The right not to sue: a First Amendment rationale for opting out of mandatory class actions

Article Abstract:

The US Supreme Court should consider applying First Amendment standards to mandatory class actions that do not offer the right to opt out. Courts have been straining to apply due process to class actions. The First Amendment covers both the right to speak and the right to refrain, and mandatory inclusion in a class action can result in compelled speech. Strict scrutiny should be applied to class actions that are political, and intermediate scrutiny should be applied to class actions that are primarily commercial. These standards would serve to protect the opt-out rights of plaintiffs.

Class actions (Civil procedure), Class action lawsuits, Due process of law

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Private speech, public purpose: the role of governmental motive in First Amendment doctrine

Article Abstract:

The US Supreme Court has repeatedly asserted that its role is not to ferret out improper government motives in its free speech cases, but close review of First Amendment jurisprudence reveals that the motive inquiry is central to deciding such cases. The analysis that considers whether restrictions are content-based, whether speech is only incidentally affected, and whether content-neutral restrictions are untrustworthy is a proxy for investigating motive. Acknowledging that motive matters would make the law simpler and more doctrinally honest.

Analysis, State action (Civil rights)

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Conduct and belief: public employees' First Amendment rights to free expression and political affiliation

Article Abstract:

Cases involving public employees' First Amendment rights may concern political affiliation or freedom of expression. The two types of cases involve different rights and different state interests; therefore separate tests should be applied. However, when a public employee is fired for exercising First Amendment rights, both political affiliation and expression may be involved; a causation test, in part based on whether the employee was at the policy-making level or not, should be applied to these ambiguous cases.

Public employees, Government employees, Party affiliation

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