2018 Washington University Law Review Symposium
The Roberts Court’s First Amendment
January 19, 2018 at Washington University School of Law in St. Louis
In Managed Speech: The Roberts Court’s First Amendment, Professor Magarian explores and critiques how the present U.S. Supreme Court has reshaped, and degraded, the law of expressive freedom. The Roberts Court’s free speech decisions, Professor Magarian argues, embody a version of expressive freedom he calls “managed speech.” Managed speech empowers stable, responsible institutions, both government and private, to manage public discussion; disfavors First Amendment claims from social and political outsiders; and, above all, promotes social and political stability. Professor Magarian proposes a theoretical alternative to managed speech, one that would aim to increase the range of ideas and voices in public discussion: dynamic diversity. A First Amendment doctrine based on dynamic diversity would prioritize political dissent and the rights of journalists, allow for reasonable regulations of money in politics, and work to broaden opportunities for speakers to be heard. This symposium will bring together some of the nation’s preeminent professors, legal scholars, and other academics to reflect on these ideas. This symposium will be memorialized in Volume 95, Issue 6 of the Washington University Law Review.
9:00 am: Introduction by Dean Nancy Staudt in the Bryan Cave Moot Courtroom
9:10 am: Morning Session in the Bryan Cave Moot Courtoom
9:10-10:10: Essential Preconditions for Online Speech with Professor Danielle Citron, Professor Neil Richards, Michael Kahn, and Professor Lee Epstein
10:10-11:10: Technology and Free Speech with Professor Ashutosh Bhagwat, Gerald Greiman, Bill Freivogel, and Professor John Inazu
11:10-12:10: A Categorical Approach to the First Amendment with Professor Chad Flanders, Barbara Smith, Anthony Rothert, and Professor Joseph Blocher
12:10-1:10 pm: Lunch in the Janite Lee Reading Room
1:10 pm: Government-Sanctioned Graffiti Walls and the First Amendment with third-year student Kelly Oeltjenbruns in the Bryan Cave Moot Courtroom
1:30 pm: Afternoon Session in the Bryan Cave Moot Courtroom
1:30-2:30: Labor and Free Speech with Professor Tabatha Abu El-Haj, Benjamin Lipman, Mark Smith, and Professor Pauline Kim
2:30-3:30: Government Employee Speech with Professor Heidi Kitrosser, Daniel Rhoads, Justice David Lillehaug, and Professor Elizabeth Sepper
3:30-4:30: Speech in Cyberplaces with Professor Timothy Zick, Katherine Nash, Adolphus Pruitt, and Professor Kevin Collins
4:30-5:00 pm: Closing Remarks by Professor Greg Magarian in the Bryan Cave Moot Courtroom
Danielle Citron, University of Maryland
Danielle Keats Citron is the Morton & Sophia Macht Professor of Law at the University of Maryland Francis King Carey School of Law where she teaches and writes about information privacy, free expression, and civil rights and was the recipient of the 2005 “Teacher of the Year” award. Professor Citron is an internationally recognized information privacy expert. Her book Hate Crimes in Cyberspace (Harvard University Press 2014) explored the phenomenon of cyber stalking and how law and companies can and should tackle online abuse consistent with our commitment to free speech. Professor Citron has advised federal and state legislators, law enforcement, and international lawmakers on privacy issues and works closely with tech companies on issues involving online safety and privacy.
Ashutosh Bhagwat, University of California at Davis
Ash Bhagwat joined the UC Davis School of Law faculty in 2011. Prior to joining UC Davis, he taught at UC Hastings College of the Law for seventeen years. Bhagwat is the author of The Myth of Rights, published by the Oxford University Press in 2010, as well as numerous books, articles, and book chapters on a wide variety of subjects, ranging from the structure of constitutional rights, to free speech law, to the California Electricity Crisis. Journals his articles have appeared in include the Yale Law Journal, the Supreme Court Review, the California Law Review, the Administrative Law Review, and the University of Illinois Law Review. In May of 2011, Governor Jerry Brown appointed Bhagwat to serve on the Board of Governors of the California Independent System Operator, a public benefit corporation responsible for running the high-voltage electricity grid in California. In 2003, he was awarded the Rutter Award for Teaching Excellence at UC Hastings. Bhagwat is a member of the American Law Institute.
