April 4, 2009
The First Amendment Audience
Assumptions about audiences shape the outcomes of First Amendment cases. Yet the Supreme Court rarely specifies what its assumptions about audiences are, much less attempts to justify them. Drawing on literary theory, this Article identifies and defends two critical assumptions that emerge from First Amendment cases involving so-called "core" speech. The first is that audiences are capable of rationally assessing the truth, quality, and credibility of core speech. The second is that more speech is generally preferable to less. These assumptions, which I refer to collectively as the rational audience model, lie at the heart of the "marketplace of ideas" metaphor, which has long been a target of criticism amongst First Amendment scholars. Now, however, cognitive psychology and behavioral economics provide empirical evidence that the assumptions of the rational audience model are demonstrably false in some commonplace settings. This Article nonetheless contends that behavioral economics has not yet made the case for jettisoning the rational audience model in the realm of core speech. As the Supreme Court has recognized, a legal test that looks at the "actual effects" of speech would be cumbersome and expensive to apply, and would therefore chill speech. But there are even more compelling reasons to adhere to a test focused on the "reasonable interpretation" of core speech. Because speech and expression are closely linked to individual autonomy, government constriction of core speech-particularly political speech-undermines the foundation of a self-governing democracy. Moreover, the rational audience model prevents public discourse from being reduced to the level of the least educated or least sophisticated audience member. The model calls on citizens to raise their cognitive capacities to meet the demands of public discourse, and it serves as a check on the government's increasingly powerful ability to drown out other speakers in that discourse. This Article concludes that the rational audience model represents a flawed but worthy ideal.
Download the paper from SSRN here.
The First Amendment and Anonymous Speech
This short article responds to a paper delivered by Professor Martin Redish at a symposium on Speech and Silence in American Law at the University of Alabama School of Law; the symposium proceedings will be published by Cambridge University Press. Professor Redish's paper argues for the elimination of First Amendment protection for expressive anonymity in certain cases involving political fraud.
This response offers both clarifications and criticisms of Professor Redish's argument. It argues by way of clarification that the general category of "anonymity" is too broad to support useful analysis. Rather, we must consider the implications for Professor Redish's argument of at least two categories of speech: anonymous and pseudonymous speech. I show that even if we accept Professor Redish's account of the dangers of anonymous politically fraudulent speech, our concerns and prescriptions will vary greatly depending on what sort of "anonymous" speech we are talking about. Drawing on signaling theory, this response also offers a more critical treatment of Professor Redish's argument for the prohibition of some forms of anonymous speech. Signaling theory suggests that anonymous speech is not accurately characterized as part of the right of silence; instead, as an attributional decision that sends important signals about the reliability of the speech and the speaker, the choice of anonymity in fact constitutes a highly expressive form of speech. The signaling function of these attribution choices also suggests that Professor Redish's concerns about the misleading nature of anonymous politically fraudulent speech, and his recommendation that we curtail protection for this form of speech, are overstated.
The signaling-based account of anonymity as speech has two subsidiary implications. First, contrary to Professor Redish's suggestion, it is impossible to disaggregate the rights of expressive and associational anonymity. Second, this account supports the argument of many writers that the Supreme Court ought to strongly reconsider its tangled jurisprudence concerning the permissibility of mandatory disclosure rules in the campaign finance laws, which is in tension with what the Court has written about anonymous speech in other contexts.
April 2, 2009
Advertising Standards Authority Says VW Ad Too Violent For Children's Hour
The Advertising Standards Authority has nixed a VW ad for pre-watershed viewing; it takes its inspiration from the Jason Bourne and Matrix films, and the agency notes that it's too violent for children and might lead to "copycatting." Here's the ruling. Said the ASA in part:
The ASA noted VW's argument that the fight sequences shown in ad (a) were stylised and fantastical and, along with other aspects of the creative treatment, distanced the action from reality. We also noted their argument that the ad did not show any physical suffering as a result of the fighting. We considered, however, that the opening punch to the Chief Engineer was shocking, and set up a series of violent set pieces that included the use of weapons. We also considered that, despite the absence of blood or other injuries, the punches, kicks and other fight moves were realistic in appearance and involved ordinary people in an everyday setting. We noted Clearcast's argument that the ad had been given a timing restriction because of the level of fighting, which meant that it could not be shown before 7.30 pm, and we acknowledged that ad (a) had not been broadcast before 11 pm. Although we considered that ad (a) was unlikely to cause serious or widespread offence in the post-11 pm slots in which it had been shown, we were concerned that, were the ad to be broadcast earlier in the evening, the opening punch and subsequent violence could cause serious offence and distress. We considered that the ad should have been given a timing restriction to ensure that it was limited to later in the evening, and we concluded that the ad was unsuitable to be broadcast before 9 pm.
On this point ad (a) breached CAP (Broadcast) TV Advertising Standards Code rule 7.4.7 (Use of scheduling restrictions).
Ad (a) also breached Rules on the Scheduling of Television Advertisements section 4.2.3 (Treatments unsuitable for children).
