Graduate Research Fellow in Privacy and Freedom of Speech – Apply!

The University of Arizona James E. Rogers College of Law welcomes applications for a graduate research fellowship beginning in October / November 2016 and ending in summer / fall 2017. The Fellow will work with Professors Derek Bambauer and Jane Bambauer on a series of projects related to privacy, transparency, and free speech, including a major research […]

Still Not a Dump Truck: Net Neutrality and the First Amendment

The D.C. Circuit’s decision in U.S. Telecom Assn. v. FCC came down yesterday. To the delight of net neutrality fans and dismay of many big ISPs, the court held 2-1 that the FCC’s reclassification of broadband under Title II was permissible as a matter of statutory, administrative, and constitutional law. I’m still digesting the first […]

Signs, Sex, and Strict Scrutiny

In the latest installment of the Porn Wars, the Third Circuit Court of Appeals has, upon rehearing, remanded a challenge to the age verification provisions of 18 U.S.C. 2257 / 2257A, with instructions that the district court should apply strict scrutiny in its First Amendment analysis. Perhaps strict scrutiny is not fatal in fact, but […]

Watch “Is Free Speech for Assholes?”

The panel discussion from the Speech Holes conference is now available online, where First Amendment scholars grapple with the age-old question, “Is Free Speech for Assholes?“

Information Libertarianism

Jane and I have a new article coming out in volume 105 of California Law Review, titled Information Libertarianism. Here’s the abstract: Recent First Amendment precedent is widely attacked as unprincipled: a deregulatory judicial agenda disguised as free speech protection. The scholarly consensus is mistaken. Descriptively, free speech protections scrutinize only information regulation, usefully pushing […]

The iPhone Writ Large

Apple and the Department of Justice are dueling over whether the iPhone maker must write code to help the government break into the San Bernadino shooter’s phone. The government obtained a warrant to search the phone (a nicety, perhaps, since the phone’s owner has consented to the search, and the shooter is dead). But, the […]

Is Free Speech for Assholes?

The College of Law at the University of Arizona is holding a First Amendment conference in February; the public lecture, which features a bevy of free speech luminaries, is titled, “Is Free Speech for Assholes?” The panel will debate the virtues and pitfalls of current First Amendment doctrine, from corporate speech to hate speech to […]

Does the Ninth Circuit’s “Dancing Baby” Decision Mean Anything for Fair Use Under the DMCA’s Anticircumvention Rules?

Last fall, in Lenz v. Universal Music Corp., the Ninth Circuit ruled that copyright owners are required to have a procedure (even if it is mostly an automated, computer-implemented procedure) in place to consider whether someone else’s use of the copyright owner’s work online is legally protected under the fair use doctrine prior to sending a takedown […]

Copyright = Speech

I have an essay coming out in volume 65 of the Emory Law Journal, as part of the terrific 2015 Thrower Symposium. It’s titled “Copyright = Speech,” and here’s the abstract: Expression eligible for copyright protection should be presumptively treated as speech for First Amendment purposes. Both copyright and the First Amendment share the goal […]

Against Jawboning and Outrageous and Irrational

Volume 100 of Minnesota Law Review has just been published. “Against Jawboning” is in the first issue, along with co-blogger / spouse Jane Bambauer, whose article “Outrageous and Irrational” is co-authored with constitutional law / First Amendment expert and friend Toni Massaro. Minnesota LRev continues to be one of the top venues for publishing information […]