The final chapter focuses on the only Belgian who briefly pierced his country’s silence on sexual ‘inversion’ during the late nineteenth and the early twentieth century. In 1899, the internationally acclaimed author Georges Eekhoud published the most daring queer novel of the period. A charge of indecency against his explicitly homoerotic and class-transcending love story caused an uproar among Europe’s literary community. Celebrity authors, including Émile Zola, collectively screamed blue murder over this attempt to curtail the hallowed freedom of artistic expression. The trial that followed ended in triumph and Eekhoud seemed poised to become a standard-bearer of the budding transnational movement for homosexual rights. But at home, Eekhoud soon grew isolated and unhappy as leftists and artists alike shunned him for his association with such an odious issue. While the writer’s autobiographical writings and private diary offer a rich insight into the way sexology shaped his sexual sense of self, they also reveal how Belgium’s stifling culture of bourgeois respectability still buried homosexuality in shame during the early twentieth century, while Eekhoud’s Dutch and German allies were already pushing the matter successfully onto the public agenda.

Chapter 6 reconstructs the technology-specific legal contours of freedom of expression in the Internet age, presenting empirical evidence of the growing importance of technology for legal practice and regulation. Since data-processing technology is a prerequisite for free speech, the starting point is privacy law. An important distinction is made between data integrity and network integrity and the discussion on net neutrality and the open Internet is revisited. The case law of the ECtHR on Article 10 ECHR is also examined to see if there is a tendency to recognise an independent ‘right to transmit’. Moreover, the activities of the Internet Corporation for Assigned Names and Numbers (ICANN) can be seen to produce technology-related standards relevant to the freedom of expression. ICANN, which is responsible for routing data packets to their destination, controls the ‘master key’ to the entire global Internet and can thus influence the conditions under which freedom of communication is possible. Finally, the chapter addresses the technical standards for the Internet developed by the independent Internet Architecture Board and the Internet Engineering Task Force, which are also crucial for the freedom of expression.

The Introduction provides an overview of trademark laws that implicate the right to freedom of expression. It also introduces the concept of inherently valuable expression in trademark law. Examples include descriptive trademarks; popular phrases and designs claimed as marks for T-shirts and other types of expressive merchandise; political and social messages; words, names, and symbols important to religious or indigenous communities; popular colors and shapes; and culturally significant creative works claimed as trademarks. The introduction also discusses the proposed free speech framework for trademark law. Government decision-makers should (1) identify the purpose of this specific trademark law and determine whether it is sufficiently important; (2) evaluate whether that particular trademark law directly and materially furthers its purpose; and (3) determine whether this trademark law endangers free speech, and ensure that it suppresses or chills protected expression no more than necessary in pursuit of that important purpose. The introduction concludes with an overview of trademark registration and enforcement laws that may potentially conflict with the free expression right.

Chapter 1 uses three examples of expression with substantial inherent value that should arguably not be registered as a trademark, or should only have a narrow scope of trademark protection regardless of whether it has acquired distinctiveness in an industry. The first example focuses on words that provide information about products. DC Comics and Marvel Characters have obtained trademark registrations for “Super Heroes” for comic books and other products that feature superhero characters, and “Super Hero” for masquerade costumes. The second example focuses on trademark rights claimed in popular terms or designs displayed on expressive merchandise. Lifeguard Licensing Corp. registered “Lifeguard” and a white Greek cross symbol (similar in shape to the red cross symbol) as a mark for T-shirts and other goods. The third example focuses on intrinsically decorative product features, such as three-dimensional shapes that represent things in nature. Globefill Inc. owns trademark registrations for a human-skull-shaped bottle for alcoholic beverages sold under the brand name “Crystal Head Vodka”, and a copyright registration and design patent for this sculpture.

The Conclusion provides an overview of the topics discussed throughout the book. First, it encourages governments to refuse to register expression with substantial inherent value or only provide a narrow scope of trademark protection to such marks. Then it reviews the free speech framework for trademark law, and the proposed reforms of trademark registration and enforcement laws discussed in Chapter 7. Finally, it discusses why these proposed reforms of trademark law are feasible. Many of the reforms proposed in this book are already included in current trademark laws or model trademark laws. Members of the International Trademark Association and other attorneys, academics, and commentators agree that the free expression right imposes some limits on trademark registration and enforcement laws. International obligations to protect trademarks in treaties and trade agreements do not prevent the United States, countries in Europe, and other members of the World Trade Organization from protecting the right to freedom of expression in trademark law. Governments also have obligations to protect this fundamental right in treaties and constitutions.

