Simonson and Ahmed on Legal Satire in an Age of Political Repression

Jocelyn Simonson, Brooklyn Law School, and Zohra Ahmed, Boston University School of Law, are publishing Legal Satire in an Age of Political Repression in volume 74 of the Buffalo Law Review. Here is the abstract.

Central to the political repression of left social movements is the use of the criminal law to target movement work. One of the blueprints for the Trump Administration's current campaign of collective criminalization is a RICO conspiracy case brought by the Georgia Attorney General against 61 organizers and activists in the movement to Stop Cop City in Atlanta in 2023. In this Article, we tell the story of a creative tactic through which the movement to Stop Cop City resisted the conspiracy and RICO charges against them, charges which were dismissed in December 2025. In doing so, this Article also recounts a longer history stretching back to the first Red Scare of how left social movements have devised creative, strategic, and galvanizing ways to combat repressive criminalization. This Article’s analysis centers on the “People’s RICO,” a 2023 parody crafted by lawyers, organizers, and artists in response to the real RICO prosecution brought by the state that same month. In the short film, the People’s RICO issues its own RICO indictment, condemning a counter-conspiracy between state and private actors. This Article presents a reading of the People’s RICO that connects it to the history of social movements responding to conspiracy prosecutions with their own accusations of counter-conspiracies on the part of those in power. The Article reads the People’s RICO parody on three levels: satire, structural analysis, and legal imaginary. First, the film ridicules the genre of theatrical law enforcement press conferences to expose it for what it really is: the state silencing its opponents. Second, the People’s RICO uses the legal concepts of conspiracy and RICO to identify and indict the law and political economy of the carceral state, found within the tangle of public and private actors advancing their plans for a police training facility for their collective material enrichment. Third, the film imagines another world in which a group of lawyers representing the “People,” can reclaim legal forms and political power to condemn state and corporate actors that have deployed their prosecutorial power for political gain. But that hope for accountability is partial and qualified. The conspiracy and counter-conspiracy accusations between the State’s RICO and the People’s RICO help underscore contemporary anti-carceral movements’ ambivalent relationship to the legal form, and the legal form’s imperfect fit for a nuanced abolitionist praxis. Taken all together, the innovative approach of the People’s RICO should provide inspiration to movement actors, lawyers, and their allies in figuring out how to respond creatively to politically motivated prosecutions: by using the law without capitulating to its narrow horizons.

Forthcoming: Benjamin Fagan, Frederick Douglass's Newspapers (University of Pennsylvania Press, 2026)

 Forthcoming from the University of Pennsylvania Press:

Benjamin Fagan, Auburn University, Frederick Douglass's Newspapers (2026). 

Here from the publisher's website is a description of the book's contents.

The first book to focus on the newspapers edited by Frederick Douglass and their impact on Black organizing.

A robust body of work has established the importance of print in general, and newspapers in particular, to African American culture in the 1800s. Such work regularly acknowledges Frederick Douglass (1818–1895) as one of the most influential newspaper editors of the nineteenth century, a judgment that Douglass and many of his contemporaries shared. But while recent scholarship has continued to expand our understanding of Douglass’s life and work, his newspapers remain largely understudied. Frederick Douglass’s Newspapers is the first book that explores the full range of Douglass’s periodicals.

Benjamin Fagan traces the making and impact of the four newspapers edited by Douglass: the North Star (1847–1851), Frederick Douglass’ Paper (1851–1860), Douglass’ Monthly (1858–1863), and the New National Era (1870–1874). Fagan highlights how Douglass and his co-workers—which included Martin R. Delany, James McCune Smith, William C. Neil, and Douglass’s daughter Rosetta Douglass, among others—practiced versions of Black organizing as they made his newspapers. By teasing out the inner workings of Douglass’s newspapers, Fagan explores the complex and often messy practices of Black organizing that made these publications possible.

In doing so, this book places Douglass’s newspapers at the center of the story of Black organizing in the nineteenth century. Douglass’s newspapers not only offered examples of how to organize for Black readers across the country, but he and his co-workers also participated in a variety of other kinds of Black organizations. Writers for Douglass’s papers put such experiences into print, and stories and lessons of Black organizing filled the pages of Douglass’s newspapers. They covered a variety of issues: abolitionism, school integration, politics both domestic and international, the Civil War, and the burgeoning Black labor movement, among others. Fagan’s close examination of the making of Douglass’s newspapers as well as what appeared in their pages chronicles how his publications were simultaneously examples and archives of Black organizing.

