Nelson Tebbe (Cornell Law School) has posted First Amendment Inversion (Texas Law Review, Vol. 104:509) on SSRN. Here is the abstract:
First Amendment politics have inverted in key areas of speech law. Positions previously associated with legal conservatism have been adopted by liberal ideology, and vice versa. Familiar views have been scrambled not only on the Supreme Court but also in public debate. Two examples support this descriptive claim. First, Florida and Texas enacted statutes regulating digital platforms, and they defended those laws by arguing that they had constitutional leeway to impose antidiscrimination rules on private firms that exerted significant control over the speech environment. Yet under the previous alignment, conservative thought had supported strong speech protections for corporations, including those that hosted the expression of others, and it had opposed state regulations designed to ensure the fairness of the marketplace. Liberal thinking, conversely, championed strong protection of platforms against state regulation, whereas previously it had supported the ability of states to impose antidiscrimination rules on private speech hosts. The opinions in Moody v. NetChoice illustrate the transposed political positioning. The second example is campus speech, where a similar switch in politics can be seen. While legal conservatism formerly championed free speech on campus, it now calls for antidiscrimination protection against antisemitism, even where that impacts expression. Legal progressivism, meanwhile, is now emphasizing the importance of free speech in university settings. In both contexts, platforms and campuses, the inversions are striking. This Article goes on to argue, however, that the reversals have not been symmetric. Distinguishing between centrist and activist positions reveals that the most prominent legal arguments on the right have been transformed more radically than the leading liberal arguments have. (Nor have the switches been permanent, as there have been some prominent reversions.) The Article concludes that partisan instability around the law of speech hosts can be explained by a mismatch between substantive politics and constitutional doctrine. For conservatives, speech rules will often disrupt traditionalist values. For egalitarians, the effort to craft a First Amendment that ensures equality of speech opportunities will be complicated by precedents that ignore the diversity and dynamism of power over individual expression. Chances to craft rules that promote democratic speech arrangements may arise, but they will be fleeting and opportunistic rather than durable or principled.
Highly recommended.
Lawrence Solum