First Amendment Scholarship Update – Speech

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

1. A. Michael Froomkin (University of Miami), Lessons Learned Too Well. The abstract states:

This paper, prepared for a presentation Sept. 22, 2011 at the Oxford Internet Institute’s Conference, A Decade in Internet Time: Symposium on the Dynamics of the Internet and Society, examines, contextualizes, and critiques an international trend towards the regulation of anonymity.

The paper describes private incentives and initiatives during the past decade that resulted in the deployment of a variety of technologies and services each of which is unfriendly to anonymous communication. It then looks at three types of government regulation, relevant to anonymity: the general phenomenon of chokepoint regulation, and the more specific phenomena of online identification requirements and data retention (which can be understood as a special form of identification).

The concluding section takes a pessimistic view of the likelihood that given the rapid pace of technical and regulatory changes the fate of online anonymity in the next decade will be determined by human rights law rather than by the deployment of new technologies or, most likely, pragmatic political choices. It therefore offers normative and pragmatic arguments why anonymity is worth preserving and concludes with questions that proponents of further limits on anonymous online speech should be expected to answer.

The consequences of an anonymity ban are likely to be negative. This paper attempts to explain how we came to this pass, and what should be done to avoid making the problem worse.

2. Alon Harel (Hebrew University of Jerusalem), Freedom of Speech, published in the forthcoming COMPANION TO PHILOSOPHY OF LAW, Andrei Marmor, ed,. The abstract states:

Freedom of speech is among the most cherished constitutional rights in liberal democracies. The primary task of this survey is to examine why (and whether) speech ought to be protected more (or differently) than non-speech activities.

To address the normative question of why speech is protected as well as to identify what counts as speech we examine below in Part II four major liberal theories purporting to justify the protection of speech: the marketplace of ideas, the autonomy-based theory, the self-realization and the democratic justifications. We establish that none of these theories alone can justify the protection of speech as is currently practiced in contemporary liberal polities.

In recent years many feminists and ethnic or religious minorities have challenged the protection of certain forms of speech. More particularly it was claimed that certain forms of speech either conflict with other rights, e.g., equality, or even may deprive minorities of the capacity or ability to exercise effectively their own right to free speech (the silencing argument). It is the task of Part III to explore some of the minoritarian challenges to what constitutes speech and what constitutes protected speech.

Some radical critics of liberalism challenge the importance and significance of freedom of speech as such. They maintain that freedom of speech masks large-scale silencing and repression. “Repressive tolerance,” as it is sometimes labeled, is a radical position that rejects central, traditional, liberal political rights in the name of values such as autonomy and equality and regards the liberal protection of speech (independently of its content or merit) as a repressive mechanism designed to strangle rather than facilitate genuine public deliberation. These challenges will be examined in Part IV.

I conclude by pointing out that the three positions described below (liberalism, minoritarian critics of liberalism and radical critics of liberalism) share similar assumptions and values. To the extent that minoritarian and radical critics of liberalism advocate restrictions of speech, they do so by invoking the very same values advocated by liberals: autonomy, dignity and equality.

3. Joel M. Gora (Brooklyn Law School), Don't Feed the Alligators: Government Funding of Political Speech and the Unyielding Vigilance of the First Amendment , Cato Supreme Court Review, pp. 81-127(2010-2011). The abstract states:

This is an analysis of the Supreme Court’s recent decision in Arizona Free Enterprise Club’s Freedom Club Pac v. Bennet, 131 S. Ct. 2806 (2011), which struck down the Arizona program for providing government “triggered” matching funds in political campaigns. Under that scheme, a publicly funded candidate, whose campaign is almost wholly funded by government already, is given additional government funds for his campaign whenever a privately financed candidate (or independent groups supporting that candidate as well) raises or spends any money to campaign against the publicly funded opponent. The Supreme Court ruled that such government supported counter-speech deters and burdens the speech of the privately funded candidate, as well as of independent groups and individuals, without a sufficiently compelling First Amendment justification. The article analyzes the decision, sets it in the larger context of the whole question of public funding of political campaigns and then projects the impact the decision is likely to have in the future judicial and legislative engagements with public funding of political campaigns.

4. Alexandra Olson (Boston College Law Review), Note - Dilution by Tarnishment: An Unworkable Cause of Action in Cases of Artistic Expression, forthcoming in Boston College Law Review. The abstract states:

In response to the number of trademark and copyright infringement cases in the last ten years, and in the wake of the Trademark Dilution Revision Act (TDRA), scholarship has focused on ensuring adequate First Amendment protection for artists against infringement and dilution claims. This Note, however, seeks to push the debate in a new direction, by suggesting that First Amendment protection in the trademark dilution context has been stretched too far, leaving corporations unable to attain even injunctive relief against diluters. Unlike the more tailored and flexible free speech doctrines found in the laws of trademark infringement, copyright, and right of publicity, dilution by tarnishment effectively prevents companies from prevailing against artists who negatively depict the corporations' trademarks in their work, no matter how harmful the appropriation may be to the corporation’s mark.

