First Amendment Scholarship Update - Speech

The following are newly available papers on topics related to speech and expression:   

1) Helen L. Norton  (University of Colorado School of Law), The Measure of Government Speech: Identifying Expression's Source, forthcoming in 88 Boston University Law Review 587 (2008). The abstract states:

Public entities increasingly invoke the government speech defense to First Amendment challenges by private parties who seek to alter or join what the government contends is its own expression. These disputes involve competing claims to the same speech: a private party maintains that a certain means of expression reflects (or should be allowed to reflect) her own views, while a governmental body claims that same speech as its own, along with the ability to control its content.

This Article proposes a framework for resolving these disputes. It starts by examining the theoretical and practical justifications for insulating government speech from First Amendment scrutiny. In particular, it addresses the benefits of government speech in facilitating self-governance so long as such speech remains subject to political accountability checks like petitioning and voting, It also explores the body of social science research that describes how a message's source shapes its effectiveness, with special attention to the government's role as the source - or perceived source - of a particular view. Because misattributing private views to the government can skew public debate and frustrate First Amendment values by misleading onlookers into evaluating ideas differently than they would if those views were accurately assigned to a private party, government has a legitimate interest in shielding its own expression from private speakers' efforts to join, alter, or misappropriate it.

Emphasizing that government speech is most valuable and least dangerous when its governmental source is apparent, the Article then proposes that a public entity seeking to claim the government speech defense must establish that the contested expression is governmental in origin both formally (i.e., that the government expressly claimed the speech as its own when it authorized the communication) and functionally (i.e., that onlookers understand the speech to be the government's at the time of its delivery). This dual requirement maximizes prospects for meaningful credibility assessment and political accountability by identifying two junctures at which government must expose its expressive choices to the public: when it decides to express a certain idea and when it actually communicates that idea.

The Article then draws from relevant experience in other areas to examine a variety of characteristics - or "source cues" - that may signal a message's genesis as governmental or private. These include not only express indications of a message's origin, but also less direct signals like a message's physical location or onlookers' expectations based on past practice. The Article goes on to apply this framework to several recurring challenges, exploring specific features in a range of contexts that may obscure or reveal a message's governmental source. It concludes by urging that this inquiry remain focused on whether we have enough information about a message's source to identify it as the government's in a way that enables meaningful credibility and accountability checks.

2) Emily Gold Waldman (Pace University School of Law), A Post-Morse Framework for Students' Potentially Hurtful Speech (Religious and Otherwise), 37 Journal of Law & Education ---(2008). The abstract states:

After the Supreme Court granted certiorari in Morse v. Frederick in December of 2006, it received an unusual mix of amicus briefs in support of ACLU-represented high school senior Joseph Frederick. Frederick, who had sued his principal after being suspended for waving a banner stating Bong Hits 4 Jesus at an Olympic torch rally that he attended with classmates during school hours, had on his side not only the usual suspects, such as the Student Press Law Center and the National Coalition Against Censorship. Also supporting him were six conservatively-oriented religious advocacy groups: the American Center for Law and Justice; the Christian Legal Society; the Alliance Defense Fund; the Liberty Legal Institute; Liberty Counsel, and the Rutherford Institute.

As these religious groups made clear in their briefs, they felt no particular affinity with Frederick's banner, which he himself described as containing mere nonsense words designed to attract television cameras. But they were concerned that in the course of resolving the case, the Supreme Court would recognize on broadly-worded grounds the school's right to censor his speech, thus setting a precedent that implicitly limited other students' rights to express their religious views at school. Their concern is not surprising: in recent years, there have indeed been an increasing number of cases involving clashes between students seeking to express their religiously-motivated views at school and schools that have restricted such messages out of concern that they will be hurtful to other students. These conflicts have generally arisen in the context of anti-gay and pro-life speech.

In Morse itself, the Supreme Court ultimately ruled for the school district on a narrow, drug-focused rationale that did not resolve the developing split over how to approach such cases. But while Morse's holding was explicitly narrow, aspects of the majority opinion and Justice Alito's concurrence do have some interesting implications for how to approach situations where students' religiously-motivated speech may be hurtful to other students.

