October 13, 2011
Justice Kennedy's Speech Jurisprudence
R. Randall Kelso, South Texas College of Law, and Charles D. Kelso, University of the Pacific, McGeorge School of Law, have published The Constitutional Jurisprudence of Justice Kennedy of Speech. Here is the abstract.
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.
Download the paper from SSRN at the link.
FCC Commissioner Copps On the Broadband Initiative to Extend Digital Literacy
I applaud the launch of the Connect to Compete initiative and the many participants who have committed to bring the wonders of broadband to those who have not yet arnessed the awesome potential of the Internet. This is the perfect example of a public-private partnership to meet the myriad challenges aggravated by the growing digital divide which places our country at a disadvantage in terms of global competitiveness. I thank the many participants who have recognized the importance of a digitally literate society. And I also thank Chairman Genachowski and the Broadband Adoption Initiative task force for raising the profile of this important issue. We have an opportunity to bring this leadership to the other new literacies, including media literacy and news literacy, which will help our citizens navigate the vastness of the Internet and be informed citizens once they are Broadband-connected.
Here's a link to FCC Chair Genachowski's remarks on the Initiative.
A Look at Brown v. Entertainment Merchants Association
David G. Post, Temple University School of Law, has published Sex, Lies, and Videogames: Brown V. Entertainment Merchants Association, in volume 27 of the Cato Supreme Court Review (2011). Here is the abstract.
In Brown v. Entertainment Merchants Association, a decision that veteran Supreme Court watcher Linda Greenhouse called ‘‘the most surprising decision’’ of the 2010 Term (and the one that also received Greenhouse’s ‘‘most unusual judicial performance’’ award, for Justice Stephen Breyer’s dissenting opinion), the Supreme Court (7-2) struck down California’s prohibition on the sale of violent video-games to minors on the grounds that it offended First Amendment protections for the freedom of speech. In this article, I look at the doctrinal underpinnings of the majority opinion, the oddities in the two dissenting opinions (Thomas and Breyer), and offer some thoughts on the implications of the decision for First Amendment law going forward.
Download the article from SSRN at the link.
October 12, 2011
FCC Works With the Geek Squad To Broaden Broadband
The FCC increases its broadband program by enlisting folks like the Geek Squad. More here from the New York Times.
Authors' Rights In French, Romanian, and Other European Law
Bujorel Floarea has published Pecuniary Rights of the Authors Resulting from a Publishing Contract in The Review Dreptul (2011). Here is the abstract.
The study presented hereafter stands for a supplementation to the doctrine’s existing analysis in relation to the legal provisions regarding the publishing agreement comprised in the Law no. 8/1996 on intellectual property and its correlative rights.
Summarizing the article’s content, the author has performed a thorough analysis of the Romanian, and European case law with a special interest for the French jurisprudence.
As a starting point for the study, the author considered the high frequency use of the publishing agreement aimed at capitalizing the patrimonial rights related to intellectual property.
The author has identified, and examined several relevant aspects related to the publishing agreement’s field of application, marking the limits in relation to other civil agreements, substantiating comprehensively the legal characteristics of this type of agreement by analyzing its scope, its content, its effects, its means of cessation from the point of view of the new civil code (Law no. 287/2009).
The article is not available in full text from SSRN.
October 10, 2011
Government Funding of Political Speech and the First Amendment
Joel M. Gora, Brooklyn Law School, has published Don't Feed the Alligators: Government Funding of Political Speech and the Unyielding Vigilance of the First Amendment at 2010/2011 Cato Supreme Court Review 81-127. Here is the abstract.
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.
Download the article from SSRN at the link.
The Media and Child Identification In Criminal Proceedings
Sharon Rodrick, Monash University Faculty of Law, has published Open Justice, the Media and Identifying Children Involved in Criminal Proceedings at 15 Media and Arts Law Review 409 (2010). Here is the abstract.
The purpose of this article is to formulate an appropriate response to the issue of child identification in criminal contexts, in light of the dialogue that is taking place regarding the adoption of a nationally consistent approach. In the first part of this article, I explore the policy considerations for and against identifying child victims and offenders, and conclude that the arguments in favour of suppressing a child’s identity generally outweigh the arguments in favour of publishing a child’s identity. In the second part of the article, I critically examine the options for a national standard.I do so by critiquing the approaches currently taken in the Northern Territory, Victoria and New South Wales, being representative of the most disparate range of alternatives.
The article is not available from SSRN.
Public Employees and Free Speech
Randy J. Kozel, Notre Dame Law School, has published Free Speech and Parity: A Theory of Public Employee Rights in volume 53 of the William & Mary Law Review (2012). Here is the abstract.
More than four decades have passed since the U.S. Supreme Court revolutionized the First Amendment rights of the public workforce. In the ensuing years the Court has embarked upon an ambitious quest to protect expressive liberties while facilitating orderly and efficient government. It has amassed a substantial body of caselaw grappling with the proper treatment of employee speech under this new analytic regime. Yet the Court has never articulated an adequate theoretical framework to guide its jurisprudence. The result is a doctrine that is problematic in both practical and conceptual terms.
This Article provides a new model for addressing the theoretical deficiency that has persisted for nearly half a century. The proposal flows naturally from the Court’s rejection of its former view that one who accepts a government job has no constitutional right to complain about its conditions. As a consequence of that rejection, the bare fact of government employment is insufficient to undermine a citizen’s right to free speech. The baseline norm must instead be one of parity between government workers and other citizens. To justify a deviation from the default of parity, there must be a meaningful reason beyond the employment relationship itself for viewing government officials as situated differently from their peers among the general public.
In reorienting the jurisprudence around the legitimate bases for differential treatment of public employees and other citizens, parity theory outfits the modern doctrine with the conceptual grounding it has lacked since its inception. The theory also provides a method for repairing flaws that plague the existing law in its practical application. Perhaps most importantly, parity theory highlights the need to confront a critical factor that has played an unduly limited role in the Supreme Court’s cases to date: the institutional mission of government instrumentalities.
Download the article from SSRN at the link.