Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, January 4, 2016

Burri on a Coherent Framework for the Regulation of Internet Content

Mira Burri, University of Bern Law School, World Trade Institute, has published Designing a Coherent Framework for the Regulation of Internet Content in The Hague Institute for Global Justice Working Paper Series (November 2015). Here is the abstract.

Against the backdrop of transforming patterns of content production, dissemination and use, as well as the changed governance landscape in the Internet age, this paper seeks to emphasize the point that media can no longer be taken as a self-contained policy domain reserved for the nation state. It raises awareness of the necessity for a broader understanding of the relevant societal and governance processes and sketches the new challenge to ensure a coherent regulatory framework for Internet content. In this sense, the paper seeks to address the question of appropriate forms of regulating Internet content and pleads for a recalibrated action in the domain of global media law and policy, in particular with regard to network neutrality and Internet filtering.

Download the article from SSRN at the link.

January 4, 2016 | Permalink

Friday, January 1, 2016

Prosecutors, Witnesses, Subpoenas, and Freedom of Speech

The New York Times discusses federal prosecutors and their requests that witnesses who receive subpoenas not disclose the existence of those subpoenas, citing the danger to  ongoing investigations.  But defense attorneys and others say such requests can be intimidating.

January 1, 2016 | Permalink

Monday, December 21, 2015

Gervais On the Protection of Performers Under U.S. Law in Comparative Perspective

Daniel J. Gervais, Vanderbilt University Law School, is publishing The Protection of Performers Under U.S. Law in Comparative Perspective in IP Theory, vol. 5, Art. 8 (2015). Here is the abstract.

The Garcia v Google case raised fundamental questions about US law as it applies to performed works. This Essay uses a comparative lens to shed some hopefully useful light on the debate. The Essay proceeds essentially in two parts. First, the Essay explores and critiques the international protection of performers’ rights using both history and policy as focal points. The following part describes the protection of performers and other owners of “related rights” in US law and explains the differences that adopting a related rights regime would bring about in the United States.

Download the article from SSRN at the link.

December 21, 2015 | Permalink

Thursday, December 17, 2015

Sag on Empirical Studies of Copyright Litigation

Matthew Sag, Loyola University (Chicago) School of Law, is publishing Empirical Studies of Copyright Litigation in 2 Research Handbook on the Economics of Intellectual Property Law (Peter S. Menell and David L. Schwartz, eds.; Edward Elgar Publishing, 2016). Here is the abstract.

This essay summarizes the current state-of-the-art in the application of observational empirical tools to the study of copyright litigation. As a field, Empirical Legal Studies (or ELS) is relatively young, and the subfield of ELS applied to copyright litigation is in its infancy. Broadly speaking, the existing empirical studies of copyright litigation can be classified into three subcategories: studies of judicial behavior; studies of the day to day life of copyright litigation from the time cases are filed to their ultimate disposition; and studies of particular aspects of copyright doctrine. The essay reviews the existing literature and concludes with guidelines for researchers planning to undertake an empirical study of copyright litigation that represent current ‘best practices’. Note: Draft in preparation for Peter S. Menell & David L. Schwartz (eds.), Research Handbook on the Economics of Intellectual Property Law (Vol. II -- Analytical Methods) (Edward Elgar Publishing, forthcoming 2016

Download the essay from SSRN at the link.

December 17, 2015 | Permalink

Buccafusco, Heald, and Bu on Unauthorized Pornographic Uses as Tarnishment of Protected Marks and Works

Christopher Buccafusco, Cardozo School of Law, and Paul J. Heald and Wen Bu, both of the University of Illinois College of Law, have published Testing Tarnishment in Trademark and Copyright Law: The Effect of Pornographic Versions of Protected Marks and Works. Here is the abstract.

Federal and state law both provide a cause of action against inappropriate and unauthorized uses that ‘tarnish’ a trademark. Copyright owners also articulate fears of ‘tarnishing’ uses of their works in their arguments against fair use and for copyright term extension. The validity of these concerns rests on an empirically testable hypothesis about how consumers respond to inappropriate unauthorized uses of works. In particular, the tarnishment hypothesis assumes that consumers who are exposed to inappropriate uses of a work will find the tarnished work less valuable afterwards. This Article presents two experimental tests of the tarnishment hypothesis, focusing on unauthorized and unwanted pornographic versions of targeted works. We exposed over 1000 subjects to posters of pornographic versions of popular movies and measure their perceptions of the targeted movie. Our results find little evidence of tarnishment, except for among the most conservative subjects, and some significant evidence of enhanced consumer preferences for the 'tarnished' movies. These results should place the burden on parties asserting tarnishment to prove that it actually exists, and they support changes to trademark and copyright laws with respect to proof of harm, fair use, and copyright term extension.

