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\"From an insider's perspective, Robert C. Post ... offers insight into the politics of display and the interpretation of history. Never before has a book about the Smithsonian detailed the recent and dramatic shift from collection-driven shows, with artifacts meant to speak for themselves, to concept-driven exhibitions, in which objects aim to tell a story, displayed like illustrations in a book\"--Dust jacket flap.

The 2014 decision of the European Court of Justice in Google Spain controversially held that the fair information practices set forth in European Union (EU) Directive 95/46/EC (Directive) require that Google remove from search results links to websites that contain true information. Google Spain held that the Directive gives persons a \"right to be forgotten.\" At stake in Google Spain are values that involve both privacy and freedom of expression. Google Spain badly analyzes both. With regard to the latter, Google Spain fails to recognize that the circulation of texts of common interest among strangers makes possible the emergence of a \"public\" capable of forming the \"public opinion\" that is essential for democratic self-governance. As the rise of American newspapers in the nineteenth and twentieth centuries demonstrates, the press underwrites the public sphere by creating a structure of communication both responsive to public curiosity and independent of the content of any particular news story. Google, even though it is not itself an author, sustains the contemporary virtual public sphere by creating an analogous structure of communication. With regard to privacy values, EU law, like the laws of many nations, recognizes two distinct forms of privacy. The first is data privacy, which is protected by the fair information practices contained in the Directive. These practices regulate the processing of personal information to ensure (among other things) that such information is used only for the specified purposes for which it has been legally gathered. Data privacy operates according to an instrumental logic, and it seeks to endow persons with \"control\" over their personal data. Data subjects need not demonstrate harm in order to establish violations of data privacy. The second form of privacy recognized by EU law is dignitary privacy. Article 7 of the Charter of Fundamental Rights of the European Union protects the dignity of persons by regulating inappropriate communications that threaten to degrade, humiliate, or mortify them. Dignitary privacy follows a normative logic designed to prevent harm to personality caused by the violation of civility rules. There are the same privacy values as those safeguarded by the American tort of public disclosure of private facts. Throughout the world, courts protect dignitary privacy by balancing the harm that a communication may cause to personality against legitimate public interests in the communication. The instrumental logic of data privacy is inapplicable to public discourse, which is why the Directive contains derogations for journalistic activities. The communicative action characteristic of the public sphere is made up of intersubjective dialogue, which is antithetical both to the instrumental rationality of data privacy and to its aspiration to ensure individual control of personal information. Because the Google search engine underwrites the public sphere in which public discourse takes place, Google Spain should not have applied fair information practices to Google searches. But the Google Spain opinion also invokes Article 7, and in the end the decision creates doctrinal rules that are roughly approximate to those used to protect dignitary privacy. The Google Spain opinion is thus deeply confused about the kind of privacy it wishes to protect. It is impossible to ascertain whether the decision seeks to protect data privacy or dignitary privacy. Google Spain is ultimately pushed in the direction of dignitary privacy because data privacy is incompatible with public discourse, whereas dignitary privacy may be reconciled with the requirements of public discourse. Insofar as freedom of expression is valued because it fosters democratic self-government, public discourse cannot serve as an effective instrument of self-determination without a modicum of civility. Yet the Google Spain decision recognizes dignitary privacy only in a rudimentary and unsatisfactory way. If it had more clearly focused on the requirements of dignitary privacy, Google Spain would not so sharply have distinguished Google links from the underlying websites to which they refer. Google Spain would not have blithely outsourced the enforcement of the right to be forgotten to a private corporation like Google.

