First Amendment Scholarship Update – Speech

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

1) Neil M. Richards (Washington University School of Law), The Puzzle of Brandeis, Privacy, and Speech, 63 Vand. L. Rev. --- (2010). The abstract states:

Most courts and scholarship assume that privacy and free speech are always in conflict, even though each of these traditions can be traced back to writings by Louis D. Brandeis – his 1890 Harvard Law Review article “The Right to Privacy” and his 1927 concurrence in Whitney v. California. How can modern notions of privacy and speech be so fundamentally opposed if Brandeis played a major role in crafting both? And how, if at all, did Brandeis recognize or address these tensions? These questions have been neglected by scholars of First Amendment law, privacy, and Brandeis. In this paper, I argue that the puzzle of Brandeis’s views on privacy and speech can be resolved in a surprising and useful way.

My basic claim is that Brandeis came to largely abandon the tort theory of privacy he expounded in “The Right to Privacy.” As a young lawyer, Brandeis conceived of privacy as a tort action protecting emotional injury from newspaper stories that revealed private facts. But Brandeis’s ideas evolved over his life. He soon came to believe strongly in a contrary idea he called “the duty of publicity.” This is the notion that disclosure of most kinds of fraud and wrongdoing are in the public interest; that as he famously put it, “sunlight is the best disinfectant.” When Brandeis came to think through First Amendment issues after the First World War, tort privacy could no longer consistently fit into his influential theories of civil liberty.

But while Brandeis changed his mind about tort privacy, what he replaced it with is even more interesting. In his Olmstead dissent and free speech writings, Brandeis identified a second conception of privacy that I call “intellectual privacy.” Brandeis reminds us that the generation of new ideas requires a certain measure of privacy to succeed, and that in this way intellectual privacy and free speech are mutually supportive. I conclude by suggesting some contemporary implications of Brandeis’s rejection of tort privacy and his linkage of intellectual privacy with free speech.

2) William McGeveran (University of Minnesota Law School), The Trademark Fair Use Reform Act, forthcoming in Boston University Law Review. The abstract states:

Sweeping assertions of exclusive trademark rights in brand names and images have a pernicious chilling effect on free expression, including fictional portrayals, commentary, political speech, parody, and comparative advertising. Some disputes lead to lawsuits. More often, speakers capitulate to litigation threats, even when the substance of the legal claims they face is very weak. As demonstrated in the author’s previous work, existing trademark “fair use” doctrines are not simple defenses that end suits quickly and cheaply, and many defendants cannot bear the resulting costs of protracted litigation.

Observers have proposed a variety of improvements to trademark fair use, but this Article focuses intensively on the decision-making structure of trademark law and ways to reduce its burdensome effects. The analysis draws on theoretical and doctrinal literature about administrative and error costs, rules and standards, and the design of independent defenses. Building on this foundation, the Article argues that reform of trademark fair use should emphasize the reduction of administrative costs and the risk of erroneous findings of liability for speech; should favor clear ex ante rules over more complex ex post standards; and should strive to separate consideration of fair use from the adjudication of the prima facie likelihood of confusion case. It then proposes categorical safe harbors for certain uses of trademarks as a central innovation, complemented by other broader standards. An Appendix contains draft language meant to start the discussion about such defenses.

Traditionally, trademark law has eschewed per se exceptions. Much of its design assumes that avoidance of consumer confusion is imperative, even if high administrative costs and unpredictability result. However, this Article shows that trademark law can reduce administrative costs and improve protection of free speech without an unacceptable increase in the likelihood of consumer confusion. While safe harbors alone cannot resolve every case involving speech interests, at least they prevent the easy cases from contributing to the chilling effect. More generally, the analysis here demonstrates that categorical defenses deserve a greater role in the adjudication of trademark disputes.

3) Ashutosh Avinash Bhagwat (University of California, Hastings College of the Law), Associational Speech. The abstract states:

This article explores the relationship between the First Amendment right of free speech and the nontextual First Amendment right of freedom of association. The article provides important and new insights into this area of law, drawing upon recent scholarship to urge a substantial rethinking of the Court’s approach to this subject.