Download the article from SSRN at the link.

December 17, 2015 | Permalink

Friday, December 11, 2015

Volokh on the "Speech Integral to Criminal Conduct" First Amendment Exception

Eugene Volokh, University of California, Los Angeles, School of Law, is publishing The 'Speech Integral to Criminal Conduct' Exception in the Cornell Law Review. Here is the abstract.

In the last 10 years, the Supreme Court has been reviving a long-dormant and little-defined First Amendment exception: the exception for “speech integral to criminal conduct,” first expressly noted in Giboney v. Empire Storage & Ice Co. (1949). The Court has recently used this exception to justify prohibitions on distributing and possessing child pornography, on soliciting crime, and on announcing discriminatory policies. Lower courts have used it to justify restrictions on speech that informs people how crimes can be committed; on doctor speech that recommends medical marijuana to their clients; on union speech that “retaliates” against union members by publicly criticizing them for their complaints; on intentionally distressing speech about people; and more. Government agencies have used the exception to justify restrictions on, among other things, the publication of bomb-making instructions, speech by tour guides, and offensive speech by protesters near a highway. The Court has offered “speech integral to [illegal] conduct” as one of the “well-defined and narrowly limited classes of speech” excluded from First Amendment protection. But if this exception is indeed to be well-defined and narrowly limited, courts need to explain and cabin its scope. This Article aims to help with that task. It also tells the story of this exception, which turns out to be central to much of the evolution of modern First Amendment doctrine -- including the fighting words exception, the threats exception, and the incitement exceptions. And it suggests that the Court’s recent turn away from categorical balancing, and towards history, in developing First Amendment exceptions has coincided with the revival of Giboney. Just as Giboney was an important tool for Justice Black (its author) in resisting thoroughgoing categorical balancing, so Giboney has become a comparably important (though dangerous) tool for the Roberts Court.

Download the article from SSRN at the link.

December 11, 2015 | Permalink

Monday, December 7, 2015

Adam Candeub on the Law of Identification as the Enemy of Privacy

Adam Candeub, Michigan State University College of Law, has published Privacy, Identification, and Common Law Names. Here is the abstract.

The conventional wisdom, reflected in legal policy analysis and landmark Supreme Court cases such as Kyllo and Jones, views technology as privacy’s chief foe. This Article challenges that wisdom, arguing that the law of identification is privacy’s real threat. Particularly in the last decade, legal requirements for identification through government-issued identification cards in virtually every aspect of life — from online purchases to healthcare — have proved fatal to anonymity and privacy. This slow, subtle transformation has rendered a de facto nullity the Constitution’s anonymity protection against compelled identity disclosure. This transformation also has rendered impracticable the traditional, but mostly forgotten, common law rights to use whatever name one wishes, i.e., the right to pseudonymity. The common law name allows a type of anonymity, which, in turn, allows online privacy and privacy in other aspects of life. This Article argues that the continued vitality of common law name rights, particularly in light of recent First Amendment jurisprudence, establishes a right to pseudonymity — as well as the possibility of increasing privacy. This right includes, in certain circumstances, the ability to demand a government-issued identification under a common law pseudonym. This ability would allow individuals to frustrate regulatory identification regimes and regain some privacy. Beyond these practical implications, this Article engages in a theoretical analysis of the legal mechanisms of identification. Using the classic Calabresi-Melamed property/liability distinction, this Article demonstrates how name governance changed from the common law liability regime to the current government-owned property regime. This shift reflects an important, and hitherto unrecognized, transformation in the legal relationship between the state and citizen.

Download the article from SSRN at the link.

December 7, 2015 | Permalink

FCC Commissioner Ajit Pai Receives Inaugural Herbert Brownell Award

Here are FCC Commissioner Ajai Pai's remarks upon receiving the inaugural Herbert Brownell Award at the Tech Elders' First Annual First Annual Herbert Brownell Dinner.

