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Private online platforms have an increasingly essential role in free speech and participation in democratic culture. But while it might appear that any internet user can publish freely and instantly online, many platforms actively curate the content posted by their users. How and why these platforms operate to moderate speech is largely opaque. This Article provides the first analysis of what these platforms are actually doing to moderate online speech under a regulatory and First Amendment framework. Drawing from original interviews, archived materials, and internal documents, this Article describes how three major online platforms - Facebook, Twitter, and YouTube - moderate content and situates their moderation systems into a broader discussion of online governance and the evolution of free expression values in the private sphere. It reveals that private content-moderation systems curate user content with an eye to American free speech norms, corporate responsibility, and the economic necessity of creating an environment that reflects the expectations of their users. In order to accomplish this, platforms have developed a detailed system rooted in the American legal system with regularly revised rules, trained human decision-making, and reliance on a system of external influence. This Article argues that to best understand online speech, we must abandon traditional doctrinal and regulatory analogies and understand these private content platforms as systems of governance. These platforms are now responsible for shaping and allowing participation in our new digital and democratic culture, yet they have little direct accountability to their users. Future intervention, if any, must take into account how and why these platforms regulate online speech in order to strike a balance between preserving the democratizing forces of the internet and protecting the generative power of our New Governors.

Supreme Court Justice Elena Kagan pressed the lead attorney for Colorado voters Jason Murray on Feb. 8 on states enforcing different interpretations of the 14th Amendment.

Consider the phrase—and my apologies for asking—“Trump too small.” It comes from the 2016 campaign for the Republican presidential nomination. A back-and-forth between Donald Trump and Florida Senator Marco Rubio culminated in a debate exchange about the size of Trump’s penis. This cultural low prompted one Steve Elster to seek registration of the trademark TRUMP TOO SMALL for use on shirts. The Patent and Trademark Office (“PTO”) refused, relying on section 2(c) of the Lanham Act, which bars registering a mark that “[c]onsists of or comprises a name, portrait, or signature identifying a particular living individual” absent written consent. In re Elster reversed the PTO’s rejection of Elster’s application. The Federal Circuit ruled that applying the section 2(c) bar to TRUMP TOO SMALL would unduly burden Elster’s First Amendment rights. This is nonsense. If we are concerned with burdens on speech, the larger issue is the prospect that registering the mark would create opportunities to limit others’ ability to use the phrase as speech. But it is nonsense well-grounded in recent Supreme Court opinions that use the First Amendment to strike down the Lanham Act’s bars to registering disparaging and scandalous marks. First Amendment implications aside, Elster highlights the bind facing the PTO when presented with low-quality trademarks. TRUMP TOO SMALL is not an effective brand name. When seen on a T-shirt, the phrase will naturally be read as an insulting commentary on the former President, not as a source indicator. But trademark law allows logos and slogans to be protected as merchandise. Even if the TRUMP TOO SMALL application is intended to support a merchandising play, that is not enough reason in and of itself to deny the registration. But apparent merchandising efforts like TRUMP TOO SMALL are different in kind from merchandising related to sports or university paraphernalia, for they lack any pre-existing goodwill to monetize. In effect, many would-be merchandisers are free riders, seeking to reap where they have not sown by capitalizing on cultural moments or other circumstances unconnected to their efforts. Trademark law lacks an effective vocabulary for these situations, placing significant pressure on nebulous doctrines like “failure to function” that may not be able to bear the weight increasingly placed on them to screen out low-quality trademarks. In re Elster thus illustrates a problem relating not to the First Amendment but rather to the choice to make trademark doctrine the vehicle for vindicating markholders’ merchandising interests.

Academic freedom is a critical norm of science. Despite the widely postulated importance of academic freedom, the literature attests to a dearth of research on the topic. Specifically, we know little about how academic freedom relates to indicators of societal progress, such as innovation. We address this research gap by empirically assessing the impact of academic freedom on the quantity (patent applications) and quality (patent citations) of innovation output using a comprehensive sample of 157 countries over the 1900–2015 period. We find that improving academic freedom by one standard deviation increases patent applications by 41% and forward citations by 29%. The results are robust across a range of different specifications. Our findings constitute an alarming plea to policymakers: global academic freedom has declined over the past decade for the first time in the last century and our estimates suggest that this decline poses a substantial threat to the innovation output of countries in terms of both quantity and quality.

