The First Amendment Without Strict Scrutiny? Lessons from Intellectual Property Law
Nies Lecture Number
Twenty-sixth
Presentation Date
4-3-2025
Abstract
A decade ago, in Reed v. Town of Gilbert (2015), the Supreme Court announced that strict scrutiny applied to all content-based regulations challenged under the First Amendment. While the decision was controversial at the time, it was hard to predict that, by 2025, the very relevance of the longstanding “tiers of scrutiny” framework would be hotly contested by scholars and Justices alike. Regardless of whether the tiers themselves survive, the questions of free speech values and judicial competence that motivated the development of that framework will remain. And the history of (mostly failed) First Amendment challenges to intellectual property rules offers some lessons for what may be ahead.
Recommended Citation
Tushnet, Rebecca, "The First Amendment Without Strict Scrutiny? Lessons from Intellectual Property Law" (2025). The Honorable Helen Wilson Nies Memorial Lecture. 26.
https://scholarship.law.marquette.edu/nies_lectures/26
Presenter Bio
Rebecca Tushnet is the Frank M. Stanton Professor of the First Amendment at Harvard Law School and director of the Berkman Klein Center at Harvard University. After graduating from Harvard College and Yale Law, she served as a law clerk to Judge Edward R. Becker of the U.S. Court of Appeals for the Third Circuit and to Justice David H. Souter of the U.S. Supreme Court and practiced at Debevoise & Plimpton. Professor Tushnet engages widely with both the academic legal community and the practicing bar.