 

Chauvin on Understanding Free Speech Values at the Supreme Court

Noah Chauvin, University of Oklahoma College of Law, is publishing Understanding Free Speech Values at the Supreme Court in volume 78 of Rutgers Univ. L. Rev. Commentaries (forthcoming 2025). Here is the abstract.

This essay is a book review of The Supreme Court and the Philosopher: How John Stuart Mill Shaped US Free Speech Protections, by Professors Eric Kasper and Troy Kozma. The book argues that John Stuart Mill had an indelible impact on the Supreme Court's free speech jurisprudence, and that through the power of precedent, we have come to have a "Millian" First Amendment. As I explain in the review, Kasper and Kozma have made a compelling case. However, because Mill offered an expansive defense of freedom of expression, it is not enough to say that the Court's free speech jurisprudence is "Millian," because that could mean many different things. Understanding with greater precision what motivates the justices in free speech cases is crucial for attorneys, advocates, and scholars.

Download the review from SSRN at the link.

Tushnet on History and Tradition in First Amendment Intellectual Property Cases: A Critique

Rebecca Tushnet, Harvard Law School, is publishing History and Tradition in First Amendment Intellectual Property Cases: A Critique in the Marquette Intellectual Property Law Review. Here is the abstract.

There are indications that the "history and tradition" approach the Supreme Court applied to gun rights and abortion restrictions may be coming for First Amendment doctrine. In intellectual property cases, it already has, with the Court using historical analogies for the right of publicity, copyright, and trademark. Unlike in the Second Amendment context, where the Court has reasoned from things earlier regulators didn’t do to strike down gun regulations today, in “history and tradition” First Amendment law the Court has reasoned by broad analogy to allow new speech restrictions. One lesson is that the history and tradition approach does not meaningfully constrain Justices even in low-political-salience areas like copyright and trademark, outside highly politicized contexts. The manipulability of levels of generality in making historical analogies has been justly criticized, but the IP cases provide a particularly clear contrast in outcomes from those in the Second Amendment cases, despite putatively using the same method of looking to historical models before—and even in place of—applying a means-ends test or other non-analogic scrutiny.

Download the article from SSRN at the link.

Muñoz on History and Tradition in the Trump Justices' Church-State Jurisprudence

Vincent Phillip Muñoz, University of Notre Dame, Department of Political Science, has published History and Tradition in the Trump Justices’ Church-State Jurisprudence. Here is the abstract.

This article analyzes conservative Supreme Court justices' recent use of history and tradition in First Amendment religious liberty cases. It argues that these justices have failed to articulate a persuasive rationale as to why exactly the Establishment Clause must be interpreted by reference to historical practices and understandings and that they have failed to adequately show that history supports their "no-coercion" construction of what constitutes a prohibited establishment. Concerning the Free Exercise Clause, the court's conservatives have dismissed history by disregarding historical practices that do not conform to their approach to the text. The court's use, misuse, and nonuse of history cannot help but give the impression that policy preferences-more than history or the actual original understanding of the First Amendment-have determined recent church-state decisions.

Download the article from SSRN at the link.

Barbas on Originalism in Modern Free Speech History

Samantha Barbas, University of Iowa College of Law, has published Originalism in Modern Free Speech History as U Iowa Legal Studies Research Paper No. 2025-13. Here is the abstract.

