My new article, The Non-First Amendment Law of Freedom of Speech, was published today in HLR. You should all read it ASAP!! But, since it is quite long, I wrote a short tweet thread summarizing its main args and why it matters. (1/16) https://twitter.com/HarvLRev/status/1391757691589120003

The main arg is that, in the US, we should not equate legal protection for freedom of speech with the First Amendment, as many people tend to do. In fact, the First A is only one of many laws that promote expressive freedom.

In fact, there are 3 bodies of free speech law in the US. The first is the body of constitutional free speech law. This includes the First Amendment cases, plus all the laws made in the shadow of the First A, plus the various state constitutional free speech guarantees.

There is also a body of private free speech law—like the free speech principles that apply at many private universities. And of course who can forget the FOB, and its efforts to construe FB’s community standards in consistency with int'l free speech law? https://oversightboard.com/ 

The new article focuses on the third, but perhaps most important body of free speech law in the US: the many many many statutory laws, regulations and executive orders that promote free speech values by non-First Amendment means.

Examples include the NLRA, which protects freedom of speech in the workplace, common carrier laws that ensure nondiscrim access to telephone wires and the post (and in some states, broadband….) Section 230 of the CDA, freedom of info laws, the list goes on and on….

Recognizing these laws as free speech laws is impt for various reasons: first, it helps us understand how freedom of speech is actually guaranteed in the US.

When people talk about freedom of speech beyond the First A—when they say for ex “surely I have free speech rights on the platforms?” the response is often to dismiss them as clearly wrong. But not so fast!

As the article shows, in the 18th and 19th century lawmakers recognized that guaranteeing free speech was a necessary precondition of democratic govt. Therefore legislatures had a resp to protect say the expressive freedom of laborers, or consumers, even when the First A did not.

We should remember this when it comes to current debates about internet regulation: the legislature has a role to play here in defining freedom of speech. It is not all up to what nine smart people in robes say.

Another impt takeway: First A cases tend to assume free speech is best guaranteed by restricting govt action. But common carrier laws, postal subsidies, etc. make clear that guaranteeing vibrant demo public sphere often requires positive govt action (and a lot of it!)

The America free speech tradition looks a lot less laissez faire, in other words, once you look beyond just the First Amendment cases.

This leads to the third and most impt takeaway of the piece: namely, that freedom of speech does not only mean one thing, and hasn’t always meant the same thing. In particular, legislative free speech laws tend to be a lot more redistributive than anti-redistributive 1A cases.

They also protect free speech rights in the private sphere! You do have a right to free speech in the workplace, in mass public sphere, and maybe (soon?) on the platforms. But these rights don't come from courts!

We should not assume that the Supreme Court gets the first, last and final word on what freedom of speech means. If free speech is a necessary precondition of democratic govt, it should be the responsibility of democratic people to protect it.

Recognizing the complexity and diversity of American free speech law should remind you, me, all of us, that WE get a say in defining what free speech means and requires. And we get to reimagine it, just as courts and legislatures have themselves reimagined it over time. Fin.