Schauer on Oliver Wendell Holmes's Interpretation of the First Amendment @UVALaw

Frederick Schauer, University of Virginia School of Law, is publishing Every Possible Use of Language? in an Oxford University Press volume and as Virginia Public Law and Legal Theory Research Paper No. 2017-61. Here is the abstract.

This essay, written for a forthcoming Oxford University Press volume edited by Geoffrey Stone and Lee Bollinger, probes Oliver Wendell Holmes’s almost offhand statement in Frohwerk v. United States, 249 U.S. 204 (1919), that “the First Amendment... cannot have been intended... to give immunity for every possible use of language.” Although Holmes may not have seen the difference between this conclusion and the clear and present danger idea he offered contemporaneously in Schenck v. United States and Debs v. United States, in fact it may be the first hint of the now-important distinction between the coverage of the First Amendment and the protection it offers for covered speech. In observing that the First Amendment does not even apply to a vast range of linguistic behavior, Holmes provides the opportunity not only to recover Frohwerk’s importance in the pantheon of 1919 free speech cases, but also to explore the continuing relevance and importance of understanding that much – perhaps even most – linguistic behavior does not implicate the First Amendment at all, and thus does not trigger any form of heightened scrutiny.

Download the essay from SSRN at the link.

Kovvali on Confederate Statute Removal

Aneil Kovvali, Wachtell, Lipton, Rosen, & Katz, has published Confederate Statute Removal at 70 Stanford Law Review Online 82 (2017). Here is the abstract.

Certain state governments have adopted statutes that are designed to prevent city governments from eliminating memorials to Confederate forces and leaders. Critics of these controversial statutes generally focus on the moral issue of preserving statues honoring white supremacy. This Essay highlights a different set of concerns: These statutes suppress the speech of cities while compelling them to make statements they disagree with, and they distort the political process in troubling ways. These concerns have clear echoes in constitutional doctrine, and represent a separate reason for removal of these statutes.

The full text is not available for download. 

Gould on Punishing Violent Thoughts: Islamic Dissent and Thoreauvian Disobedience in Post 9/11 America @rrgould

Rebecca Ruth Gould, Unviersity of Birmingham; Harvard University Davis Center for Russian and Eurasian Studies, is publishing Punishing Violent Thoughts: Islamic Dissent and Thoreauvian Disobedience in Post-9/11 America in the Journal of American Studies. Here is the abstract.

American Muslims increasingly negotiate their relationship to a government that is suspicious of Islam, yet which recognizes them as rights-bearing citizens, within a culture they claim as their own. To better understand how the post-9/11 state is reshaping American Islam, I examine the case of Muslim American dissident Tarek Mehanna, sentenced to seventeen years in prison in 2012 for providing material support for terrorism. I read Mehanna’s verbal and visual depictions of his persecution in relation to the American dissidents Mehanna claims as intellectual predecessors, above all Henry David Thoreau and John Brown, while situating this dissent within a long history of American activism.

Download the article from SSRN at the link.

Call for Applications: First Amendment and the Arts, Spangenberg Center, CWRU @CWRU_Law

My (law school) alma mater, Case Western Reserve School of Law, has posted a call for applications for a fellowship in the First Amendment and the arts, to begin immediately. Looks like a great opportunity for someone interested in the intersection of the FA and IP. More information here.

Peltz-Steele @RJPeltzSteele on Ways of Expressing Disfavored Ideas

Richard J. Peltz-Steele, University of Massachusetts School of Law, Dartmouth, has published Frakking Flyting: Chasing the Neophemism. Here is the abstract.

A survey of “bad language” study reveals that power lies not in bad words themselves, but in their meaning, or the ideas with which they are associated. Put simply, words are not taboo; ideas are. Fuck is not taboo per se; its vulgar sexual connotation is. The fluid capacity of words to associate or dissociate with ideas is made manifest in contemporary media with the proliferation of “the near swear,” or “fake swear.” Our pantheon of terminology for the linguistic expression of taboo ideas presently includes dysphemisms, which are offensive renditions (fucking); euphemisms, which are inoffensive, often metaphorical renditions (making love); and orthophemisms, which are sober renditions (having sexual intercourse). This paper posits a fourth category: the neophemism. A neophemism is a new word associated with taboo expression, usually for the purpose of evading censorship or reinforcing constructs in fiction. Frakking is a neophemism for fucking. Neophemisms are experiencing a profound proliferation at present because of the explosive growth of electronic media. But the neophemism is not a new device. Fuck has neophemisms in many variations, form from firk (arguably) in Shakespeare to fug in Norman Mailer to frak in Glen A. Larson’s Battlestar Galactica. Other variants form from truncation, heterographs, homophones, metathesis, rhyming slang, and other word play. Neophemisms can be tools to effect social change because they offer an alternative manner of expression about taboo ideas. Accordingly, neophemisms present a curious problem for the regulator, who would resist social change. If a neophemism affords a speaker access to taboo subject matter, then the regulator has incentive to censor. Censorship of neophemisms points down a dangerous road, because free expression ultimately is jeopardized by unbridled regulatory discretion. In the end, neophemisms demonstrate the inevitability of social change and the futility of enforcing social taboo by speech regulation.

