Erica Goldberg

The beauty of the American Chopper meme is that it forces you to crystallize the essence of both sides of an argument and engage with the best versions of both sides. Here's one on an expansive reading of the First Amendment.

Law students came over for a public interest auction item - we had an aerial hoop lesson. They were excellent; they faced both their fears and my weird stories. I taught them harder and harder poses! Videos of a human pyramid and my teaching them the second trick, star.

Here is the complaint. This is one important reason to ensure that AI algorithms get free speech protection -- so the state cannot force tools that provide information to embed the preferred positions of a state or federal gvt. courthousenews.com/wp-content/upl…

Important test case for free speech and AI. The makers of Grok are suing CO for a law that prohibits algorithmic discrimination -- "any condition in which the use of an [AI] system results in an unlawful differential treatment or impact that disfavors an individual or group."(1)

This talk breaks down what AI is, how it differs from traditional algorithms, why it deserves First Amendment protection, and how we can deal with AI’s ability to replicate disinformation at scale. youtube.com/watch?v=56IM4q…

I gave a talk at UT Austin on a draft arguing that AI should mostly be protected speech - most of the room disagreed when I asked to see a show of hands, but I think I make a decent case. My answer on originalism needs work but there was great engagement. youtube.com/watch?v=56IM4q…

Some thoughts on Afroman’s absolute banger song and music video “Will You Help Me Repair My Door” - for which he won a defamation and privacy tort lawsuit against him - from someone who teaches 1st and 4th Amendments: (1) Unless this was an unreasonable search where it was unreasonable for the police to even think the search was reasonable (there’s the qualified immunity part), the police will not have to help Afroman repair his door. Afroman could sue under 42 USC 1983 if the search was unreasonably unreasonable - meaning it was without probable cause in a way that was contrary to well settled case law. There was a warrant validating this search of his home, which I haven’t seen. Although the search turned up no evidence, and Afroman appears to be entirely innocent, the probable cause standard is considerably lower than the beyond a reasonable doubt needed for a criminal conviction. If the search was justified by probable cause or something close to probable cause, Afroman will have to pay for his own door and gate. (2) Afroman also comically sings about whether there are kidnapped children in his suit pockets and CDs. This is because the warrant (which I haven’t seen, so I can’t assess whether it’s actually supported by probable cause) was for kidnapping (!!!) and narcotics. Searches conducted in an unreasonable manner will also be considered unreasonable (perhaps allowing for a successful lawsuit), but here, there could still be evidence of money or plans inside suit pockets. If a search is legally justified, the police often can search almost anywhere the warrant covers. (3) The big victory here was for the First Amendment. The trial judge dismissed the misappropriation claims before trial - as making a a police search is a public act, not a private one - but the privacy claims and defamation issue went to trial because there were some potential lies told about police on social media by Afroman. Still, a jury ruled that Afroman, wearing an American flag suit, was entitled to make these statements in the same of lyricism and artistic creativity. (4) Defamation is an important tool for vindicating lies that ruin one’s reputation, but it’s uniquely hard to win a defamation suit in the USA. This is because we value speech and the free flow of ideas so highly. It seems Afroman only benefitted from being sued for defamation. I’ll eat a slice of lemon pound cake to that!

Here is a framework for analyzing the proposed bill at the NY State Legislature that would establish a 25 foot buffer zone around reproductive health care facilities and houses of worship. I write this to offer a framework for determining constitutionality without advocating in favor or against the bill. inacrowdedtheater.com/2026/04/05/ope…

Some students pranked me for April Fools, and I pranked them back by pretending I was reporting them to the Dean. One of the students said he should have known he was “talking to a professional.” This is my favorite holiday! (And it’s also Passover.)

@OrinKerr Some First Amendment pieces exploring novel and important paradigms: Two Concepts of Freedom of Speech (about Citizens United) by Kathleen Sullivan, Large Libel Models by Eugene Volokh, The Freedom to Film Pornography by Marc Randazza, and Larissa Lidsky’s Nobody’s Fools.

Have you read a law review article recently that you thought was particularly great and deserving of a wider readership? If so, leave a link to it in the replies, together with a quick take on what made it great. (If not, no need to say so.)

My article about academic freedom, what it entails, and incursions into academic freedom by various factions is now up on the Maryland Law Review Online website! marylandlawreview.org/volume-85-mlro…

Moderates should be speaking up about ICE. Here is some constitutional analysis. inacrowdedtheater.com/2026/01/29/ice…

Tragic cases like this one will have interesting and important effects on products liability and free speech doctrine, and we need to think through all of this quite clearly, understand the technology, and decide how to extend or not extend our laws into this new terrain.

Actually, this is beautiful. Political movements should not require unanimity of opinion on every issue. We should honor dissent on most issues, and allow people to come together to support a black and white issue like standing with the people of Iran. This makes me proud.

To those who do not appreciate the rare privilege to have a robust First Amendment (even when it goes against other important values, like in Citizens United or on hate speech), Iran has blacked out the Internet to kill dissidents. Free speech is the foundational liberty.

I would oppose tightening hate speech laws as impermissible viewpoint discrimination that leads to too many discretionary decisions. Instead, we should be prosecuting illegal conduct, vandalism, violence, and blocking access. We should maintain the high standard for incitement and true threats. We should also have important conversations about what certain types of speech mean and what it says or does not say about the person uttering it.

I have always been proud of the US for its free speech tradition. Protecting this man from deportation would be a testament to that tradition, and deporting him would be a betrayal of that tradition.

I have been researching information distortion and AI, and I came across this recently published video by journalist John Stossel about Wikipedia bias. I have also noticed a pretty striking turn in Wikipedia. On topics where it used to be a credible source (even if I didn't always agree), it is now both poorly written and obviously biased, leaving out information that undermines a particular narrative and exaggerating information that supports its particular narrative. I would be interested in your views about this short video, especially if you disagree with it. I am currently writing an article about how to deal with misinformation from various sources that feed AI, and how our notions of truth may be corrupted in various ways. My primary value is truth. Perhaps this video itself is biased, but its examples are extremely compelling. If you are going to watch it, watch all of it. And feel free to message me with your thoughts on anything even tangentially related to this. I wish the title were different. Perhaps all we can work with are competing claims by people with strong points of view that eventually average out to truth. It is much easier to notice bias when you may disagree with something and excuse bias when you agree with it, which is why viewpoint diversity is so important for developing critical thinking and fostering truth. youtube.com/watch?v=Ksrt1z…

The Constitution supersedes anyone's interpretation of international law. Our system has already worked out how to guarantee free speech rights to those inside synagogues and protesting events at synagogues, but we must distinguish between free speech and conduct/heckler's veto.

Some thoughts on the free speech (and unprotected speech) dimensions of the protests outside of synagogues (including the ones in NYC and LA). inacrowdedtheater.com/2025/12/05/the…