Exploring New Approaches to Unsettled Legal Questions

Tag: 2025-2026

Publications from the 2025–2026 academic year

Zimmer Radio and the Future of Media Ownership: Evidence-Based Modernization Without Deregulation

by Danielle Resheff*

The Eighth Circuit’s recent decision in Zimmer Radio of Mid-Missouri Inc. v. FCC provides a crucial opportunity to advocate for a nuanced and targeted approach to media regulation—one that rejects outdated restrictions like the Federal Communications Commission’s (“FCC”) “Top-Four Prohibition” without embracing wholesale abandonment of structural safeguards. While the Eighth Circuit correctly identified that the FCC’s rules fail to account for the competitive realities of modern media—such as multicast streaming—this finding should not be misconstrued as a mandate for complete deregulation of television ownership limits—such as the national audience cap. This Contribution argues that abandoning the long-standing 39 percent national audience cap, a rule designed to prevent excessive media consolidation and protect localism, would be a dangerous overcorrection. Instead of a deregulatory race to the bottom, the Zimmer Radio decision compels a more sophisticated path: one that modernizes the rules to reflect technological advancements, like multicast streaming, while steadfastly retaining foundational regulations that ensure the continued viability of diverse, local new broadcasting operations. This approach acknowledges that a healthy media ecosystem requires both the flexibility to innovate and the structural limitations necessary to protect the public interest.

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

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.

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

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.

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

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.

The Federal Trade Commission’s Generalized Rulemaking Authority

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.

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

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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