The article proceeds in three parts. In Part I, I explore the doctrinal roots of the right of association, and also review recent scholarship regarding the association right, as well as the provisions of the First Amendment addressing public assembly and petitioning the government for a redress of grievances. Drawing on these materials, I demonstrate that historically, the assembly, petition, and association rights were important, independent rights of co-equal status to the free speech and press rights of the First Amendment, and therefore that the Supreme Court’s modern tendency to treat the association right as subordinate to speech is incorrect. Building upon this conclusion, I then advance the novel argument that the key First Amendment rights of speech, assembly, petition and association, should be perceived as interrelated, and as mutually reinforcing mechanisms designed to advance self-government. In particular, I argue that one of the key functions of free speech in our system is to facilitate the exercise of other First Amendment rights, including notably the right of association. I describe this as the theory of associational speech. Part II explores the implications of the theory of associational speech for various areas of free speech doctrine, including notably incitement, hostile audiences, and the public forum doctrine. Finally, Part III explores some broader questions about what the theory of associational speech teaches us about the basic nature of free speech, and about the interrelationships between the various provisions of the First Amendment, including the Religion Clauses.

4) Aaron H. Caplan (Loyola Law School Los Angeles), Invasion of the Public Forum Doctrine , forthcoming in Willamette Law Review. The abstract states:

The public forum doctrine is like an invasive weed that has expanded luxuriantly after being transplanted beyond its native habitat. The metaphor of the “forum” was first used as a way to explain why the government cannot engage in prior restraint or content discrimination with regard to speaking, picketing, or leafleting on city parks and sidewalks. It has since outgrown these locations, becoming so pervasive that courts frequently assert that all government property must be some kind of forum. The reflex to invoke the public forum doctrine where it does not belong leads to a number of awkward results. When used in inapt situations, the doctrine does little to help lawyers and judges reach correct results, but instead introduces a branching series of dead ends, redundancies, and inefficiencies. Continued use of the public forum doctrine in these settings may hinder the development of better-fitting legal rules. A larger problem arises when the doctrine goes beyond inelegance to create genuinely unjust results.

For all of the debate that occurs over designating particular government properties as a traditional, designated, limited, or nonpublic forums, almost no effort has been applied to defining a forum itself. The law would be better served by recognizing that some locations for speech are simply not forums at all. As a step towards a better definition of a forum, this article identifies five features of a traditional public forum that help explain why these are spaces where the government must allow free-ranging discourse. It then examines the difficulties that result from invoking the public forum doctrine in factual situations lacking different combinations of these features.

5) David Orentlicher (Indiana University School of Law-Indianapolis), Prescription Data Mining and the Protection of Patients' Interests, 38 Journal of Law, Medicine and Ethics --- (2010). The abstract states:

This article considers efforts to address a long-standing, but increasingly refined practice that pharmaceutical companies use to enhance their drug-detailing efforts. Health care information organizations employ computer technology to collect and analyze data from prescriptions as they are filled at pharmacies. The organizations sell their analyses, which can include general prescribing trends as well as physician-specific data, to pharmaceutical companies so the companies’ sales representatives can better target their marketing activities. This “data mining” has provoked concern because it can not only exacerbate the harmful effects of drug detailing but also compromise other interests of patients.

In response, a few state legislatures have passed laws to prohibit or limit the use of data mining for marketing purposes. In turn, the laws have been challenged by the information organizations as violating their first amendment right to freedom of speech.

This article considers the policy arguments regarding legislative regulation of data mining. It also evaluates the constitutional implications of the regulations and concludes that the state provisions are desirable and should withstand constitutional challenge.

6) Jacob Weinrib (University of Toronto), What is the Purpose of Freedom of Expression?, 67 University of Toronto Faculty of Law Review 165 (2009). The abstract states:

Since freedom of expression is a Charter right, its purpose (or purposes) must be understood in relation to the broader values of the Charter. This note considers whether the traditionally articulated purposes of freedom of expression actually cohere with the values of the Charter framework in which the right of freedom of expression arises. The Supreme Court of Canada conceives of freedom of expression as (1) an instrument for the realization of truth; (2) an instrument of democratic self-government; and (3) an aspect of self-realization or human dignity. The author finds that, of the purposes traditionally understood to underlie freedom of expression, only the dignity of persons relates the broader values of the Charter framework to the realm of expressive activity. The author formulates a dignity-based conception of freedom of expression, defends it from objections, presents its doctrinal implications, and applies it to a recent controversy between Maclean’s and the Canadian Islamic Congress.

