Free Speech Unmuted

Eugene Volokh and Jane Bambauer discuss the various rules the Court applies in obscenity cases and the forthcoming Free Speech Coalition v. Paxton decision. 

Fun fact: Associate Justice Potter Stewart, who wrote the “I know it when I see it” line in a 1964 obscenity opinion, later concluded that any such obscenity test would be unconstitutionally vague.

ABOUT THE SPEAKERS:

Eugene Volokh is a senior fellow at the Hoover Institution. For thirty years, he had been a professor at the University of California – Los Angeles School of Law, where he has taught First Amendment law, copyright law, criminal law, tort law, and firearms regulation policy. Volokh is the author of the textbooks The First Amendment and Related Statutes (8th ed., 2023) and Academic Legal Writing (5th ed., 2016), as well as more than one hundred law review articles. He is the founder and coauthor of The Volokh Conspiracy, a leading legal blog. Before coming to UCLA, Volokh clerked for Justice Sandra Day O’Connor on the US Supreme Court.

Jane Bambauer is the Brechner Eminent Scholar at the University of Florida's Levin College of Law and the College of Journalism and Communications. She teaches Torts, First Amendment, Media Law, Criminal Procedure, and Privacy Law. Bambauer’s research assesses the social costs and benefits of Big Data, AI, and predictive algorithms. Her work analyzes how the regulation of these new information technologies will affect free speech, privacy, law enforcement, health and safety, competitive markets, and government accountability. Bambauer’s research has been featured in over 20 scholarly publications, including the Stanford Law Review, the Michigan Law Review, the California Law Review, and the Journal of Empirical Legal Studies.

ABOUT THE SERIES:

Hoover Institution Senior Fellow Eugene Volokh is the co-founder of The Volokh Conspiracy and one of the country’s foremost experts on the 1st Amendment and the legal issues surrounding free speech. Jane Bambauer is a distinguished professor of law and journalism at the University of Florida. On Free Speech Unmuted, Volokh and Bambauer unpack and analyze the current issues and controversies concerning the First Amendment, censorship, the press, social media, and the proverbial town square. They explain in plain English the often confusing legalese around these issues and explain how the courts and government agencies interpret the Constitution and new laws being written, passed, and decided will affect Americans' everyday lives.

Incitement, solicitation, fighting words, threats, bad tendencies, and more, with special attention to NAACP v. Claiborne Hardware Co. (1982), the Court’s little-publicized precedent on the subject.

ABOUT THE SPEAKERS:

Eugene Volokh is a senior fellow at the Hoover Institution. For thirty years, he had been a professor at the University of California – Los Angeles School of Law, where he has taught First Amendment law, copyright law, criminal law, tort law, and firearms regulation policy. Volokh is the author of the textbooks The First Amendment and Related Statutes (8th ed., 2023) and Academic Legal Writing (5th ed., 2016), as well as more than one hundred law review articles. He is the founder and coauthor of The Volokh Conspiracy, a leading legal blog. Before coming to UCLA, Volokh clerked for Justice Sandra Day O’Connor on the US Supreme Court.

Jane Bambauer is the Brechner Eminent Scholar at the University of Florida's Levin College of Law and the College of Journalism and Communications. She teaches Torts, First Amendment, Media Law, Criminal Procedure, and Privacy Law. Bambauer’s research assesses the social costs and benefits of Big Data, AI, and predictive algorithms. Her work analyzes how the regulation of these new information technologies will affect free speech, privacy, law enforcement, health and safety, competitive markets, and government accountability. Bambauer’s research has been featured in over 20 scholarly publications, including the Stanford Law Review, the Michigan Law Review, the California Law Review, and the Journal of Empirical Legal Studies.

ABOUT THE SERIES:

Hoover Institution Senior Fellow Eugene Volokh is the co-founder of The Volokh Conspiracy and one of the country’s foremost experts on the 1st Amendment and the legal issues surrounding free speech. Jane Bambauer is a distinguished professor of law and journalism at the University of Florida. On Free Speech Unmuted, Volokh and Bambauer unpack and analyze the current issues and controversies concerning the First Amendment, censorship, the press, social media, and the proverbial town square. They explain in plain English the often confusing legalese around these issues and explain how the courts and government agencies interpret the Constitution and new laws being written, passed, and decided will affect Americans' everyday lives.

