What's the Harm? The Future of the First Amendment

Volume

2020

This Essay was prepared for the University of Chicago Law School’s Conference on What’s the Harm? The Future of the First Amendment, held on October 24, 2019.

I would like to thank Amy Adler, Will Baude, Danielle Citron, Genevieve Lakier, Fred Schauer, Elizabeth Sepper, and the participants in The University of Chicago Legal Forum’s 2019 Symposium for their helpful comments. This piece builds upon the analysis of rights and harm I offered in Leslie Kendrick, Free Speech as a Special Right, 45 Phil. & Pub. Aff. 87 (2017).

With my thanks and appreciation to the editors of the University of Chicago Legal Forum for inviting me to participate in the What’s the Harm?: The Future of the First Amendment symposium at the University of Chicago School of Law. I also wish to express my thanks to the other participants in the symposium for their helpful and constructive comments and suggestions on an earlier draft of this Essay. The usual disclaimer applies: any and all errors or omissions are the author’s responsibility alone.

I would like to thank the University of Chicago Legal Forum for hosting me at the 2019 Symposium: “What’s the Harm? The Future of the First Amendment” where I presented an earlier draft of this paper. I’m also grateful to the New Museum of Contemporary Art for hosting me to speak on the anniversary of the Mapplethorpe trial at its event “‘Robert Mapplethorpe: The Perfect Moment,’ Twenty-Five Years Later” and to Kevin Moore and Fotofocus for curating the event. I am grateful for the insights of the other speakers at the event: Johanna Burton, Keith Haring Director and Curator of Education and Public Engagement at the New Museum; Jennifer Blessing, Senior Curator of Photography, Solomon R. Guggenheim Museum, New York; Paul Martineau, Associate Curator, Department of Photographs, the J. Paul Getty Museum, Los Angeles; and Britt Salvesen, Curator and Head of the Wallis Annenberg Photography Department and the Prints and Drawings Department, the Los Angeles County Museum of Art. Many thanks to Lillian Barany, Katherine Nemeth, and Jeffrey Waldron for superb research assistance and to Cynthia Adler as always for her comments.

Thank you to Gerry Hebert and Paul Smith for some preliminary musings on the subject, and to Nicholas Stephanopoulos and the Legal Forum for invaluable feedback throughout the writing process. This Comment is dedicated to the memory of my grandfather, who was robbed of his native Cuba and his dreams of practicing law, and yet dedicated his life to securing the dreams of his family.

Tremendous thanks go out to my extraordinarily patient editors at the University of Chicago Legal Forum and to the other participants in the autumn false speech symposium, my devoted and insightful research assistant Elisabeth Mayer, and also to William Baude, Genevieve Lakier, David Owens, Erica Zunkel, Andrew Mackie-Mason, and Max Samels.

For feedback and suggestions on this article, I am grateful to Ronald J. Krotoszynski, Jessica Rutter, and the participants in the University of Chicago Legal Forum symposium, What’s the Harm?: The Future of the First Amendment. I am also grateful to the Chicago Legal Forum editors for their careful work on this Article.

Deep thanks to the editors of the University of Chicago Legal Forum for including us in the symposium. Olivier Sylvain, Spencer Overton, Genevieve Lakier, Brian Leiter, and symposium participants provided helpful comments. It was a particular pleasure to engage with co-panelists Amy Adler, Leslie Kendrick, and Fred Schauer. Matthew Atha provided superb research assistance. We are grateful to Dan Simon and Rebecca Roman for their terrific suggestions and editing.