Chapter 3 provides details about the proposed free speech framework for trademark law. Legislators and courts should (1) identify the purpose of this specific trademark law – not the general purposes of trademark law, trademark theories, or a trademark’s functions – and determine whether it is sufficiently important (e.g., preventing misleading uses of trademarks, promoting fair competition, helping members of the public identify the source of goods or services, or discouraging the registration or use of hate speech); (2) evaluate whether that particular trademark law directly and materially furthers its purpose; and (3) determine whether this trademark law endangers free speech, and ensure that it suppresses or chills protected expression no more than necessary in pursuit of that important purpose. It is generally best to avoid constitutional analysis of trademark laws, so legislatures should consider making speech-protective and pro-competitive changes to problematic trademark statutes. In addition, courts and other government decision-makers should interpret provisions in trademark laws in a manner that protects expressive values and promotes the law’s important purpose(s).

Chapter 2 explains why the free expression right is relevant to laws regulating trademarks. Legislatures and courts agree that trademark laws can potentially conflict with this fundamental human right in constitutions, treaties, and statutes. Examples include the Recitals in the EU Trade Mark Regulation and Trade Mark Directive, the Court of Justice of the European Union’s Constantin Film case, and the US Supreme Court cases Matal v. Tam and Iancu v. Brunetti. This chapter also discusses the free speech theories relevant in the trademark context (such as the marketplace of ideas), why uses of trademarks are usually “expression” covered by the free expression right, and state action doctrine. With a focus on US free speech law, the chapter then discusses strict and intermediate constitutional scrutiny. It notes the analysis is different when laws regulate trademarks based on their viewpoint or content, and when the regulated speech is noncommercial or commercial, or fits into a category of expression that falls outside of the boundaries of the First Amendment. The chapter concludes with a discussion of William McGeveran’s four free speech goals for trademark law.

The area where social media has undoubtedly been most actively regulated is in their data and privacy practices. While no serious critic has proposed a flat ban on data collection and use (since that would destroy the algorithms that drive social media), a number of important jurisdictions including the European Union and California have imposed important restrictions on how websites (including social media) collect, process, and disclose data. Some privacy regulations are clearly justified, but insofar as data privacy laws become so strict as to threaten advertising-driven business models, the result will be that social media (and search and many other basic internet features) will stop being free, to the detriment of most users. In addition, privacy laws (and related rules such as the “right to be forgotten”) by definition restrict the flow of information, and so burden free expression. Sometimes that burden is justified, but especially when applied to information about public figures, suppressing unfavorable information undermines democracy. The chapter concludes by arguing that one area where stricter regulation is needed is protecting children’s data.

I combine a national dataset on high-profile education culture wars – dealing with school mascots, curriculum, religion, sexuality, and evolution – with information on student achievement on standardized tests to examine how adult political conflicts impact student learning in the classroom. I show that student achievement declines after an outbreak of controversy, an effect that persists for several years and appears driven mostly by controversies involving evolution and race. In addition to a large-N, “difference in differences” analysis, the chapter provides two detailed case studies, over a controversial school mascot in California and a federal court case involving a Pennsylvania’s district policy to teach intelligent design.

This chapter traces a series of stark, occasionally stunning historical reversals by the Supreme Court in interpreting the Free Speech Clause. It highlights doctrines under which the Court treats almost all content-based regulation of speech as constitutionally suspect. That position, which draws little support from research into original constitutional understandings, reflects a commitment – increasingly embraced by conservative justices of a libertarian stripe – to the principle that the Free Speech Clause bars the government from censoring speech based on fears that the speech might prove persuasive to its audience. The resulting doctrine, which makes the United States an outlier among liberal democracies, provides robust protection for a good deal of “hate speech,” some outright lies, commercial advertising, and corporate expenditures to promote political candidates. This chapter also discusses cases that have held that the Free Speech Clause protects a right to “freedom of association” that lacks any clear textual basis. It concludes by considering cases involving speech rights in “managerial domains” in which the government performs functions, such as providing public education, that it could not perform successfully without engaging in content-based regulation of speech.