7) A. Jacob Werrett, Aligning Cyber-World Censorship with the Real-World Censorship, forthcoming in Connecticut Public Interest Law Journal. The abstract states:

Should six-year-old children be able to access “the largest pornography store in history?” They can. Should eleven be the average age that a child first views pornography? It is. Should children between the ages of twelve and seventeen represent the largest group of pornography consumers? They do. It is puzzling how a quintessentially adult activity has increasingly edged-out Saturday morning cartoons, homework, piano lessons, and T-ball games. Perhaps social consensus is that teenagers are best served by searching out porn 150 billion times a year. But, I doubt it.

Juxtaposing limitations on children's exposure to speech in the real-world versus the cyber-world reveals many inconsistencies. For example, an eight-year old child is not allowed into a strip club with a main street address, but is welcome to enter the same strip club at its URL address. Additionally, a ten-year old child cannot enter an adult bookstore and buy a pornographic book or video, but can enter the same bookstore and purchase pornographic books and videos online. Many arguments can be made about why these inconsistencies are appropriate, justifiable, and perhaps even preferable to the alternative – curbing constitutionally protected speech. Admittedly, the Internet is a special medium of communication; and the First Amendment safeguards for speech and press is a time-honored and important fourth check against our federal government. This article discusses what can be done to bring the unchecked cyber-world into step with the real world without undermining – what some believe is – the crowning characteristic of cyberspace: "[the fact that it is] the most participatory form of mass speech yet developed . . . [a medium] as diverse as human thought."

At first glance, censorship case law seemingly zigzags back and forth upholding a bizarre patchwork of conflicting ideals – one set for the real world and another for the cyber-world. For example, in Ginsberg the Court upheld the constitutionality of a New York statute that prohibited selling “obscene material” to children, including pornographic magazines. Similarly, in Renton, the Court upheld a zoning ordinance that prohibited adult movie theaters "within 1,000 feet of any residential zone, church, park or school," holding that the statute was justified in light of substantial evidence showing the adverse effects on neighborhood children and community improvement efforts. In Pacifica, the court found that the FCC had authority to prohibit certain speech that was "patently indecent" from being broadcast on the radio. These cases illustrate that the Supreme Court has supported many federal laws narrowly tailored to protect the development of minors.

At the other end of the spectrum, Courts have struck down several federal statutes aimed at censoring Internet speech to protect children. The two primary attempts to limit the sale of indecent speech by commercial entities on the internet were passed by the House and Senate, but neither held up under judicial scrutiny. The Communications Decency Act (“CDA”) was the first major attempt. In 1996, Congress added the CDA as a “second thought” amendment to a larger proposal. The CDA prohibited knowingly transmitting obscene or indecent messages to children under the age of eighteen via the internet. This statute was struck down by the Supreme Court as an undue burden on First Amendment protected speech. Indeed, CDA had not been carefully considered by Congress and some have been highly critical of the awful stage it set for future attempts to make the internet safe for children. Larry Lessig found CDA a “law of extraordinary stupidity; it practically impaled itself on the First Amendment.” And Professor Preston elaborated that it was, “thrown together without much thought, the CDA had techies nearly strangling their mouses in the vehemence of submitting their criticisms en blog.” The Child Online Protection Act (COPA) was the second major attempt by Congress to protect children through cyber-regulation.

In 2004, Congress created COPA in response to the overturned CDA, but failed to heed several direct warnings by the Supreme Court, that such a law would be unconstitutional. Wide-open Internet is not predominantly the fault of the Supreme Court. No doubt, Congress made colossal blunders in the legislation process. Each law Congress created fell short of the censorship standards required under the appropriate constitutional review for content regulated speech – strict scrutiny. Perhaps just as surprisingly, Congressional efforts since the CDA and COPA have either failed to catch momentum and have become largely irrelevant or have failed to heed the specific warnings of the Supreme Court in both Reno and Ashcroft. Examples of these more recent attempts to protect children online are discussed in the following sections.