Contrary to what is often assumed, originalism has played an important role in our free speech history. During the 1950s, originalist interpretations of the First Amendment as prohibiting the crime of seditious libel became popular in legal argumentation, court rulings, and in popular culture more generally. The reason for the popularity of this argument was the Red Scare. Liberal lawyers, judges, and scholars deployed originalist arguments in their battles against government anticommunist measures. They argued that the original meaning of the First Amendment was the ban on punishment for criticism of the government, and that many of the government’s anticommunist measures were effectively a form of prosecution for seditious libel and unconstitutional. This essay describes the popularization of First Amendment originalist arguments in the 1950s and early 60s, culminating in New York Times v. Sullivan. It explains how originalist First Amendment arguments came to be seen as an important liberal line of defense against government anticommunist efforts. Activists, scholars, lawyers, and justices on the left mobilized in a loosely affiliated sort of First Amendment “originalist movement” in an attempt to defeat the Red Scare. Ultimately, the essay suggests that originalism is a legal and social phenomenon that is intimately intertwined with culture and politics. Originalist ideas arise from multiple sources, including interest groups, intellectuals, journalists, lawyers, and ordinary citizens. The case study offers one example of how legal advocates and scholars in the mid-twentieth century deployed originalist arguments instrumentally, in response to the circumstances and perceived exigencies of their times.

Download the essay from SSRN at the link.

Ristuccia on "Dangerous to the Liberties of a Free People": Secret Societies and the Right to Assemble

Nathan Ristuccia, Institute for Free Speech, is publishing 'Dangerous to the Liberties of a Free People': Secret Societies and the Right to Assemble in volume 4 of the Journal of Free Speech Law. Here is the abstract.

Americans in the eighteenth and nineteenth centuries often feared that secret assembly threatened republican government. Oath-bound secret societies were allegedly elitist cabals that would establish an imperium in imperio oppressive to ordinary citizens. Yet despite this hostility, many early Americans also insisted that freedom of assembly included the right to gather anonymously. According to this view, laws could not prohibit or excessively burden secrecy. This article, therefore, examines the discourse around secret societies both at America’s founding and at the time the Fourteenth Amendment was ratified. It demonstrates that—although there were voices on both sides of the debate—the weight of the evidence indicates that the First Amendment’s Assembly Clause originally protected the right to assemble in secret.

Download the article from SSRN at the link.

Mosvick on Free Speech for None: Mobs, Abolitionists, and Democrats and the Public Constitutional Fights over the First Amendment During the American Civil War @nmosvick

Nicholas Mosvick, National Review Institute, Buckley Legacy Project, is publishing Free Speech for All or None: Mobs, Abolitionists, and Democrats and the Public Constitutional Fights over the First Amendment During the American Civil War as a Liberty & Law Center Research Paper. Here is the abstract.

Legal historians and First Amendment scholars have long appreciated the unique constitutional challenges of wartime conditions, from the questions of prosecuting seditious conspiracy and speech to interference with the military draft to public figures and newspapers calling to the public to oppose and obstruct the war effort. Unlike the major wars of the 20th century from World War I to the Vietnam War, the American Civil War saw no free speeches before the Supreme Court during the war and therefore, the constitutional battles on major free speech questions generally took place outside courtrooms and in the area of public discourse. The most significant wartime free speech case resulted from the military arrest and trial of one of President Abraham Lincoln’s greatest domestic political opponents during the war, Democratic Congressman Clement Vallandigham of Ohio. That particular case, along with many other instances of riots, attacks on presses, arrests, and antiwar speeches, brought about a public constitutional debate in the partisan press in which both Democratic and Republican papers claimed fidelity to the founding principles of free speech and accused their opponents of rank hypocrisy. This debate shows how constitutional principles and idea suffused the public discourse of antebellum and Civil War America.

Download the paper from SSRN at the link.

Koppelman on Madison's Non Sequitur: A Comment on Vincent Phillip Muñoz, Religious Liberty, and the American Founding @AndrewKoppelman

Andrew Koppelman, Northwestern University School of Law, is publishing Madison's Non Sequitur: A Comment on Vincent Phillip Muñoz, Religious Liberty and the American Founding in American Political Thought: A Journal of Ideas, Institutions, and Culture. Here is the abstract.

Vincent Phillip Muñoz’s book, Religious Liberty and the American Founding, is a marvelous piece of historical reconstruction, bringing to vivid life the intellectual world of the framers. He gives the reader a sharply etched picture of their natural rights philosophy. But their world is not ours, and they relied on premises that we cannot share and which cannot now be the basis of public law. Today, when courts interpret the First Amendment’s religion clauses, they must articulate a rationale that will not be unintelligible or repulsive to many citizens. The interpretation also ought not to inflame the very divisions that the clause was intended to prevent. The fundamental problem is that the framers believed both that we are endowed with natural rights and that the government is incompetent and untrustworthy to adjudicate religious questions. Their natural rights philosophy, however, ultimately rested on religious foundations if it rested on anything at all. Muñoz offers us a valuable window into the world of Madison. But that world is not our world. If religious liberty is to remain a shared ideal in contemporary America, it will have to be under a different description than the one that Muñoz skillfully recreates. It must not presuppose theistic premises that many Americans reject.