Mr. Brownell (1904-1996) received his law degree from Yale and practiced with Root, Clark, Buckner & Ballantine and then with Lord, Day & Lord. He was active in politics, heading up Thomas E. Dewey's successful campaign for governor of New York and later Mr. Dewey's unsuccessful Presidential campaigns. He served as President Eisenhower's Attorney General in the President's first term and supported the appointment of federal judges who would carry out the Supreme Court's Brown v. Board decision.  More about Mr. Brownell here from the Washington University Film and Media Archive.

December 7, 2015 | Permalink

Thursday, December 3, 2015

Meg Mary Margaret Penrose on College Athletes, Social Media, and the First Amendment

Meg Mary Margaret Penrose, Texas A&M University School of Law, has published Tinkering with Success: College Athletes, Social Media and the First Amendment at 35 Pace Law Review 30 (2014). Here is the abstract.

Good law does not always make good policy. This article seeks to provide a legal assessment, not a policy directive. The policy choices made by individual institutions and athletic departments should be guided by law, but absolutely left to institutional discretion. Many articles written on college student-athletes' social media usage attempt to urge policy directives clothed in constitutional analysis. In this author's opinion, these articles have lost perspective - constitutional perspective. This article seeks primarily to provide a legal and constitutional assessment so that schools and their athletic departments will have ample information to then make their own policy choices.
Download the article from SSRN at the link.

December 3, 2015 | Permalink

Luke McDonagh On Copyright in Theater Practice

Luke McDonagh, City University London, has published Plays, Performances and Power Struggles - Examining Copyright's 'Integrity' in the Field of Theatre at 77 The Modern Law Review 533 (2014). Here is the abstract.

This article explores the notion of ‘integrity’ under copyright law by analysing examples of 'integrity based objections' in the field of theatre. These objections typically involve playwrights objecting to changes being made to their copyright works by other parties, such as directors and actors. This analysis is deepened by the use of two concepts from the field of art theory – ‘aura’, as put forward by Walter Benjamin, and ‘trajectory’, as outlined by Bruno Latour and Adam Lowe. Finally, to shed further light on the issues raised, the work of Pierre Bourdieu is used to present new empirical research recently undertaken by the author in the field of UK theatre. This research demonstrates that ‘power struggles’ are a common feature of theatrical collaboration; that copyright is deeply implicated in the way such power struggles are conceived; and moreover, that resolving these power struggles successfully – including taking account of ‘integrity-based objections’ – is crucial to theatrical practice.

Download the article from SSRN at the link.

December 3, 2015 | Permalink

Wednesday, December 2, 2015

Van den Akker, Fronke, Blyth, and Frith on British Media Framing of Transnational Surrogacy

Olga Van den Akker, Middlesex University, Patricia Fronek, Griffith University, School of Human Services and Social Work, Eric Blyth, University of Huddersfield, and Lucy Frith, University of Liverpool, have published 'This Neo-Natal Ménage À Trois': British Media Framing of Transnational Surrogacy, at 2015 Journal of Reproductive and Infant Psychology 1. Here is the abstract.

Background: Media framing can influence people's perceptions of social changes in family building, and has the potential to influence their future actions. Objectives: To analyse the type of framing and construction used in British newsprint of transnational commercial surrogacy. Methods: UK newspapers were searched using the search engine Lexis-Nexis. One hundred and ninety-seven articles were analysed. Content analysis was undertaken to identify the use of gain, loss, neutral, alarm and vulnerability frames, as well as type of construction (i.e. ethical, social, legal, financial and medical). Four researchers independently analysed articles using a coding strategy. Results: Differences between serious (mainly legal, financial), middle-market (legal) and tabloid (social, financial) newspapers were found. There were three main foci; buying babies -- affordable only to those wealthy enough to pay for it; the legal complications of transnational surrogacy -- reporting a sense of the legal system lagging behind this practice; and gay families -- repeatedly questioning their suitability as parents -- demonstrating a prevailing heterosexual stereotype about reproduction and parenting. Conclusions: Stereotyping was prevalent and the welfare of children and medical aspects of transnational surrogacy were minimally addressed, indicating the media selectively influences its readership.

The full text is not available for download.

