First Amendment Scholarship Update - Speech

Here is this week’s collection of newly available scholarship addressing speech topics:

1) Hillary Greene (University of Connecticut School of Law),Antitrust Censorship of Economic Protest, 59 Duke L. J. --- (2010). The abstract states:

Antitrust law accepts the competitive marketplace, its operation, and its outcomes as an ideal. Society itself need not and does not. Although antitrust is not in the business of evaluating, for example, the “fairness” of prices, society can, and frequently does, properly concern itself with these issues. When dissatisfaction results, it may manifest itself in an expressive boycott: a form of social campaign wherein purchasers express their dissatisfaction by collectively refusing to buy. Antitrust should neither participate in nor censor such normative discourse. In this Article, I explain how antitrust law impedes this speech, argue why it should not, and provide a framework that accommodates both First Amendment and antitrust values.

The expressive boycotts this Article addresses are characterized by speech that is political yet also economically self-interested. The boycotts discussed involve scientists protesting research tool purveyors, doctors protesting pharmaceutical companies, and academics and librarians protesting for-profit publishers. The legal regimes that govern such undertakings, First Amendment and antitrust law, have proven inept in addressing this phenomenon, which lies at their intersection. I attribute their shortcomings to a combination of the First Amendment’s excessive reliance upon categorization and antitrust’s unduly narrow reliance on economic efficiency. I then craft a recommendation for handling these expressive boycotts that will help ensure that speech about the market can be as free as the market itself.

2) Richard L. Hasen (Loyola Law School Los Angeles), The Nine Lives of Buckley v. Valeo, published in FIRST AMENDMENT STORIES, Richard W. Garnett, Andrew Koppelman, eds., Foundation Press, 2010. The abstract states:

Buckley v. Valeo has been the leading case governing the constitutionality of campaign finance laws in the United States since the Supreme Court decided it in 1976. But it is an unlikely candidate for influence and longevity. The decision upheld federal limits on campaign contributions but it struck down federal limits on campaign spending as violating the First Amendment. It was a compromise opinion written by a committee of Justices; three of the eight Justices deciding the case dissented from parts of its core holdings on contributions and expenditures. Over the years, there have been Court majorities ready to overturn parts of Buckley, though Buckley has remained good law because the Justices have not agreed on which parts to overturn and Justices in the Court’s center have refused to overturn any of Buckley’s central tenets. The Court’s later campaign finance cases have vacillated wildly in their treatment of the First Amendment issues – yet each of these cases has claimed fidelity to Buckley. More than one commentator, including this author, has declared the case on the verge of death. Yet Buckley has survived.

This Chapter tells the story of Buckley v. Valeo, beginning with an examination of the legislation that prompted the litigation, the 1974 Amendments to the Federal Election Campaign Act (FECA). It situates the legislation and litigation in the context of the early 1970s, a time when there was increasing public distrust of politicians and social turmoil, driven especially by controversy over the Vietnam War, changes wrought by the civil rights and women’s rights movements, and a series of political scandals culminating with Watergate and the resignation of President Richard Nixon.

The story of Buckley v. Valeo’s origins turns out to be two stories, both drawn from the themes of that era. One story is that of good government reformers, especially the group Common Cause, who adopted a legislation and litigation strategy aimed at rooting out corruption among politicians. The other story is that of skeptics of government power, including the American Civil Liberties Union, conservative United States Senator (and now D.C. Circuit judge) James Buckley and liberal United States Senator Eugene McCarthy. They mistrusted campaign finance regulation, which they saw as a form of incumbency protection and government censorship. They filed the Buckley litigation, challenging the core provisions of the FECA, to prevent what they viewed as government tyranny.

The chapter then traces Buckley through the litigation process. The D.C. Circuit, sitting en banc, upheld the contribution and spending limits on both anticorruption and political equality grounds. The Supreme Court too divided on the law’s constitutionality, and it produced a Solomonic unsigned opinion that left both sides in the litigation partly unsatisfied.