Download the article from SSRN at the link.

Toomey on "Religion," Before Darwin @profjamestoomey @HaubLawatPace @WashULRev

James Toomey, Pace University School of Law, is publishing "Religion," Before Darwin in volume 101 of the Wash. U. L. Rev. Here is the abstract.

The First Amendment singles out “religion” for special treatment, but the boundaries of that concept have always been difficult to describe. Nevertheless, there is a growing consensus that — at least as an original matter — “religion” in the First Amendment refers only to more-or-less theistic doctrines. But scholars have long struggled to explain why theistic doctrines would be worth treating differently than their alternatives. This Article argues instead that the concept of “religion” in the late-eighteenth century must have been broader than it is today, referring more generically to something like “worldview.” In the pre-Darwinian intellectual climate in which the First Amendment was written, all plausible worldviews were what we would today think of as “religious.” “Religion” was not a concept bounded by, or an alternative to, “science,” or a “secular lifestyle,” or “non-religious doctrines.” The concept necessarily encompassed all remotely-plausible accounts of the nature of the universe and foundations of ethics. And although our understanding of “religion” has fundamentally changed, the First Amendment incorporates the earlier, broader understanding. Reading “religion” in this broader way further helps explain contextual features of the First Amendment — its general purposes, its grammatical structure, and the nature of the rights its framers were trying to protect. And this interpretation lets us reckon with the purpose and contemporary relevance of the Religion Clauses, as a commitment not to privilege certain worldviews, but to ensure that questions about how we ought to live and why are a private, not governmental, concern.

Download the article from SSRN at the link.

John Witte on Back to the Sources? What's Clear and Not So Clear about the Original Intent of the First Amendment @EmoryLaw

John Witte, Emory University School of Law, has published Back to the Sources? What’s Clear and Not So Clear About the Original Intent of the First Amendment at 47 BYU L. Rev. 1303 (2022). Here is the abstract.

This Article peels through the layers of America's founding documents before exploring the final sixteen words of the First Amendment religion clauses. Part I explores the founding generation’s main teachings on religious freedom, identifying the major principles that they held in common. Part II sets out a few representative state constitutional provisions on religious freedom created from 1776 to 1784. Part III reviews briefly the actions by the Continental Congress on religion and religious freedom issued between 1774 and 1789. Part IV touches on the deprecated place of religious freedom in the drafting of the 1787 United States Constitution. Part V reviews the state ratification debates about the 1787 Constitution and introduces the religious freedom amendments that they proposed to the First Congress tasked with drafting new federal rights language. Part VI combs through all the surviving records of the First Congress’ drafts and debates on what became the First Amendment. Part VII parses the final sixteen words of the religion clauses and sifts through what’s clear and not so clear about the final words: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” The Conclusion distills my main findings about the original understanding of the First Amendment and their implications for originalists today.

Download the article from SSRN at the link.

Heyman on Transforming Natural Religion: An Essay on Religious Liberty and the Constitution @SteveHeyman6 @BYULRev @ChicagoKentLaw

Steven J. Heyman, Chicago-Kent College of Law, is publishing Transforming Natural Religion: An Essay on Religious Liberty and the Constitution in volume 48 of the Brigham Young University Law Review (2023). Here is the abstract.

