Epstein on Two Recent First Amendment Cases

When Government Distorts the Truth

The past several weeks have given rise to two First Amendment cases of great interest, each of which involves the extent to which the state can seek to control the messages that ordinary people and firms deliver to the public at large.

The first of these is American Freedom Defense Initiative (AFDI) v. Metropolitan Transportation Authority. There, the question was whether the MTA could, consistent with the First Amendment, block the AFDI, a pro-Israel organization, from enforcing its “no demeaning” standard with respect to highly charged religious advertisements that the AFDI wanted to post, such as this advertisement:

Richard Epstein tobacco companies


In July of 2012, Judge Paul Engelmeyer temporarily urged the MTA to post that advertisement inside the MTA on the following ground: As a form of core political speech, it was entitled to the highest level of protection under the First Amendment’s guarantee of freedom of speech; after all, it was not “narrowly tailored” to serve a compelling government interest. Just this past week, the same judge ordered that the temporary injunction be made permanent.

In another recent pair of cases, the issue was whether the grotesque images that the FDA has required tobacco companies to put on their packages violates the First Amendment rights of the tobacco companies.

Richard Epstein tobacco companies


Two appeals courts split on the question, making it quite likely that the case will make its way up to the United States Supreme Court. The question is how best to think about these two cases in tandem, which, in turn, requires a return to first principles of constitutional interpretation. In both instances, these principles are sorely tested.

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