The right of publicity protects persons against unauthorized uses of their identity, most typically their names, images, or voices. The right is in obvious tension with freedom of speech. Yet courts seeking to reconcile the right with the First Amendment have to date produced only a notoriously confused muddle of inconsistent constitutional doctrine. In this Article, we suggest a way out of the maze. We propose a relatively straightforward framework for analyzing how the right of publicity should be squared with First Amendment principles. At the root of contemporary constitutional confusion lies a failure to articulate the precise state interests advanced by the right of publicity. We seek to remedy this deficiency by disaggregating four distinct state interests that the right of publicity is typically invoked to protect. We argue that in any given case the right of publicity is characteristically invoked to protect (one or more) of these four interests: the value of a plaintiff's performance, the commercial value of a plaintiff's identity, the dignity of a plaintiff, or the autonomous personality of a plaintiff. Plaintiffs' interests in their identity must always be weighed against defendants' constitutional interests in their speech. We therefore isolate three constitutional kinds of communication, each with a distinct form of First Amendment protection. A defendant's misappropriation of a plaintiff's identity can occur in public discourse, in commercial speech, or in what we call \"commodities.\" We then discuss how constitutional protections for these three kinds of speech should intersect with the four different interests that right of publicity claims are typically invoked to protect. The upshot is not a mechanical algorithm for producing correct constitutional outcomes, but an illumination of the constitutional stakes at issue in any given right of publicity action. We hope that by carefully surfacing the constitutional and policy stakes that beset the conflict between right(s) of publicity and the First Amendment, we have sketched a map that might substantially assist those who must navigate this tumultuous terrain.

In this academic interview, Yale law professor Robert C. Post elucidates the distinction between freedom of expression and academic freedom, emphasizing that universities are communities guided by the twin missions of education and knowledge production. At their best, universities function as ‘disciplinary communities’ who must act in professionally competent ways. Post characterizes academic freedom as a ‘two-faced coin’. On the one hand, academic freedom embodies the values and principles essential for the governance of a healthy university community; on the other hand, it shields universities from external regulations that might hinder their mission of advancing education and research. Post also addresses the significant challenges to freedom of expression posed by the cosmopolitan public sphere, particularly in the age of social media and AI. As a trustee of Meta’s Oversight Board, Post highlights the complex issue of harmful speech online, noting that it is not only a matter of scale but also of scale, producing harms that are stochastic in nature.

Debates about academic freedom have become increasingly fierce and frequent. Legislative efforts to regulate American professors proliferate across the nation. Although most American scholars desire to protect academic freedom, they have only a vague and uncertain apprehension of its basic principles and structure. This book offers a concise explanation of the history and meaning of American academic freedom, and it attempts to intervene in contemporary debates by clarifying the fundamental functions and purposes of academic freedom in America. Matthew W. Finkin and Robert C. Post trace how the American conception of academic freedom was first systematically articulated in 1915 by the American Association of University Professors (AAUP) and how this conception was in subsequent years elaborated and applied by Committee A of the AAUP. The authors discuss the four primary dimensions of academic freedom-research and publication, teaching, intramural speech, and extramural speech. They carefully distinguish academic freedom from the kind of individual free speech right that is created by the First Amendment. The authors strongly argue that academic freedom protects the capacity of faculty to pursue the scholar's profession according to the standards of that profession.

For at least the past half-century, Americans have been committed to a “free speech principle,” holding that speech is to be encouraged because it serves to produce knowledge, to enable the development of personal autonomy, and to facilitate the self-governance of the nation. In this essay, I argue that any such abstract free speech principle is fundamentally misguided. The value of speech is instead the value of the social practice within which speech occurs. Speech is to be encouraged when it advances the purpose of the social practice in which it is embedded. For constitutional purposes, the most important social practice established by communication is the public sphere, whose development in the eighteenth century made possible democratic self-governance. The health of a democracy depends upon whether its public sphere can produce a public opinion capable of legitimating the state. This turns on the quality of a nation’s politics, not on the quantity of its speech. Americans who conceptualize the current crisis as requiring rededication to the free speech principle thus essentially misdiagnose the nature of our contemporary emergency. We need to repair our politics, not our speech.

The following remarks by Dean Post were delivered at Professor Burt's funeral. The remaining Tributes are drawn from remarks delivered at a memorial service held at the Yale Law School on November 1, 2015.

The concept of personal responsibility has been central to social, legal, and political approaches to obesity. It evokes language of blame, weakness, and vice and is a leading basis for inadequate government efforts, given the importance of environmental conditions in explaining high rates of obesity. These environmental conditions can override individual physical and psychological regulatory systems that might otherwise stand in the way of weight gain and obesity, hence undermining personal responsibility, narrowing choices, and eroding personal freedoms. Personal responsibility can be embraced as a value by placing priority on legislative and regulatory actions such as improving school nutrition, menu labeling, altering industry marketing practices, and even such controversial measures as the use of food taxes that create healthier defaults, thus supporting responsible behavior and bridging the divide between views based on individualistic versus collective responsibility.

