In any event, will be interesting to see how this decision intersects with the opinion coming soon in Chiles v Salazar www.scotusblog.com/cases/case-f... For those in favor of upholding the Colorado law in Chiles, it is worth considering the implications of that view for the facts in this case….
Extending the lawyers' monopoly even here is a very extravagant use of state power over speech. Or at least that is my view. The Second Circuit couldn't be bothered to examine the details of the case bc it wanted so badly to uphold the state's power to enforce professional licensing laws
And in this case, what NY is banning is merely advice on how to fill out a form that the state created because it recognized the profound access to justice crisis happening here and wanted to help litigants who had no idea how to proceed without a lawyer
The 1A may not be the best vehicle for discussing the costs and benefits of professional licensing in general. But it does provide a basis for challenging powerful monopolies in states where there is little appetite for regulatory reform, like NY, as I argue here.
www.cambridge.org/core/books/r...
But the 2nd Circuit ignored all the details of the specific access to justice program at issue here bc it found that the ban furthered important interests in a generally reasonable way, so voila no 1A problem. The court did not consider the law's harms.
This is a sad outcome, with serious consequs for the thousands of litigants who have to go to court without any legal help. The plaintiff, Upsolve, has worked hard to demonstrate that their “justice advocates” do more good than harm, albeit in a very tech startup style. upsolve.org/team/
Last week, the 2nd Circuit upheld NY’ s ban on the provision of legal advice by non-lawyers, even to people who have no ability to pay for a lawyer and reversed the lower court decision that held the 1A granted the right to provide advice in these circs. 🧵
storage.courtlistener.com/recap/gov.us...
Thank you for sharing! Will take a look....
My thoughts for @knightcolumbia.org on what to do about the private as well as gov authoritarianism that helps explain why, even tho they are not broadly popular, the admin's efforts at ideological control have often been so successful...
Essential thinking on “institutional authoritarianism” @genevievelakier.bsky.social
Live stream of the hearing can be found here: www.usccr.gov/meetings/202...
Here is my testimony, arguing for the latter point: that the Trump and also maybe the Biden admin acted unconstitutionally in its response to the student protests securisync.intermedia.net/us2/s/folder...
I will be testifying at this panel also, along with @beidelson.bsky.social and Eugene Volokh. it should be interesting bc panelists are very far apart: Did the fed gov do too little to repress antisemitic student speech on campus after Oct 2023? or did it instead flagrantly violate 1A rights?
And for an article explaining why nonetheless corporations like CBS often play along with jawboning, even when based on very thin legal grounds see: papers.ssrn.com/sol3/papers....
The statute is here (with the exemption) www.law.cornell.edu/uscode/text/...
Speaking of jawboning, this is a very effective example of the art. Or at least, it was until Stephen Colbert refused to play along. But impt to note: Brendan Carr has NO POWER to abolish an exemption that Congress wrote into the equal time rules. He is bluffing here. www.nytimes.com/2026/02/17/a...
I appreciate this thoughtful review by @leahlitman.bsky.social of my article on the 1A law of jawboning. Jawboning is the dominant mode of speech reg of the Trump admin. So it is impt to understand the signif (if underenforced) constraints the 1A imposes.... conlaw.jotwell.com/throwing-the...
I reviewed Prof. Genevieve Lakier @genevievelakier.bsky.social's forthcoming Chicago Law Rev @uchilrev.bsky.social article on Jawboning for Jotwell! @jotwell.bsky.social
Check out my review: conlaw.jotwell.com/throwing-the...
- and, more importantly! - her article: papers.ssrn.com/sol3/papers....
Every crisis is an opportunity, which means the time is NOW to figure out how to reform our system of free expression to enable it to better resist authoritarian repression of the kind all around us. Very grateful that @knightcolumbia.org is jumpstarting this impt convo about how to do just that.
"Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us .... The First Amendment... does not tolerate laws that cast a pall of orthodoxy over the classroom." Keyishian v. NY (1967). www.columbiaspectator.com/news/2026/02...
Apropos of the TikTok news last week, I have a piece coming out abt how the Supreme Court's decision to uphold the ban-or-sale law belongs in the First Amendment anticanon. It's not just wrong, but so wrong we should hold it up as an exceptional symbol of wrongness.
papers.ssrn.com/sol3/papers....
It's time to abolish Trump’s ICE.
An important behind the scenes look at how jawboning, the FCC, and the messiness of media regulation have collided in the last year. @genevievelakier.bsky.social has the definitive article on NRA v. Vullo and jawboning, a hugely important issues in Trump’s 2nd term.
www.nytimes.com/2026/01/12/m...
Excellent op-ed by @evelyndouek.bsky.social and @jameeljaffer.bsky.social about one of the very worst First Amendment decisions by the Court in recent years, and its terrible contemporary implications
On the hit podcast Supreme Betrayal, @genevievelakier.bsky.social, @marktushnet.bsky.social, and Louis Michael Seidman discuss whether we need the courts to protect free speech.
But also bc the crucial Q here is I think to figure out what about the judicial vision of free speech is so wrong. It's clearly not ALL wrong/bad/pathological. This is what I was getting at: the duality of the current understanding.
I suppose bc when it comes to the 1A, it is *all* made up. The doctrine is not dictated either by text or orig understanding and virtually no one, other than perhaps Justice Thomas wants to change that (and he only wants so much change). So when I say IA, I always mean as judicially interpreted
Seems like an important duality for defenders of the doctrine, and its critics, to keep in mind
But there is no Q that the 1A is partly to blame for the dysfunctional politics that helped elect Trump to office; if also now one of our best defenses against his authoritarianism
This is not to say that a win for the challengers in this case would be terrible. I am persuaded by @rickpildes.bsky.social and Bob Bauer's argument that, given the deregulation of everything else, further deregulation in this case might in fact have beneficial consequences bsky.app/profile/rick...
