This chapter considers how investigative deceptions fit into the traditional rationales for protecting free speech, and offers guidance on where the law is likely to evolve on these questions.

The Introduction discusses the importance of public protest even in a digital era. It uses the mass demonstrations that followed George Floyd’s murder to highlight both a desire to participate in public dissent and the challenges that restrict that participation. Those challenges include police aggression and violence, enforcement of vague public order laws, restrictions on the place where protests can occur, and attitudes about public contention. The idea of a body of protest law and the concept of “managed dissent” are introduced and explained.

In Part IV (Chapters 12–15) the final case study of this book explores the relationship between right-wing populism and religion in the USA. It begins in Chapter 12 by discussing the historical background of the First Amendment, American civil religion, and the country’s history of white Christian nationalism and religious culture wars. Specifically, Chapter 12 shows how America’s civil religious tradition had historically been able to act as an important source of integration and prophetic criticism in American politics in spite of repeated challenges from white Christian nationalism on the one hand and secularist tendencies on the other. However, this chapter also explores how this integrative potential has been profoundly challenged by the rise of a new secular identity cleavage that increasingly superseded America’s old religious culture wars and prepared the grounds for the right-wing populist and identitarian politics of Donald Trump.

Today three forces threaten to limit speech. The first pits guns against words, creating a showdown between the Second Amendment and the First. The second sees powerful speakers invoking their right to speak in order to silence other people’s speech. Third, and perhaps the most subtle, the monitoring of our digital speech by government and business chills our ability to say what we want online. Free speech will survive provided we remain vigilant in defending the speech rights of the minority against what has been called the tyranny of the majority.

Beginning with a look at the January 6 riots at the US Capitol, and concluding with neo-Nazi rallies in support of "white free speech" in Charlottesville, VA, and earlier in Skokie, IL, we discusses how groups are weaponizing free speech to suppress the speech of others.

In National Institute of Family & Life Advocates v. Becerra, the Court held that the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act, which required licensed clinics to notify patients that California provides free or low-cost services, including abortion, and give them a phone number to call and required unlicensed clinics to notify patients that they are not licensed to provide medical services was not sufficiently tailored because the state could achieve its purpose of informing low-income women about available services without burdening the plaintiff’s expression. Sonia Suter’s rewritten opinion reasons that the disclosure requirements do not raise such concerns because the FACT Act fits squarely within the goals of informed consent. Brietta Clark’s commentary contextualizes the case by discussing the asserted goals and service model of crisis pregnancy centers and the troubling practices of some centers, which delay patients’ access to abortions and provide false information about the risks of abortion. Clark emphasizes how the original NIFLA decision exceptionalizes abortion and how the feminist judgment corrects that mistake.

Does the First Amendment forbid reforms to save and improve newsgathering, production, and distribution? All features of the news ecosystem are currently under threat, but some interpretations suggest that the First Amendment either forbids relevant government action or has no relevance. Debates about potential reforms of the businesses and structures wreaking havoc on news and information in the United States often hit a roadblock: the assumption that the First Amendment bars government from playing a role in media systems and news industries.1 Victor Pickard calls this “First Amendment fundamentalism.”2 We can understand why internet tech platforms invoke the First Amendment against any regulation and measures requiring them to pay for news posted on their sites but gathered by others. Avoiding regulation makes their work easier and their bottom line richer. But the First Amendment is not such a bar.

This chapter considers the relationship between antitrust law and the First Amendment as those topics relate to workers’ collective action. It asks why the US Supreme Court has remained unwilling to accept First Amendment defenses in cases involving potential antitrust liability for strikes and boycotts, even as it has expanded the scope of First Amendment protections available in analogous situations. The chapter begins by reviewing foundational cases regarding antitrust liability for strikes and boycotts. It then discusses subsequent developments in First Amendment doctrine related to commercial speech, free association, and civil-rights boycotts. Finally, the chapter turns to the 1990 US Supreme Court case, Federal Trade Commission v. Superior Court Trial Lawyers Association, showing how First Amendment principles that are uncontroversial in other contexts could have driven a different outcome. The chapter closes with observations about the modern Supreme Court’s views of the purposes of the First Amendment, and difficulties workers and unions are likely to encounter thereunder.

Justice GULASEKARAM delivered the opinion of the Court.1

This case requires us to decide whether there will be justice for the more than seventy colored men who were slaughtered on April 13, 1873 by an army of white supremacists. More broadly, it asks whether the forces of white supremacy who were recently defeated on the battlefield may nevertheless succeed in this legal civil war, currently being waged in our federal courts. Indeed, in this case, the fate of our national project to build a “more perfect union” through emancipation, reconstruction, and equality hangs in the balance.

Argued December 11, 2002.Decided April 7, 2003.

Justice M. MATSUDA delivered the opinion of the Court.1

A central question this case presents is whether words have power and consequences. See Mari J. Matsuda et al., Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (1993). We answer that question in the affirmative and hold that racist speech in the form of a burning cross is properly constrained by the Commonwealth of Virginia.

While the previous Chapter explores the origins of cryptography and explains the functional features of Blockchain, this Chapter provides a robust discussion of the various legal challenges and arguments surrounding this novel technology. While self-regulating markets have some desirable aspects, the anonymous or pseudonymous feature of cryptocurrency has its drawbacks which can lead to more fraud and corruption if left completely unchecked. Primarily, this Chapter focuses on administrative law implications and addresses the question of who could (and should) regulate cryptocurrency markets. The answer depends on how digital assets are classified. For example, if the digital asset is labelled a security, it will fall under the regulatory authority of the SEC but will be limited by the Supreme Court’s decision in SEC v. Howey. Further, this Chapter analyzes the constitutional implications of cryptocurrency–do people have a constitutional right to privacy when making financial transactions? This Chapter discusses the various constitutional rights that may be implicated and the arguments that may be used in future litigation.

This chapter argues that a pro-democracy First Amendment should also be a pro-union First Amendment. It is an article of faith that a significant purpose of the First Amendment is to enable and improve democracy, by helping Americans access the information they need for democratic deliberation and participation. Further, a considerable body of research shows that labor unions make American democracy stronger and more representative. But despite this, the Supreme Court has treated unions’ political advocacy in cases involving union agency fees with suspicion and disdain. After describing this unfortunate situation – one that is likely to get worse under the current Supreme Court – the chapter closes on a note of optimism, looking ahead to a time when scholars and advocates can realistically begin the work of rebuilding a First Amendment that recognizes labor unions as democracy-enhancing institutions.

Chapter 2 describes the divergence between 1790 and 1830 of British and American thought on privilege and truth and describes the emergence of the common-law offense of publishing an obscene libel. The legal questions central to Burdett v. Abbot (King’s Bench, 1811) about the extent to which the British common law courts could consider parliamentary law are discussed. In Massachusetts the Supreme Judicial Court in Coffin v. Coffin in 1808 had much less constitutional difficulty constraining legislative privilege. Much more challenging in Massachusetts was the role of evidence of truth in a libel trial, after it had come in the 1790s to be understood as an appropriate defense for a republican citizen, criticism being necessary to the functioning of a republic. Evidence of truth became admissible in an ever-growing set of circumstances in which the public needed to be informed.