Recent Supreme Court decisions such as Burwell v. Hobby Lobby, Masterpiece Cakeshop v. Colorado Civil Rights Commission, and Fulton v. City of Philadelphia raise the fundamental question of what place religion and religious liberty should hold within a liberal constitutional order that is based on a commitment to the freedom, equality, and well-being of all persons. To explore this question, it is natural to begin with an inquiry into what founding-era Americans thought when they incorporated the Free Exercise Clause of the First Amendment into the constitutional order they were creating. Contrary to the views taken by many judges and scholars, the Clause’s ideological background is best understood not in terms of either Enlightenment secularism or Christian Evangelicalism, but rather in terms of what the eighteenth century called natural religion. That view held that human beings were capable of using reason to discern the most basic principles of religion: that the world was created by God, that people ought to worship him, and that he has given them a law of nature that establishes their basic rights and duties in relation to one another. One of the most important rights was religious liberty: because religion was rooted in reason, individuals had a natural and inalienable right to form their own beliefs and to live and worship in accord with them. At the same time, that right was bounded by a duty to respect the inherent rights of other individuals as well as the legitimate authority of the state. In many ways, the eighteenth-century view was a humanistic one. At its core was a recognition of the inherent worth of human beings. This view held that individuals must be free to use their own minds in pursuit of truth, rather than having beliefs imposed upon them by religious or political authority. And it held that people with diverse beliefs were capable of living together in an open, self-governing society based on mutual acceptance and respect. These principles continue to be central to any adequate understanding of the Free Exercise Clause. Of course, we no longer live in the same intellectual world as the founders. In the wake of Darwinian evolutionary theory and other modern scientific developments, it is no longer widely accepted that reason alone can establish the existence of God or natural law. The question then arises whether it is possible to recast the eighteenth-century view in a way that retains its virtues without depending on controversial theological ideas or improperly favoring religious believers over others. In this Article, I begin to develop such a view, which I call liberal humanism. Like the classical theory, this view stresses the ideals of human freedom, equality, and dignity that informed the adoption of the First Amendment. But it seeks to broaden the classical theory in a way that reflects our contemporary understanding of those ideals. The Article begins by summarizing the classical view and showing how it was used by Thomas Jefferson, James Madison, and a broad coalition of groups as a rationale for protecting religious freedom, first at the state and then at the federal level. Next, I discuss how the idea of natural religion can be transformed by moving away from the eighteenth century’s ontological approach (an approach that held that reason could demonstrate the existence of God as well as the moral implications that flowed from it) and toward a more phenomenological view of religion, which focuses on the ways that human beings search for meaning and value in the world. People experience meaning and value in all areas of life, and they integrate those experiences into more comprehensive conceptions of the world and of their place within it. Some of these worldviews are religious ones which find ultimate meaning in a transcendent realm, while others are secular ones which find such meaning within this world. Both kinds of worldviews can be reasonable, and so both are entitled to respect. For these reasons, the Constitution should be interpreted to protect not only religious freedom but also a comparable right to form and live in accord with secular beliefs. Next, I show that just as the eighteenth-century view provided an account of natural rights, liberal humanism can provide an account of fundamental rights within our modern constitutional order. I then discuss the light that the liberal humanist view can shed on two important issues in contemporary free exercise jurisprudence: whether individuals are entitled to exemptions from laws that conflict with their conscientious beliefs, and if so, whether those exemptions may be granted only to those who hold religious rather than secular beliefs. The Article concludes with some brief reflections on how this approach can enable the secular and religious forces in our cultural battles to find some common ground.

Download the article from SSRN at the link.

Adler on The Shifting Law of Sexual Speech: Rethinking Robert Mapplethorpe @nyulaw

Amy Adler, New York University of Law, is publishing The Shifting Law of Sexual Speech: Rethinking Robert Mapplethorpe in volume 2020 of the University of Chicago Legal Forum. Here is the abstract.

This Article explores the dramatic changes that have occurred over the last thirty years in the First Amendment doctrines governing sexual speech. As a prism through which to evaluate these changes, I consider the thirtieth anniversary of the landmark Robert Mapplethorpe trial, the first censorship prosecution against an art museum in the history of this country and the defining battle in the culture wars that roiled post-Reagan America. The target was the exhibition of formally beautiful, sexually hard-core photographs by Robert Mapplethorpe on view at a museum in Cincinnati. The controversy that erupted over those images—fueled by anxieties about AIDS, homosexuality, sadomasochism, race, government funding for the arts, and the vanishing boundary between art and pornography—spilled out of the courtroom into popular culture and into the halls of the United States Congress. I analyze the shifting trajectories over the years of the two legal doctrines that were at the center of the Mapplethorpe case—obscenity law and child pornography law—and I show the starkly divergent paths these two areas of law have taken. While obscenity law has receded in importance, and while the allegedly obscene photos from the trial have become prized in museums and in the art market, child pornography law has followed the opposite course. In contrast to the allegedly obscene pictures, which pose almost no legal risk today, the two photographs of children that were on trial have become more, not less, controversial over the past thirty years, to the point where curators are quietly reluctant to show these images at all. In my view, these photos now occupy a space of legal and moral uncertainty. What explains these differing legal and artistic trajectories? What happened to change the dynamics of showing these works? In tracing the divergent paths taken by these two doctrinal areas, I explore not only the stark changes in the law of sexual speech, but ultimately the mutually productive relationship between censorship law and culture. Free speech law governed this chapter in the culture wars, yet in surprising ways, the changing social norms unleashed by the culture wars have also governed free speech law.

