In recent years, many litigants have found the First Amendment to be a useful tool. One could mention pornography actors, tattoo artists, death row inmates, and corporate interests from small photography shops to meat trade associations to cigarette manufacturers to pharmaceutical companies. All have raised First Amendment claims in the last few years, and nearly all of them have met with some level of success.
These claims are examples of what has been called First Amendment opportunism, where litigants raise novel free speech claims that may involve the repackaging of other types of legal arguments. To the extent that many such claims have succeeded in the courts, they are also examples of what I will call First Amendment expansionism, where the First Amendment’s territory pushes outward to encompass ever more areas of law. Here, I will consider one recent case that epitomizes both phenomena. What explains them, however, is another matter. Although many forces contribute to both First Amendment opportunism and First Amendment expansionism, the two phenomena may say something about the nature of speech and the nature of rules.