The Chapter concludes with the unlikely story of how Buckley has survived as a precedent, and looks into the future of campaign finance jurisprudence. In the last decade, the current Supreme Court has moved from its period of greatest deference toward campaign finance legislation to its period of greatest skepticism. All the while, the Court has (at least formally) adhered to the Buckley precedent, perhaps more as a result of political compromise by Court centrists than coherent legal reasoning. However, change could be on the way. The Supreme Court’s most recent significant campaign finance decision, Citizens United v. Federal Election Commission, struck down spending limits imposed on corporations and labor unions. Citizens United overruled earlier cases upholding such limits; unsurprisingly, both the earlier cases and Citizens United relied upon Buckley. The Court in Citizens United indicated great skepticism about the constitutionality of all limits on campaign financing, putting new pressure on the Court to overrule that part of Buckley upholding contribution limitations. But do not count on Buckley being overruled; it may last longer than the readers of this chapter.

3) John A. Humbach (Pace University School of Law ), "Sexting" and the First Amendment, 37 Hastings Const. L.Q. 433 (2010). The abstract states:

'Sexting' and other teen autopornography are becoming a widespread phenomenon, with perhaps 20% of teenagers admitting to producing nude or semi-nude pictures of themselves and an ever greater proportion, perhaps as many as 50%, having illegally received such pictures from friends and classmates. It is, moreover, beginning to result in criminal prosecutions, and the statutory penalties are severe. Given the reality of changing social practices, mores and technology utilization, today’s pornography laws are a trap for unwary teens and operate, in effect, to criminalize a large fraction of America’s young people. As such, these laws and prosecutions represent a stark example of the contradictions that can occur when governmental policies and initiatives built on past truths and values collide with new and unanticipated social phenomena.

The focus of anti-pornography enforcement in recent years has been the child pornography laws. The landmark cases of New York v. Ferber and Osborne v. Ohio have established and defined a categorical exclusion that denies First Amendment protection to sexually explicit visual depictions of minors. Even though Ferber and Osborne may not strictly speaking require a conclusion that sexting and other autopornography are unprotected speech, at least some lower courts and prosecutors appear to regard them that way.

By contrast, the language and reasoning of the more recent case of Ashcroft v. Free Speech Coalition gives strong reason to believe that the scope of the categorical exclusion for child pornography should be closely aligned with the governmental objectives that Ferber and Osborne relied on - which would mean constitutional protection for teen sexting and autopornography that occur on the teens’ own initiative. Ashcroft strongly implies, though does not quite say, that the categorical exclusion should be limited to materials that are produced by means of criminal child abuse and exploitation. Also, current standards of strict scrutiny for content-based regulations, if applied, would probably prevent (on the present state of the studies and research) self-produced teen materials from being subsumed into the Ferber categorical exclusion. How this issue will be decided, however, remains to be seen.

4) Shawn Marie Boyne (Indiana University School of Law-Indianapolis), Free Speech, Terrorism, and European Security: Defining and Defending the Political Community, 30 Pace L. Rev. 417 (2010). The abstract states:

The United States and its European allies are engaged in a global struggle against terror.  While world-wide criticism of America’s leadership of the “war on terror” has focused attention on America’s human rights transgressions, the United States is not the only democratic state that, at times, has privileged national security over civil liberties. Indeed, just as images of the burning World Trade Center towers transformed America’s domestic political dynamic and propelled then President Bush to declare a war on terror, subsequent terrorist attacks in London and Madrid have raised the stakes, as well as the human rights challenges, in Europe.