December 2, 2015 | Permalink

Usman on Defamation and Redefining the Public Official

Jeffrey Omar Usman, Belmont University College of Law, is publishing Defamation and the Government Employee: Redefining Who Constitutes a Public Official in volume 47 of the Loyola University Chicago Law Journal (2015). Here is the abstract.
This Article embraces neither the narrow nor broad conceptualization of a public official employed currently by state and lower federal courts but instead suggests revisiting the Rosenblatt formulation and the one clear limitation set forth by Hutchinson that whatever the scope of public officialdom may be “it cannot be thought to include all public employees.” Though not all speech about government employees should be deemed to be related to their official capacity, all government employees should be considered public officials, and speech related to their official conduct should be safeguarded by the actual malice standard. To explain and support this contention, this Article in Part II delineates the Supreme Court’s constitutional framework for categorizing plaintiffs in defamation cases. In Parts III and IV of the Article, the three principal arguments for not applying the actual malice standard to lower-level government employees and why those arguments are ultimately unavailing are explored. More precisely, Part III of the Article addresses the contention that speech about lower-level government employees is unimportant to democratic self-governance. In responding to this argument, Part III seeks to demonstrate that speech about the actions of lower-level government employees who are acting in their official capacity is political speech that is critical to democratic self-governance. The Article in Part IV sets forth the opposing argument that the actual malice standard should not be applied to lower-level government employees because of their lack of access to media for purposes of self-help and because they have not voluntarily submitted to such scrutiny. These rationales for not protecting speech relating to the official conduct of lower-level government employees arise from the Supreme Court’s 1974 decision in Gertz v. Robert Welch, Inc. Part IV delves into the manner in which four decades of societal and technological change since Gertz have significantly diminished the persuasiveness of the lack of access to media rationale. Part IV also examines how the jurisprudential transformation in the concept of voluntariness in the years after Gertz has rendered the voluntariness rationale unavailing as a basis for not applying the actual malice standard to lower-level government employees. The Article in Part V explores the First Amendment jurisprudential dissonance created by failure to afford greater protection to speech about the official conduct of lower-level government employees. Ultimately, the Article seeks to explain, in contradistinction with Rosenblatt and Hutchison, why all government employees should be deemed public officials, and why speech related to their actions within their official capacity should be protected by the actual malice standard.
Download the article from SSRN at the link.

December 2, 2015 | Permalink

Tuesday, December 1, 2015

Scassa and Conroy on Promoting Transparency and Protecting Privacy in the Canadian Legal Regime

Teresa Scassa, University of Ottawa, Common Law Section, and Amy M. Conroy, University of Ottawa, Faculty of Law (Student), are publishing Promoting Transparency While Protecting Privacy in Open Government in Canada in the Alberta Law Review. Here is the abstract.

The rise of big data analytics, combined with a movement at all levels of government in Canada towards open data and the proactive disclosure of government information, create a context in which privacy issues are increasingly likely to conflict with the goals of transparency and accountability. No new legislative frameworks guide the move towards open government in Canada, notwithstanding the fact that government data is fuel for the engines of big data. This paper considers the challenges inherent in the release of government data and information within this context. Although the recent Supreme Court of Canada decision in Ministry of Community Safety and Correctional Services v Information and Privacy Commissioner (Ontario) (Ministry of Community Safety) did not specifically address either open data or proactive disclosure, this case offers important insights into the gaps in both legislation and case law in this area. This paper assesses how the goals of transparency and the protection of privacy are balanced in Canada in light of the Court’s decision in Ministry of Community Safety. In particular, it considers how “personal information” is to be understood in the public sector context; how courts and adjudicators understand transparency in the face of competing claims to privacy; and how best to strike the balance between privacy and transparency. It challenges the simple equation of the release of information with transparency and argues that the coincidence of open government with big data requires new approaches.

Download the article from SSRN at the link.

December 1, 2015 | Permalink

Meg Mary Margaret Penrose On The First Amendment Right of College Athletes To Use Social Media

Meg Mary Margaret Penrose, Texas A&M University School of Law, has published Sharing Stupid $H*T with Friends and Followers: The First Amendment Rights of College Athletes to Use Social Media at 17 SMU Science and Technology Law Review 449 (2014). Here is the abstract.

