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The Irrelevant First Amendment
A Presentation by Ashutosh Bhagwat
with Commentary by James Weinstein
March 1 @ 12:15 PM – 1:15 PM
Room 150, Beus Center for Law and Society
The Center for Constitutional Design will host a conversation about whether the First Amendment continues to protect free expression in contemporary American society.
Despite its cultural prominence and the Roberts’ Court’s broad interpretations and
vigorous enforcement of it, in today’s world the First Amendment provides little or no
protection for free expression in the most contested areas for a number of reasons. First
and foremost, the vast majority of public discourse today occurs on privately-owned
internet platforms, yet the state action doctrine means that the First Amendment does not
constrain content moderation and/or censorship by these platforms. In addition, in recent
years the Supreme Court has greatly expanded the government’s power to exercise control
over speech internal to the government itself, free of First Amendment constraints. These
developments have effectively immunized from First Amendment scrutiny such things as
Florida’s “Don’t Say Gay” law aggressively restricting speech by classroom teachers, or the
current wave of bans on books discussing race discrimination and sexual orientation in
public school (and sometimes public) libraries. Finally, under current law the First
Amendment also does not touch upon ideological conformity imposed by private
employers, including private universities supposedly committed to academic freedom, as
illustrated by the recent fiascos at Hamline University and Harvard’s Kennedy School. So,
what is to be done? Should First Amendment doctrine be altered to extend First
Amendment protection to platform users, government employees, and private university
students and employees? Or are we to acknowledge that the Golden Age of the First
Amendment is over?
Bring your questions and join us for lunch and a provocative conversation about the continued relevance of the First Amendment.
Boochever and Bird Endowed Chair for the Study and Teaching of Freedom and Equality and Martin Luther King Jr. Professor of Law
Dan Cracchiolo Chair in Constitutional Law in the Sandra Day O’Connor College of Law, a faculty fellow in the Center for Law, Science and Innovation at Arizona State University and an associate fellow with the Centre for Public Law at the University of Cambridge.