N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Author: Editor-in-Chief NYU Moot Court Board Page 1 of 14

When Speaking is not “Speech”: Sanctioning Conversion Therapy Bans

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On November 28, 2025

In Contributions

by Declan Alvidrez*

Professional conduct often uses or relies on speech, which is why courts may assess government regulations targeting such conduct under the First Amendment’s broad protections. Attacks on restrictions of professional speech—speech by a professional to a client in the course of providing professional services—have challenged courts to analyze the boundaries of First Amendment protections in relation to states’ power to regulate licensed professions. In so doing, courts have struggled with whether to treat professional speech as a distinct category under the First Amendment and how to analyze regulations of professional conduct when the regulated conduct relies on speech. These doctrinal issues are especially salient in constitutional challenges to states’ prohibitions on conversion therapy, because banning this professional conduct necessarily limits the speech associated with its talk therapy method. Nonetheless, this Contribution argues that such prohibitions only warrant assessment under a lower level of constitutional scrutiny because they only incidentally burden speech, and the speech that is burdened is not of the kind that First Amendment jurisprudence is most concerned with protecting.

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From Scarcity to Surplus: Rethinking Red Lion in the Modern Era

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On November 24, 2025

In Contributions

by Jessica Ford* 

The First Amendment protects the freedom of speech and expression of both individual persons and the media. Generally, the Supreme Court analyzes First Amendment challenges to governmental restrictions on the content of speech by applying heightened scrutiny as the mechanism of constitutional review. In Red Lion Broadcasting Co. v. Federal Communications Commission, however, the Court held that some content-based restrictions on speech are acceptable in broadcasting because of the limited availability of spectrum space, or the frequencies in the electromagnetic spectrum used to transmit audio and audiovisual content. This “scarcity rationale” has subjected broadcasters to unique treatment under the First Amendment for decades, but dramatic changes in technology and media consumption—most notably the rise of multicast streaming, cable television, and digital streaming platforms—call its modern-day validity into question. This Contribution reexamines the foundations of Red Lion and argues that the Court’s 1969 reasoning cannot be squared with today’s vastly expanded and distinct media environment.

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The Chilling Effect of Superior Trial Court Lawyers – Ending Per Se Analysis for Group Boycotts Under the Sherman Antitrust Act

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On November 17, 2025

In Contributions

by Cordelia Bell*

Group boycotts are a powerful form of political expression, yet under current antitrust law, participants risk steep fines or even imprisonment if their actions are deemed economically motivated. In FTC v. Superior Court Trial Lawyers Association, the Supreme Court applied per se antitrust liability to a boycott with both economic and political aims—raising serious First Amendment freedom of expression concerns. This Contribution argues that courts should adopt the more flexible, defendant-friendly rule of reason standard for group boycott claims. Not only does this approach better safeguard expressive conduct, but it also aligns with the broader shift in antitrust law from rigid rules to nuanced standards.

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“Partially Protected” Speech: Why the Flawed Logic of Free Speech Coalition v. Paxton Limits its Holding

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On October 31, 2025

In Contributions

by Orly Salik* 

The Supreme Court ruled in Free Speech Coalition v. Paxton that a statute requiring individuals to verify their ages before accessing sexually explicit content triggers, and satisfies, intermediate scrutiny. Employing a novel form of First Amendment analysis, the Court found that because access to sexually explicit content is protected as to adults, but not as to children, this form of speech on the whole is only “partially protected.” This Contribution argues that the majority’s new rule, applying intermediate rather than strict scrutiny to “partially protected” speech, in fact limits the scope of Paxton’s applicability. The case should not be construed as providing a broad mandate for age verification laws across the internet because, unlike most other online content, sexually explicit material is a narrow category of speech that is excluded from First Amendment protections for minors. A broader reading of the decision would contravene existing precedent regarding the speech rights of minors and impermissibly lower the standard of constitutional review for any speech deemed inappropriate for children. Thus, Paxton must not be read to endorse the use of intermediate scrutiny for any other restriction on material harmful to minors.

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The Federal Trade Commission’s Generalized Rulemaking Authority

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On September 29, 2025

In Contributions

by Lisa Tarasyuk*

The Federal Trade Commission is vested with the power to make rules with legislative effect when regulating unfair methods of competition. That includes the power to issue a Non-Compete Clause Rule, a rule that voids non-compete clauses nationally. The Commission’s authority to issue such a rule is conveyed by the plain text of 15 U.S.C. §§ 45(a)(2) and 46(g) and confirmed by the Federal Trade Commission Act’s scheme and subsequent amendments. The rule does not offend the Major Questions Doctrine because the authorizing provisions are clear, as is Congress’s intent for the Commission to intervene in trade. The Commission is thus vested with the authority to issue substantive rules when regulating unfair methods of competition, including through the Non-Compete Clause Rule.