This paper takes a closer look at the First Amendment rights of college athletes to access social media while simultaneously participating in intercollegiate athletics. The question posed is quite simple: can a coach or athletic department at a public university legally restrict a student-athlete's use of social media? If so, does the First Amendment provide any restraints on the type or length of restrictions that can be imposed? Thus far, neither question has been presented to a court for resolution. However, the answers are vital, as college coaches and athletic directors seek to regulate their athletes in a constitutional manner.

Download the article from SSRN at the link.

December 1, 2015 | Permalink

Monday, November 30, 2015

Adam Candeub On Digital Medicine, the FDA, and the First Amendment

Adam Candeub, Michigan State University College of Law, is publishing Digital Medicine, the FDA, and the First Amendment in the Georgia Law Review. Here is the abstract.

Digital medicine might transform healthcare more fundamentally than the introduction of anesthesia or germ basis theory of disease. Already, tens of thousands of "medical apps" are available for smartphones. These computer applications can measure blood pressure, pulse, lung function, oxygenation level, sugar level, breathing rate and body temperature — and can even diagnose skin cancer, analyze urine, take an echocardiogram. In Fall 2013, the Federal Drug Administration (FDA) has asserted regulatory authority over mobile medical applications and other digital medical services, threatening to chill, if not, destroy this innovation. This Article argues that the FDA stands on firm legal ground regulating medical devices that invasively measure bodily functions or take physical specimens. On the other hand, the FDA’s exercise of jurisdiction over applications that simply process information, or use approved medical devices to provide medical information, like 23andMe, a genome analysis firm against which the FDA brought enforcement proceedings, raise legal concerns. In particular, because these medical applications simply process information, the First Amendment places them beyond the FDA’s regulatory reach. This paper adds to the debate on the First Amendment, information and computer code. Building on recent Supreme Court decisions, this paper shows how code and applications that create healthcare information are protected speech. Given digital applications’ capacity to produce pools of data that researchers can mine for clinical and epidemiological insights and given government funding of medical services, healthcare data and production are scientific and political speech, deserving of full First Amendment protection.

Download the article from SSRN at the link.

November 30, 2015 | Permalink

Scott Skinner-Thompson on the Due Process Clause and the Right to Privacy

Scott Skinner-Thompson, New York University School of Law, is publishing Outing Privacy in volume 110 of the Northwestern University Law Review (2015). Here is the abstract.

The government regularly outs information concerning people’s sexuality, gender identity, and HIV status. Notwithstanding the implications of such outings, the Supreme Court has yet to resolve whether the Constitution contains a right to informational privacy — a right to limit the government’s ability to collect and disseminate personal information. This Article probes informational privacy theory and jurisprudence to better understand the judiciary’s reluctance to fully embrace a constitutional right to informational privacy. The Article argues that while existing scholarly theories of informational privacy encourage us to broadly imagine the right and its possibilities, often focusing on informational privacy’s ability to promote individual dignity and autonomy, there is a disconnect when courts attempt to translate those theories into workable doctrine. The extant theories are products of Fourth Amendment and decisional privacy law, and bear a more attenuated relationship to informational privacy problems, hindering recognition of the right. This Article reorients and hones the focus of the purported informational privacy right toward what the Due Process Clause suggests as the right’s two principal and more concrete values: preventing intimate information from serving as the basis for potential discrimination and creating space for the formation of political thought. By so doing, not only is a more precise theory of informational privacy constructed, but instrumentally (and perhaps most importantly), courts will be more apt to recognize a constitutional informational privacy right thereby better insulating individuals from discrimination or marginalization.

Download the article from SSRN at the link.

November 30, 2015 | Permalink

Saudi Arabian Justice Ministry Says It Will Sue Over "ISIS" Comparison

From Reuters: Saudi Arabia's Ministry of Justice says it will sue an unnamed Tweeter who said that the recent death sentence meted out to Ashraf Fayadh, a noted Palestinian poet, was comparable to those committed by ISIS. Saudi Arabia's justice ministry fired back, saying that Mr. Fayadh's death sentence was given out because he has renounced Islam, and that to question the fairness of Saudi Arabian courts is essentially putting into question the fairness of the kingdom's Islamic-based justice system.  More here from the Washington Post.