5. Rebecca Leah Zeidel (Boston College Law Review), Note - Forecasting Disruption, Forfeiting Speech: Restrictions on Student Speech in Extracurricular Activities , forthcoming in Boston College Law Review. The abstract states:

Student speech in extracurricular activities occupies a doctrinal position between curricular speech and individual speech. Outside the narrow factual situations governed by Bethel v. Fraser and Morse v. Frederick, courts tend to treat extracurricular student speech either as curriculum-like, school-sponsored speech under Hazelwood School District v. Kuhlmeier, when the activities are inherently expressive, or as individual speech under Tinker v. Des Moines Independent School District. Applying Tinker's "forecast" of disruption standard to student speech in extracurricular activities, particularly when supported by analogies to public employee speech, has a chilling effect that conditions student participation in extracurricular activities on a reduced speech right. This result contradicts the educational goals of extracurricular activities and public schools. This Note proposes requiring that school officials using a "forecast" of disruption to punish student speech must connect the speech restriction to the educational goal of the particular extracurricular activity.

6. R. Randall Kelso (South Texas College of Law) and Charles D. Kelso (University of the Pacific - McGeorge School of Law), The Constitutional Jurisprudence of Justice Kennedy on Speech. The abstract states:

Justice Kennedy’s basic principles in free speech cases are supporting political freedom, supporting individual autonomy, and protecting freedom to teach, learn and innovate. Given these principles, his opinions in free speech cases protect free speech from government regulation unless the government can provide strong reasons for any restrictive action and show that the means it has chosen to carry out its purposes are closely tailored to its goals. At a minimum, judicial review is by strict scrutiny for content-based regulations, and intermediate review for content neutral time, place, and manner regulations. In some cases, Justice Kennedy has indicated a preference for a stronger, absolute rule of unconstitutionality for content-based regulations which do not fall into one of the traditional exceptions of free speech doctrine, such as obscenity, defamation, words tantamount to an act otherwise criminal, impairing some other constitutional right, an incitement to lawless action, or speech calculated to bring about imminent harm that the state has substantive power to regulate. Given his entire body of decisions regarding the freedom of speech over his quarter century on the Court, no Justice on the modern Court has been more consistently protective of the First Amendment freedom of speech than Justice Kennedy.

7. Christopher J. Clements (Boston College Law Review), Note - Protecting Protected Speech: Why Schwarzenegger Must Terminate Violent Video Game Legislation , 53 B.C.L.Rev. ---- (2012). The abstract states:

This Note argues that current and future efforts to regulate violent video games should and will continue to fail constitutional scrutiny. Legislators should instead focus on mandating that video game developers and retailers participate in the exceedingly successful Entertainment Software Rating Board (“ESRB”) rating system. The upcoming Supreme Court decision Entertainment Merchants Association v. Schwarzenegger provides the Court with the opportunity to clarify the role of government in shielding children from objectionable media and where, if at all, violent video games fit into obscenity jurisprudence

8. Yoav Hammer (Academic Center of Law and Business), Advertisements and the Public Discourse in a Democracy, Journal of Law and Ethics of Human Rights, Vol. 5, 2011. The abstract states:

Modern advertisements contain little information and expose few arguments. They rarely describe the product and its usage or compare it to similar products. Yet, advertisements convey many messages—they attach meaning to products, suggest values, and spread a particular view of life. Advertisements create a failure in the democratic process; through advertising, commercial corporations intervene in the democratic discourse. Citizens are intensively exposed to the consumerist worldview while alternative points of view are scarcely presented in the communicative sphere. But commercial corporations are not legitimate participants in the public discourse in a democracy since they do not represent the political support of citizens. Presently, courts grant advertisements freedom of speech protection based on the importance of providing information for viewers. But by doing this, courts ignore the value-suggesting messages prevalent in modern advertisements.

For many years the law in the domain of campaign finance has restricted the speech of corporations in order to prevent distortion of the political discourse prior to elections. Similarly, we should allow the State to intervene to repair the failure in the public discourse created by advertisements. The law regarding informative messages and value-suggesting messages contained in advertisements should treat each separately, and advertisers should not be permitted to convey messages of the latter.

9. Junichi P. Semitsu (University of San Diego School of Law), Arresting Development: Facebook Searches and the Information Super Highway Patrol, forthcoming in Arkansas Law Review. The abstract states:

When people are arrested today, Facebook may be the farthest thing from their minds. But for those handcuffed with their smart phone or laptop closed at hand, the social networking site may seismically shift the balance between their privacy and the police.

As the most frequented stop today on the information super highway, Facebook deserves credit (or blame) for not only the boom in civilian traffic, but also the escalation of the information super highway patrol policing it. The increasingly heavy - but largely hidden - presence of law enforcement stems, in part, from company’s policies and philosophies, which marginalize personal privacy concerns. However, the true genesis of any seismic shift begins with the Court’s outdated Fourth Amendment jurisprudence and Congress’s failure to update federal privacy laws to consider methods of modern communication tools.

