Genevieve Lakier Takes Apart First Amendment Analysis in 5th Circuit’s Ruling that Would Require Social Media Companies to Replatform Donald Trump

September 21, 2022, 7:56 amcheap speechRick Hasen

There has been a lot of discussion about the opinion the Fifth Circuit released last Friday upholding Texas’s new social media law. Lots of people have criticized the decision for getting the law wrong. 🧵 https://t.co/4LntwN8TW1
— Genevieve Lakier (@glakier) September 20, 2022

Election Law Blogger

Rick Hasen

Professor of Law and Political Science
UCLA School of Law
Director, Safeguarding Democracy Project

Contributors

Tabatha Abu El-Haj

Professor of Law, Drexel University Thomas R. Kline School of Law
@tabathaabuelhaj
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Sam Bagenstos

Frank G. Millard Professor of Law, University of Michigan (on leave)
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Bruce E. Cain

Professor of Political Science, Stanford University
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Guy-Uriel E. Charles

Charles J. Ogletree Jr. Professor of Law, Harvard Law School

Edward B. Foley

Ebersold Chair in Constitutional Law, The Ohio State University
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Heather K. Gerken

Dean and Sol & Lillian Goldman Professor of Law, Yale Law School
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Abbe Gluck

Alfred M. Rankin Professor of Law at Yale Law School (on leave)
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Anita Krishnakumar

Professor of Law, Georgetown University Law Center
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Justin Levitt

Professor of Law at LMU Loyola Law School, Los Angeles
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Derek T. Muller

Professor of Law, Notre Dame Law School
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Spencer A. Overton

Professor of Law,
The George Washington University Law School
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Nate Persily

James B. McClatchy Professor of Law, Stanford Law School
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Richard H. Pildes

Sudler Family Professor of Constitutional Law, NYU School of Law
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Nicholas Stephanopoulos

Kirkland & Ellis Professor of Law, Harvard Law School
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Dan Tokaji

Fred W. & Vi Miller Dean and Professor of Law
University of Wisconsin Law School
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Franita Tolson

Interim Dean and George T. and Harriet E. Pfleger Chair in Law at USC Gould School of Law
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Recent Books by Rick Hasen

A Real Right to Vote

A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy
Now available from Princeton University Press!
Read the Kirkus Review
NEW! Book tour information
Watch book discussion on Morning Joe
Order at Amazon, Barnes and Noble, Bookshop

Cheap Speech: How Disinformation Poisons Our Politics–and How to Cure It

Cheap Speech: How Disinformation Poisons Our Politics--and How to Cure It (Yale University Press, 2022)
Cheap Speech book website

Named one of the best books on disinformation by the New York Times

Election Law–Cases and Materials

Election Law–Cases and Materials (7th edition, Carolina Academic Press, 2022) (with Daniel Hays Lowenstein, Daniel P. Tokaji, and Nicholas O. Stephanopoulos)

2023 Casebook Supplement (Free)

Election Meltdown

Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy
(Yale University Press, 2020)

Legislation, Statutory Interpretation, and Election Law: Examples & Explanations

Legislation, Statutory Interpretation, and Election Law: Examples & Explanations (2d ed. Wolters Kluwer, 2020)

Recent ELB Podcast Episodes

The ELB Podcast

Season 5, Episode 7 Rick Pildes: The Two Ricks Discuss the Trump Immunity and Hush Money Cases

Season 5, Episode 6 A Real Right to Vote (Rick Hasen & Erwin Chemerinsky)

Season 5, Episode 5 Trump, The Supreme Court, and the Shadow Docket (Steve Vladeck)

Season 5, Episode 4 Protecting Democracy in 2024...and 2025 (Ian Bassin & Jess Marsden

Season 5, Episode 3 The Trump Prosecutions, the First Amendment, and Election Interference (Genevieve Lakier and Eugene Volokh)

Season 5, Episode 2 The Roberts Court and American Democracy (Joan Biskupic)

Season 5, Episode 1 The Trump Indictments, the 2024 Elections, and Public Peace

Season 4, Episode 10 U.S. Democracy and the Independent State Legislature Theory after Moore v. Harper

More podcast episodes ›

Recent Op-Eds & Commentaries by Rick Hasen

Why It’s Hard to Muster Even a ‘Meh’ Over Trump’s New York Criminal Trial, Los Angeles Times, April 14, 2024

2016 Election Fraudster ‘Ricky Vaughn’ Might Finally Be About to Face the Music, Slate, April 1, 2024

The Supreme Court Just Delivered a Rare Self-Own for John Roberts, Slate, March 5, 2024