In Moody v. Netchoice, the Supreme Court considered the Florida and Texas laws that tried to limit social media platforms’ power to moderate (or is it censor?) user posts.  In Murthy v. Missouri, the Supreme Court considered whether the federal government impermissibly pressured social media platforms to moderate (or is it censor?) user posts.  What did the Court tell us?  Jane and Eugene try to figure it out.

ABOUT THE SPEAKERS:

Eugene Volokh is a senior fellow at the Hoover Institution. For thirty years, he had been a professor at the University of California – Los Angeles School of Law, where he has taught First Amendment law, copyright law, criminal law, tort law, and firearms regulation policy. Volokh is the author of the textbooks The First Amendment and Related Statutes (8th ed., 2023) and Academic Legal Writing (5th ed., 2016), as well as more than one hundred law review articles. He is the founder and coauthor of The Volokh Conspiracy, a leading legal blog. Before coming to UCLA, Volokh clerked for Justice Sandra Day O’Connor on the US Supreme Court.

Jane Bambauer is the Brechner Eminent Scholar at the University of Florida's Levin College of Law and the College of Journalism and Communications. She teaches Torts, First Amendment, Media Law, Criminal Procedure, and Privacy Law. Bambauer’s research assesses the social costs and benefits of Big Data, AI, and predictive algorithms. Her work analyzes how the regulation of these new information technologies will affect free speech, privacy, law enforcement, health and safety, competitive markets, and government accountability. Bambauer’s research has been featured in over 20 scholarly publications, including the Stanford Law Review, the Michigan Law Review, the California Law Review, and the Journal of Empirical Legal Studies.

ABOUT THE SERIES:

Hoover Institution Senior Fellow Eugene Volokh is the co-founder of The Volokh Conspiracy and one of the country’s foremost experts on the 1st Amendment and the legal issues surrounding free speech. Jane Bambauer is a distinguished professor of law and journalism at the University of Florida. On Free Speech Unmuted, Volokh and Bambauer unpack and analyze the current issues and controversies concerning the First Amendment, censorship, the press, social media, and the proverbial town square. They explain in plain English the often confusing legalese around these issues and explain how the courts and government agencies interpret the Constitution and new laws being written, passed, and decided will affect Americans' everyday lives.

Rep. Ro Khanna (D-Silicon Valley) sits down with First Amendment scholars Jane Bambauer and Eugene Volokh to explore Internet policy and free speech. Topics include the TikTok ban, social media child addiction claims, competition, and more.

ABOUT THE SPEAKERS:

Congressman Ro Khanna represents California's 17th Congressional District, located in the heart of Silicon Valley, and is serving his fourth term. Rep. Khanna serves on the House Armed Services Committee as ranking member of the Subcommittee on Cyber, Innovative Technologies and Information Systems (CITI), as co-chair of the Congressional Caucus on India and Indian Americans, a member of the Select Committee on the Strategic Competition between the United States and the Chinese Communist Party, and on the Oversight and Accountability Committee, where he previously chaired the Environmental Subcommittee. As a leading progressive in the House, Rep, Khanna is working to restore American manufacturing and technology leadership, improve the lives of working people, and advance U.S. leadership on climate, human rights, and diplomacy around the world.

Eugene Volokh is a senior fellow at the Hoover Institution. For thirty years, he had been a professor at the University of California – Los Angeles School of Law, where he has taught First Amendment law, copyright law, criminal law, tort law, and firearms regulation policy. Volokh is the author of the textbooks The First Amendment and Related Statutes (8th ed., 2023) and Academic Legal Writing (5th ed., 2016), as well as more than one hundred law review articles. He is the founder and coauthor of The Volokh Conspiracy, a leading legal blog. Before coming to UCLA, Volokh clerked for Justice Sandra Day O’Connor on the US Supreme Court.

Jane Bambauer is the Brechner Eminent Scholar at the University of Florida's Levin College of Law and the College of Journalism and Communications. She teaches Torts, First Amendment, Media Law, Criminal Procedure, and Privacy Law. Bambauer’s research assesses the social costs and benefits of Big Data, AI, and predictive algorithms. Her work analyzes how the regulation of these new information technologies will affect free speech, privacy, law enforcement, health and safety, competitive markets, and government accountability. Bambauer’s research has been featured in over 20 scholarly publications, including the Stanford Law Review, the Michigan Law Review, the California Law Review, and the Journal of Empirical Legal Studies.

