Ohio State Law Journal

Volume 78, Issue 4 (2017)

Symposium Issue

The Expanding First Amendment

Foreword: “The Expanding First Amendment” in an Age of Paradox

Peter Shane

Ours is an age of intensifying free speech paradox. It has never been easier for individuals to find platforms from which to communicate pretty much anything at all to an audience of potentially global reach. Yet daily news reports and punditry register the complaints of Americans who believe their opportunities for free expression are being squelched. The paradox is replicated in the domain of law and the essays in this Issue represent thoughtful contributions to an ongoing and always urgent national conversation on the relationship between First Amendment doctrine, individual liberty, and democratic self-governance. Read this issue’s full foreword here.

Our Shrinking First Amendment: On the Growing Problem of Reduced Access to Public Property for Speech Activity and Some Suggestions for a Better Way Forward

Ronald J. Krotoszynski, Jr.

Contrary to the central thesis of this Symposium on “Our Expanding First Amendment,” this Article posits that the scope of certain First Amendment protections actually has contracted, rather than expanded, over time.This Article posits that the contemporary public forum doctrine, in conjunction with the time, place, and manner doctrine, vests too much discretionary power with government to squelch speech activity on public property. Instead of using a rigid, categorical approach to decide whether government must make public property available for speech activity, the federal courts should instead use a functional approach to decide what constitutes a public forum. Read the full Article here.

When Speech Is Not “Speech”

Ashutosh Bhagwat

First Amendment law has reached a crossroads. Over the past several years, the Supreme Court has made three analytic moves that, in combination, are putting unsustainable pressure on its current doctrinal structure. The result is that under current law, it is exceedingly difficult to regulate speech based on harms associated with its content except in a few, narrow, and usually irrelevant circumstances. The solution, I would posit, is that we must reconsider what exactly constitutes “speech” for First Amendment purposes. This Article begins the task of identifying a methodology for defining First Amendment coverage. Read the full Article here.

“Live Free or Die”— Liberty and the First Amendment

Tabath Abu El-Haj

Recent years have witnessed an extraordinary expansion of the First Amendment. In a number of critical areas, the Roberts Court has significantly elevated the level of protection for speech, virtually abandoning the concept of low-value speech and displaying increasing suspicions of content-based speech regulation. In addition, the Court has been decidedly skeptical of campaign finance regulation. Not surprisingly, legislative choices once understood to be well within the bounds of democratic decision-making are these days frequently challenged as violating individual speech rights. The superficial appeal of the libertarian First Amendment will eventually wear thin with its own success. What is needed, therefore, is a compelling alternative theoretical mooring from which to analyze contemporary First Amendment controversies. This Article sets forth a prima facie case that this requires committing to a nuanced articulation of the self-governance interest. Read the full Article here.

Restroom Use, Civil Rights, and Free Speech “Opportunism”

Timothy Zick

Commentators have expressed concerns that litigants are invoking the First Amendment’s Free Speech Clause strategically, in order to compensate for the weakness or futility of other constitutional claims. The phenomenon has been given a label—”opportunism”—and scholars have examined some of its causes and consequences. This Article takes a closer and somewhat skeptical look at the concept of free speech “opportunism.” It imagines that the Free Speech Clause will be invoked in challenges to laws or policies that restrict public restroom use based on a person’s gender and argues for greater precision and caution when affixing the “opportunism” label. Read the full Article here.

The Tip of the Iceberg: A First Amendment Right To Promote Drugs Off-Label

Christopher Robertson

Scholars, advocates, and courts have begun to recognize a First Amendment right for the makers of drugs and medical devices to promote their products “off-label,” without proving safety and efficacy of new intended uses. Yet, so far, this debate has occurred in a vacuum of peculiar cases, where convoluted commercial speech doctrine underdetermines the outcome. Juxtaposing these cases against other routine prosecutions of those who peddle unapproved drugs reveals the common legal regime at issue. This Article systematically examines the First Amendment arguments for off-label promotion, and situates them in the larger scope of the FDCA premarket approval system. Read the full Article here.

A Free Speech Tale of Two County Clerk Refusals

Caroline Mala Corbin

The ever-expanding Free Speech Clause has made possible claims that would have been unthinkable until recently. This symposium Essay examines the compelled speech claims of two hypothetical county clerks who believe that marriage should be limited to unions between one man and one woman, and who argue that forcing them to issue marriage licenses to gay and lesbian couples compels them to speak in favor of same-sex marriage in violation of the Free Speech Clause. Read the full Essay here.

Free Speech and Public Health: Unraveling the Commercial-Professional
Speech Paradox

Wendy E. Parmet & Jason Smith

Public health advocates have puzzled in recent years over an apparent paradox. Commercial speech with a significant potential to harm health, such as tobacco marketing, appears to be receiving more robust protection under the First Amendment than the speech of health care professionals that aims to protect patient health. This disparate treatment of commercial and professional speech relating to health has significant ramifications for public health, as the regulation of speech has long been an important tool in the public health toolbox. Whether that tool remains constitutional is critical to the future of public health protection.This Article explores this paradox and considers the application of the speech clause to professional and commercial speech pertaining to health. Read the full Article here.

The Empirical First Amendment

Jane R. Bambauer

The First Amendment should protect not only the right to share ideas and factual claims, but also a (limited) right to test them. At first, this proposition will seem implausible, even dangerous. The right to share and receive ideas is protected, in part, because expression causes no direct, physical harm. Testing the validity of a claim, by contrast, often involves conduct that can directly bring noncommunicative harms. This Article explains why free speech theory and case law should, can, and to some extent already does recognize a First Amendment interest in testing competing theories. It then suggests how this constitutional interest can be cautiously expanded. Read the full Article here.

The First Amendment and Fair Housing in the Platform Economy

Nancy Leong

The platform economy—a marketplace made up of businesses that profit by connecting providers of goods and services with users of those goods and services—challenges us to reevaluate our antidiscrimination laws. This Article considers one such challenge: how should public accommodation laws such as Title II of the Civil Rights Act of 1964 and the Fair Housing Act apply to the housing sector of the platform economy? Read the full Article here.

The Indirect Consequences of Expanded Off-Label Promotion

Patricia J. Zettler

The U.S. Food and Drug Administration (FDA) plays a vital public health role. It oversees human and animal medical products, food, dietary supplements, cosmetics, products that emit radiation, and tobacco—regulating approximately 25% of the U.S. consumer economy—and features prominently in many of today’s most pressing public health issues, including antimicrobial resistance, opioid misuse and overdose, and the death and disease caused by tobacco use. Speech, arguably, is integral to the FDA’s regulatory scheme. Yet, courts, increasingly, have seemed willing to find that the First Amendment protects a broader range of off-label promotion than FDA policies have typically permitted. This Article explores potential indirect consequences of recently recognized protections for off-label promotion and argues that protections for off-label promotion indeed might affect the FDA’s decisionmaking in areas other than drug promotion, and analyzes precisely what those effects could be in light of the FDA’s current statutory authority. Read the full Article here.

Prior volumes of the Ohio State Law Journal can be viewed here.