In Chapter 4, we turn to the contemporary manifestations of the managerial approach. To the extent that we view digital technology as a problem, we tend to think of it as a problem with managerial solutions. In other words, we tend to believe that the right experts, in the right institutions, focusing on the right questions, could make the harms of digital technology disappear. Some want to erect new administrative agencies or private “oversight boards” to govern digital life; some want to empower courts to address the “addictive” features of social media; others prefer to use public officials and NGOs to put pressure on technology platforms themselves. In each of these cases, reformers call on private or public managers to resurrect the goods of robust associations without defending associations themselves. We show that seemingly disparate efforts to address “digital addiction,” fight the “loneliness epidemic,” combat “misinformation,” regulate AI development, and reimagine “privacy” all fall into this same trap. These are often misguided attempts to respond to problems better understood and addressed as the consequences of a social order in which intermediary associations lack the three powers.

In Chapter 3, we trace the origins of the “managerial approach” to technology regulation. In the twentieth century, as mass communication weakened America’s associational life, reformers increasingly entrusted experts and managers with the task of producing social goods such as civility and accurate information. Meanwhile, the Supreme Court has increasingly extended robust First Amendment rights to mass media companies, paving the way to an emerging status quo in which digital platforms themselves are “protected speakers” because they “select and shape other parties’ expression into their own curated speech products." Radically constraining the scope of technology regulation, courts have strengthened the authority of private managers over the terms of social life. The modern First Amendment, which once protected the autonomy of robust associations in the public sphere, has come to do the exact opposite: protect the forces of homogenization that undermine robust associations. Meanwhile, even private actors risk offending the rights of platforms when they attempt to build third-party applications – known as “middleware” – that interoperate with dominant platforms to empower users to modify platform features.

The advent of generative AI (GenAI), which can produce billions of words daily, is forcing a profound reexamination of the First Amendment’s protection of “freedom of speech.” Written in 1791 to safeguard human expression, this constitutional right is now being claimed by AI companies seeking immunity from liability for the harmful outputs of their products.

The central question is whether the algorithmic output of a large language model (LLM) – a statistical calculation rather than a human expression of belief or intent – qualifies as “speech” under the First Amendment. Examining the traditional justifications for protected speech – self-expression and the “marketplace of ideas” – the chapter argues that neither rationale neatly applies to content produced by nonsentient machines. It then explores two proposed legal standards: the “speech certainty” standard, which grants protection only when the content is predictable and controllable by a human author, and a human-centric approach requiring intentionality, self-awareness, and human expression. Granting full First Amendment protection could immunize AI companies from liability for a range of harms.

This chapter challenges the notion that generative AI (GenAI) outputs qualify for First Amendment protection as “speech.” It argues that under both speech certainty and human-centric legal frameworks, GenAI outputs – being probabilistic, statistically driven, and devoid of human understanding, sentience, or intent – should be legally categorized as nonexpressive conduct or utilitarian data processing, not intentional communication.

The chapter dismantles the common counterargument that a user has a constitutional “right to receive” an AI’s output, asserting that if no speech is created by the speaker (the AI model), there is no speech to receive. This classification determines the government’s regulatory authority. If AI outputs are deemed speech, regulations face the nearly insurmountable barrier of “strict scrutiny.” If they are nonexpressive conduct, however, the government retains the power to regulate GenAI for safety. The chapter warns that extending constitutional free speech protections to nonhuman, nonintentional algorithms would jeopardize product liability, consumer protections, and democratic self-governance.

This chapter is a critical evaluation of DEI, which became confused for racial reckoning and a target for the continuing backlash. It argues that there are two strains of DEI, the more popular corporatized DEI that seeks enhanced institutional belonging and economic pluralism and the more inclusive DEI that values increased representation of groups left out. Only inclusive DEI offers remedial possibilities for racial reckoning. Historically, both versions of diversity emerged as compromise positions for true racial accountability after remedial objectives were discarded by the Supreme Court in cases like Bakke. However, the viciousness of recent attacks on diversity and DEI by both conservative judges and the second Trump administration demonstrate its continued importance as an idea associated with racial reckoning, which must be vigorously defended on First Amendment grounds or risk the disappearance of Black presence and the erasure of Black identity.

This chapter examines the financing of the radical right inside and outside of the United States. The chapter focuses on why countering the radical right is so challenging, especially in the US context.

Chapter 1 examines the leading theory of chilling effects – chilling effects as fear of legal harm – a legalistic account most often employed by lawyers and judges in the United States, Canada, and beyond. The author explores its historical and intellectual origins, key actors that have articulated and influenced the theory, and argues this predominant conventional account is too narrow, legalistic, and deeply flawed theoretically and empirically, and cannot explain, predict, or understand chilling effects in a wide variety of contexts. As such, it only contributes to skepticism about chilling effects, rather than dispelling them.