ABOUT THE SERIES:

Hoover Institution Senior Fellow Eugene Volokh is the co-founder of The Volokh Conspiracy and one of the country’s foremost experts on the 1st Amendment and the legal issues surrounding free speech. Jane Bambauer is a distinguished professor of law and journalism at the University of Florida. On Free Speech Unmuted, Volokh and Bambauer unpack and analyze the current issues and controversies concerning the First Amendment, censorship, the press, social media, and the proverbial town square. They explain in plain English the often confusing legalese around these issues and explain how the courts and government agencies interpret the Constitution and new laws being written, passed, and decided will affect Americans' everyday lives.

Can Congress require China-based ByteDance to divest itself of TikTok as a condition for TikTok continuing to be easily accessible in the US? Alan Rozenshtein, Jane Bambauer, and Eugene Volokh discuss whether the law is consistent with the First Amendment – and with the much more rarely talked about Bill of Attainder Clause.

Erwin Chemerinsky – a noted scholar, author on academic freedom, and law school dean – comes on the podcast to discuss campus free speech and academic freedom. We begin with student speech controversies (including the one that was literally in Erwin’s back yard), and then we move on to faculty academic freedom, in scholarship, public commentary, and teaching.

When can colleges and universities discipline students based on the content of their speech? When can they impose content-neutral restrictions on the time, place, and manner of demonstrations? Given that the First Amendment applies only to government operations, what rules apply to private institutions?

Is AI output generally protected by the First Amendment, even though AIs have no self to express (or so we think ...)? Can people sue if they are libeled by AIs, or if AIs give them false information that leads to physical harm? Jane and Eugene discuss this, and more.

ABOUT THE SPEAKERS

Eugene Volokh is a visiting fellow (soon to be senior fellow) at the Hoover Institution. For thirty years, he has been a professor at the University of California – Los Angeles School of Law, where he has taught First Amendment law, copyright law, criminal law, tort law, and firearms regulation policy. Volokh is the author of the textbooks The First Amendment and Related Statutes (7th ed., 2020) and Academic Legal Writing (5th ed., 2016), as well as more than one hundred law review articles. He is the founder and coauthor of The Volokh Conspiracy, a leading legal blog. Before coming to UCLA, Volokh clerked for Justice Sandra Day O’Connor on the US Supreme Court.

Jane Bambauer is the Brechner Eminent Scholar at the University of Florida's Levin College of Law and the College of Journalism and Communications. She teaches Torts, First Amendment, Media Law, Criminal Procedure, and Privacy Law. Bambauer’s research assesses the social costs and benefits of Big Data, AI, and predictive algorithms. Her work analyzes how the regulation of these new information technologies will affect free speech, privacy, law enforcement, health and safety, competitive markets, and government accountability. Bambauer’s research has been featured in over 20 scholarly publications, including the Stanford Law Review, the Michigan Law Review, the California Law Review, and the Journal of Empirical Legal Studies.

The First Amendment protects against certain kinds of indirect government suppression of speech, as well as direct. That means the government can’t coerce bookstores, platforms, and the like, to remove material. But when does persuasion become coercion? And when, if ever, is even noncoercive persuasion aimed at the removal of speech unconstitutional?

ABOUT THE SPEAKERS

Eugene Volokh is a visiting fellow (soon to be senior fellow) at the Hoover Institution. For thirty years, he has been a professor at the University of California – Los Angeles School of Law, where he has taught First Amendment law, copyright law, criminal law, tort law, and firearms regulation policy. Volokh is the author of the textbooks The First Amendment and Related Statutes (7th ed., 2020) and Academic Legal Writing (5th ed., 2016), as well as more than one hundred law review articles. He is the founder and coauthor of The Volokh Conspiracy, a leading legal blog. Before coming to UCLA, Volokh clerked for Justice Sandra Day O’Connor on the US Supreme Court.

Jane Bambauer is the Brechner Eminent Scholar at the University of Florida's Levin College of Law and the College of Journalism and Communications. She teaches Torts, First Amendment, Media Law, Criminal Procedure, and Privacy Law. Bambauer’s research assesses the social costs and benefits of Big Data, AI, and predictive algorithms. Her work analyzes how the regulation of these new information technologies will affect free speech, privacy, law enforcement, health and safety, competitive markets, and government accountability. Bambauer’s research has been featured in over 20 scholarly publications, including the Stanford Law Review, the Michigan Law Review, the California Law Review, and the Journal of Empirical Legal Studies.

Newspapers have a First Amendment right to pick and choose what to publish in their pages. Phone companies, on the other hand, aren’t allowed to control what’s said on their phone lines. Where do the various functions of social media platforms fit on that spectrum?