We also investigated ad (a) under CAP (Broadcast) TV Advertising Standards Code rule 6.1 (Offence) but did not find it in breach.
We noted VW's and Clearcast's argument that, because ad (e) had significantly less interpersonal contact, it had been given an 'ex-kids' restriction. We understood that the 'ex-kids' restriction prevented the ad from being broadcast in or around programmes made for, or specifically targeted at, children. We noted that ad (e) opened with a shove as opposed to a punch, and that the ad did not feature the men fighting with weapons. We also noted that ad (d) did not show the men fighting with weapons. We considered that the level of interpersonal violence in ads (d) and (e) was less than in the other TV ads, and because of that we did not consider that ads (d) and (e) needed to be kept away from older children. We considered that the post-7.30 pm restriction applied to ad (d) and the ex-kids restriction applied to ad (e) were sufficient to keep the ad away from times when younger children were likely to be watching TV alone, and we considered that ads (d) and (e) were unlikely to cause serious or widespread offence when shown in accordance with those scheduling restrictions.
However, we considered that ad (c), which included the opening punch and the men fighting with weapons, featured a level of violence that was comparable to that shown in ad (a), and which could cause serious offence and distress when shown after 7.30 pm. We therefore considered that ad (c) should have been given a timing restriction that limited it to being shown later in the evening, and we concluded that ad (c) was also unsuitable to be broadcast before 9 pm.
On this point ad (c) breached CAP (Broadcast) TV Advertising Standards Code rules 6.1 (Offence), 6.2 (Violence and cruelty), 7.4.1 (Mental Harm) and 7.4.7 (Use of scheduling restrictions).
Ad (c) also breached Rules on the Scheduling of Television Advertisements section 4.2.3 (Treatments unsuitable for children).
On this point we also investigated ads (d) and (e) under CAP (Broadcast) TV Advertising Standards Code rules 6.1 (Offence), 6.2 (Violence and cruelty), 7.4.1 (Mental Harm) and 7.4.7 (Use of scheduling restrictions) and Rules on the Scheduling of Television Advertisements section 4.2.3 (Treatments unsuitable for children) but did not find them in breach.
Keira Knightley Appears As Victim In Ad
Keira Knightley appears as a domestic abuse victim to raise awareness of violence against women in a new ad for Women's Aid.
House Passes Reporter's Shield Bill
The House has passed the Free Flow of Information Act, designed to provide reporters with some "shield" protections at the federal level. A Senate committee is considering a similar measure.
Copyright's Originality Standard
Copyright's originality standard is ripe for reappraisal. Many have described how copyright exclusion claims now intrude into the everyday lives of ordinary folk - making an "infringement nation," coated in "billowing white goo." (Tehranian (2007); Litman (2008)). And many have proposed ways to cope with copyright's expansion, from strengthening the fair use privilege to trimming the derivative work right to modifying the basic "substantial similarity" infringement standard. A few have tackled the matter at the front end - putting, as it were, less goo in the billowing machine. (E.g., Hughes, Size Matters (2005); Sprigman, Reform(Aliz)ing (2004)). Virtually no one, however, has gone back to the source - copyright's originality standard. Feist, the phone book white pages case, tells us that, at least as a constitutional matter, "the requisite level of creativity is extremely low." 499 U.S. 340, 345 (1991). But the Copyright Act's statutory originality requirement can, and should, be more demanding. I pattern this exploration on patent law's rejuvenated nonobviousness requirement, which the Supreme Court's KSR decision (2007) grounds on incenting the unconventional and unexpected. We should put copyright's creativity requirement on the same footing, protecting expression in proportion to its unconventionality. Indeed, the conditions that justify a nonobviousness requirement for useful inventions - distilled to the wisdom that "[w]ith greater rights come more stringent requirements for obtaining the rights" (Duffy, Inventing Invention at 10 (2007)) - are strikingly similar to those that bear on creative expression. I also identify the critical wrong turn in Bleistein (1902), where Justice Holmes concluded that the alternative to a low creativity threshold was a stifling aesthetic orthodoxy policed by the judiciary. He was right to turn away from such orthodoxy, of course, but missed a third, and better way - rewarding, and thus encouraging, the heterodox itself. The progress at which we should aim, for copyright as much as for patent, is the new vista to which we're led by those who break through conventional boundaries.
Download the paper from SSRN here.
April 1, 2009
Another "Sexting" Case, This Time in Pennsylvania
Three Pennsylvania teens facing child pornography charges got something of a reprieve when a federal judge issued a temporary restraining order to prevent a local district attorney from proceeding with the case. The girls appeared in photos taken more than a year ago, but those individuals who had distributed the materials apparently do not face charges. The girls and their parents have filed suit against the DA. Read more here in a Jurist story.
YouTube Suspends Account of Prominent Skeptics Organization
YouTube has suspended the account of skeptical organization JREF, headed up by astronomer Phil Plait, but it's unclear why. Dr. Plait indicates that he's trying to "work things out," but JREF supporters are miffed.
