As published in “The Fire”
First up, if you haven’t come across the Fire before this is what they say about themselves
Since its founding more than two decades ago as the Foundation for Individual Rights in Education, FIRE has become the nation’s leading defender of fundamental rights on college campuses through our unique mix of programming, including student and faculty outreach, public education campaigns, individual case advocacy, and policy reform efforts. In 2022, FIRE changed its name to the Foundation for Individual Rights and Expression and announced an expansion initiative into off-campus free speech advocacy and legal defense. (https://www.thefire.org/about-us)
They write.
Virtually all casebooks are doctrinal homages to Supreme Court review. It’s time for a new generation of free-expression coursebooks.
If I had to write a First Amendment casebook for law schools (and I almost did), I certainly would not model it after any of the main ones now in use. Though most are expensive (some cost upwards of $300), that is certainly not their major flaw.
My problem with these tomes is that they are first and finally about doctrinal law announced by the Supreme Court (and even on that score they can be inadequate), and feature very little about the modern practices of law in trial and appellate courts.
Don’t get me wrong, I have no truck with the Marbury v. Madison (1803) principle of the supremacy of Supreme Court review. My problem is there is much more to First Amendment law than high court case-crunching. Below are seven reasons, among others, why I think most First Amendment casebooks are inadequate in preparing law students to practice in this area of law, which is expanding.
- A Supreme Court-centric approach (SCA) ignores several important and timely areas of free speech law. For example, contemporary campus speech controversies. While all the casebooks cover the student speech cases from Tinker v. Des Moines Independent Community School Dist. (1969) to Mahanoy Area School Dist. v. B.L. (2021), those cases hardly provide an informative understanding of what is going on in college campus censorship cases. Board of Education v. Pico (1982) notwithstanding, much, or even more of the same holds true when it comes to bans on — and challenges to — books used in public libraries and schools.
- SCA ignores important free speech protections not found in case law. For example, consider anti-SLAPP (strategic lawsuit against public participation) laws. It is amazing but true: Few, if any, First Amendment casebooks set aside room for explaining the importance of state anti-SLAPP laws — a vital weapon in the free speech arsenal.
- SCA ignores important free speech battles that occur outside of judicial settings. For example, consider the 2021 House impeachment resolution concerning then-President Trump’s Jan. 6 statements and whether they were protected under the First Amendment. Though the House and Senate hearings were momentous markers in our constitutional history, scant attention, if that, has been given to them in First Amendment casebooks.
- SCA often ignores the strategies used by lawyers to secure First Amendment victories including victories that are won without high court review. For example, none of the casebooks that I know of discuss the litigation strategies Laurence Tribe employed in the 11 free expression cases he argued in the Supreme Court. Or how much is revealed to students about the work of Floyd Abrams in shaping First Amendment law.
- SCA offers inadequate guidance on how to conceptualize modern developments in communications technologies. For example, consider how little help current Supreme Court doctrinal law is when it comes to facial recognition technologies of AI bots.
- Emphasis on select doctrines of First Amendment law ignores other less discussed but equally important tenets of that law. For example,the “of and concerning” requirement, which receives little attention in most casebooks despite its foundational importance in defamation law.
- When it comes to textualism and the speech and press clauses, SCA offers little meaningful guidance. For example, does AI algorithm-generated data amount to “speech” within the meaning of the First Amendment? Does the word “no” in the First Amendment actually mean no? What does the word “abridge” mean? Despite Justice Elena Kagan’s 2015 admonition that “we’re all textualists now,” today’s casebooks offer little evidence of that when it comes to the speech and press clauses.
Of course, the law of free expression expands well beyond Supreme Court precedents as evidenced by speech-and-press-enhancing laws in state constitutions, state statutes, and local laws. As every seasoned lawyer knows, the totality of such laws provides the truest measure of expressive liberty. And then there is the culture of free expression — simply consider how the advent of the internet effectively changed the law of obscenity in many (though not all) respects. Additionally, federal statutory protections are possible as evidenced by the proposed Freedom of Speech and Press Act.
Bottom lines
Has the time not come to slay these old doctrinal dragons? Or, to be more diplomatic: The time is long overdue to shelve these weighty (and pricey!) First Amendment casebooks. The present and future demand a new (perhaps electronic) generation of free-expression coursebooks.
Publishers take note, professors take action, and students get ready to move beyond yesterday and toward tomorrow.
