110 Iowa L. Rev. Online 157 (2025)
Abstract
In their Article Reimagining First Amendment Remedies, Professors Ronald Krotoszynski and Caprice Roberts demonstrate that courts’ current approaches to remedies in First Amendment cases often fail to fully address the harms to both speakers and listeners that unlawful speech-suppressive actions by governments can cause. They argue that to fulfill the First Amendment’s guarantee, courts should design remedies that not only restore the speaker’s rights to the place they were prior to the government’s constitutional violation but also address the collective harm to the audience that has been deprived of valuable speech.
This Response evaluates Professors Krotoszynski and Roberts’ argument and its implications for First Amendment jurisprudence. It examines whether a more listener-focused remedial approach could have improved the outcomes in the cases discussed in the Article, such as Barr v. AAPC. It also identifies potential conflicts between speaker and listener interests that might arise in crafting equitable relief that the Article neglects to fully consider. It concludes that while Professor Krotoszynski and Roberts’ proposals offer valuable insights, balancing the relevant interests in the manner the Article proposes might present additional challenges, such as inadvertent favoring of specific viewpoints and undermining broader constitutional and nonconstitutional principles that the substantive law of the First Amendment currently recognizes.