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Clarifying Crypto: The Case for Restoring Due Process in Crypto Regulation

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On September 12, 2025

In Contributions

by Seung Hyun Shin*

The current legal framework governing digital assets, or cryptocurrency, is fractured and uncertain, infringing on due process rights by depriving industry participants of fair notice of when and whether federal securities law applies. Regulatory treatment can vary significantly depending on the features of the digital asset, the agency asserting jurisdiction, the judge presiding over the action, and the prevailing state of the crypto market. These inconsistencies, coupled with the Securities and Exchange Commission’s reliance on enforcement rather than rulemaking, have left cryptocurrency industry participants without clear guidance. Because the Securities Act of 1933 lacks explicit language addressing digital assets, Congress must intervene. By amending the Securities Act to clarify the classification and regulatory treatment of cryptocurrencies, Congress can restore due process rights and provide the interpretive clarity that courts and regulators alike have struggled to produce.

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No Talking (or Thinking) in Class: How Bans on Critical Race Theory in the Classroom Unconstitutionally Silence Students

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On April 29, 2025

In Contributions

by Galia Pino*

The Supreme Court has long maintained that students have a First Amendment right to speech and, relatedly, the freedom to receive information in K-12 public school classrooms. Despite public officials’ attempts to ban critical race education in classrooms, these fundamental rights cannot be infringed upon absent a legitimate pedagogical concern. Even though Critical Race Theory (CRT) originates in the legal academy, state legislation purporting to ban CRT actually censors K-12 education on racial injustice, historical oppression, the American slavery system, and more. While communities have mounted challenges to these laws on a variety of grounds, including vagueness, incorrect identification of CRT, and speech rights of educators, this Contribution argues that the bans infringe on students’ First Amendment rights. It first outlines the framework of First Amendment rights in public school classrooms and assesses how state actors may reasonably restrict speech there. It focuses on the pedagogical concerns courts have deemed legitimate enough to constitutionally limit First Amendment rights, highlighting how political ideology or partisanship are not appropriate justifications. It then applies that framework to selected state laws banning CRT and demonstrates that neither the topics those bans purport to cover, nor the actual curricula they target, can be properly limited based on a theory of legitimate pedagogical concern. Therefore, this Contribution argues that bans on CRT—even as it is defined by recent state laws—censor students’ right to speech and violate their right to receive information.  

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The Legal Ambiguity of Daily Fantasy Sports: Skill, Chance, and the Case for the Predominant Purpose Test

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On April 24, 2025

In Contributions

by Gloria Siyue Zheng*

Daily Fantasy Sports (“DFS”) has sparked novel questions regarding whether it constitutes illegal gambling. Games of chance are subject to both state and federal gambling laws from which games of skill are typically exempt. However, determining whether DFS falls within the category of chance-based gambling or skill-based competition has proven difficult. Courts remain divided on whether to apply the material elements test, which considers a game to constitute gambling if chance plays any significant role, or the predominant purpose test, which evaluates whether skill outweighs chance to determine whether a game constitutes gambling. This Contribution contends that courts should adopt the predominant purpose test, as it introduces greater consistency and objectivity in an inherently challenging legal determination. Analyzing both tests in the context of DFS highlights the flaws of the material elements test, which produces inconsistent classifications of gambling.

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Revisiting Jefferson Parish in Light of Microsoft and Contemporary Understandings of Tying Arrangements

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On April 24, 2025

In Contributions

by Daniel Rossman*

The Supreme Court currently analyzes tying arrangements under the modified per se rule from Jefferson Parish Hospital v. Hyde. Under this standard, a court should conduct an in-depth inquiry into a firm’s market power and condemn arrangements that tie two products together. Because Jefferson Parish is a “per se” rule, defendants cannot justify their actions with procompetitive explanations. This Contribution argues that Jefferson Parish’s per se rule against tying arrangements ought to be replaced by the rule of reason for three reasons. First, the per se rule fails to consider the efficiencies that can be associated with tying. Second, contemporary understandings of tying arrangements no longer justify the per se rule. Finally, the benefit of the Jefferson Parish per se rule is undercut by its four-step framework. Instead, courts should adopt the rule of reason which would allow them to assess the potential efficiencies created through tying arrangements.

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When “Deny” Doesn’t Mean “Deny”: The Origins of the Common Law FMLA Inter-ference Test

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On April 22, 2025

In Contributions

by Anders M. Greene-Crow*

Although the Family and Medical Leave Act (“FMLA”) plainly states that employers may not “interfere [with], restrain, or deny” employee benefits, some circuits have impermissibly narrowed this prohibition by only permitting plaintiffs who have been outright denied benefits to proceed with claims alleging violations of this provision. However, the common law test these courts cite to, which defines interference for FMLA purposes, does not justify this narrowing approach. This Contribution argues that the common law test uses “deny” as a shorthand for various forms of interference with employee benefits, including those which stop short of an actual denial of benefits. Courts cannot use this common law test to justify narrowing the statute because the test’s history and purpose do not support doing so.

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