March 31, 2009
Julie Hilden on the Noonan v. Staples Case
Max Mosley's Attorney and the PCC's Chair
U. S. Journalists To Go On Trial In North Korea
The New York Times reports that North Korea will put two U. S. journalists, Laura Ling and Euna Lee, on trial for entering the country illegally and for committing "hostile acts" against it. Read more here.
March 30, 2009
Iowa Bill Would Restrict Campaign Speech, Political Cartoons
Here's a link to the text of that Iowa bill that would ban political cartoons and restrict the distribution of campaign material without the permission of candidates. Here's short commentary from Eugene Volokh and Rick Hasen, both of whom note it has serious (major, insurmountable?) constitutionality problems.
[Thanks to Brendan Craig for the tip].
SCOTUS Won't Hear Virginia's Appeal In Spam Law Case
FindLaw reports that the Supreme Court has denied cert in the case of Virginia v. Jaynes, the anti-spam case in which Jeremy Jaynes, the "spam king," had obtained reversal of his conviction under a Virginia anti-spam statute. The Virginia Supreme Court found the statute overbroad because it banned not only commercial emails but also religious, political and other protected speech. See here.
The Courts and Academic Speech
Peter Schmidt reviews the application of Garcetti v. Ceballos in the courts in a column for The Chronicle of Higher Education here. See his follow-up, discussing a loss for Delaware State University professor Wendell Gorum in the Third Circuit here.
Fulbright Scholar Competition Now Open
From the Fulbright folks. The Fulbright Scholar competition for 2010-2011 is open. The Fulbright Scholar Program is offering lecturing, research or combination lecturing/research awards in over 125 countries for the 2010-2011 academic year. Opportunities are available not only for college and university faculty and administrators but also for professionals from business and government, as well as artists, journalists, scientists, lawyers, independent scholars and many others. There are awards in 45 different fields or disciplines, and a variety of sub-disciplines and interdisciplinary fields. What does Fulbright have to offer? Here are a few of the awards for 2010-2011: People’s Republic of China – Award #0127 – Distinguished Lectureship in Study of the United States – American foreign policy, American history, American literature, American politics, American studies Brazil – Award #0512 – Fulbright-FAPESP/Sao Paolo Science/Technology Program – biology, biochemistry, biophysics, genetics, immunology, microbiology, parasitology, physiology Ukraine – Award #0401 – Cultural Resource Management – art conservation, museum studies, management of art organizations Egypt – Award #0427 – Sciences – multiple disciplines in the sciences, including but not limited to: biology, chemistry, environmental sciences, food and nutrition, genetic engineering research methods, textiles or physics The application deadline is August 1, 2009. U.S. citizenship is required. For other eligibility requirements and detailed award descriptions visit our website at
From the Fulbright folks.
The Fulbright Scholar competition for 2010-2011 is open.
The Fulbright Scholar Program is offering lecturing, research or combination lecturing/research awards in over 125 countries for the 2010-2011 academic year. Opportunities are available not only for college and university faculty and administrators but also for professionals from business and government, as well as artists, journalists, scientists, lawyers, independent scholars and many others.
There are awards in 45 different fields or disciplines, and a variety of sub-disciplines and interdisciplinary fields.
What does Fulbright have to offer? Here are a few of the awards for 2010-2011:
People’s Republic of China – Award #0127 – Distinguished Lectureship in Study of the United States – American foreign policy, American history, American literature, American politics, American studies
Brazil – Award #0512 – Fulbright-FAPESP/Sao Paolo Science/Technology Program – biology, biochemistry, biophysics, genetics, immunology, microbiology, parasitology, physiology
Ukraine – Award #0401 – Cultural Resource Management – art conservation, museum studies, management of art organizations
Egypt – Award #0427 – Sciences – multiple disciplines in the sciences, including but not limited to: biology, chemistry, environmental sciences, food and nutrition, genetic engineering research methods, textiles or physics
The application deadline is August 1, 2009. U.S. citizenship is required. For other eligibility requirements and detailed award descriptions visit our website at
Encouraging the Marketplace of Ideas
This essay briefly responds to a request that the U.S. Department of Justice should give San Francisco Bay Area newspapers more leeway under the federal antitrust laws to merge or consolidate their business operations. The essay agrees with House Speaker Nancy Pelosi's concerns that a strong, free, and independent press is vital to our democracy and in informing our citizens, especially news organizations that devote resources to gathering news. As the essay explains, the antidote is not to weaken the antitrust laws to enable large media conglomerates to become even bigger. Instead, the health of the marketplace of ideas depends on the antitrust laws to preserve divergent and competing voices.
Download the essay from SSRN here.
March 29, 2009
Under the New Administration, Lesser Known Media Enter the Spotlight
From the New York Times, a report on the black news media under the Obama administration.
British Home Secretary Apologizes Over Charges For Movies
British Home Secretary Jacqui Smith says she will repay the costs of films that she and her husband watched at home and then charged taxpayers. The films include some adult movies. The Home Secretary has apologized and says the charges were "a mistake." Her husband has also apologized. Read more here.