Bunker and Erickson on Toxic Minimalism on the "Yolo" Court: The Supreme Court's Dangerous Muddle in First Amendment and Speech-Adjacent Law @m_bunker

Matthew D. Bunker and Emily Erickson have published Toxic Minimalism on the "Yolo" Court: The Supreme Court's Dangerous Muddle in First Amendment and Speech-Adjacent Law, at 47 UC  SF Comm. & Ent. L. J. 51 (2024). Here is the abstract.

 

In constitutional law, it’s an age of dramatic and jarring judicial activism. The conservative supermajority on the U.S. Supreme Court has disregarded precedent to an extraordinary degree, rapidly instantiating a new, much more conservative interpretation of key constitutional doctrines. Particularly in the last few Terms, cases such as Dobbs v. Jackson Women’s Health Organization, Kennedy v. Bremerton School District, Trump v. U.S., and Loper Bright Enterprises v. Raimondo are emblematic of a Court that has frequently adopted a stunningly maximalist strategy. Yet, paradoxically, the Court has simultaneously applied a brand of extreme minimalism in a number of important free expression cases, both in First Amendment law and in speech-adjacent areas such as copyright and Section 230. This minimalism is not a new phenomenon, but it continues (and perhaps worsens) a trend that leaves potential speakers in a kind of doctrinal limbo without reliable judicial standards.

This Article first provides a brief overview of judicial minimalism as seen through the eyes of both its advocates and its critics. Next, it analyzes four cases since 2020 that demonstrate the extreme minimalism with which the Court has approached some significant expression-related cases. We suggest that not only are the opinions themselves dangerously minimalist as written, but that the Court’s decision to grant certiorari in at least some of these cases harms free expression, since the fact patterns themselves are not representative of the difficult issues lower courts face in those particular corners of the law. These cases thus stunt the development of the law in free speech and closely related doctrinal areas and create chilling effects on potential speakers.

 

Download the article at the link.