Download the article from SSRN at the link.

Acevedo on Law's Gaze @UALawSchool

John Acevedo,  University of Alabama School of Law, has published Law's Gaze as University of Alabam Legal Studies Research Paper No. 3694579. Here is the abstract.

When looking at a sexualized image the viewer is both subject and object of the artwork because the gaze of the viewer is turned back on themselves. Thus, the Supreme Court's jurisprudence on obscene speech tells us more about the viewer of an image than we do about the image itself. The existence of the gaze is revealed in the Court’s obscenity jurisprudence and its inability to settle on a definition of obscenity for most of the 20th century. In all of these instances the court looks upon pornographic materials as the object upon which the court gazes, but in reality the nature of these materials flips the view so the Court becomes the object on which pornography gazes At the same time the fixation on criminalizing obscenity has led to the silencing of the models who appear in sexual images. Drawing on social theories, this article argues that the failure of obscenity law was inevitable because at the heart of obscenity lies unending subjectivity. This subjectivity means that obscenity should be protected under the First Amendment. But it also proposes changes to the law that will continue to protect children and give voice to models.

Download the article from SSRN at the link.

Heyman on Reason and Conviction: Natural Rights, Natural Religion, and the Origins of the Free Exercise Clause @ChicagoKentLaw

Steven J. Heyman, Chicago-Kent College of Law, Illinois-Institute of Technology, is publishing Reason and Conviction: Natural Rights, Natural Religion, and the Origins of the Free Exercise Clause in volume 23 of the University of Pennsylvania Journal of Constitutional Law.

One of the most intense debates in contemporary America involves conflicts between religious liberty and other key values like civil rights. To shed light on such problems, courts and scholars often look to the historical background of the Free Exercise Clause of the First Amendment. But this inquiry turns out to be no less controversial. In recent years, a growing number of scholars has challenged the traditional account that focuses on the roles of Thomas Jefferson and James Madison in the movement to protect religious liberty in late eighteenth-century America. These scholars emphasize that most of the political energy behind the movement came from Evangelical Christians. On this revisionist account, we should not understand the Free Exercise Clause and corresponding state provisions in terms of the Enlightenment views of Jefferson and Madison, which these scholars characterize as secular, rationalist, and skeptical – if not hostile – toward religion. Instead, those protections were intended to promote religion and especially Christianity. In this Article, I offer a different understanding of the intellectual foundations of the Free Exercise Clause. The most basic view that supported religious liberty was neither secular rationalism nor Christian Evangelicalism but what contemporaries called natural religion. This view held that human beings were capable of using reason to discern the basic principles of religion, including the duties they owed to God and one another. Because religion was founded on reason, individuals had an inalienable natural right to develop their own beliefs and to worship in accord with them. At the same time, that right was limited by the law of nature, which required people to respect the rights of others. In this way, the concept of natural religion established both the foundations and the limits of religious liberty. This view enabled people with different religious and philosophical perspectives to find common ground. It provided the basis for a political coalition between Evangelicals, rationalist Christians, and Enlightenment liberals that secured the adoption of state and federal constitutional guarantees for religious freedom. The Article begins by demonstrating that natural religion and its associated ideas of natural law and natural rights were central to the intellectual world of eighteenth-century Americans. Those ideas played a vital part in many areas of thought, including political and moral philosophy, natural jurisprudence, English law, Christian and Deist theology, and even Newtonian natural science – intellectual strands that came together in the Radical Whig ideology that animated the American Revolution. Next, I explain how those ideas can enhance our understanding of the religious liberty provisions of the first state declarations of rights; the political controversy that culminated in the passage of Jefferson’s Bill for Establishing Religious Freedom in Virginia; and the debates surrounding the adoption of the Federal Constitution and the Free Exercise Clause itself. Finally, I explore the founders’ views on the problem of religious exemptions from civil laws, and discuss the implications of this history for our current debates over civil rights and religious liberty – a subject that the Supreme Court recently grappled with in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, and that it has agreed to revisit next Term in Fulton v. City of Philadelphia.

