Free Speech Unmuted: Protests, Public Pressure Campaigns, Tort Law, and the First Amendment

The latest podcast episode from Prof. Jane Bambauer (Florida) and me.

You can also watch our past episodes:

• Misinformation: Past, Present, and Future
• I Know It When I See It: Free Speech and Obscenity Laws
• Speech and Violence
• Emergency Podcast: The Supreme Court's Social Media Cases
• Internet Policy and Free Speech: A Conversation with Rep. Ro Khanna
• Free Speech, TikTok (and Bills of Attainder!), with Prof. Alan Rozenshtein
• The 1st Amendment on Campus with Berkeley Law Dean Erwin Chemerinsky
• Free Speech On Campus
• AI and Free Speech
• Free Speech, Government Persuasion, and Government Coercion
• Deplatformed: The Supreme Court Hears Social Media Oral Arguments
• Book Bans – or Are They?

Comments

[Lennyk78]

Semi related, there is nothing anyone could say that would convince me that "electioneering" laws, prohibiting wearing political shirts at polls, are not unconstitutional, as long as no one is being coerced.

[Sam Bankman-Fried]

Plus it tells you who the white garbage is!! Kamala needs to take out the garbage—starting with Vance’s violent drug addicted skank of a mother!!! Just designate West Virginia a garbage dump and have a convenience store in the middle of the state give out free Pall Malls and Busch tall boys and it will take care of itself!

[not guilty]

A Minnesota statute providing that a “political badge, political button, or other political insignia may not be worn at or about the polling place” was held to violate the First Amendment in Minnesota Voters All. v. Mansky, 585 U.S. ___, 138 S.Ct. 1876, 1891 (2018). A broader Tennessee statute, which prohibited the solicitation of votes and the display or distribution of campaign materials within 100 feet of the entrance to a polling place, was upheld in Burson v. Freeman, 504 U.S. 191 (1992). A four justice plurality found that the law withstood even the strict scrutiny applicable to speech restrictions in traditional public forums. Id., at 211. Justice Scalia, concurring in the judgment, concluded that the statute is constitutional because it is a reasonable, viewpoint-neutral regulation of a nonpublic forum. Id., at 214.

The Court in Mansky opined that:

Campaign buttons and apparel did come up in the Burson briefing and argument, but neither the plurality nor Justice Scalia expressly addressed such applications of the law. Nor did either opinion specifically consider the interior of the polling place as opposed to its environs, and it is true that the plurality’s reasoning focused on campaign activities of a sort not likely to occur in an area where, for the most part, only voters are permitted while voting. At the same time, Tennessee’s law swept broadly to ban even the plain “display” of a campaign-related message, and the Court upheld the law in full.

138 S.Ct. at 1887 (footnote omitted).

[Disclosure: I represented the Plaintiff-Respondent in Burson v. Freeman and argued the matter before SCOTUS.]

[Brett Bellmore]

Yesterday when I went to early vote, my cap got a very close inspection by a suspicious poll worker. Admittedly it's a bit faded at this point, but totally non-political.

Well, unless home brewing becomes a political issue, I guess.

[Krayt]

Well, unless home brewing becomes a political issue again, I guess.

ftfy

[Lennyk78]

I disagree with the Court's ruling. I've never agreed with the idea that a fundamental right can be overridden by a "compelling state interest."

[not guilty]

Obviously I disagree with the ruling in Burson v. Freeman. But as Justice Robert Jackson said of his brethren on SCOTUS, "We are not final because we are infallible, but we are infallible only because we are final." Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring in result).