In Employment Division v. Smith, the Supreme Court famously held that the First Amendment Free Exercise Clause permits neutral laws of general applicability to incidentally burden religion without offering religious exemptions. Today, many people-including Justice Alito in his concurrence in Fulton v. City of Philadelphia-are calling for Smith to be replaced by a jurisprudence that applies strict scrutiny to neutral, generally applicable laws that place a substantial burden on religion. Yet, both before and after Smith, what exactly has constituted a \"substantial burden\" on religion has been far from clear. While some courts indicate that burdens on religion can only exist when the state threatens penal consequences or the withholding of benefits to coercively pressure religious adherents to forgo their faith, other courts indicate that burdens can also exist when the state-without coercion or pressure-directly prevents or hinders persons from exercising their faith. While some courts have suggested that the substantiality of a burden on religion hinges on the weight of the penalties or losses that the state attaches to a claimant's exercise of religion, other courts have also measured substantiality by examining whether the religious exercise affected is central, obligatory, or mandated. Not only have existing conceptions of burden conflicted with one another, but some definitions of \"substantial burden\" also leave room for the state to effectively prevent religious activity without being subject to heightened scrutiny. Other definitions have failed to clarify when burdens cross the threshold of substantiality. Some definitions prompt courts to engage in ill-equipped decision-making that risks violating the Establishment Clause. And still other definitions run afoul of the Free Exercise Clause itself. In the wake of these problems, this Comment proposes a definition of \"substantial burden\" by starting from the operative verb of the Free Exercise Clause-to prohibit. This Comment argues that the state imposes a substantial burden on religion when it creates a de jure or de facto ban on any form of religious exercise-i.e., when the state legally forbids or effectively prevents the exercise of one's religion. Whenever neutral, generally applicable laws create such a burden, they should be subject to strict scrutiny. The definitional framework proposed by this Comment can exist alongside the existing doctrine that laws (including facially neutral ones) that discriminate against religion, and thus fall outside of Smith, should be subject to strict scrutiny. As this Comment argues, defining substantial burdens (in the context of neutral laws of general applicability) to include de jure and de facto bans on any religious exercise not only better comports with the text of the Free Exercise Clause itself, but also mitigates many of the problems raised by definitions of \"substantial burden\" used by courts in the past few decades. While this Comment's de jure and de facto framework does not purport to solve all of these problems, it provides a structured way for judges and legislators alike to think more rigorously about constitutionally faithful standards that might replace Smith should it be overturned.

[...]it casts a test to determine whether a product is expressive for compelled-speech purposes, since existing scholarship has merely identified several relevant factors without crafting a coherent test. [...]it concludes that courts should evaluate whether a public accommodation is forced to actually create expression by determining whether a requestfor a product from the public accommodation is closer to a rule or a Standard. The answer lies in that the majority considers only a small minority of products sold by public accommodations to be expressive and thus merit the First Amendment's protection.7 On first glance, only allowing expressive goods or conduct to receive First Amendment protection may seem to maintain antidiscrimination law's traditional domain, e.g., service in restaurants, banks, and laundromats.8 But even those businesses could circumvent compliance with public accommodations laws under a broad reading of \"expressive,\" since almost \"anything\"-including seating someone at a restaurant-can be interpreted as an endorsement of a group a customer belongs to, such as race or political affiliation, and therefore expressive.9 Thus, a more articulate account of constitutionally cognizable expression is necessary to cash in on the 303 Creative majority's promise. In forcing a public accommodation to be perceived as saying something it despises, the government offends the public accommodation's autonomy interest in controlling its own message. Because compelling such expression contravenes the autonomy value that animates compelled-speech doctrine, this subset of expression is of the type that the First Amendment guards.