Chad Flanders, St. Louis University
Professor Chad Flanders joined the SLU LAW faculty in 2009. He teaches and writes in the areas of criminal law, constitutional law, and the philosophy of law. Professor Flanders received his doctorate in philosophy from the University of Chicago in 2004 and his law degree from Yale Law School in 2007. After law school, Professor Flanders served as a law clerk to the Hon. Warren Matthews on the Alaska Supreme Court and the Hon. Michael McConnell on the Tenth Circuit Court of Appeals. Since arriving at SLU, Prof. Flanders has published more than 20 articles or essays in journals such as the Florida Law Review, the California Law Review, the Missouri Law Review and the Alaska Law Review, and his work on Bush v. Gore has been cited by state and federal courts. He has also written numerous opinion pieces for national and local newspapers, including the Chicago Tribune, the St. Louis Post-Dispatch and Politico. In the 2012-2013 academic year Professor Flanders was a Fulbright Lecturer at Nanjing University, China. During the 2013-2014 he was a visiting professor at DePaul University School of Law.
Tabatha Abu El-Haj, Drexel University
Tabatha Abu El-Haj’s principal interest is the American political process, including the ways it is structured by constitutional law and the administrative state. With a background in the sociology of law, she is particularly interested in increasing the democratic accountability of political institutions through political participation. She is a member of the Scholars Strategy Network, which published her 2016 policy brief, "The Inevitable Limits of Campaign Finance Reform," and invited her to speak about power in politics on its "No Jargon" podcast. Professor Abu El-Haj has written extensively about the right of peaceable assembly. Her current work, however, focuses on re-imagining the freedom of association in light of empirical research on how associations foster democratic participation and the implications for how lawyers and policymakers should approach both civic associations and political parties.
Heidi Kitrosser, University of Minnesota
Kitrosser is an expert on the constitutional law of federal government secrecy and on separation of powers and free speech law more broadly. She has written, spoken, and consulted widely on these topics. Her book, Reclaiming Accountability: Transparency, Executive Power, and the U.S. Constitution, was published in 2015 by the University of Chicago Press. It was awarded the 2014 IIT Chicago-Kent College of Law / Roy C. Palmer Civil Liberties Prize. Kitrosser’s articles have appeared in many venues, including Supreme Court Review, Georgetown Law Journal, Journal of National Security Law and Policy, Minnesota Law Review, and Constitutional Commentary. Kitrosser is a 2017 Guggenheim Fellow. She is spending the 2017-18 school year using her fellowship to work on a new book about the law and policy of whistleblowing among federal government employees and contractors.
Timothy Zick, William & Mary
Professor Zick has written on a wide variety of constitutional issues, with a special focus on issues of free speech and federalism. His first book, Speech Out of Doors: Preserving First Amendment Liberties in Public Places (Cambridge University Press 2009), examined the dynamic intersection of place and the First Amendment. Professor Zick's second book, The Cosmopolitan First Amendment: Protecting Transborder Expressive and Religious Liberties (Cambridge University Press 2013), examines the First Amendment's relationship with international borders. Professor Zick has been a frequent commentator in local, national, and international media regarding public protests and other First Amendment concerns. He testified before Congress on the Occupy Wall Street protests and rights of free speech, assembly, and petition. Professor Zick has been the recipient of the Plumeri Award for Faculty Excellence in 2011, 2013 and 2017.
Gregory P. Magarian, Washington University in St. Louis
Professor Gregory P. Magarian is a well-known expert in free speech, the law of politics, and law and religion. He has written about a variety of topics in constitutional law, including free speech theory and doctrine, media regulation, regulation of political parties, the relationship between church and state, and substantive due process. As part of an ABA project, he led a team of faculty examining the work of Supreme Court Justice Elena Kagan during the nomination process. A frequent presenter at conferences here and abroad, he has published his scholarship widely in various law reviews. Professor Magarian has taught at Fudan University in Shanghai, China, as part of the law school's semester exchange partnership and served on the law school's Summer Institute for Global Justice faculty at the University of Utrecht in The Netherlands. Before becoming a law professor, he clerked for U.S. Supreme Court Justice John Paul Stevens, as well as for the Hon. Louis Oberdorfer, U.S. District Court for the District of Columbia. Professor Magarian also practiced law for five years with the Washington, D.C. firm of Jenner & Block as a litigation associate.