From one perspective, the internet is a special "marketplace of ideas" and may deserve greater protection from censorship than other media. On the other hand, the internet is used in 1.5 billion homes, accessible by even the youngest children, and may be one of the most pervasive mediums available; and perhaps as such, should be regulated more heavily than less pervasive mediums.

This article presents guidelines and ideas for creating a constitutionally sound federal statute to protect children online. Part II discusses and analyzes past precedent to catalyze a discussion of how to create legislation to protect children online that will meet constitutional standards. As a result this section simultaneously discusses successful and unsuccessful legislative attempts to protect children in cyberspace. Part III analyzes several recent attempts to channel speech online. This section also discusses the past failures, successes, and potential of current legislative considerations. Part IV provides several possible strategies for protecting children without burdening online speakers or spectators. This section relies on past precedent and facts about the internet to piece together a coherent regulatory scheme that would provide nearly one hundred percent protection for those cyber-users who want to avoid the indecent and obscene. Finally, in Part V the article concludes by providing a starting point for dealing with an issue that is far from finished. Should six-year-old children be able to access “the largest pornography store in history?” They can. Should eleven be the average age that a child first views pornography? It is. Should children between the ages of twelve and seventeen represent the largest group of pornography consumers? They do. It is puzzling how a quintessentially adult activity has increasingly edged-out Saturday morning cartoons, homework, piano lessons, and T-ball games. Perhaps social consensus is that teenagers are best served by searching out porn 150 billion times a year. But, I doubt it.

Juxtaposing limitations on children's exposure to speech in the real-world versus the cyber-world reveals many inconsistencies. For example, an eight-year old child is not allowed into a strip club with a main street address, but is welcome to enter the same strip club at its URL address. Additionally, a ten-year old child cannot enter an adult bookstore and buy a pornographic book or video, but can enter the same bookstore and purchase pornographic books and videos online. Many arguments can be made about why these inconsistencies are appropriate, justifiable, and perhaps even preferable to the alternative – curbing constitutionally protected speech. Admittedly, the Internet is a special medium of communication; and the First Amendment safeguards for speech and press is a time-honored and important fourth check against our federal government. This article discusses what can be done to bring the unchecked cyber-world into step with the real world without undermining – what some believe is – the crowning characteristic of cyberspace: "[the fact that it is] the most participatory form of mass speech yet developed . . . [a medium] as diverse as human thought."

At first glance, censorship case law seemingly zigzags back and forth upholding a bizarre patchwork of conflicting ideals – one set for the real world and another for the cyber-world. For example, in Ginsberg the Court upheld the constitutionality of a New York statute that prohibited selling “obscene material” to children, including pornographic magazines. Similarly, in Renton, the Court upheld a zoning ordinance that prohibited adult movie theaters "within 1,000 feet of any residential zone, church, park or school," holding that the statute was justified in light of substantial evidence showing the adverse effects on neighborhood children and community improvement efforts. In Pacifica, the court found that the FCC had authority to prohibit certain speech that was "patently indecent" from being broadcast on the radio. These cases illustrate that the Supreme Court has supported many federal laws narrowly tailored to protect the development of minors.

At the other end of the spectrum, Courts have struck down several federal statutes aimed at censoring Internet speech to protect children. The two primary attempts to limit the sale of indecent speech by commercial entities on the internet were passed by the House and Senate, but neither held up under judicial scrutiny. The Communications Decency Act (“CDA”) was the first major attempt. In 1996, Congress added the CDA as a “second thought” amendment to a larger proposal. The CDA prohibited knowingly transmitting obscene or indecent messages to children under the age of eighteen via the internet. This statute was struck down by the Supreme Court as an undue burden on First Amendment protected speech. Indeed, CDA had not been carefully considered by Congress and some have been highly critical of the awful stage it set for future attempts to make the internet safe for children. Larry Lessig found CDA a “law of extraordinary stupidity; it practically impaled itself on the First Amendment.” And Professor Preston elaborated that it was, “thrown together without much thought, the CDA had techies nearly strangling their mouses in the vehemence of submitting their criticisms en blog.” The Child Online Protection Act (COPA) was the second major attempt by Congress to protect children through cyber-regulation.