When do the First Amendment's Free Speech and Free Exercise Clauses require exceptions to generally valid laws? Recently, the Supreme Court has upheld a number of such exceptions, which excuse some speakers and religiously motivated actors from legal duties that apply to others, including in prominent cases under antidiscrimination statutes and emergency pandemic regulations. By contrast, other landmark cases--such as United States v. O'Brien and Employment Division v. Smith-insist that First Amendment exceptions should be rare. In analyzing the fraught and confusing issues that surround First Amendment exceptions, this Article makes four main contributions. First, it conceptualizes claims to First Amendment exceptions as as-applied challenges, which the Supreme Court purports to welcome in other contexts, and elucidates the role of \"severability\" principles in making as-applied challenges possible. Insofar as as-applied challenges are unavailable, the Article argues, applicable doctrine necessarily relies on facial challenges to protect First Amendment rights. Second, the Article conducts a doctrinal survey of judicially mandated exceptions under both the Free Speech and Free Exercise Clauses and highlights the diverse variety of tests that determine when claims to exceptions can succeed. The survey confirms that First Amendment exceptions are indeed exceptional, though not anomalous. It additionally establishes, however, that facial challenges are the more common mechanism for protecting First Amendment rights--a conclusion contrary to the Supreme Court's frequent admonition that facial challenges should be rare and disfavored. Third, the Article probes beneath the surface of current doctrines authorizing First Amendment exceptions and generates insights about the nature of First Amendment rights and the diverse interests that those rights protect. Based on variance in the Supreme Court's receptivity to claims to First Amendment exceptions, the Article draws provocative conclusions about which underlying interests the Justices view as more and less deserving of judicial protection. Fourth, the Article exposes flaws in the Supreme Court's reasoning in designing and applying frameworks authorizing First Amendment exceptions in two recent leading cases, 303 Creative LLC v. Elenis under the Free Speech Clause and Tandon v. Newsom under the Free Exercise Clause. Overall, the Article enriches previous understandings of how exceptions do and should fit into a complex ecosystem of First Amendment rights and interests.

I have written exactly one paper about the right of publicity. It was in 2004. So this was a good chance to start thinking hard again about things I have not thought about in a while. That paper was the first paper I ever wrote as an academic. I reread it last week, and it felt a lot like the first paper I ever wrote as an academic. I do not advise that, by the way. It is not a good feeling. What I was most struck by in reading that paper is that nothing has changed in the time since I wrote it in terms of what the big issues are. I say this having reread Mark and Stacey’s piece as well, which is about the same time period.What those papers were trying to do was to think about what the right of publicity is, what it should be about, whether it has a real conceptual core to it, and what would follow from that in terms of the structure of the right. This is the way academics tend to think: What is the right about, and then—on this naïve assumption that you might be able to deduce from the theory what the actual practice should be—whether the scope of the right is tethered to the right’s justification. If you can work out the right at a conceptual level, then all the doctrinal limits would follow from that.Many people during that era offered ways of thinking about the right that would have justified a right of some scope—probably a more limited scope than some folks on this panel might want, but a right nonetheless. I think it is a more difficult question to figure out whether that right would be meaningfully different from what is protected under Section 43(a) type claims of false endorsement.If you approach the issue, not from the perspective of theory, but from the doctrine itself, I do not think any fair-minded person could look at the right of publicity as it actually exists and believe that the doctrine derived from a coherent theory. It has characteristics of both personal and property rights. It resembles in different ways and at different times privacy and IP rights. But the mixture is hard to explain in any satisfactory way. Jennifer Rothman referred to it as having an identity crisis. I think that was probably generous. I think the fact is that is what really animated all the papers I was talking about: This sort of weird mixture of different things that make it hard to identify any particular coherent theory.

Following a unanimous defeat at the Supreme Court in National Collegiate Athletic Association (NCAA) v. Alston and facing an impending start date for various state laws that would force action on athletes’ ability to profit off their name, image, and likeness (NIL), the NCAA recently made the decision to simply allow states and member colleges and universities to promulgate NIL restrictions on their own.  But while such a delegation helps the NCAA stave off relevant antitrust action against them, placing regulatory authority over college athlete endorsement and sponsorship deals in the hands of government actors like state legislators, governors, and public educational institutions brings constitutional analysis into play in a way that has not previously been seen in sports due to the wholly private natures of sports leagues and the NCAA. Along these lines, this Article applies First Amendment jurisprudence to three recurring NIL restrictions imposed by states and schools:  (1) restrictions on athlete deals that conflict with institutional endorsement deals; (2) restrictions on athlete deals with vice industries like gambling and alcohol; and (3) broad restrictions on deals that conflict with undefined “institutional values.”  To do so, we apply several First Amendment doctrinal frameworks—those concerning commercial speech, student speech, public employee speech, and the overbreadth doctrine—to provide a range of different means by which courts may interpret how the rights of college athletes are affected by NIL policies.  In the end, we find that the nature of these restrictions as overbroad prior restraints of free speech creates significant doubt as to the constitutionality of many of these restrictions under the First Amendment.  We conclude that such restrictions in no uncertain form “present a ‘realistic danger’ [that these actors] could significantly compromise recognized First Amendment protections,” including the advanced protections for political speech.