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If I had to write a First Amendment casebook for law schools (and I almost did), I certainly would not model it after any of the main ones now in use. Though most are expensive (some cost upwards of$300), that is certainly not their major flaw.

My problem with these tomes is that they are first and finally about doctrinal law announced by the Supreme Court (and even on that score they can be inadequate), and feature very little about the modern practices of law in trial and appellate courts.

Dont get me wrong, I have no truck with theMarbury v. Madison (1803) principle of the supremacy of Supreme Court review. My problem is there is much more to First Amendment law than high court case-crunching. Below are seven reasons, among others, why I think most First Amendment casebooks are inadequate in preparing law students topractice in this area of law, which is expanding.

Of course, the law of free expression expands well beyond Supreme Court precedents as evidenced by speech-and-press-enhancing laws in state constitutions, state statutes, and local laws. As every seasoned lawyer knows, the totality of such laws provides the truest measure of expressive liberty. And then there isthe culture of free expression simply consider how the advent of the internet effectively changed the law of obscenity in many (though not all) respects. Additionally, federal statutory protections are possible as evidenced by the proposedFreedom of Speech and Press Act.

Bottom lines

Has the time not come to slay these old doctrinal dragons? Or, to be more diplomatic: The time is long overdue to shelve these weighty (and pricey!) First Amendment casebooks. The present and future demand a new (perhapselectronic) generation of free-expression coursebooks.

Publishers take note, professors take action, and students get ready to move beyond yesterday and toward tomorrow.

Related

Note to reader:I will be out of the country for the next two weeks. But not to fear: Well be sharing two Looking Back issues of First Amendment News during that time one featuring an interview with a well-known constitutional litigator, and the other being a profile of an unknown dissenter. Both are likely new to you.

See you on the other side of the calendar!

RKLC

A federal judge issued a limited gag order Monday against Donald Trump, saying the former president must stop disparaging prosecutors, witnesses and court personnel involved in his upcoming D.C. trial on charges of conspiring to obstruct the results of the 2020 election.

The decision by U.S. District Judge Tanya S. Chutkan takes the country further into legally and politically uncharted territory with a criminal defendant who is known for incendiary public statements and is also a leading 2024 presidential candidate. Mr. Trump is facing felony charges, and he does not get to respond to every criticism if that response could affect a potential witness, Chutkan said in court. He doesnt get to use all the words.

But the judge declined to impose restrictions as broad as the Justice Department wanted, saying Trump was free to verbally abuse President Biden, his likely rival in the 2024 election. Trump can also claim that the case against him is politically motivated, as long as he doesnt denigrate individual prosecutors.

Mr. Trump can certainly claim hes being unfairly prosecuted, but I cannot imagine any other case where a defendant is allowed to call the prosecutor deranged, or a thug, and I will not permit it here simply because the defendant is running a political campaign, Chutkan said, quoting from pastTrump statementsto make her point.

[ . . . ]

Todays decision is an absolute abomination and another partisan knife stuck in the heart of our Democracy by Crooked Joe Biden, who was granted the right to muzzle his political opponent, the unsigned statement from the Trump campaign said. President Trump will continue to fight for our Constitution, the American peoples right to support him, and to keep our country free of the chains of weaponized and targeted law enforcement.

TheSupreme Courton Monday rejected North Carolinas appeal in a dispute with animal rights groups over a law aimed at preventing undercover employees at farms and other workplaces from taking documents or recording video.

The justicesleft in placea legal victory for People for the Ethical Treatment of Animalsin its challenge to the state law, which was enacted in 2015. PETA has said it had wanted to conduct an undercover investigation at testing laboratories at the University of North Carolina at Chapel Hill but feared prosecution under the Property Protection Act.

In a 2-1 decision, the 4th U.S. Circuit Court of Appeals ruled in February that the law could not be enforced against PETA and likely others in similar situations when its undercover work is being performed to conduct newsgathering activities.

The Alexandria city council unanimously voted to repeal some restrictions on panhandling Saturday that city officials said had violated the First Amendment. The council heard arguments Tuesday from the city attorneys office and Alexandria police in favor of rescinding an ordinance that restricted aggressive panhandling, including soliciting money using methods that cause fear of injury. Saturdays 7-0 vote came after a follow-up hearing.

