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Book banning and censorship is appearing again in states and school districts. The history of book banning goes back as far as recorded time. Columnist Jonathan E. Collins discusses the U.S. court system’s history support of the First Amendment and against censorship. He outlines the implications of the most recent book banning incidents and the political ideology behind them. He emphasized that we must keep books accessible for our students.

In this Article, I identify and critique a phenomenon I call Free Exercise Lochnerism. In promoting corporate religious exemptions from employment and consumer protections, litigants, scholars, and courts are resurrecting Lochner v. New York—a case symbolic of the courts' widely criticized use of freedom of contract to strike down economic regulation at the turn of the last century. Today, in their interpretations of the First Amendment and the Religious Freedom Restoration Act, courts replicate the commitment to private ordering and resistance to redistribution that were at the heart of Lochner. While this phenomenon is exemplified by Burwell v. Hobby Lobby, its reach is wider. The comparison to Lochner offers two insights overlooked in contemporary debates over business religious liberty. First, in resisting compliance with antidiscrimination laws, pharmacy regulations, and insurance mandates (most prominently, the Affordable Care Act's contraceptive mandate), businesses make claims more reminiscent of market libertarianism than of religious freedom. In siding with these businesses, courts have begun to incorporate the premises of Lochner into religious liberty doctrine. In the contraceptive mandate litigation in particular, courts—from the trial level to the Supreme Court—defined a businesses right to free exercise of religion by reference to its ability to contract. They postulated private market ordering as a legally and economically neutral baseline and regulation as an unnecessary and unfair redistribution. Second, comparing business religious liberty doctrine to Lochner-era freedom of contract lays bare the implications for the regulatory state beyond contraception and same-sex marriage. While scholars have recognized a link between Lochner and the Free Speech Clause, this Article establishes that free exercise has taken on a similar role with potential to undermine the regulation of business more broadly.

Recommender Systems (RS) on digital platforms increasingly influence user behavior, raising ethical concerns, privacy risks, harmful content promotion, and diminished user autonomy. This article examines RS within the framework of regulations and lawsuits in the United States and advocates for legislation that can withstand constitutional scrutiny under First Amendment protections. We propose (re)framing RS-curated content as commercial speech, which is subject to lessened free speech protections. This approach provides a practical path for future legislation that would allow for effective oversight of RS, particularly in areas of substantial public interest like child safety, national security, and misinformation.

The American Library Association reported an “unprecedented spike” in the number of book removal requests in the final months of 2021, and most of these challenges focus on books about people from marginalized communities. Robert Kim asks whether such removals violate the First Amendment and explores how much discretion court have granted school officials in removing books from schools. Cases tend to hinge on the motivations behind such removals and bar officials from removing books because they express viewpoints officials and community members find objectionable while allowing the removal of books that are vulgar, not age-appropriate, or not educationally suitable.

The upcoming case Mahanoy Area School District v. B.L. will require the U.S. Supreme Court to rule on students’ rights to free speech on social media. The case involves a student who was disciplined for using foul language about her school’s cheerleading squad on Snapchat while off-campus and outside school time. Bob Kim traces the progress of the case so far and discusses what the case might mean for students and schools.

The First Amendment to the US Constitution protects commercial speech from government interference. Commercial speech has been defined by the US Supreme Court as speech that proposes a commercial transaction, such as marketing and labeling. Companies that produce products associated with public health harms, such as alcohol, tobacco, and food, thus have a constitutional right to market these products to consumers. This article will examine the evolution of US law related to the protection of commercial speech, often at the expense of public health. It will then identify outstanding questions related to the commercial speech doctrine and the few remaining avenues available in the United States to regulate commercial speech including the use of government speech and addressing deceptive and misleading commercial speech.

In 303 Creative LLC v. Elenis, a web designer sought a legal right to refuse to make wedding websites for same-sex couples while making wedding websites for other couples as a service provided by her business open to the public. The web designer also sought a legal right to post a notice on her business webpage stating that she would refuse to provide such services for same-sex couples’ weddings. Here, I argue that 303 Creative marks a fairly radical break from previous legal cases dealing with whether service providers have the legal right to deny services for same-sex weddings. This is because, if we take the web designer at her word, the web designer appears to have sought these legal rights, in significant part, in order to use an act of commercial discrimination as an act of religious message sending. In support of this conclusion, I argue that acts of selective commercial service constitute the primary means by which the web designer sought to promote her preferred religious messages and that these acts of selective commercial service are acts of discrimination. I also discuss some of the significance of this case for religion and politics in the United States.

