Free Speech Unmuted

When President Trump moved to bar CNN, MS NOW, and Politico from the White House over "biased" coverage, it set off a fast-moving legal showdown.  Today, Eugene Volokh and Jane Bambauer break down why the law was surprisingly clear-cut. Drawing on a 50-year-old D.C. Circuit precedent and a fresh ruling on Oval Office access, they explain the crucial distinction between the press briefing room (a forum where reporters can’t be excluded based on viewpoint) and the Oval Office (the president's own turf, where he can talk to whomever he wants). Plus: the due process twist that let a judge sidestep the First Amendment question entirely, the White House's slow-motion compliance with the restraining order, and why "the First Amendment is not a Freedom of Information Act."

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Can revealing a plot twist get you sued? Inspired by the controversy surrounding HBO’s Lanterns, Eugene Volokh and Jane Bamabuer explore the tension between copyright protection and free speech. From Gerald Ford’s memoirs to 2 Live Crew’s “Pretty Woman” parody, they examine how courts distinguish protected expression from facts and ideas—and when fair use permits borrowing from someone else’s work. Along the way, they consider why describing an ending differs from posting a clip, how unpublished leaks complicate the analysis, and when a spoiler might cross the line from bad manners to legal liability.

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ABC is challenging the Federal Communications Commission, arguing that the agency is using its licensing authority to punish the network for its coverage and political viewpoint. First Amendment scholars Jane Bambauer and Eugene Volokh are joined by Duke law professor Stuart Benjamin to examine the lawsuit, the FCC’s unusually broad “public interest” power, and the special rules that have long governed broadcast speech. They discuss allegations of retaliation and pretext, the chilling effect of costly government investigations, and whether this dispute could prompt the Supreme Court to reconsider broadcasters’ second-class status under the First Amendment.

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Eugene Volokh and Jane Bambauer examine the groundbreaking Robby Starbuck v. Google case, one of the first major defamation lawsuits arising from generative AI "hallucinations." They explore whether AI-generated falsehoods can constitute libel, why Section 230 offers no protection for AI-generated content, and how traditional defamation law applies when an AI invents damaging allegations about a real person. The conversation also covers the legal standards for actual malice, the role of discovery, Delaware's unusually permissive pleading rules, and whether these lawsuits could reshape the future of AI development—or expose AI companies to a wave of costly litigation. If AI can invent facts, who should bear the responsibility? This episode tackles one of the most important legal questions facing artificial intelligence today.

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Eugene Volokh and Jane Bambauer tackle one of the strangest First Amendment controversies imaginable: whether sending a sexually explicit image of Shrek to a politician can constitute criminal harassment. Using an Ohio case involving a blogger and a state senator as their starting point, they explore the constitutional boundaries between protected offensive speech and criminally punishable harassment, the rights of unwilling listeners, the special status of public officials under the First Amendment, and how courts have struggled to adapt decades-old free speech principles to an era of texts, emails, and smartphones.

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Eugene Volokh and Jane Bambauer unpack the complicated and often uncomfortable relationship between free speech and privacy, exploring everything from anonymous political pamphlets and government surveillance to revenge porn, hidden cameras, autobiographies, celebrity likeness rights, wiretap laws, and the constitutional limits of “the right to be left alone.” Along the way, they dive into landmark Supreme Court cases, the origins of American privacy law, Hulk Hogan’s takedown of Gawker, the legality of recording police, and why seemingly simple questions like “Who owns your life story?” turn into some of the thorniest conflicts in First Amendment law. 

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Can you be sued for repeating a rumor—even if you don’t believe it? Is calling someone a “racist” protected speech? In this episode, Eugene Volokh and Jane Bambauer unpack the hidden rules of defamation law, from libel and slander to viral tweets and billion-dollar verdicts. It’s a deep dive into what you can say, what you can’t, and why the biggest legal battles often turn on the smallest details.

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Jane Bambauer and Eugene Volokh analyze the US Supreme Court’s new Chiles v. Salazar decision, which struck down (by an 8-1 vote) a law banning sexual orientation/gender identity conversion therapy, including therapy that consists entirely of speech.

The Court held that the First Amendment protects professional-client speech, including counselors’ use of conversion therapy with minor patients when that therapy consists solely of speech.  In the process, the 8-justice majority rejected the state’s argument that such speech can be regulated as “speech integrally related to unlawful conduct” – and in the process, cited Volokh’s discussion of the speech integral to unlawful conduct exception in a friend-of-the-court brief that he filed.

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Is the FCC about to revive a broad reading of the Equal Time Rule—and should broadcast TV still get “special” First Amendment treatment in 2026?

Eugene Volokh and Jane Bambauer are joined by  Duke Law professor Stuart Benjamin to discuss the constitutional backstory behind the federal broadcasting Equal Time Rule and why broadcast media has long been treated differently from newspapers, cable, and the internet. From Red Lion to the collapse of the Fairness Doctrine and beyond, the panel explains how we ended up with a broadcast-only regulatory regime—and why that consensus may now be unraveling.

They also dig into the latest controversy involving political candidates appearing on shows like The View and late-night television, the FCC’s renewed scrutiny, and what it all could mean for the future of media regulation. Would today’s Supreme Court uphold broadcast exceptionalism? Or is this doctrine headed the way of the eight-track tape?

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When can a public university punish a student for speech that includes violent references, and that frightens some people, but is not a clear threat? Eugene Volokh and Jane Bambauer unpack two recent court cases, one that upholds such punishment and another that says it violates the First Amendment: Damsky v. University of Florida and Christensen v. Ohio State University. Volokh and Bambauer explore how courts are applying the “substantial disruption” standard from Tinker v. Des Moines, and why speech by public university students that alludes in an ambiguous way to violence creates hard First Amendment questions.

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