Download the article from SSRN at the link.

Balkin's Review of Fleming's Fidelity to Our Imperfect Constitution

Jack M. Balkin, Yale Law School, is publishing History, Rights, and the Moral Reading in the Boston University Law Review (2016). Here is the abstract.

James Fleming's book, Fidelity to Our Imperfect Constitution, argues for a "moral reading" of the Constitution, a phrase made famous by Ronald Dworkin. But Fleming's version of the moral reading differs from Dworkin's in two important ways. First, Fleming argues that Dworkin's attempt to explain and justify judicial protection of constitutional rights in terms of democratic self-government is unduly strained. Moreover, in the quest to re-characterize all of these rights as supporting democracy, there is the danger that we will distort their most valuable features. I show why Fleming's insight is correct. I use the example of the First Amendment's guarantees of speech and press, which many scholars have assumed offers the strongest case for a democracy-based justification of rights. Second, Dworkin spent relatively little time worrying about how historical argument figured into a moral reading of the Constitution, other than to criticize originalism. Building on Dworkin's argument that good interpretations must satisfy the two dimensions of "fit" and "justification," Fleming asserts that history can be quite important to moral readings. I argue that Fleming offers a better account than Dworkin of why history matters -- and should matter -- to a moral reading of the Constitution. I show how his account connects with my own work on how lawyers use history in constitutional argument.

Download the text of the review from SSRN at the link.

How the Law Treats Deceptive Speech

Stuart P. Green, Rutgers, The State University of New Jersey, School of Law (Newark) is publishing Lying and Law in The Oxford Hankbook of Lying (Joerg Meibauer, ed. OUP, forthcoming). Here is the abstract.

How should the law regulate lies and other forms of deception? Sometimes, it takes a hard line, subjecting those who engage in deception to serious criminal or disciplinary sanctions. Other times, it is quite tolerant, declining to impose sanctions, and even affording certain kinds of deception constitutional protection. This chapter, written for a wide-ranging, interdisciplinary collection of essays on lying, offers a general survey of a very broad topic, focusing primarily on U.S. law, but also attempting, in a selective manner, to contrast that law to the law of other jurisdictions. The discussion begins with a consideration of the various ways in which deception functions as an element in three very different sorts of criminal offenses: perjury, fraud, and rape by deception. It then looks at how the law regulates deception by the police (during interrogations) and by lawyers (to courts and to their adversaries). Finally, it consider the possibility that deception used by the media and in the course of political campaigns might lie beyond the scope of permissible legal regulation. The main point will be to show how the law’s treatment of deception varies depending on the role of the person doing the deceiving (e.g., private individuals vs. government officials) and the social context in which the deception occurs (such as a courtroom, the marketplace, a police station, or a sexual encounter). More generally, it is intended to show the quite nuanced ways in which the law seeks to deter deceptive speech that is truly harmful without “chilling” deceptive speech that is harmless or even socially beneficial.

Download the essay from SSRN at the link.

Conduct, Speech, and the NLRA

Christine Neylon O'Brien, Boston College School of Management, is publishing I Swear! From Shoptalk to Social Media: The Top Ten National Labor Relations Board Profanity Cases in volume 90 of St. John's Law Review (2016). Here is the abstract.

Waitresses at Hooters got into a swearing match in front of customers over a mandatory bikini competition that was rumored to be rigged. An off duty barista at a New York Starbucks used profanity in a heated conversation with a manager that also took place in the presence of customers. Employees at a Manhattan catering service complained to the director of banquet services about the hostile, degrading, and disrespectful treatment they received from managers. Then, just prior to a National Labor Relations Board (NLRB) election, servers were repeatedly told by their manager to spread out and stop talking to each other. One server posted profane remarks about the manager on his Facebook page while he was on break, including a plea to vote for the union. In other instances, employees profanely commented on social media about their boss’ ineptitude at tax withholding; locked out bargaining unit members made vulgar comments and gestures to those who crossed the picket line; and unionized employees were told not to wear buttons in the presence of customers that contained language that bordered on profanity. All these examples refer to recent unfair labor practice cases that were brought to the NLRB by employees or their unions when employees were terminated for their use of profanity while engaged in concerted activity that was otherwise protected by Section 7 of the National Labor Relations Act (NLRA). This article curates and analyzes ten recent cases involving employee communication laced with profanity. It informs managers and employees of the rules that the NLRB is currently following in this area, and the key factors that the Board weighs when considering whether conduct loses NLRA protection. The paper summarizes these top ten cases in an informative table, and then outlines why the NLRB or an administrative law judge determined the conduct was protected by the NLRA, and, if so, whether that protection was lost because of the egregiousness of the employee’s misconduct. In many of these cases, the Board found employer rules relating to profanity were overbroad because they unduly infringed upon employees’ Section 7 right to communicate about wages, hours, working conditions or matters of mutual aid and support. Cases involving employee dishonesty during an employer investigation into profane or offensive conduct and/or racial or sexual harassment are compared, and important distinctions are made.