Chapter 4 identifies one of the most troubling developments in copyright law over the past generation: the surprising and remarkable story of how its exemption from First Amendment scrutiny has enabled powerful interests to cynically weaponize copyright as a forceful, state-backed vehicle of censorship to silence critics and suppress dissent. Thus, copyright has a growing free speech problem – one that threatens to undermine both the vitality of our regime governing the use of creative works and our most basic free speech rights. After surveying the growing use of copyright law to stifle legitimate discourse on issues of racism, religious discrimination, reproductive rights, gay rights, corruption, torture, and police brutality, the chapter examines the conditions empowering such lawfare and considers how we might better ensure that copyright law stops serving as a transparent censorial proxy enabling the powerful to silence the powerless and, instead, returns its focus to vindicating the appropriate economic interests of rightsholders.

The first goal of this chapter is to argue that the press as an institution is entitled to special solicitude under the First Amendment, not only because it is textually specified in the Constitution or because it serves important roles such as checking public and private power, but because it can contribute to the marketplace of ideas in ways that a healthy democracy needs. In other words, the press as an institution can provide an important link between the First Amendment’s epistemic and democratic values. The chapter’s second goal is to provide a rough and preliminary sketch of the relationship between press freedom, violence, and public discourse. Some elements seem straightforward enough. Violence and harassment obstruct the press’s function, including its traditional role in constituting and shaping public discourse. Distrust, disinformation, violence, and press degradation exist in a mutually reinforcing ecosystem. And even as violence shapes the media, the media shapes the social conditions, understandings, and practice of violence in return. Journalism, albeit in different ways than legal interpretation, “takes place on a field of pain and death,” to repurpose Robert Cover’s famous phrase – not only in describing it but in making it real. This, it should go without saying, is no excuse for violence against media members. The point is, rather, that a healthy press can be a bulwark not only for knowledge and democracy but against the kinds of private and public violence that threaten both.

This chapter examines the continuing impact of Food Lion v. Capital Cities/ABC, Inc., a case in which a large grocery store chain sued ABC and its news producers for conducting an undercover investigation that resulted in a nationally broadcast television news story showing serious concerns about Food Lion’s food handling and sanitation practices. Although the court’s decision affirmed only a nominal damages verdict against the producers who investigated the story, the court rejected the defendants’ contention that Food Lion’s tort claims were in any way limited by the First Amendment. The chapter argues that Food Lion has had an ongoing, significant chilling effect on undercover investigations, particularly those where an investigator secures employment with the investigation’s target. Such investigations are critical to the discovery and dissemination of truthful information on matters of profound public concern. Drawing on limited public data and published information as well as interviews of those who conducted the Food Lion investigation, the chapter shows the reduction in undercover investigation since the case was decided. It concludes by contending that reconsideration of Food Lion’s legal analysis is long overdue and sets out the groundwork for recognition of a limited First Amendment newsgathering privilege for undercover investigations.

Chapter 6, Branding Birth Control, examines how birth-controllers used claims about medical works’ vulnerability to destruction under the Hicklin test to distance contraception from immorality, frame its advocacy as a free speech issue, and generate publicity for the cause. Contraception pamphlets first published by radicals in the 1820s and 1830s had long been sold by both social reformers and pornographers. In 1876, a figure with feet in both domains was arrested for selling Charles Knowlton’s Fruits of Philosophy (1832). The following year, Annie Besant and Charles Bradlaugh engineered their own arrest for selling it. The chapter examines the selective publication history that Bradlaugh and Besant constructed to divorce Fruits from its associations with promoscuity and promote contraception advocacy as a respectable, progressive cause, and shows that birth-controllers went on to sell huge volumes of literature on contraception. Although they encountered relatively little legal opposition, they often claimed that selling such works was very risky. These claims operated as a way of generating further publicity for the cause, and branding it as brave, modern, and progressive.

At some point, the necessary interpretation of vague, abstract, and nonspecific provisions in constitutions, including the United States Constitution, places appellate courts, including the United States Supreme Court, in a jurisprudential position very similar to the one they occupy when engaged in traditional common law analysis and lawmaking. Working out the specific doctrinal meaning of constitutional phrases such as “free speech,” “establishment of religion,” and “equal protection” is a jurisprudential task not unlike working out the specific doctrinal meaning of “duty,” “breach,” or “causation” in the common law of negligence.

This means that as a practical judicial matter, the development of constitutional law is often very similar in nature to traditional common law lawmaking. Thus, a court such as the United States Supreme Court can accurately be thought of as often operating like a common law court, despite the relative paucity of federal common law.

This chapter takes advantage of this insight to apply the nature of the paradigm shift from formalism to instrumentalism, and its many consequences, to the area of constitutional law. More specifically, it offers an example of instrumentalist common law analysis applied to the constitutional law free speech doctrine of prior restraint.