November 30, 2015 | Permalink

Caterina Sganga on Copyright as an Obstacle To Accessibility To Information To Those With Disabilities

Caterina Sganga, Central European University (CEU), Department of Legal Studies, and CEU Business School, has published Disability, Right to Culture and Copyright: Which Regulatory Option? at 29 International Review of Law, Computers, and Technology 88 (2015). Here is the abstract.

Access to knowledge and participation in cultural life for persons with disabilities has always constituted a tough challenge. Recent studies show that only 5% of published works are available in accessible format, and the number plummets to 1% in developing countries. Coupled with the high costs of production and distribution, and the full reliance on public funds and intervention of public or non-profit organizations, copyright has traditionally represented an additional obstacle on the path for a broader availability of accessible works. Recently, the situation has worsened with the tilting in the balance between rights and exceptions caused by the legislative response to digital threats, when the unprecedented opportunities offered by new technologies to foster accessibility have been largely trumped by copyright law. Still, the last decades have witnessed the beginning of a paradigm shift, originating from the human rights arena, and moving towards a new definition of the interplay between authors’ rights and the right to take part in cultural life, both at a general level and with particular regards to persons with disabilities. This article offers a diachronic overview of the path that, from the rediscovery of Article 15 of the International Covenant on Economic, Social and Cultural Rights through its General Comments to Article 30 of the United Nations Convention on the Rights of Persons with Disabilities, has led to the adoption of the Marrakesh Treaty. It then analyses, with a focus on the European Union and its Member States, the national and regional responses to the new human rights obligations, looking at the relations between legislative exceptions and model or collective license agreements. The assessment of the strengths and weaknesses of the two main regulatory options lays the groundwork for proposals of further areas of intervention, necessary to fully comply with the international human rights obligations and to achieve the fullest access to and participation in culture possible for persons with disabilities, by using the tools offered by international and national copyright law.

The full text is not available from SSRN.

November 30, 2015 | Permalink

Tuesday, November 24, 2015

Child Participants In Reality TV Programming

Benjamin Shmueli, Bar-Ilan University Faculty of Law, is publishing Children in Reality TV: A Comparative and International Perspective in volume 25 of the Duke Journal of Comparative & International Law (2015). Here is the abstract.

The article addresses the proper balance between (a) preventing harm to children participating in reality TV and preventing injury to privacy, and (b) the freedom of expression of the participating children, the commercial freedom of speech of media outlets and advertisers, and the public’s right to watch these programs, which currently enjoy top ratings. It is generally believed that TV channels often exploit the desire of children and of their parents to become famous by participating in a reality show, without considering the price that the children and their families pay for participating. Is this indeed the case, and is the picture necessarily one-sided? Although the topic is relevant to many areas of law, legislation regarding the participation of children in general entertainment programs is scarce and is not particularly well suited for reality shows. The article attempts to assist in creating legislation or uniform regulation in the field while respecting the success these programs enjoy and the legal rights of the television channels that host them. This is balanced against the desire to prevent the field from being left wide open and the legal rights of the children from being infringed. The article accomplishes this, in part, by comparing the American approach to the British and French regulations and to the UN Convention of the Rights of the Child. The article presents three prototypes to introduce a balanced model that will achieve this goal: talent shows (e.g., “America’s Got Talent” or “MasterChef Junior”), parental training in child care by observing a family therapist in real time (e.g., “Nanny 911”), and competitive tasks within the framework of “Survival” for children (e.g., “Kid Nation”). A set of key parameters are presented for assessing the legitimacy of participation. The parameters include (1) assessment of the child’s genuine consent and of the complex question of the child’s wish and privacy with reference to the parent’s wish and desire for fame; (2) harm vs. benefit to the child, the family, and the public in the short and the long terms; (3) the effect of the duration of exposure; and (4) the age of the child. There is an ongoing debate concerning the relationship between damages and benefits of reality shows to participants and the public. This is especially true concerning programs featuring children. The starting point of the model presented in the article will be the need for striking a successful and proper balance between the rights, welfare, dignity, and privacy of the children, and other interests. In the current reality, it is not possible to prevent children from participating in these shows entirely, and the public has the liberty to watch such programs. However, such child participation should be limited as much as possible. The model will introduce several suggestions based on a distributive and deterrent approach, which reflect similar measures implemented in the French legislation and British regulations of Ofcom, the UK regulator for television and radio. The US has a long history of developing children’s rights and of protecting workers from exploitation. Regulating children’s participation in reality shows, thus developing children’s rights and protecting said children from worker exploitation, is the next and natural step in this direction.