In this Article, I survey the ways government officials have justified (or could justify) a search of an arrestee’s Facebook account, as well as the potential flaws with those legal arguments. But even when such a search does not fall into the myriad holes in the Swiss cheese of Fourth Amendment jurisprudence, I demonstrate that the digital architecture of social networking and the weak policies of Facebook puncture any remaining expectations of privacy.

But the ramification of these post-arrest searches extends far beyond privacy concerns. Post-arrest searches on social networking sites raise new and significant free speech concerns. In a matter of minutes, a search of Facebook could cast a net covering years of personal communications by the arrestee - as well as hundreds of others - while also ensnaring future communications that follow the arrest. The implications are just as staggering as the difficulties facing an arrestee who wishes to challenge these practices under existing law.

Thus, in this article, I propose the adoption of a First Amendment theory of privacy as a means to limit the warrantless surveillance of social networks. Regardless of whether post-arrest Facebook searches can be justified under the Fourth Amendment, I conclude that these arresting developments have the potential to chill so much speech that the First Amendment may be the more meaningful and promising lens through which to review such searches.

10. Shannon Gilreath (Wake Forest University), Gay/Straight: The Binary Ontology of the Gay Marriage Debate , published in  S. Gilreath, THE END OF STRAIGHT SUPREMACY: REALIZING GAY LIBERATION, Cambridge University Press (2011). The abstract states:

The following is a chapter from my recently released book, The End of Straight Supremacy: Realizing Gay Liberation. This chapter challenges the straight supremacist assumptions at the root of the gay movement’s marriage obsession.

Rooted in the politics and theories of early Gay liberation and Radical feminism, Shannon Gilreath’s The End of Straight Supremacy presents a cohesive theory of Gay life under straight domination. Beginning with a critique of formal equality law centered on the “like-straight” demands of liberal equality theory as highlighted in Lawrence v. Texas, Gilreath goes on to criticize the “gay rights” movement itself, challenging the assimilation politics behind the movement’s blithe acceptance of discrimination in the guise of free speech and pornography in the name of sexual liberation, as well as same-sex marriage and transsexuality as tools of straight hegemony. Ultimately, Gilreath rejects both the liberal demand for Gay erasure in exchange for meager legal progress and the gay establishment agenda. In so doing, he provides both the vocabulary and analysis necessary to understand and to resist straight supremacy in all its forms. In The End of Straight Supremacy, Gilreath calls Gays and their allies to the difficult task of rethinking what liberation and equality really mean.

The reader will quickly notice my use of irregular capitalization. I used “Gay,” capitalized, to refer to that which is Gay-identified. I use “gay,” lower-case, as in “gay pornography” or “gay establishment,” to distinguish that which is essentially straight supremacist in origin and operation.

11. David G. Robinson (Yale Law School), Following the Money: A Better Way Forward on the Protect IP Act . The abstract states:

The Internet addressing and filtering provisions of the proposed PROTECT IP Act should not become law. They cannot promise efficacy, and they threaten significant collateral harm.

However, the bill offers potentially useful new tools to reduce the revenue of sites dedicated to selling, or profiting from, infringing media or counterfeit goods. These financial provisions have earned much less controversy than the Internet addressing and filtering provisions.

One way to address many of the problems with the PROTECT IP Act would be to strip the Internet blocking provisions out of the bill, and pass a surgically focused law that will confer potentially important new powers on law enforcement (and possibly on private rightholders) to dry up revenue sources for “rogue” web sites. Such a revised bill would avoid a host of other harms: it would preserve the future value of the .com domain names in which American businesses have already invested. It would protect America’s role as a global leader and de facto standard setter in Internet governance, and the economic advantages that come with that role. It would avoid the significant First Amendment problems that make the present draft of the PROTECT IP Act—and the current domain name seizures under color of existing law—vulnerable to constitutional challenges. And last, it would avoid chilling future innovations in computing technology, online media, and broadband network design.

12. Laura A. Heymann (William & Mary Law School),The Law of Reputation and the Interest of the Audience , 52 B.C. L. Rev. 1341 (2011). The abstract states:

Although an individual has control over many of the statements, acts, and other biographical data points that are used to construct her reputation, she does not ultimately have control over the result of that reputational assessment, the pronouncement of which is a task re-served to others. Reputation is fundamentally a social concept; it does not exist until a community collectively forms a judgment about an individual or firm that has the potential to guide the community’s future interactions. Despite reputation’s relational nature, discussions of the law’s interest in reputation tend to focus on one of two parties: the individual or firm holding the reputation and the defendant accused of having unlawfully harmed that reputation. This framework leads to particular conceptions of the reputational interests, such as from a property or dignity perspective, and of the countervailing, often First Amendment–related, interests of the defendant. But the community that constructs one’s reputation also has an interest in the soundness of a reputation’s foundation so that future uses of others’ reputations will be effective. A more complete conception of reputation, therefore, should take such community interests into account.

JFB