Interpreting the First Amendment Through an Equality Lens

Interpreting the First Amendment Through an Equality Lens

Professor Caroline Mala Corbin
Professor Caroline Mala Corbin

Caroline Mala Corbin is a fierce defender of the rights of minorities. “I have always been a feminist who believes in women’s rights,” said Corbin, professor of law and former Dean’s Distinguished Scholar. “In today’s challenging times, I am deeply concerned about how U.S. Supreme Court decisions affect people of color, the LGBTQ community, and religious minorities, as well as women.”

A noted constitutional scholar on First Amendment issues relating to freedom of speech and freedom of religion, Corbin considers these issues through an equality lens. “There is often tension between the ideals of liberty and equality in constitutional law,” she said. “In a fight between liberty and equality, I root for equality, and it is so important to speak up for individual rights in these challenging times.”

In her 15 years at Miami Law, Corbin has seen the importance of constitutional law move from the classroom to students’ personal lives. “Today, students who become pregnant in Florida no longer have autonomy over their bodies,” she said. “LGBTQ students and teachers have been erased in Florida public schools, and students of color can’t truly learn what this country has done to their forebearers.”

Corbin encourages Miami Law students to advance social justice in their legal careers to combat these challenges. “Our graduates should use their skills to shape the world in beneficial ways,” she said. “In addition to trying to persuade judges or lawmakers on behalf of their clients, our students should consider becoming the judges and lawmakers, so they themselves have the power to do the right thing.”

From Women’s Rights to the Law

Corbin grew up in New York City, where her mother, Diane, was a robust role model for advancing equal opportunities for women. As an undergraduate at Harvard University, Corbin focused on the humanities, studying art history and English literature. “These fields are actually very useful for law, because they involve interpreting and making persuasive comments about texts,” she said. “But I was interested in promoting women’s rights, and law school was the logical next step for me.”

Corbin enrolled at Columbia Law School and was recognized as a James Kent Scholar. She also won the Pauline Berman Heller Prize and the James A. Elkins Prize for Constitutional Law. After earning her J.D. in 2001, Corbin litigated civil rights cases as a pro bono fellow at Sullivan & Cromwell LLP and as an attorney at the American Civil Liberties Union Reproductive Freedom Project. “It soon became apparent that in the United States, you cannot work on reproductive rights without running into religion,” she said.

One of Corbin’s cases as an American Civil Liberties Union attorney involved a state issuing anti-abortion specialty license plates but not abortion-rights ones. That led Corbin to write a law review article on free speech during the postdoctoral research fellowship at Columbia Law School she held before joining the faculty at Miami Law in 2008.

She now teaches U.S. Constitutional Law I, U.S. Constitutional Law II, the First Amendment, the Religion Clauses, The Free Speech Clause, Feminism and the First Amendment, and Advanced Topics in Reproductive Rights. Her articles have been published in numerous law reviews. As well as writing for Take Care Blog, ACSblog, and NBC Think, she frequently comments on First Amendment questions on local, national, and international media.

Freedom of Religion

For Corbin, the U.S. Supreme Court’s recent rulings on freedom of speech and religion clash with the Constitution’s equal protection mandate. “The Supreme Court’s conservative supermajority seems intent on remaking the Constitution in its own image, with little regard for precedent or for the less powerful,” she said. “The court is privileging conservative Christians and ignoring religious minorities or other minority groups that are harmed by its newly created religious right to discriminate.”

Concerning reproductive rights, the court is imposing its religious views about when life begins onto the entire U.S. population in a problematic way, added Corbin. “The Supreme Court’s decision reversing Roe v. Wade was out of step with the rest of society,” she said. “It is a huge step backward for women to lose something as fundamental as autonomy over their own bodies. Government-mandated pregnancy is not a good look for a democracy. But, if the Supreme Court is going to create extraordinarily expansive protection for religious observers, then Jewish women should have a religious right to abortion despite state abortion bans.”

Freedom of Speech

The U.S. Supreme Court is also expanding free speech protection for powerful interests at the expense of the American public, said Corbin. She cites the court’s striking down campaign finance limits protecting the political process from corrupting monetary influences, consumer protection disclosures, and anti-discrimination laws meant to protect the most vulnerable members of society.

Corbin has followed the NetChoice LLC cases that focus on the First Amendment rights of social media companies. “These cases are surprisingly straightforward in terms of the law,” she said. “Social media companies, like newspapers, have the right to control the speech on their platforms. For the government to compel them to say things is presumptively unconstitutional as the whole point of the free speech clause is to prevent the government from dictating what private speakers must or must not say.”

Consequently, social media companies should feel free to take down hate speech and disinformation, not only because they have the right to control their own speech but because neither contributes to the marketplace of ideas or American democracy, Corbin added. Another negative influence comes from government propaganda, which Corbin outlined in a recent article, “The Unconstitutionality of Government Propaganda,” published in the Ohio State Law Journal, and republished in The First Amendment Law Handbook.

“Under the government speech doctrine, the Free Speech Clause does not apply to government speech, including government propaganda,” Corbin wrote. “It is time to revisit that conclusion. Government propaganda sufficiently undermines the core goals of free speech such that the Free Speech Clause ought to address it.”

For Corbin, other troubling free speech issues include public school teachers deliberately misgendering their transgender students, as well as Florida’s “Don’t Say Gay” law and ban on anti-critical race theory. “When I see something that seems wrong or off, I try to understand the constitutional principles at stake and articulate that in my writing,” she said. “I believe applying First Amendment freedoms appropriately is fundamental to the future of our democracy.”

Visit Miami Law Magazine homepage