In this Article, I weave together strands from Tinker, Fraser, and Morse, as well as from lower court decisions taking varying approaches to this issue, to propose a new standard for student speech that is potentially hurtful to other students. This approach encompasses, without being limited to, speech that is religiously-motivated in nature. I argue that student speech that is hurtful to other students (whether religiously-motivated or not) should first be divided into two categories: (1) speech that identifies particular students for attack; and (2) speech, such as the message on Harper's T-shirt, that expresses a general opinion without being directed at particular named (or otherwise identified) students. Schools should receive great latitude to restrict the first category of speech, which essentially amounts to verbal bullying. By contrast, potentially hurtful speech that does not single out specific students and simply expresses a general viewpoint should be restricted only if it is likely to materially disrupt at least one other student's education (which I define as tangibly interfering with his ability to learn and succeed at school).

3) John Fee  (Brigham Young University - J. Reuben Clark Law School )The Pornographic Secondary Effects Doctrine, forthcoming in Alabama Law Review. The abstract states:

The secondary effects doctrine has made a muddle of First Amendment law. The doctrine formally holds that a speech regulation will be treated as content-neutral if its purpose is to control the secondary effects of speech, even if it facially discriminates according to speech content. It pretends to be a general First Amendment doctrine, but in practice it is all about regulating pornographic expression. This article aims to re-evaluate the secondary effects doctrine in a way that is more transparent. Appreciating the functional basis of the secondary effects doctrine is useful for understanding the doctrine's limitations, as well as for analyzing new types of regulation that may arguably fall within its scope. It also provides important lessons for general First Amendment theory, including how cost-benefit analysis affects the constitutional rules regarding content discrimination, and how the purpose of a regulation affects the level of scrutiny that courts apply.

4) Alina Vamanu (Rutgers University, Department of Political Science) Roma Rights and the Production of Scandalous Ethnicity in the Romanian Written Media. The abstract states:

This paper analyzes the discourses around ethnicity, nationalism, and Roma rights that circulated in the Romanian media after the 1989 collapse of authoritarianism. It illuminates an interesting dynamic played out at the intra-national and inter-national levels, in a case where the notion of minority rights has been at least partly unsuccessful in contributing to a decrease in the amount of Roma-oriented media hostility. It contends that one cannot grasp the reasons for the partial failure of minority rights debates to transform oppressive majoritarian discourses and make room for appropriate ethnic representations unless one looks beyond the nation state to the global network of power relations within which countries are embedded. Specifically, minority rights are rendered partly inefficient in a state whose majority population is constructed in pejorative terms and often conflated with the Roma, an already stigmatized ethnic minority, by narratives produced within EU sites of power. Much of the Romanian media responds by constructing a clear-cut boundary between the Roma and the ethnic Romanians: it seeks to reveal what the Roma are really like, by describing them in disparaging, scandalous ways (the suggestion being that ethnic Romanians are everything that the Roma are not: honest, peaceful, hard-working citizens). The power relations between the two ethnic groups are thus being inverted: the Roma have always been disadvantaged by the Romanian majority; however, Romanian newspapers suggest that it is they (the Roma) who are aggressing us, the respectable Romanian folk. This (heavily gendered) reversal undermines the notion of minority rights.