The US Dietary Guidelines for Americans (DGA) provide dietary recommendations to meet nutrient needs, promote health, and prevent disease. Despite 40 years of DGA, the prevalence of under-consumed nutrients continues in the US and globally, although dietary supplement use can help to fill shortfalls. Nutrient recommendations are based on Dietary Reference Intakes (DRIs) to meet the nutrient requirements for nearly all (97 to 98 percent) healthy individuals in a particular life stage and gender group and many need to be updated using current evidence. There is an opportunity to modernize vitamin and mineral intake recommendations based on biomarker or surrogate endpoint levels needed to ‘prevent deficiency’ with DRIs based on ranges of biomarker or surrogate endpoints levels that support normal cell/organ/tissue function in healthy individuals, and to establish DRIs for bioactive compounds. We recommend vitamin K and Mg DRIs be updated and DRIs be established for lutein and eicosapentaenoic and docosahexaenoic acid (EPA + DHA). With increasing interest in personalized (or precision) nutrition, we propose greater research investment in validating biomarkers and metabolic health measures and the development and use of inexpensive diagnostic devices. Data generated from such approaches will help elucidate optimal nutrient status, provide objective evaluations of an individual’s nutritional status, and serve to provide personalized nutrition guidance.

The Court is now striking down a variety of federal civil rights statutes as beyond Congress's power under Section 5 of the Fourteenth Amendment. In imposing limits on federal authority to enact civil rights laws, the Court has invoked a particular understanding of separation of powers in which the Court alone can interpret the Constitution, while Congress can use its Section 5 power only to enforce the constitutional interpretations of the Court. This Article challenges this understanding, which it calls the \"enforcement model\" of Section 5, and contrasts it to an alternative account, in which Congress can enact Section 5 legislation based on its own interpretation of constitutional rights, even if Congress's interpretation diverges from the Court's. The Article names this alternative account of Section 5 power the model of \"policentric constitutional interpretation.\" For decades, Section 5 has served as a structural device that promotes policentric interpretation, and so fostered the democratic legitimacy of our constitutional order. The Article develops its claims about the enforcement and policentric models of Section 5 power in a case study of the Family and Medical Leave Act of 1993 (FMLA), the Section 5 statute at issue in Nevada Department of Human Resources v. Hibbs. The Article offers two critiques of the enforcement model. It demonstrates, first, that the enforcement model cannot generate criteria capable of distinguishing Section 5 legislation that enforces judicial interpretations of the Constitution from Section 5 legislation that enforces congressional interpretations of the Constitution. Without such criteria, judicial application of the model must depend instead on extrinsic considerations, like the Court's concerns about federalism or its attitude toward new forms of antidiscrimination law. The enforcement model thus leads to unaccountable decisionmaking, with the Court invalidating civil rights legislation on grounds that it neither names nor justifies. The Article offers a second, and more fundamental, critique of the enforcement model. The enforcement model assumes that authoritative interpretation of the Constitution is best conducted by an institution that is insulated from all contact with politics. This assumption is false. Overlapping legislative and judicial enforcement of Fourteenth Amendment rights plays an important structural role in our constitutional system because it links constitutional law to the larger constitutional culture of the nation. The Article illustrates this thesis by a case study of the mobilization of the women's movement that gave rise to modern sex equality law, including the FMLA itself. The Article shows how the movement's efforts precipitated a wave of congressional lawmaking in the 1970s that reflected a new constitutional vision of equality between the sexes. Eventually the Supreme Court followed Congress's lead and altered its Fourteenth Amendment doctrine to incorporate the evolving constitutional beliefs of the American people. Examining how Congress and the Court have in the past quarter-century each understood questions of equal protection in matters concerning conflicts between work and family illustrates important institutional differences in the ways Congress and the Court enforce constitutional rights. As this history demonstrates, Congress's political responsiveness makes it the object of social movement mobilization and a unique register of the nation's evolving constitutional understandings. The policentric model of Section 5 power holds that Congress and the Court may each consider and incorporate the other's views, while retaining autonomy in judgment, so that the Court remains free to strike down any law that it believes threatens individual liberties or impairs structural values such as separation of powers or federalism. The policentric model thus preserves both the nation's rich legacy of legislative constitutionalism and the judicially enforced rights on which we have come to depend.