After the surge in political protests during the summer of 2020, protest rights have been thrust into the forefront of the nation’s consciousness. Specifically, questions have arisen with respect to the boundaries of the First Amendment rights of protesters, in addition to the duty of police officers to maintain public safety and order. In this article, the interpretation and application of relevant First Amendment precedents involving protest policing and the policing of protesters are examined using cases decided by the United States Circuit Courts of Appeals. Using inductive, qualitative doctrinal methods in the tradition of grounded theory, four overarching themes emerged among the caselaw: place of protest, protest permits, law enforcement misconduct, and ordinances that restrict protests. Findings from the court rulings emphasize the importance of supervision of law enforcement and adequate training of officers who police protests. While order maintenance and public safety remain critical, law enforcement must internalize the importance of their role in protecting the First Amendment right to protest.

Privacy laws rely on the unexamined assumption that the collection of data is not speech. That assumption is incorrect. Privacy scholars, recognizing an imminent clash between this long-held assumption and First Amendment protections of information, argue that data is different from the sort of speech the Constitution intended to protect. But they fail to articulate a meaningful distinction between data and other more traditional forms of expression. Meanwhile, First Amendment scholars have not paid sufficient attention to new technologies that automatically capture data. These technologies reopen challenging questions about what \"speech \" is. This Article makes two overdue contributions to the First Amendment literature. First, it argues that when the scope of First Amendment coverage is ambiguous, courts should analyze the government's motive for regulating. Second, it highlights and strengthens the strands of First Amendment theory that protect the right to create knowledge. Whenever the state regulates in order to interfere with the creation of knowledge, that regulation should draw First Amendment scrutiny. In combination, these claims show clearly why data must receive First Amendment protection. When the collection or distribution of data troubles lawmakers, it does so because data has the potential to inform and to inspire new opinions. Data privacy laws regulate minds, not technology. Thus, for all practical purposes, and in every context relevant to privacy debates, data is speech.

From Citizens United to Hobby Lobby, civil libertarian challenges to the regulation of economic activity are increasingly prevalent. Critics of this trend invoke the specter of Lochner v. New York. They suggest that the First Amendment, the Religious Freedom Restoration Act, and other legislative \"conscience clauses\" are being used to resurrect the economically libertarian substantive due process jurisprudence of the early twentieth century. Yet the worry that aggressive judicial enforcement of the First Amendment might erode democratic regulation of the economy and enhance the economic power of private actors has a long history. As this Article demonstrates, anxieties about such \"First Amendment Lochnerism\" date back to the federal judiciary's initial turn to robust protection of free exercise and free expression in the 1930s and 1940s. Then, it was those members of the Supreme Court perceived as most liberal who struck down economic regulations on First Amendment grounds. They did so in a series of contentious cases involving the Jehovah's Witnesses, who challenged local peddling taxes as burdening a central aspect of their missionary faith—the mass sale and distribution of religious literature. In dissent, Justice Robert Jackson warned that the new \"liberal\" majority's expansive conception of First Amendment enforcement repeated the mistakes of the \"liberty of contract\" jurisprudence of the Lochner era, undermined democratic regulation of the economy, and imposed the beliefs of some on \"the rights of others.\" Justice Jackson's warnings sound strikingly similar to contemporary critiques of First Amendment Lochnerism. Yet today's critics treat recent case law as a novel, economically libertarian co-option of an otherwise progressive project: the judicial enforcement of civil liberties. In contrast, the Justices and scholars who objected to the 1940s peddling-tax decisions perceived an inextricable relationship between judicial civil libertarianism and judicial interference with economic regulation. By recovering the origins and sketching the aftermath of the peddling-tax debate, this Article argues that contemporary critics of First Amendment Lochnerism tend to overstate the phenomenon's novelty and underestimate the difficulty of curing judicial civil libertarianism of its \"Lochnerian\" tendencies. This argument, in turn, counsels a reorientation of contemporary advocacy. Rather than defending an illusory tradition of economically neutral First Amendment enforcement, critics of today's First Amendment Lochnerism might more accurately and persuasively position themselves as reformers. They could then set to work breaking with a legal tradition long insensitive to the deleterious effects of judicial civil libertarianism on political regulation of the economy.