Tag: 2025-2026

Publications from the 2025–2026 academic year

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 Editor-in-Chief NYU Moot Court Board

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.

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

By Editor-in-Chief NYU Moot Court Board

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.

The Federal Trade Commission’s Generalized Rulemaking Authority

By Editor-in-Chief NYU Moot Court Board

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.

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

By Editor-in-Chief NYU Moot Court Board

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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Exploring New Approaches to Unsettled Legal Questions

Tag: 2025-2026

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

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

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

The Federal Trade Commission’s Generalized Rulemaking Authority

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