5) Brian C. Murchison (Washington and Lee University - School of Law), The Fact-Conjecture Framework in U.S. Libel Law: Four Problems, 13 Media and Arts Law Review ---(2008). The abstract states:

A requirement of U.S. defamation law is that an actionable statement be factual in nature, but courts since Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), have had considerable difficulty in distinguishing factual from non-factual statements and in articulating the value of non-factual public discourse in all its diversity. This Article reviews four topics - intent, context, conjecture, and hyperbole - that have been particularly troublesome to courts. It argues for a fresh appraisal of Justice Brennan's dissenting opinion in Milkovich and brings into the conversation the works of several current political theorists on the contributions of passionate political rhetoric. Noting a tendency by some courts to make unfounded assumptions about the good or bad faith of speakers, the Article advocates Justice Brennan's formulation: that courts emphasize the reasonable reader's understanding of the meaning intended by the speaker. The Article next argues that such an approach may have clarified the treatment of social context in Moldea v. New York Times Co. and provided a framework for analyzing conjecture in the recent Hatfill litigation. Finally, the Article stresses the need for courts not to downplay but to affirm the value of hyperbolic speech as a component of democratic discourse on public issues of vital concern.

6) Laura A. Heymann (College of William and Mary - Marshall-Wythe School of Law), Everything Is Transformative: Fair Use and Reader Response, 31 Columbia Journal of Law & the Arts --- (2008). The abstract states:

This essay, written for a symposium on fair use sponsored by the Columbia Journal of Law and the Arts, offers an alternative theory of the concept of "transformativeness" in the fair use analysis in copyright law. Drawing on literary reader-response theory, the essay suggests that courts might determine whether a claimed fair use is transformative by considering not whether the defendant has engaged in certain activities with respect to the copyrighted work but, rather, whether the defendant's work engages with a different discursive community from the plaintiff's work.

Previous analyses have, not surprisingly, focused on section 107's directive to consider the "purpose and character of the use" as a suggestion to evaluate not how the work is perceived or interpreted but what the defendant creator intended or hoped to achieve. But virtually all work building on or incorporating another work is transformative to some extent because all creative expression is, to some degree, representational. Thus, if the goal of the transformativeness inquiry is to determine whether the second work has contributed a "new expression, meaning, or message," then it might be more fruitful to ask the transformativeness question from the reader's perspective. By considering the degree of transformativeness to align with the amount of interpretive distance that the defendant's use of the plaintiff's work creates, courts may reach different, and more appropriate, results with respect to categories of expressive work that have occasionally been deemed not transformative enough: appropriation art, in which a work is incorporated wholesale or nearly so, and satire, in which the target of the defendant's work is typically something other than the plaintiff's work.

By suggesting that virtually everything is transformative, I do not mean to suggest that nothing is infringing. But shifting the focus from author to reader may serve to remind us both of the limits of transformativeness as a key to fair use and of the fact that facilitating dissemination of multiple meanings of the same work can achieve the goal of copyright law just as well as the dissemination of multiple works. Thus, if we are to retain transformativeness as a relevant answer, let us at least ask the right question - as Foucault suggests, not "Who is speaking?" but "Who is listening?"

7) James Boyd White (University of Michigan Law School), Establishing Relations between Law and Other Forms Of Thought and Language, 1 Erasmus Law Review --- (2008). The abstract states:

The law does not, and could not, exist in an intellectual or linguistic vacuum. No one believes that the law is or should be impervious to other languages, other bodies of knowledge. In this sense the argument about the 'autonomy' of law is an empty one: law cannot be, should not be, perfectly autonomous, unconnected with any other system of thought and expression; yet it plainly has it own identity as a discourse, it own intellectual and linguistic habits, which it is our task as lawyers to understand and develop. It follows that an essential topic of legal thought is the proper relation between law and other forms of thought and expression - a topic that is important, difficult and full of interest.

8) Gary E Barnett (Student -Georgetown University Law Center), Note -The Reasonable Regulation of the Right to Keep and Bear Arms, 6 Georgetown Journal of Law & Public Policy ---( 2008). The abstract states:

The Supreme Court has recently held in District of Columbia v. Heller that the Second Amendment protects an individual right to keep and bear arms. That decision, however, is only the beginning of the inquiry. Individual rights, via the police power, are subject to reasonable regulation. The difficult question remaining is whether a particular regulation is unreasonable, unduly infringing on an individual's right to keep and bear arms, and is therefore unconstitutional. This note proposes a workable analytic approach to addressing this question. Guided by the Common Law Constructive Method, this note takes First Amendment time, place, and manner doctrine and transposes it onto the Second Amendment.

