An excellent student in my First Amendment class emailed me yesterday to ask whether Trump’s executive order on social media violated Twitter and Facebook’s First Amendment rights.  This is a complicated question worthy of sincere analysis.  Since the question of the executive order’s constitutionality came to me from a former student, and has not yet been resolved by the courts, I will approach it like a law school hypothetical.

The Facts:  This Tuesday, Twitter added a “fact check” label to two of the President’s tweets about mail-in ballots and voter fraud.  President Trump believes the social media platform is displaying an anti-conservative bias in labeling certain tweets as false and adding its own editorial content to only some tweets, while ignoring others that may also be misleading.  The President argues that Twitter is no longer acting as a neutral arbiter when allowing others to post content to its site.  (Facebook’s Mark Zuckerberg disagreed with Twitter’s approach, noting that “I just believe strongly that Facebook shouldn’t be the arbiter of truth of everything that people say online.”)

Continue reading “Trump’s Executive Order on Social Media Platforms and the Communications Decency Act” →

The town of Goldbergia has a mayor, Ferica, who is a member of the FreeSpeech religion.  Ferica and other adherents of FreeSpeech believe that their lives should be dedicated to enhancing the search for truth through an open marketplace of ideas.

Ferica is quite popular as a mayor.  Her latest initiative involves making the town a more pluralistic and open place for civil discourse.  In 2020, for example, she and the town board passed the following legislative acts.  (1) No one is permitted, within 50 feet of a public park or on public park grounds, to tell another person to shut up or that their ideas are stupid.  (2) Residents cannot exclude guests from their dinner parties simply because they disagree about politics.  (3) Public school teachers for elementary schools must explore both sides of every issue when teaching history classes.

In addition, Ferica learns that members of an adversarial religion, the Roederers, have begun moving into Goldbergia to perpetuate their opposing religious views, that the First Amendment is a sham making all of society worse.  Ferica takes quick action and helps pass a law that (4) bans book burning, a ritualistic practice of the Roederers.  She also (5) places a monument outside city hall that is a giant number one, standing 15 feet tall, in honor of the First Amendment.

Christopher, a member of the Roederers and a public school teacher, challenges all five of these actions by the town of Goldbergia.  Go through each action, one by one.  State what challenges Christopher is likely to bring and whether the town’s actions are likely to withstand constitutional scrutiny.  Some government actions may have multiple bases for constitutional challenge; others will have one potentially valid constitutional challenge.   Assume there are no issues with standing.

Continue reading “First Amendment Final Exam” →

Today, the Supreme Court heard oral argument by telephone, live-streamed to us eager listeners, in Barr v. American Association of Political Consultants.  Because this case was about a ban on robocalls, which, as Justice Kavanaugh mentioned, everyone hates, the Justices deliberated over pure, legal puzzles with no obvious political valence.  Instead of dividing the Court on a hot-button political issue, this case will accomplish something more fundamental and legally interesting.  The Justices must decide the correct conceptual First Amendment framework to apply to cases involving a bans on the “manner” of speech (here, automated calls are prohibited) where the statute later adds a “content-based” exception (except if the call concerns a debt owed to or guaranteed by the federal government).

Before tackling the legal intrigue of the case, I want to say a word about telephonic oral arguments.  The format, where the Justices each get about two questions and answers per side before Chief Justice Roberts firmly interrupts counsel and moves to the next Justice, has some virtues.   Each Justice must grapple with the weaknesses of both sides.  The format forces them to work together, ideology aside, to answer tough legal problems instead of fighting for air time.  The telephonic oral arguments are yet another example of how technology and social isolation have combined to make people kinder and more cooperative.  Of course, argument is less lively, and it is difficult to get too much momentum on any given topic, but the Chief has an uncanny way of stopping a litigant right when the attorney has provided a semi-satisfactory answer.   Plus, as an added treat, Justice Breyer was not on the line when it was his turn to ask Respondent questions because he received another telephone call, but, as he noted, not an automated call.

Continue reading “Telephonic Oral Argument Allows Justices to Explore Neat First Amendment Puzzles” →