Neil Richards, Washington University in St. Louis
Neil Richards is an internationally-recognized expert in privacy law, information law, and freedom of expression. He is the Thomas and Karole Green Professor of Law at Washington University School of Law, where he co-directs the Washington University Institute for Genomic Medicine and the Law. He is also an affiliate scholar with the Stanford Center for Internet and Society and the Yale Information Society Project, a Fellow at the Center for Democracy and Technology, and a consultant and expert in privacy cases. Professor Richards serves on the boards of the Future of Privacy Forum and the Freedom to Read Foundation, and is a member of the American Law Institute. Professor Richards graduated in 1997 with graduate degrees in law and history from the University of Virginia, and served as a law clerk to both William H. Rehnquist, Chief Justice of the United States and Paul V. Niemeyer, United States Court of Appeals for the Fourth Circuit.
Gerald Greiman, Spencer Fane
Gerry Greiman concentrates his practice in areas of business disputes, trust and estate disputes, and other complex civil litigation. He has handled and won a broad range of cases in various federal and state courts around the country, including the United States Supreme Court. Gerry is skilled and experienced at handling matters at both the trial and appellate levels, and in the alternative dispute resolution context. Gerry received his law degree from Washington University in St. Louis in 1975, where he ranked first in his class, wrote for the law review and was elected to the Order of the Coif. During 1975-77, Gerry served as a Law Clerk for the United States Court of Appeals for the Eighth Circuit. From 1977 to 1986, Gerry was engaged in private practice in Washington, D.C., primarily handling complex civil litigation. He returned to St. Louis in 1986. Gerry is listed in Best Lawyers in America, Missouri and Kansas Super Lawyers, and Who’s Who in American Law.
Barbara Smith, Bryan Cave
Barbara A. Smith is a member of Bryan Cave’s Commercial Litigation practice team and the Appellate Cross-team. Ms. Smith handles litigation involving complex business transactions and commercial contract disputes. Ms. Smith’s experience encompasses all aspects of litigation and appeals. Among other issues, she has briefed questions of constitutional law, statutory construction, administrative law, labor and employment, white collar crime, bankruptcy, and sovereign debt. Ms. Smith served as a law clerk to Justice Samuel A. Alito, Jr. on the United States Supreme Court and Judge Thomas B. Griffith on the United States Court of Appeals for the D.C. Circuit. Prior to joining Bryan Cave, Ms. Smith was an appellate litigator at a Washington, D.C.-based law firm, where she represented clients before the United States Supreme Court and various federal courts of appeal.
Benjamin Lipman, Lewis Rice
Benjamin A. Lipman has a diverse practice as a litigator and commercial real estate transactional attorney. In addition, he focuses much of his practice on constitutional law. As a First Amendment lawyer, he is involved in all aspects of representing the press: from libel and privacy defense, to open records and meetings disputes, fighting subpoenas, prepublication review, and intellectual property litigation and transactions. He represents newspapers, television stations, radio, cable, new media, book and music publishers, musicians, and writers. According to a judge on the Eighth Circuit Court of Appeals, Ben wields the First Amendment with reckless abandon.
Katherine Nash, Tueth Keeny
Katherine L. Nash practices primarily in the areas of higher education, education, non-profit, litigation, labor and employment law. Kate works primarily with educational institutions, including public and private colleges and universities, community colleges, public school districts and charter schools. She regularly advises these institutions, as well as private employers, on all manner of employment issues including Title VII, the ADA, the ADEA, the FMLA and related state laws. She advises institutions of higher education on a wide range of legal issues, including employment matters, student rights, harassment and discrimination disputes, tenure litigation, first amendment issues, Title IX compliance and litigation, disability law, Title IV funding, board governance, endowment matters and numerous other legal issues impacting the higher education community. Kate also acts as outside general counsel to numerous institutions, advising them on a myriad of day-to-day legal issues. Kate has extensive experience on matters related to Title IX, VAWA, the Clery Act and Title IV regulations. She also represents educational institutions and other employers in state and federal court in Missouri and Illinois.
Bill Freivogel, St. Louis Public Radio
Bill Freivogel became Director of the School of Journalism at the South Illinois University in Carbondale in 2006. He began his journalism career with the St. Louis Post-Dispatch in 1971. He was a member of the newspaper's Washington bureau for 12 years, where he served as assistant bureau chief, focused on the Supreme Court and reported on such historic events as the assassination attempt on President Reagan. He returned to St. Louis to become the deputy editorial page editor in 1997. Freivogel's editorials on former Attorney General John Ashcroft and the Constitution made him a finalist in the 2002 Pulitzer Prize competition. He also won Sigma Delta Chi's top award in 1991 for a series on the Bill of Rights, and he shared the Sidney Hillman award for a series on civil rights policy changes during the Reagan administration.
