered as a form of writing. The effe...

Sharpening the Focus of Free Speech Law: The Crucial Role of Government Intent

Contemporary free speech law is typically misfocused. This misfocus serves neither the purposes underlying the institution of free speech nor any broader social rights and interests in conflict with freedom of speech. As a general matter, the adjudication of free speech claims should properly focus, centrally, on the intent of the regulating government. More specifically, courts should focus crucially on whether the government has, in enacting or enforcing its speech regulation, intended to suppress or disadvantage a presumed or actual idea or its expression. This sharpened focus would allow the courts to responsibly address a surprisingly broad range of free speech cases, with a substantially diminished need for attention to a number of artificial, if not unnecessary, judicial doctrines that have gradually been incorporated into the free speech case law.

How to Do Surgery on the Constitutional Law of Libel

The constitutional law of libel has, unfortunately, focused crucially on distracting and misguided inquiries into the various distinctions among public figure and private figure libel plaintiffs. Equally unfortunately, attempts to reform and reconfigure the constitutional law of libel have often focused on public versus private figure libel plaintiff distinctions. The logic of free speech law itself suggests, instead, a judicial abandonment of this misconceived category. Attention instead to the distinction between defamatory speech that addresses, and that does not address, a matter of public interest and concern, however reasonably defined, actually tracks the basic reasons for protecting, and for limiting, freedom of speech in the first place. And this is where the constitutional law of libel should primarily focus.

All of Life an Experiment

US Supreme Court Justice Oliver Wendell Holmes, Jr. reshaped American free speech law through his Supreme Court opinions during World War I and after. This paper explores the oft-debated questions of whether and how Holmes’s free speech views changed between his legal education (during which he was taught that the common law’s bad tendency test allowed governments to punish any speech after it was uttered) and World War I (during which he created and developed the more expansive clear and present danger test). This paper argues that Holmes developed the underlying principles of his later free speech ideas in his writings on American common law, but that he only expressed those ideas in Supreme Court opinions after several other legal thinkers prodded him to do so.

Time, Place, and Manner Restrictions on Speech

The category of time, place, and manner restrictions on speech, as supposedly distinct from absolute bans, appears to be central to free speech law. Even a modest examination of the case law, however, suggests the arbitrariness of any such distinction. Any familiar time, place, or manner restriction on speech can be reasonably re-described as an absolute ban on speech, and vice versa. Any differences in how the relevant regulations of speech should be judicially tested, whether by differing degrees of rigor or otherwise, are correspondingly arbitrary. This Article recommends abandoning any attempt to substantively distinguish between time, place, and manner restrictions and absolute prohibitions of speech. The three currently used judicial tests for presumed content-neutral restrictions on the supposed time, place, and manner of speech should be substantially revised and consolidated. Any replacement test should then de-emphasize concerns for any degree of narrowness of tailoring, focusing instead on whether the regulated speakers are now meaningfully worse off, in terms of their own free speech values, given whatever channels of communication remain available to them after the speech regulation in question has been imposed.

The Book Has Two Faces: Trevor Ross’s Writing in Public: Literature and the Liberty of the Press in Eighteenth-Century Britain

Trevor Ross’s Writing in Public: Literature and the Liberty of the Press in Eighteenth-Century Britain traces the evolution of laws regulating public discourse after the decline of English print licensing. Ross argues that the development of the public sphere in eighteenth-century Britain left literature in a strange, contradictory position: simultaneously central to civic society and wholly apart from it. This claim has its contemporary counterparts. It echoes current debates about what literature is “for” among critics and philosophers. It also echoes debates about literature within contemporary free speech law, where Robert Bork and others have argued that literature should not receive protection because it is not sufficiently political, while literature’s defenders have argued for its protection with varying levels of plausibility. Literature’s relationship to public discourse continues to bedevil us, and Ross offers a stimulating account of how this might have come to be.

