Publication Date
2-28-2024
Document Type
Article
Organizational Units
Sturm College of Law
Keywords
Freedom of speech, Tech law, Freedom of religion, Constitutional law, Platforms, Artificial intelligence, Public accommodations law, Equality, LGBTQ rights, Nondiscrimination mandates, Compelled speech, Algorithms, Privacy, Regulation, Transparency
Abstract
The Court’s extraordinary solicitude for religious expression, manifested across a series of cases involving free exercise, free speech, and establishment clause principles, has been the subject of sustained scholarly attention. Much of that research has focused on evaluating whether the Court is drawing an appropriate balance between the rights of religious believers and government regulatory objectives. In this Article we observe that the Court’s most recent set of moves in this arena, which diverge considerably from decades of speech jurisprudence, will have ramifications that go well beyond the claims of conscience that have so animated the Court’s sympathies. The range of “speakers” protected by this expansive jurisprudence will include information technology companies that generate algorithms and artificial intelligence – speech producers with no conscience at all, much less the kind of sincere religious conviction that the Roberts Court has seen fit to protect against government regulation. As we demonstrate, the free expression principles the Court has developed for religious believers, when added to the Court’s expansive reading of free speech more generally, will make it exceedingly difficult to protect against the significant harms that these speech-producing technologies can cause – including to speakers and readers whom the Court might wish to enable regulators to protect.
Publication Statement
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Originally published as
Rebecca Aviel, Margot E. Kaminski, Toni M. Massaro, & Andrew Keane Woods, From Gods to Google: How Religious Speech Cases May Fortify the Deregulatory First Amendment, 134 Yale L. J. (forthcoming Feb. 2024).
Recommended Citation
Rebecca Aviel, Margot E. Kaminski, Toni M. Massaro, & Andrew Keane Woods, From Gods to Google: How Religious Speech Cases May Fortify the Deregulatory First Amendment, 134 Yale L. J. (forthcoming Feb. 2024).
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