Largely obscured behind the dark cloud of the perceived human rights transgressions of the United States and America’s ongoing struggle to exit Iraq is the extent to which European governments have followed the U.S. lead in privileging national security concerns at the expense of civil liberties.Perhaps nowhere is this development so evident as in the area of free speech. In particular, the Council of Europe took a significant step towards curtailing free speech when the Council adopted the Convention on Prevention of Terrorism. The Convention was the first international instrument that called for the enactment of penal code provisions criminalizing the offense of incitement to terrorism. Most notably, the Convention’s public provocation offense extends both to direct, as well as to, indirect incitement  of terrorism. The Convention has led states throughout Europe,  to enact anti-incitement and public disorder laws. These laws  grant states broad authority to prohibit and punish speech that may possess only highly attenuated links to  actual terrorist activity. A key example of the erosion of free speech occurring throughout Europe is the European Court of Human Rights October 2008 decision in Leroy v. France. In that case, the Court upheld the French conviction of a cartoonist who had penned and published a cartoon that linked the 9/11 attacks with America’s decline.That case  is but one example of several cases that demonstrate that legislators and judges on the other side of the Atlantic have opened the door to the broad regulation of speech by enacting vaguely-worded legislation that grants prosecutors wide discretion.. This trend towards criminalizing broader categories of speech raises the question as to whether measures taken by democratic governments to restrict speech in the name of preventing Islamic radicalization will undermine or strengthen European models of democratic governance.

While scholars have extensively documented the tension that exists between national security and civil liberties, in this paper I focus specifically on penal code provisions designed to target individuals who encourage others to commit terrorist acts by inciting or glorifying terrorism.  I lay out the nature of the threat that radical speech poses to European states as well as the difficulties inherent in crafting legislation that does not overbroadly target radical speech. I then outline the efforts that have been taken at the European Community and Member State levels that criminalize speech that glorifies or tends to incite terrorism. I argue that that the prominent role that the concept of human dignity plays in European jurisprudence at both the supranational and national levels helps to explain the ease with which European states have so quickly moved to restrict speech to counter perceived terrorist threats. I argue that a key reason why some European states are moving closer to over-regulating free speech is that the political culture has never endorsed an absolutist vision of free speech.  Drawing on cases to prove my thesis, I suggest that newly enacted legislation that is designed to curb radicalization expands prosecutorial discretion to a degree that is unwarranted by the legislation’s efficacy in fighting terrorism.

5) Christine A. Corcos (Louisiana State University, Baton Rouge - Paul M. Hebert Law Center), Some Thoughts on Chuck Lorre: 'Bad Words' and 'The Raging Paranoia of Our Network Censors' , forthcoming in Regent University Law Review. The abstract states:

The FCC Golden Globes ruling set forth policy holding for the first time that the agency could regulate unintentional or “fleeting” uses of patently offensive or profane language over the airwaves. As a result, network censors, including those at CBS, have become increasing concerned that indecent or offensive language might trigger FCC scrutiny. Creative talent, like Chuck Lorre, reacts by “pushing the envelope” even further. In this essay, I examine how Lorre’s current CBS hit, Two and a Half Men, expresses some of his frustration over the Golden Globes ruling and the censors’ understandable responses to current FCC policy.

6) Robert Burrell (The University of Queensland - T.C. Beirne School of Law) and and Dev Saif Gangjee (London School of Economics), Trade Marks and Freedom of Expression: A Call for Caution. The abstract states:

Over recent years there has been growing interest in the relationship between trade marks and free speech. United States academics have argued that we should look to freedom of expression principles to curb the expansion of trade mark rights and this suggestion is being taken increasingly seriously in other jurisdictions. While sharing concerns about the overreach of trade mark law, we express caution about the advisability of looking to freedom of expression to solve the problem. Specifically, we argue that this focus concedes too much in terms of the reach of trade mark law, is unlikely to prove effective (at least outside of the United States) and carries with it the danger that the relationship between trade marks and speech will become overly simplified.