Download the article from SSRN at the link.

SMU Law Review's Free Speech Symposium: The 100th Anniversary of Schenck and Abrams @SMULawReview @SMULawSchool

The Southern Methodist University Law Review has published scholarship from its recent Free Speech Symposium in its current issue. Read the articles online here.  A great line-up of authors!

Lackland H. Bloom, Jr., The Lessons of 1919

Dale Carpenter, Born in Dissent: Free Speech and Gay Rights

Larry Alexander, Inciting, Requesting, Provoking, or Persuading Others To Commit Crimes: The Legacy of Schenck and Abrams in Free Speech Jurisprudence

Kent Greenawalt, Speech and Exercise By Private Individuals and Organizations

Ronald J. Krotoszynski, Jr., The Clear and Present Danger Test: Schenck and Abrams Revisited

Mari Matsuda, Dissent In a  Crowded Theater

Rodney A. Smolla, "And the Truth Shall Make You Free": Schenck, Abrams, and a Hundred Years of History

Alexander Tsesis, Deliberative Democracy, Truth, and Holmesian Social Darwinism

G. Edward White, Falsity and the First Amendment

Christopher Wolfe, Originalist Reflections on Constitutional Freedom of Speech

Cross-posted to Media Law Prof Blog

Carpenter on Free Speech and Gay Rights @SMULawSchool

Dale Carpenter, Southern Methodist University School of Law, has published Born in Dissent: Free Speech and Gay Rights at 72 SMU Law Review 375 (2019). Here is the abstract.

It is no stretch to say that Justice Oliver Wendell Holmes created the modern First Amendment a hundred years ago in his dissent in Schenck v. United States. It is equally true that the First Amendment created gay America. For advocates of gay legal and social equality, there has been no more reliable and important constitutional text. The freedoms it guarantees protected gay cultural and political institutions from state regulation designed to impose a contrary vision of the good life. Gay organizations, clubs, bars, politicians, journals, newspapers, radio programs, television shows, web sites—all of these—would have been swept away in the absence of a strong and particularly libertarian First Amendment. It shielded gay political efforts when most of the country thought homosexuals were not just immoral, but also sick, dangerous, and criminal. This essay tells the story of the Chicago-based Society of Human Rights, the very first gay political organization in the United States, which was founded by Henry Gerber in 1924—five years after Schenck, but before the full meaning of the dissent was accepted First Amendment doctrine. The police quickly shut down the group and arrested its members. Justice Holmes himself never met Gerber. He would have found the idea of a gay rights organization incomprehensible, something more akin to the bizarre sex cult Chicago police thought they had discovered rather than the noble experiment Gerber thought he was launching. But if it’s true that the best test of truth is the power of the thought to get itself accepted in the competition of the market, the idea of freedom and equality for LGBT people has attained the status of Holmesian truth.

Download the article from SSRN at the link.

Bloom on The Lessons of 1919 @SMULawReview

Lackland Bloom, Southern Methodist University School of Law, has published The Lessons of 1919 at 72 SMU Law Review 361 (2019). Here is the abstract.

One hundred years ago, the Supreme Court embarked on its first serious consideration of the First Amendment’s guarantee of freedom of speech. In 1919, the Court upheld four federal criminal convictions over First Amendment defenses. Three of the majority opinions were written by Justice Holmes. In the fourth, he offered a classic dissent. Two of the cases, Frohwerk v. United States and Debs v. United States, are of middling significance. The other two, Schenck v. United States and Abrams v. United States, are iconic. From these cases have sprung an expansive and complex jurisprudence of free speech. The author elaborates on these historical cases, and their significance to freedom of speech doctrine and jurisdiction.

Download the article from SSRN at the link.

