We discussed briefly in class the apparent contradiction of the 1st Amendment and the intricacies of the Tied House laws related to the 21st Amendment. On the surface, prohibiting tweets that appear to serve as advertisements seems absurd. However, even when there's no conflict between two separate sections of the Constitution, restrictions on certain forms of speech seem to be both reasonable and within the bounds of the law. One of the most common examples of this is yelling "fire" in a crowded building (that is not on fire) with the intent to mislead people into a state of panic that could cause injuries. Another example is verbal assault / hate speech, although in my view restrictions on this form of speech should be limited to inherently injurious speech rather than focusing on the subjective interpretation of the speech by the listener (due to the dangers of allowing a "heckler's veto" in public discourse).
Neither of these examples seems like a truly analogous comparison to the limitation of the 1st Amendment that we discussed in class. However, I have been trying to think of other more relevant examples, and I wonder if a comparison can be made to insider trading. If I receive some MNPI from a friend at a public company then trade on that info and post the info here so that you all could get in on the action too, it would be ludicrous to defend my actions as an exercise of free speech. I would be using speech as a way to circumvent the law for my own economic gain. Similarly, it seems plausible to argue that the tweets in question in the Tied House cases are not protected speech after-all - the companies are just using speech as a way to circumvent the law for their own economic gain.
P.S. Even if the Tied House laws are "legal," personally I don't think they (and all the other convoluted policies stemming from the 21st Amendment) are good policy.
P.P.S I have no legal training, so please excuse any glaring legal naivete you notice above.
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