9) Cheryl B. Preston (Brigham Young University - J. Reuben Clark Law School), The Internet and Pornography: What If Congress and the Supreme Court Had Been Comprised of Techies in 1995-1997?, 2008 Michigan State Law Review 61( 2008). The abstract states:

The legislative and political choices at the birth of the information technology society caused and will likely continue to cause significant ramifications in the course of digitizing human culture. This article considers both the positive and negative ways that the crash of the Communications Decency Act (the CDA), as well as Congress and the Supreme Court's understandings of the Internet at the time, may influence subsequent technological, legal, and social developments involving the World Wide Web.

This article explores answers to these questions: What we can assume about Congress and the Supreme Court's Internet understanding in 1995-1997? What if the 104th Congress and the Supreme Court that dealt with the CDA had been more tech-savvy? Would Congress have written a better, tighter statute or none at all? What sorts of technological advancements might have been allowed to flourish, and what sorts would have stalled? Would the U.S. government have kept a tighter hold on the ability to enforce violations of law in the Domain Name System? Would the Court have framed its analysis differently, even if it ultimately ruled that the CDA was unconstitutional? How might the lives of members of the Net Generation played out differently?

After considering various arguments that the failure of the CDA was beneficial to the Internet and society, this article suggests that the CDA debacle may have cost us dearly in terms of what we value most. It looks at the importance of the continued unregulated "Wild West" mentality and the incentive of the pornography industry in developing new technology. The Article then suggests that the Wild West was sold out to economic interests anyway and that other kinds of technology were left undeveloped.

The Article surveys what happened in terms of age-inappropriate sexually explicit content online: the increase in the quantity, ease of access by children, and availability of more graphic, more intense, and more dangerous images. In addition, if an appropriate regulation were in place, perhaps the U.S. government and the public would have made different choices in spinning off Internet root control to a private corporation, the International Corporation for Assigned Names and Numbers (ICANN).

Finally, the article compares the Internet to radio and television and argues that a better informed Reno I Court might have dealt differently with the 1978 precedent of FCC v. Pacifica, even in finding the CDA unconstitutional. I conclude that the events of these early years in addressing Internet pornography laws have vastly complicated the work that must now be done.

10) Douglas E. Abrams (University of Missouri School of Law), Bullying's Effects on Equal Educational Opportunity, published in OUR PROMISE: ACHIEVING EDUCATIONAL EQUALITY FOR AMERICA'S CHILDREN, Carolina Academic Press (2008). The abstract states:

This paper outlines a coordinated public response to bullying, including cyber bullying, in the nation's public schools. Pediatric professionals have long recognized bullying as a form of child abuse, perpetrated by other children rather than by adults. With recent national surveys confirming that bullying in school has reached epidemic proportions, the American Medical Association and the National Institutes of Health now identify it as a public health crisis.

An effective response to bullying summons all components of the pediatric safety system, the public network charged with protecting children from physical and emotional harm. The network extends primarily to the schools, the juvenile and criminal courts, the child protective agency and perhaps the mental health agency, and law enforcement.

The new frontier is cyber bullying, which pediatric professionals now identify as a risk factor contributing to childhood and adolescent suicide. News headlines reporting suicides show that a few keystrokes can inflict hurt even more severe than fists or playground confrontations because Internet postings can hound the victim around the clock and off the campus.

After measuring the devastating immediate and lasting damage that school bullying can inflict on its participants (the bullied, the bystanders and the bullies themselves), this paper stresses the need for effective bullying prevention programs in the schools. The paper describes the reported effectiveness of rigorously evaluated programs, and analyzes the shortcomings in state legislation that requires schools to maintain anti-bullying policies.

Finally, the paper explores the central roles that the various members of the pediatric safety system play, consistent with First Amendment constraints, in the effort to prevent bullying and react firmly to incidents that occur. The paper presents public strategies that comply with constitutional guidelines.

JFB