It’s Past Time to Quit Hoping the Courts are Going to Stop Trump, Slate, March 4, 2024 (with Dahlia Lithwick)

The Biggest Supreme Court Case Nobody Seems to Be Talking About, Slate, February 23, 2024

How to Actually Guarantee the Right to Vote: A Six-Point Checklist, The Atlantic, February 13, 2024

A Grand Bargain is Emerging in the Supreme Court’s Trump Cases, But Chaos May be Ahead, Slate, February 8, 2024

Donald Trump is Asking the Supreme Court for the Bush v. Gore Treatment, Slate, February 7, 2024

Trump’s Lawyers Made Some Very Odd Strategic Choices in the Supreme Court Ballot Case, Slate, January 29, 2024

The 2024 Election Will Be Fair. People Still Won’t Believe It, Politico, January 25, 2024

The U.S. Lacks What Every Democracy Needs, New York Times, January 16, 2024

Terrifying Reports About Trump’s Plans for a Second Term Have One Bright Spot, Slate, November 7, 2023

The Supreme Court Needs to Make a Call on Trump’s Eligibility, The Atlantic, September 26, 2023

The Biggest Difference Between the Georgia Indictment and the Jan. 6 Indictment, Slate, August 15, 2023

Why Georgia Might Beat the Feds at Holding Trump Accountable, Los Angeles Times, August 8, 2023

U.S. v. Trump Will Be the Most Important Case in Our Nation’s History, Slate, August 1, 2023

John Roberts’ Big Complaint About Elena Kagan is Deeply Ironic, Slate, July 5, 2023

There’s a Time Bomb in Progressives’ Big Supreme Court Voting Case Win, Slate, June 27, 2023

There Are Still Two Major Legal Threats to the Voting Rights Act, Slate, June 12, 2023

John Roberts Throws a Curveball, New York Times, June 8, 2023

There’s Unsettling New Evidence About William Rehnquist’s Views on Segregation, Slate, June 1 2023 (with Dahlia Lithwick)

The Urgent Warning That Got Cut from a Supreme Court Opinion 20 Years Ago, Slate, May 30, 2023

What the Court’s Would Do If the Succession Fire Played Out in Real Life, Slate, May 15, 2023

Why It’s Fine that Fox and Dominion Settled, Slate, April 19, 2023

The Effort to Suppress the Vote is Spreading to the Republican Mainstream, Slate, April 11, 2023 (with Dahlia Lithwick)

Donald Trump Probably Should Not Have Been Charged with (This) Felony, Slate, April 4, 2023

Unfortunately, the Biggest Election Case of the Supreme Court Term Could Soon Be Moot, Slate, February 6, 2023

Meta is Bringing Trump Back to Facebook. It Should Keep Him on a Short Leash to Protect Democracy, Slate, January 25, 2023

I’ve Been Way More Worried About American Democracy Than I Am Right Now, Slate, November 14, 2022

The Courts are the Only Thing Holding Back Total Election Subversion, The Atlantic, November 2, 2022

An Arizona Court Seems to Think Voter Intimidation Isn’t Voter Intimidation, NBC News Think, November 1, 2022

The Supreme Court is Headed for a Self-Imposed Voting Caseload Disaster, Slate, October 26, 2022 (with Nat Bach)

The Truly Scary Part About the 1.6 Billion Conservative Donation, Slate, August 23, 2022 (with Dahlia Lithwick)

What the Critics Get Incredibly Wrong About the Collins-Manchin Election Bill, Slate, July 25, 2022

It’s Hard to Overstate the Danger of the Voting Case the Supreme Court Just Agreed to Hear, Slate, June 30, 2022

No One is Above the Law, and that Starts with Donald Trump, N.Y. Times, June 24, 2022

The Jan. 6 Committee Should Be Looking Ahead to Election Threats in 2024, Wash. Post, June 8, 2022

The One Group That Can Stop Elon Musk from Unbanning Trump on Twitter, Slate, May 10, 2022

Facebook and Twitter Could Let Trump Back Online. But He’s Still a Danger, Washington Post, Mar. 9, 2022

How Supreme Court Radicalism Could Threaten Democracy Itself, Slate, Mar. 8, 2022

How to Keep the Rising Tide of Fake News from Drowning Our Democracy, N.Y. Times, Mar. 7, 2022

North Carolina Republicans Ask SCOTUS To Decimate Voting Rights in Every State, Slate, Feb. 25, 2022

What Democrats Need From Mitch McConnell to Make an Election Reform Deal Worth It, Slate, Jan. 4, 2022

