Reflecting on the 2023-24 SCOTUS term: More bust than bang First Amendment News 430 – Foundation for Individual Rights and Expression

Despite the allure of potential landmark First Amendment expression cases being resolved (e.g.,tech platforms cases), the 2023-24 term of the Supreme Court proved more of a bust than a bang. There was only a single First Amendment expression case in which that claim prevailed. Likewise, there was only one in which such a claim lost. The majority of the cases in which a First Amendment expression claim was raised, by sharp contrast, were either left unresolved (one case) or dismissed on non-First Amendment grounds (four cases).

A few notable facts

First Amendment expression claims sustained

First Amendment expression denied

First Amendment expression claims not resolved

First Amendment Expression claims dismissed on other grounds

First Amendment expression related case

Scorecard

9-0 Judgments in First Amendment argued cases (Whether or not First Amendment claim was reached or resolved)

6-3 Judgments in First Amendment argued cases (Whether or not FA claim was reached or resolved)

I do think that it is a great thing for press freedom that we have avoided a judicial ruling from an American court on the scope of the Espionage Act and the scope of First Amendment because from the beginning there has been this real concern among press freedom advocates about the possible implications of this case for journalism.

Some officials appointed under President Biden were never entirely comfortable with the Trump administrations decision to charge Mr. Assange with activities that skirted the line between espionage and legitimate disclosures made in the public interest, current and former officials said.

Related

TikToks filing has hundreds of pages of communications with the US government, including slide decks and presentations on mitigating national security risks.

TikTok says that the government didnt adequately consider viable alternative options before charging ahead with a law that could ban the platform in the US. TikTok, whose parent company ByteDance is based in China, claims that it provided the US government with an extensive and detailed plan to mitigate national security risks and that this plan was largely ignored when Congress passed a law with a huge impact on speech.

In briefs filed at the DC Circuit Court on Thursday, both TikTok and a group of creators on the platform whove filed their own suit spelled out their case for why they believe the new law violates the First Amendment. The court is set to hear oral arguments in the case on September 16th, just a few months before the current divest-or-ban deadline of January 19th, 2025.

The Protecting Americans from Foreign Adversary Controlled Applications Act would effectively ban TikTok from operating in the US unless it divests from ByteDance by the deadline. The president has the option to extend that deadline slightly if he sees progress toward a deal. But spinning out TikTok is not entirely simple, given the limited pool of possible buyers and the fact that Chinese export law would likely prevent a sale of its coveted recommendation algorithm.

Hate speech consists of words of abuse or disparagement about racial and other minorities. Advocates for its regulation contend that hate speech contributes to the silencing of its targets, makes them feel unwelcome in public spaces, and reinforces existing practices of discrimination. Legal regulation of hate speech can alleviate those harms, though its effectiveness might be limited. Enforcement of laws against hate speech can cause collateral damage by deterring some speakers from saying things about public policy affecting minorities that might be mistakenly characterized as hate speech, and by discriminatory enforcement.

The United States is exceptional among the world's liberal democracies in its unwillingness to treat hate speech regulation as consistent with the constitutional protection of expression. The reasons for this exceptionalism include differences among constitutional texts, doctrines dealing with the direct effects of constitutional guarantees of equality on private actors, variation in institutional capacity to guard against abusive enforcement of hate speech laws, and variations in the public trust. This is a draft chapter.

In their 2023 article, Raising the Threshold for Trademark Infringement to Protect Free Expression, Christine Haight Farley and Lisa Ramsey argue in favor of a speech-protective fair use test that would replace multiple tests applied by the United States Courts of Appeals when a defendants alleged infringement has either informational or expressive elements. This Response explains why this raised threshold test is unlikely to be adopted following the United States Supreme Courts retrenchment of speech-protective thresholds inJack Daniels Properties, Inc. v. VIP Productions, LLC. That prediction is bolstered by the Courts likely holding inVidal v. Elster.

Readers persuaded that current defensive doctrines fail to sufficiently protect expressive and informational trademark uses will find the raised threshold test appealing. However, this Response concludes the proposed test is not constitutionally required. Moreover, applying the raised threshold test will lead courts in a surprisingly broad swath of cases to abandon or severely narrow important elements of current trademark doctrine, some of which are mandated by statute. Those threatened elements help courts correctly calibrate the commercial and expressive interests of trademark owners, alleged infringers, and the trademark-using public.

There is a movement afoot to restrict young people's access to social media and pornography.

Critics of social media and online porn argue that they can be harmful to minors, and states across the country are taking up the cause, considering laws that would impose age-verification, curfews, parental opt-ins, and other restrictions.

Meanwhile, critics of the critics argue that the evidence of harm isn't so conclusive and that many of the proposed restrictions violate core civil liberties such as privacy and free speech.

So, whos right?

Cases decided

Review granted

Pendingpetitions

State action

Reviewdenied

Free speech related

Last scheduled FAN

FAN 429:What to make of anti-mask laws and mask-required laws?

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 thoseof the articles author(s) and may not reflect the opinions of FIRE or Mr. Collins.

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Reflecting on the 2023-24 SCOTUS term: More bust than bang First Amendment News 430 - Foundation for Individual Rights and Expression