7) Sandhya Ramadas (University of California, Berkeley - School of Law), How Earl Warren Previewed Today’s Civil Liberties Debate – And Got it Right in the End , 16 Asian Am.  L J. 73 ( 2009). The abstract states:

Earl Warren is revered for his tenure as Chief Justice of the U.S. Supreme Court and for his legacy as the icon of American civil liberties, but a dark moment lurked in his past. In late 1941 and early 1942, as the Attorney General of California, Warren confronted a host of difficult questions involving constitutional law, civil liberties, and race relations. With the United States still reeling from the bombing of Pearl Harbor, and with the dawn of the involvement of American combat troops in World War II, Warren advocated for the relocation and internment of both Japanese Americans and Japanese immigrants living in the United States.

How did this heralded champion of individual freedom once decide to subordinate civil liberties to security? Two documents released in 2006 by the California State Archives, which houses Warren's California papers, shed light on his decision-making process. The first is a speech Warren delivered in June of 1942 to the Stanford Law Society entitled “Martial Rule in a Time of War.” The second is a set of 138 letters sent from February 17 to 24, 1942 by California law enforcement in response to Warren's request for suggested solutions to the “alien problem” in California. These documents have never before been the subject of scholarly publication.

This Article is an attempt to focus on Warren's decision-making process concerning Internment in light of these newly released documents. It is also an attempt to analyze the lifetime transformation of Warren's attitude surrounding civil rights and the protection of individual liberties, as well as document Warren's progression from Internment advocate to civil rights proponent. Given the documented current of racism that underlay the Internment decision, many scholars have argued that Warren's changed attitude towards civil rights was influenced by his changed views of race over his lifetime.

But another factor that arguably influenced Warren's transformation, and one that has been less explored by scholars, was his changing view of the law's role and function in our society. This Article argues that Warren began his legal career with a vision of the law as predominantly a means of securing state stability; by the end, he viewed state power as the ultimate threat and the law as the predominant mean of safeguarding citizens against it. This Article does not attempt to remove Warren's decision to advocate for Internment from its racial context, nor does it attempt to minimize that context. Rather, it attempts, with the information contained in these two newly released documents, to analyze Warren's support for Internment in the context of his views on the role of the law, and to trace the evolution of Warren's concept of the role of the law throughout his lifetime.

This Article begins with a discussion of the historical context surrounding the decision to intern Japanese Americans and Japanese immigrants, including Warren's role in Internment. Next, the Article examines Warren's decision-making process, exploring his speeches, articles, Congressional testimony, and the letters Warren solicited and received from California's local law enforcement. The article then discusses Warren's career following his time as Attorney General of California, from Governor of California to Chief Justice, including Warren's final reflections on his decision to intern the Japanese and his changing concept of the role and function of the law from depriver to protector of civil liberties. Finally, the Article examines the modern-day takeaway from Warren's evolving concept of the law and the law's legitimacy, possible parallels to the role of the law as perceived by the Bush administration in its “War on Terror,” and the Obama administration's likely attitude towards the protection of civil liberties. Earl Warren is revered for his tenure as Chief Justice of the U.S. Supreme Court and for his legacy as the icon of American civil liberties, but a dark moment lurked in his past. In late 1941 and early 1942, as the Attorney General of California, Warren confronted a host of difficult questions involving constitutional law, civil liberties, and race relations. With the United States still reeling from the bombing of Pearl Harbor, and with the dawn of the involvement of American combat troops in World War II, Warren advocated for the relocation and internment of both Japanese Americans and Japanese immigrants living in the United States.

How did this heralded champion of individual freedom once decide to subordinate civil liberties to security? Two documents released in 2006 by the California State Archives, which houses Warren's California papers, shed light on his decision-making process. The first is a speech Warren delivered in June of 1942 to the Stanford Law Society entitled “Martial Rule in a Time of War.” The second is a set of 138 letters sent from February 17 to 24, 1942 by California law enforcement in response to Warren's request for suggested solutions to the “alien problem” in California. These documents have never before been the subject of scholarly publication.

JFB