Chapter 2 critically examines privacy-based conventional theories, which approach chilling effects as a result of privacy harms. While privacy-based theories of chilling effects improve on legal accounts, they are also too narrow and cannot explain chilling effects in a variety of contexts, including even forms of privacy-related chilling effects. Moreover, courts and judges have also remained deeply skeptical of privacy-based theories. To address these limitations and fully understand the threat chilling effects pose to freedom, fundamental rights, and democracy we need a new understanding of chilling effects that moves beyond conventional accounts.

Chapter 9 makes the case for critical changes in chilling effects law and doctrine based on the new understanding advanced in this book. The author argues, among other things, that judges should no longer remain skeptical of privacy chilling effects; that chilling effects doctrine should no longer privilege legal and regulatory forms of chilling effects over others; and that standing doctrine and other areas of law should also be reformed to accommodate this new understanding of chilling effects.

This chapter traces the influence of Christianity on politics and society in the first two centuries of the American experiment. It offers an overview of the religion in the original colonies, the religious revivals associated with the First Great Awakening, the role of Christianity shaping the United States Constitution, the Second Great Awakening in an era of westward expansion, religious diversity, and the theological debates surrounding slavery and the Civil War.

The public who acted as unsolicited citizens during the time of the constitution making continued to expect and insist, moreover, that state authorities and politicians open avenues for their participation. The public ensured that in India, there was no idolized constitutional ’moment’, frozen in time. Instead, they turned the making of the constitution into an enduring momentum for India’s democracy and its democratic politics. The constitution became an open site of struggle, never solely within the purview of judges and legislatures. The multiple acts of assembling beyond the Constituent Assembly during the time of the constitution making took on a life of its own, creating organisations and social movements, which animated local politics and sustained a vibrant constitutional culture.

This chapter, by incarcerated writer John J. Lennon, explores the history of prison journalism through the careers of two writers, Wilbert Rideau and Dannie M. Martin. While both became journalists in prison, their writing careers took different forms. Rideau, serving a life sentence for murder in Louisiana, wrote in the typical, detached style of print journalists and helmed one of the most successful prison newspapers of all time, The Angolite, which was nominated for seven National Magazine Awards during his tenure as editor. Martin, serving a thirty-three-year sentence for bank robbery in federal prison, published voice-driven columns and freelanced for the San Francisco Chronicle. Both exposed pressing, overlooked crises behind bars and both risked reprisals from fellow prisoners and the staff responsible for their safety. Their stories of “committing journalism” contain timely lessons for incarcerated writers and prison administrators as the current renaissance of prison journalism continues to grow.

Chapter 20 uses a specific insight from the TTS data – that more tenured-terminations occurred at public rather than private universities – to show why tenure is not the root cause of observed problems and why legislative attacks on tenure do not present a solution. It builds on the narrative and counternarrative analysis provided in Chapter 19 as well as the importance of hierarchy and power differentials first discussed in Chapter 13.

Genevieve Lakier (University of Chicago Law) examines Upsolve v. James, where a district court enjoined the application of New York state’s unauthorized practice of law statutes to the Justice Advocates that the nonprofit organization, Upsolve, planned to train, to assist low-income New Yorkers file for bankruptcy. The opinion represents a clear victory for the access-to-justice movement. But it also represents a potentially significant change in how courts understand the First Amendment to apply in unauthorized-practice-of-law cases. Although the decision may be overturned on appeal, the logic of the opinion thus makes clear the promise that what critics have sometimes described as a “Lochnerized” First Amendment holds out to access-to-justice advocates, as well as some of its perils. In this chapter, Lakier explains why the decision is significant, embeds it within a broader story of doctrinal transformation, and spells out some of the benefits and costs of using a Lochner-like First Amendment to promote access to justice.

Chapter Four contends that the electronic amplification of false and misleading election-related claims poses a significant threat to American democracy. To address that threat, we urgently need government regulation of companies that provide electronic amplification services. However, the Supreme Court has created a body of First Amendment doctrine that places Congress in a constitutional straightjacket, making it almost impossible for Congress to enact the type of legislation that is urgently needed to protect our democracy. This chapter sketches the outlines of a proposed federal statute that would restrict the electronic amplification of election-related misinformation. It explains why any statute along those lines – indeed, any statute that might be moderately effective in protecting American democracy from the threat posed by the electronic amplification of misinformation – would almost certainly be deemed unconstitutional under the Court’s current First Amendment doctrine. Therefore, the Court must revise its First Amendment doctrine to help save American democracy.