The Meaning of the “Marketplace of Ideas” in First Amendment Law

The 1919 First Amendment opinions of Oliver Wendell Holmes and Louis Brandeis comprise the seminal texts in the cannon that now includes hundreds of decisions by the Supreme Court of the United States interpreting the core of the American free speech tradition. The marketplace of ideas metaphor they developed has been invoked constantly by Supreme Court justices in First Amendment cases. It has achieved genuine load-bearing legal significance, particularly in certain arenas of free speech law, and over-arching significance in rendering the entire architecture of modern free speech law reasonably coherent and stable. This essay explores the importance of the marketplace metaphor in three discrete areas of modern free speech law: commercial speech, political campaign finance, and tort liability. While by no means the only arenas in which the marketplace metaphor has exerted important influence, these three exemplars are especially illuminating, exposing at once the strengths and weaknesses of the marketplace metaphor as a persuasive tool for ordering free speech doctrines. The essay then examines the marketplace metaphor from a wide-angle lens, making the argument that it operates to define two of the central continental divides of modern free speech law. The essay goes a long way toward providing a descriptively clear and normatively convincing account of free speech law as it currently stands.

Assessing Judicial Empowerment

Drawing on an ongoing international data collection effort, this paper examines the free expression jurisprudence of the Supreme Court of Canada and the European Court of Human Rights in an effort to assess the political beneficiaries of judicial empowerment. Free expression is a universally recognized fundamental right, and it is a right that is regularly invoked in court by a rich diversity of political actors. As such, free speech law provides an illuminating window onto how constitutional courts respond to similar claims from differently situated claimants. This paper compares the response by two influential courts to free expression claims filed by for-profit businesses and by labor advocates.

Assessing Judicial Empowerment

Drawing on an ongoing international data collection effort, this paper examines the free expression jurisprudence of the Supreme Court of Canada and the European Court of Human Rights in an effort to assess the political beneficiaries of judicial empowerment. Free expression is a universally recognized fundamental right, and it is a right that is regularly invoked in court by a rich diversity of political actors. As such, free speech law provides an illuminating window onto how constitutional courts respond to similar claims from differently situated claimants. This paper compares the response by two influential constitutional courts to free expression claims filed by for-profit businesses and by labor advocates.

Should web firms decide what we see online?

Adee comments on how social media firms decide what people should see online. Social media firms have long been under fire to protect their users from accounts that spew hate speech. But companies that host websites and offer other web services have been given a free pass. The debate on hate speech has so far been dominated by social media firms. Perhaps free speech and US law can no longer be the sole arbiter of whether or not a tech company chooses its customers, according from Bharath Ganesh at the Oxford Internet Institute in the UK.

Our Proudest Boast

It took 88 years to return to an old but proud principle of free speech law, one that was first announced in a little remembered dissent by Justice Oliver Wendell Holmes. That principle recently found noteworthy expression in Justice Samuel Alito’s opinion in Matal v. Tam (2017). For it was in that case that the Court harkened back to Justice Holmes’s dissent in United States v. Schwimmer (1929). This was Holmes's last free speech opinion. Notably, it was not a constitutional case, but rather a case involving an immigrant. Yet Holmes took the occasion to announce a broad new principle that would, in time, blossom into a major tenet of our free-speech jurisprudence – the need to protect the speech we hate. According to Holmes, this principle is not limited to citizens but applies to all those living in the United States. Holmes managed to do all this in 634 scant words. There is evidence that Brandeis played a role in spurring Holmes to write this dissent. But the circumstances of Holmes's life – the loss of his wife, the realization that his long career and life were coming to an end – also helped shape an opinion that is the antithesis of the values Holmes championed as a Justice: judicial restraint, a value-neutral jurisprudence and personal detachment from the facts of his cases and the people whose lives they affected. Schwimmer was the one case where Holmes showed a touch of humanity that was otherwise absent from his judicial work. As applied to the narrow facts of Schwimmer, the Supreme Court eventually adopted Holmes's view in Girouard v. United States (1946). But there is much more, namely, the evolution of an idea, magnificently expressed, that nine decades later is hailed by the Supreme Court as “the proudest boast of our free speech jurisprudence.”