The ordinance, enacted in 1994, also limited panhandling within 15 feet of ATMs, which ran afoul of a 2015 decision by the U.S. Court of Appeals for the 4th Circuit. (The 4th Circuit covers Maryland, Virginia, West Virginia, North Carolina and South Carolina.) The court ruled that a Charlottesville law that prohibited people from soliciting cash near a mall violated the free speech rights of homeless panhandlers.

Related

This Article presents the findings of a quantitative and qualitative study of the application of qualified immunity and other governmental immunities in the context of public protest. Relying on three unique datasets of federal court decisions examining First Amendment and Fourth Amendment claims, the Article concludes that public protester plaintiffs face an array of obstacles when suing state, local, and federal officials for constitutional injuries. Quantitative findings show that protesters claims are frequently dismissed under qualified immunity doctrines and that plaintiffs also face strict limits on municipal liability, new restrictions on First Amendment retaliation claims, and the possible extinction of monetary actions against federal officials. Qualitatively, the study shows protesters rights are under-developed in several respects, including recognition of the right to record law enforcement and limits on law enforcements use of force. The study lends additional support and new urgency to calls for qualified immunity reform or repeal, as well as reconsideration of other governmental immunities. It also concludes that much more than money damages for injured plaintiffs is at stake. Lack of adequate civil remedies may significantly chill future public protest organizing and participation.

When social media platforms like Facebook and YouTube moderate content, are they engaged in protected speech? Or are they engaged in an invidious form of censorship? The answer, which lies at the heart of a pair of cases the Supreme Court agreed to hear on Friday, could fundamentally alter the nature and operation of social media platforms and the internet itself.

Reacting to complaints from the political right that large social media platforms including Facebook and YouTube actively censor conservative views, Texas and Florida enacted laws prohibiting the platforms from removing, deleting, or deplatforming speech or speakers based on viewpoint. The laws differ in some respects, but both create a legal cause of action against social media platforms that engage in any of the laws defined methods of censorship. They also require that platforms provide an explanation for any posts censored and publicly disclose their guidelines for removing speech or speakers from the platforms.

President, CEO, and general counsel of the Alliance Defending Freedom, Kristen Waggoner, joins us for a discussion on freedom of speech and religious liberty. ADF has played various roles in 74 U.S. Supreme Court victories and since 2011, has won cases before the Court 15 times.

According to its website, ADF is the world's largest legal organization committed to protecting religious freedom, free speech, marriage and family, parental rights, and the sanctity of life.

ADF has litigated many high-profile and controversial free speech cases, including the recent Supreme Court case involving a web designer who didn't want to be compelled to design websites for same-sex weddings. Before that, ADF litigated the 2018 Masterpiece Cakeshop case, which involved a cake designer who similarly didn't want to provide his services for same-sex weddings on religious grounds.

After the initial conversation was recorded, The Washington Post and The New Yorker released articles critical of ADF. Nico and Kristen recorded an additional, brief conversation to address these articles. That is included at the end of the podcast.

Related

After spending more than two decades in the Department of Politics at Princeton University, I'm pleased to announce that I will joining the faculty ofYale Law Schoolin the fall of 2024. At YLS, I also expect to be the faculty director of a new center focused on academic freedom and free speech issues.

I've been extremely fortunate to have been at Princeton, and I leave with nothing but good feelings and best wishes for my students and colleagues there. It is time to take on some new challenges, however, and I very much look forward to joining a new set of students and colleagues at Yale.

Yale Law School has an unparalleled role in shaping the legal academia and influencing policymakers, and I'm looking forward to finding my own niche there.

I'm not unmindful of the significance of this move at the present moment. YLS has, of course, had its own recent controversies regarding free speech and ideological diversity. Yale hasnotoriouslybeenlackingin right-of-center public law faculty for decades. Co-blogger Josh Blackman says YLS is afailed academic institution. I hope not! But the lack of political diversity on elite law school faculties is unhealthy, and I'm glad to be able to do my small part to mix things up.

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Pendingpetitions

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FAN 398:Where were Little Browns sensitivity readers? A few thoughts on the Wenner Rolling Stone controversy

This article is part ofFirst Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the articles author(s) and may not reflect the opinions of FIRE or of Mr. Collins.

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What's wrong with First Amendment casebooks? Where to begin ... - Foundation for Individual Rights in Education