No One is Coming to Save Us from the ‘Dagger at the Throat of America,’ N.Y. Times, Jan. 7, 2022

More op-eds and commentaries by Rick ›

Recent Academic Articles and Working Papers by Rick Hasen

From Bloggers in Pajamas to The Gateway Pundit: How Government Entities Do and Should Identify Professional Journalists for Access and Protection, forthcoming in THE FUTURE OF PRESS FREEDOM: DEMOCRACY, LAW & THE NEWS IN CHANGING TIMES (Cambridge U. Press, RonNell Andersen Jones and Sonja R. West eds. forthcoming 2025)

States as Bulwarks Against, or Potential Facilitators of, Election Subversion, in Our Nation at Risk: Election Integrity as a National Security Issue (Karen Greenberg and Julian Zelizer, eds. NYU Press, forthcoming 2024)

Election Reform: Past, Present, and Future in Oxford Handbook of American Election Law (Eugene Mazo, ed., forthcoming 2024), draft available: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4218256

Nonprofit Law as a Tool to Kill What Remains of Campaign Finance Law: Reluctant Lessons from Ellen Aprill, 56 Loyola of Los Angeles Law Review 1233 (2023) (festschrift symposium honoring Ellen Aprill)

Identifying and Minimizing the Risk of Election Subversion and Stolen Elections in the Contemporary United States, 135 Harvard Law Review Forum 265 (2022)

Research Note: Record Election Litigation Rates in the 2020 Election: An Aberration or a Sign of Things to Come?, Election Law Journal, https://www.liebertpub.com/doi/epdf/10.1089/elj.2021.0050 (2022)

Optimism and Despair About a 2020 “Election Meltdown” and Beyond, 100 Boston University Law Review Online 298 (2020) (part of symposium on my book, Election Meltdown)

Three Pathologies of American Voting Rights Illuminated by the COVID-19 Pandemic, and How to Treat and Cure Them, Election Law Journal (2020)

More academic articles by Rick Hasen ›

Recent Books by ELB Contributors

Tokaji & Yablon- Election Law in a Nutshell

Election Law in a Nutshell (3d ed., West Academic Publishing, 2024)
by Daniel P. Tokaji & Robert Yablon

Pildes – The Law of Democracy

The Law of Democracy: Legal Structure of the Political Process, 6th ed.
(Foundation Press, 2022)
by Samuel Issacharoff, Pamela S. Karlan, Richard H. Pildes, Nathaniel Persily, and Franita Tolson

Persily – Social Media and Democracy

Social Media and Democracy
(Cambridge Press, 2020)
by Nathaniel Persily and Joshua A. Tucker

Gerkin – The Democracy Index

The Democracy Index: Why Our Election System Is Failing and How to Fix It
by Heather K. Gerken
(Princeton University Press 2009)

Podcasts by ELB Contributors

Tolson – Free and Fair Podcast

Free & Fair with Franita and Foley
Franita Tolson and Edward Foley

Recent Articles by ELB Contributors

Tabatha Abu El-Haj, Networking the Party: First Amendment Rights & the Pursuit of Responsive Party Government, 118 Colum. L. Rev. 1225 (2018).

Bruce E. Cain, Wendy K. Tam Cho, Yan Y. Liu & Emily R. Zhang, A Reasonable Bias Approach to Gerrymandering: Using Automated Plan Generation to Evaluate Redistricting Proposals, 59 Wm. & Mary L. Rev. 1521 (2018).

Edward B. Foley, Requiring Majority Winners for Congressional Elections: Harnessing Federalism to Combat Extremism (May 10, 2021). Ohio State Legal Studies Research Paper No. 61

Anita S. Krishnakumar, Cracking the Whole Code Rule (February 19, 2020). St. John’s Legal Studies Research Paper No. 20-0002, New York University Law Review, Forthcoming

Justin Levitt, Failed Elections and the Legislative Selection of Electors, 96 N.Y.U. L. Rev. 1052 (2021)

Derek T. Muller, Election Subversion and the Writ of Mandamus, William & Mary Law Review (forthcoming)

Spencer Overton, Power to Regulate Social Media Companies to Prevent Voter Suppression. GWU Legal Studies Research Paper No. 2020-23, GWU Law School Public Law Research Paper No. 2020-23, 53 U.C. Davis L. Rev. 1793 (2020)

Nicholas Stephanopoulos, The Sweep of the Electoral Power (October 20, 2020). Constitutional Commentary, Forthcoming, Harvard Public Law Working Paper No. 21-07