The reputation-management industry and the prospects for a “right to be forgotten” in the US

Online speech platforms present novel risks to privacy and reputation. There are situations in which unique kinds of harm can indeed occur but where the law applies imperfectly. Yet legal expansions like the European “Right to Be Forgotten” would contradict several well-established tenets of American free speech law. This paper argues that the reputation-management industry (RMI) represents one set of solutions in the absence of an American Right to Be Forgotten. The RMI counsels assiduous self-monitoring, search engine optimized promotion of one’s own preferred content, and negotiation for voluntary removal by content hosts. This approach arguably helps to address the informational distortions than can be created by true accounts of unseemly conduct and mob-like expressions of vitriolic opinion online. It likewise helps to mitigate the concern that readers will form inaccurate or unduly harsh judgments based on cursory examination of search results.The RMI thus in some ways addresses the underlying gaps between legal protection and perceived harm in a manner that accords better with the emphasis on “counterspeech” in the American free speech tradition. At the same time, the article concludes by addressing some limitations that are necessary to keep the industry from threatening free-speech principles itself.

Does the Clear and Present Danger Test Survive Cost-Benefit Analysis?

Under American regulatory law, the dominant contemporary test involves cost-benefit analysis. The benefits of regulation must justify the costs; if they do, regulation is permissible and even mandatory. Under American free speech law, in sharp contrast, the dominant contemporary test involves clear and present danger. Regulators cannot act on the ground that the benefits justify the costs. They may proceed only if the speech is likely to produce imminent lawless action. In principle, it is not simple to explain why the free speech test does not involve cost-benefit analysis, as indeed both Judge Learned Hand and the Supreme Court insisted that it should in the early 1950s. An initial explanation points to the difficulty of quantifying both costs and benefits in the context of speech. That is indeed a serious challenge, but it does not justify the clear and present danger test, because some form of cost-benefit balancing is possible on a more informal, intuitive basis. A second and more plausible explanation points to the serious risk of institutional bias in any assessment of both costs and benefits of speech. This explanation has considerable force, but it depends on questionable assumptions, because institutional safeguards could be introduced to increase accuracy and to reduce any such bias. The third and best justification of the clear and present danger test is that in practice, it does not impose high costs, because the speech that ends up being immunized from regulation has not, in practice, turned out to be harmful. On this view, the benefits of the clear and present danger test turn out to justify its costs. From 1960 or until 2001, this assessment was probably correct for the United States, and it may continue to be correct; but the problem of terrorism, and of recruitment to commit terrorist acts, raises legitimate questions about whether the assumptions on which it rests are correct today.

The Conservative Constitution: Freedom of Speech and the Constituent Assembly Debates

The framing of India’s Constitution is popularly considered to be a transformative moment: the culmination of a decades-long movement for political and economic self-determination, and the marker of a transition from a colonial regime maintained by coercion to a democratic republic. The crowning glory of the Constitution-making process, which reflects this transformation, is Part III: the fundamental rights chapter. Guaranteeing core civil and political rights such as the right to freedom of speech and expression, life and personal liberty, and equality before law, Part III of the Constitution appears to place the autonomous, self-determining individual at the heart of the Constitutional order. Nonetheless, the rights guaranteed by Part III are not absolute. They are subject, in many cases, to “reasonable restrictions.” Over the course of its history, the Supreme Court has tended to interpret these clauses in a way that the restriction has often swallowed up the right, and the State has been allowed a more or less free rein to pass rights-infringing statutes, or take rights-infringing executive acts. The question then must be asked: is the Court’s civil rights jurisprudence consistent with the transformative character of the Constitution? In this essay, I will argue that it is: for the reason that a closer look at the framing of the Constitution reveals that Part III was not intended to be transformative in the classical sense of creating a set of rights to serve as a bulwark in service of liberal individualism. By examining the Constituent Assembly Debates around the framing of the free speech clause, and placing it in both its historical context of colonial free speech law, as well as the future trajectory of the Supreme Court’s jurisprudence, I will attempt to demonstrate that as far as the nature and structure of fundamental rights is concerned the framing is better understood as conservative, than a transformative moment; and that consequently, the Supreme Court’s conservative approach to freedom of speech is more, rather than less, consistent with the intent of the framers.