Anthony Rothert, American Civil Liberties Union
Anthony Rothert, legal director of the ACLU-MO since January 2006, oversees the legal program's advocacy and litigation efforts on civil liberties issues. Under his direction, the legal program’s staff has tripled and the number of cases or amicus briefs filed annually has increased from two in 2005 to 50 in 2014. Prior to joining the ACLU, Rothert spent six years as the staff attorney for the Legal Advocacy Service of the Illinois Guardianship and Advocacy Commission, providing representation in the trial and appellate courts to persons alleged to be subject to involuntary hospitalization or involuntary treatment with psychotropic medication or ECT. He also worked as an assistant state's attorney in Madison County State’s Attorney’s Office in Edwardsville, Illinois, and for Land of Lincoln Legal Assistance Foundation.
Mark Smith, Washington University in St. Louis
Smith graduated cum laude from Harvard University in 1982 and earned a JD from Washington University School of Law in 1986. In 2004, Smith ran unsuccessfully as a Democratic candidate for U.S. Congress in the Third Congressional District of Missouri. He also is active in community and civic organizations and served as president of the Board of Police Commissioners for the City of St. Louis. He is a regular commentator on St. Louis Public Radio’s “Legal Roundtable.” Prior to joining the Career Center in 2004, Smith spent 14 years as associate dean of student affairs at the School of Law. He has taught courses at the School of Law and the School of Engineering and Applied Science, and currently teaches a legal strategy course in the Olin Business School’s Executive MBA program. He also teaches a freshmen FOCUS course, “Law and Society.” Before joining the law school, Smith practiced law in the St. Louis office of Bryan Cave.
Justice David Lillehaug, Minnesota Supreme Court
Justice David Lillehaug was appointed to the Minnesota Supreme Court in 2013 and was elected in 2014. He graduated cum laude from Harvard Law School and summa cum laude from Augustana College. From 1979 to 1981 he clerked for a federal judge in Minnesota. From 1994 to 1998 Lillehaug served as the United States Attorney for the District of Minnesota. Lillehaug has 25-plus years of complex litigation experience in private practice. Among his clients in high-profile lawsuits and investigations were Fortune 100 companies, Indian tribes, three U.S. Senators, Minnesota’s governor and house of representatives, the University of Minnesota, and the City of Saint Paul.
Michael Kahn, Capes Sokol
Michael Kahn is of Counsel at Capes Sokol, and concentrates his practice in copyright, trademark, First Amendment and media law, including libel and privacy rights. He is a widely recognized trial lawyer in the area of general commercial litigation, and regularly advises clients on a range of intellectual property matters. A veteran of numerous jury trials, Kahn has handled lawsuits and arbitrations in various venues across the nation. Kahn earned his J.D., cum laude, from Harvard Law School in 1979. He is also an adjunct professor at Washington University School of Law, where he teaches an upper level course on Censorship and Free Expression.
Adolphus Pruitt, St. Louis City Chapter of the NAACP
Adolphus Pruitt is the President of the St. Louis City Chapter of the NAACP (National Association for the Advancement of Colored People). Under Pruitt's direction, the St. Louis City NAACP celebrated its Centennial Anniversary in 2013. Pruitt formerly served as Vice President for the Missouri NAACP. Mirroring the mission of the NAACP, the St. Louis City NAACP insures the political, educational, social and economic equality of minority groups and citizens; removes all barriers of racial discrimination through the democratic processes; and informs the public of the adverse effects of racial discrimination and seeks its elimination.
Daniel Rhoads, The Rhoads Law Firm, LLC
Daniel Rhoads is the founder of The Rhoads Law Firm, LLC, which services both Missouri and Illinois. His practice centers around education, immigration, and litigation. Rhoads earned his J.D. from Washington University School of Law in 2007 and prior to founding The Rhoads Law Firm in 2012, Rhoads worked at several mid-size law firms in the St. Louis area. Currently, he works mostly in St. Louis City, St. Louis County, and St. Charles County in Missouri, as well as Madison County and St. Clair County in Illinois.