Bhagwat on Judge Johnson and the Kaleidoscopic First Amendment @AlaLawReview

Ashutosh Avinash Bhagwat, University of California, Davis, School of Law, is publishing Judge Johnson and the Kaleidoscopic First Amendment in the Alabama Law Review. Here is the abstract.

Judge Frank M. Johnson, Jr.’s decision in Williams v. Wallace, in which Judge Johnson issued an opinion which permitted the Selma March to proceed despite unremitting opposition from local and state authorities, is now a settled part of American history. Furthermore, today few question the underlying correctness of the decision. But in fact, seen in the wider context of modern First Amendment jurisprudence, Judge Johnson’s decision was remarkable. Just how remarkable it was becomes apparent when it is contrasted with a decision of the United States Supreme Court just a year later, Adderly v. Florida, in which the Court upheld the trespass convictions of participants in a civil rights protest on the grounds of a county jail. Adderly, authored by that most vociferous defender of civil rights and liberties Justice Hugo Black, demonstrates that the modern First Amendment has rarely been interpreted to require access by protestors to public property when that access might interfere with its regular uses. Yet in Williams Judge Johnson authorized a 54 mile long march by 25,000 protestors along a public highway! Why did Judge Johnson rule as he did, in the face of precedent and judicial norms? Part of the answer has to lie in the unique back-history of the March, which included stunning acts of violence and brutality on the part of officials and the KKK. But there was a constitutional insight driving Judge Johnson’s decision as well, one that Justice Black missed. The opinion in Williams v. Wallace demonstrates an understanding of two fundamental points about the First Amendment that the modern Supreme Court (beginning, in a very meaningful way, in Adderly itself) has forgotten. The first is that the First Amendment protects multiple political rights, not just free speech. The second is that these rights, though related, are distinct and cumulative. More specifically, Judge Johnson recognized that what was at issue in the Selma March was not just free speech, but also association, assembly and petition, and that these rights fortify one another. In other words, Judge Johnson recognized the kaleidoscopic nature of the First Amendment in its relationship to citizenship and democracy. That is an insight that should not have been lost, and which we would do well to recover today.

Download the article from SSRN at the link.

Chapman on Rethinking Establishment Clause Jurisprudence

Nathan S. Chapman, University of Georgia School of Law, has published Money for Missionaries: Rethinking Establishment Clause History as University of Georgia School of Law Legal Studies Research Paper No. 2019-10. Here is the abstract.

In Everson v. Board of Education (1947), the Supreme Court stated two principles that continue to animate Establishment Clause doctrine. The first is that courts should look to founding-era history—especially the history of "religious assessments," or taxes used to fund churches—to interpret the Establishment Clause. The second is that, based on this history, the government may provide limited secular goods to religious schools, but the Establishment Clause prohibits the government from directly funding religious education. What Everson ignored, and what subsequent legal scholarship has likewise overlooked, is that the founding-era government did directly fund religious education: from the Revolution to Reconstruction, the federal government partnered with Christian missionaries to "civilize" American Indians. Initially ad hoc, this practice was formalized with the Civilization Funds Act of 1819, which authorized the government to distribute $10,000 per year to "persons of good moral character" to educate and "civilize" the tribes. For over fifty years, the government funded Christian missionaries who incorporated religious instruction and worship into their curricula. Curiously, no one ever raised a constitutional objection. This Article is the first to provide a thorough analysis of the government-missionary partnerships and to explore why no one objected to their constitutionality. The evidence strongly suggests eighteenth and nineteenth-century Americans supported them because of a shared view of social progress that merged Christianization, education, and civilization. They simply could not have imagined separating Christianity and education. This evidence reshapes the conventional narrative of the historical development of non-establishment norms in the United States, especially the centrality of the Jeffersonian "taxpayer conscience" objection to religious assessments. This history also has important implications for Establishment Clause doctrine. The challenge is ascertaining a constitutional principle from a practice that itself went unquestioned. The history does, however, suggest that the government may directly fund general education, even when that education entails incidental voluntary religious instruction. This principle complements the theoretical norm of "substantive neutrality" and supports the Supreme Court's current doctrinal trajectory of easing restrictions on government funding of religious education.

Download the article from SSRN at the link.