In 2004, Congress created COPA in response to the overturned CDA, but failed to heed several direct warnings by the Supreme Court, that such a law would be unconstitutional. Wide-open Internet is not predominantly the fault of the Supreme Court. No doubt, Congress made colossal blunders in the legislation process. Each law Congress created fell short of the censorship standards required under the appropriate constitutional review for content regulated speech – strict scrutiny. Perhaps just as surprisingly, Congressional efforts since the CDA and COPA have either failed to catch momentum and have become largely irrelevant or have failed to heed the specific warnings of the Supreme Court in both Reno and Ashcroft. Examples of these more recent attempts to protect children online are discussed in the following sections.

From one perspective, the internet is a special "marketplace of ideas" and may deserve greater protection from censorship than other media. On the other hand, the internet is used in 1.5 billion homes, accessible by even the youngest children, and may be one of the most pervasive mediums available; and perhaps as such, should be regulated more heavily than less pervasive mediums.

This article presents guidelines and ideas for creating a constitutionally sound federal statute to protect children online. Part II discusses and analyzes past precedent to catalyze a discussion of how to create legislation to protect children online that will meet constitutional standards. As a result this section simultaneously discusses successful and unsuccessful legislative attempts to protect children in cyberspace. Part III analyzes several recent attempts to channel speech online. This section also discusses the past failures, successes, and potential of current legislative considerations. Part IV provides several possible strategies for protecting children without burdening online speakers or spectators. This section relies on past precedent and facts about the internet to piece together a coherent regulatory scheme that would provide nearly one hundred percent protection for those cyber-users who want to avoid the indecent and obscene. Finally, in Part V the article concludes by providing a starting point for dealing with an issue that is far from finished.

8) T. John O'Dowd (UCD School of Law), Pilate’s Paramount Duty: Constitutional 'Reasonableness' and the Restriction of Freedom of Speech and Assembly ,published in COMPARATIVE CONSTITUTIONALISM IN SOUTH ASIA, Khilnani, Sunil, Raghavan, Vikram and Thiruvengadam, Arun, eds., Oxford Univ Press India, 2010. The abstract states:

Sir James Fitzjames Stephen was one of the most subtle and obstinate critics of the arguments which John Stuart Mill put forward in On Liberty (1859), particularly Mill’s defence of liberty of thought and discussion. Stephen began composing this reply to Mill on the voyage back to England from India, where amongst other official duties, he had been responsible for the revision of the Indian Penal Code (IPC) so as to introduce an offence of sedition. Against this background it is particularly interesting to examine how the Indian courts have dealt with the IPC offences of sedition, of promoting enmity, hatred or ill-will between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to the maintenance of harmony, of making imputations, assertions prejudicial to national integration, of committing deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs and of making statements conducting to public mischief. In broad terms, these or similar offences are to be found also in the Penal Codes of Pakistan, Bangladesh and Myanmar (Burma). This book chapter focuses on India, as the only one of those countries in which (the Emergency apart) national electoral democracy and constitutional judicial review have consistently functioned. The chapter examines how the Indian courts have interpreted these parts of the IPC in the light of the constitutional guarantee of freedom of expression. It also considers the scope and use of the powers to impose prior restraints on freedom of speech and freedom of assembly which state governments and the executive magistracy have under sections 95 and 144 of the Indian Code of Criminal Procedure. The chapter also compares the approach of the Indian courts to expression likely to provoke enmity, hatred or ill-will on grounds of religion (or caste) with the approach taken to such matters by the European Court of Human Rights. It concludes by re-examining the disagreement between Mill and Stephen on the scope of liberty of thought and discussion, in the light of these examples of the relevant law and practice in South Asia.

JFB