Download the article from SSRN at the link.

November 24, 2015 | Permalink

Virtue, Freedom, and the First Amendment

Marc O. DeGirolami, St. John's University School of Law, is publishing Virtue, Freedom, and the First Amendment in the Notre Dame Law Review. Here is the abstract.

The modern First Amendment embodies the idea of freedom as a fundamental good of contemporary American society. The First Amendment protects and promotes everybody’s freedom of thought, belief, speech, and religious exercise as basic goods — as given ends of American political and moral life. It does not protect these freedoms for the sake of promoting any particular vision of the virtuous society. It is neutral on that score, setting limits only in those rare cases when the exercise of a First Amendment freedom exacts an intolerable social cost. Something like this collection of views constitutes the conventional account of the First Amendment. This essay offers it two challenges. First, the development of the First Amendment over the past century suggests that freedom is not an American sociopolitical end. It is a means — a gateway out of one kind of political and legal culture and into another with its own distinctive virtues and vices. Freedom is not a social solution but instead gives rise to a social problem — the problem of how to allocate a resource in civically responsible ways, so as to limit freedom’s hurtful potential and to make citizens worthy of the freedoms they are granted. Only a somewhat virtuous society can sustain a regime of political liberty without collapsing, as a society, altogether. Thus the First Amendment of the conventional account has not maximized freedom for all people and groups. It has promoted a distinctive set of views about the virtuous legal and political society. Second, the new legal culture promoted and entrenched by the conventional account is increasingly finding that account uncongenial. In fact, the conventional account is positively harmful to its continued flourishing. That is because the new legal culture’s core values are not the First Amendment freedoms themselves but the particular conceptions of political and social equality and individual dignity that the conventional account has facilitated and promoted. Proponents of the new legal culture in consequence now argue for aggressive limits on First Amendment freedoms. One prominent group has invented a new legal category: “enumerated rights Lochnerism.” These scholars denigrate any First Amendment resistance to multiplying forms of expansive government regulation in the service of egalitarian aims as retrogressively libertarian. Another group argues for novel limits on the First Amendment in the form of balancing tests that would restrict speech that injures the dignity of listeners and religious exercise that results in vaguely defined and vaguely delimited harms to third parties. What unites these critics is the desire to swell features of the Court’s post-New Deal Fourteenth Amendment jurisprudence, and particularly the law concerning sex as a civil right, by protecting progressively expansive conceptions of equality and individual dignity. The critics see the conventional account of the First Amendment as an obstacle in the path of progress. Part I of this essay presents the conventional account of the First Amendment in three theses. It then critiques the conventional account in Part II by offering three revised theses, developed through the somewhat unusual route of exploring the First Amendment thought of the late political theorist and constitutional scholar, Walter Berns. Freedom, for Berns, gave rise to a problem — the problem of making men sufficiently virtuous to merit their freedom. It was a problem that he thought had been ignored or even forgotten by defenders of the conventional account of the First Amendment. But the problem of virtue and freedom has been remembered. Part III argues that contemporary defenders of the new legal culture have remembered the problem just as their own cultural and legal mores are ascendant. The new civic virtues — exemplified in multiplying anti-discrimination regulations for the protection of thickening conceptions of equality and individual dignity, particularly as those concepts relate to sexual autonomy — are those that were fostered by the conventional account of the First Amendment in tandem with significant components of the Supreme Court’s post-New Deal Fourteenth Amendment jurisprudence. And those civic virtues are already informing new criticisms of the conventional account and arguments about new limitations on the scope of religious freedom and freedom of speech. Berns’s arguments about freedom and virtue, it turns out, are highly relevant today since progressive opinion is no longer committed to First Amendment “absolutism.” The essay concludes with two speculations. First, it seems we are no longer arguing about whether to restrict freedom, but for what ends. If that is true, then those arguments should neither begin nor end with egalitarian and sexual libertarian fervor. Second, there is no account of the First Amendment that maximizes freedom for everyone — for all persons and groups. There is only the society that America was before the rise of the conventional account of the First Amendment and the society that it is becoming after it.

Download the article from SSRN at the link.

November 24, 2015 | Permalink