Download the article from SSRN at the link.

A New Book on Law and Film

Forthcoming from the University of Texas Press: Jeremy Geltzer's Dirty Words & Filthy Pictures: Film and the First Amendment (2015). Here is a description of the content from the publisher's website.

From the earliest days of cinema, scandalous films such as The Kiss (1896) attracted audiences eager to see provocative images on screen. With controversial content, motion pictures challenged social norms and prevailing laws at the intersection of art and entertainment. Today, the First Amendment protects a wide range of free speech, but this wasn’t always the case. For the first fifty years, movies could be censored and banned by city and state officials charged with protecting the moral fabric of their communities. Once film was embraced under the First Amendment by the Supreme Court’s Miracle decision in 1952, new problems pushed notions of acceptable content even further. Dirty Words & Filthy Pictures explores movies that changed the law and resulted in greater creative freedom for all. Relying on primary sources that include court decisions, contemporary periodicals, state censorship ordinances, and studio production codes, Jeremy Geltzer offers a comprehensive and fascinating history of cinema and free speech, from the earliest films of Thomas Edison to the impact of pornography and the Internet. With incisive case studies of risqué pictures, subversive foreign films, and banned B-movies, he reveals how the legal battles over film content changed long-held interpretations of the Constitution, expanded personal freedoms, and opened a new era of free speech. An important contribution to film studies and media law, Geltzer’s work presents the history of film and the First Amendment with an unprecedented level of detail.

Cross-posted to the Media Law Prof Blog.

Freedom of Speech, Freedom of Religion, and State Regulation of Fortune Telling In the U.S. Since 1945

Christine A. Corcos, Louisiana State University Law Center, has published Seeing it Coming Since 1945: State Bans and Regulations of 'Crafty Sciences' Speech and Activity at 37 T. Jefferson L. Rev. 39 (2014). Here is the abstract.

After the Supreme Court’s decision in United States v. Ballard, Spiritualism’s adherents, like other members of minority belief systems, could qualify for the same First Amendment protections as members of mainstream religions. While Spiritualists could thus celebrate a certain level of victory, they still faced intolerance and outright persecution from some government officials and state legislatures who continued to believe that common Spiritualist practices, which included communication with the dead, divination, and in some cases, faith healing, were simply shams for frauds perpetrated on members of the public who were grieving over the loss of loved ones. In their grief, members of the public sought out Spiritualist practitioners who convinced them that their deceased relatives and friends could speak to them through Spiritualist intervention, and often with the assistance of donations to a Spiritualist church. In many cases, Spiritualist ministers did (and still do) offer assistance in the form of messages from loved ones to assist in guidance for the future.

Some prosecutors and police did not see such messages as legitimate spiritual guidance or genuine prophecy. They still labeled such communications as fortune telling. Under “rogue and vagabond” statutes, a type of disorderly person legislation enacted as early as the 1790s in the United States, fortune telling and like activities were considered fraudulent activity, not religious ministrations. The statutes defined those who carried them out as crafty sciences practitioners or “rogues and vagabonds,” not members of the clergy. However, both the ruling in Ballard and ministerial exemptions that state legislatures carved out of statutes before and after Ballard protected clergy from accusations of fraud. Beginning early in the twentieth century, but in growing numbers after the Second World War, members of minority religions could take advantage of ministerial exemptions to protect themselves from a charge of fraud, even if their activities resembled “crafty sciences practices,” if they could convince the police or the courts that they were clergy and the practices they followed were recognized by their churches. However, crafty sciences practitioners who were not members of minority religions had more difficulty in escaping fraud accusations. Even if they spoke to willing clients, even if they did not request payment for their services (and some did not, although they accepted donations), and whether they performed their services in entertainment venues or in storefronts, they ran the risk that the police might arrest them and prosecutors might bring criminal charges against them. State statutes and local ordinances that banned fortune telling, palmistry, divination, phrenology, or other crafty sciences practices offered no defense because the First Amendment did not protect such speech. Law enforcement and prosecutors tended to bring fewer complaints of outright fraud against Spiritualists after 1945, and shifted their attention to claims of fraud against others who engaged in the same kinds of practices, including fortune tellers, and by extension, palmists, clairvoyants, and astrologers. At the same time, other minority religious practitioners, emboldened by the success of the Spiritualists as well as other non-traditional groups, began to argue that they too should be able to claim the protections of the First Amendment Free Exercise Clause for practices that included divination, prophesy, and other “crafty sciences” if those practices were part of religious rituals. This Article examines those claims and government responses, in the form of bans and regulations such as zoning and licensing, and tests whether these responses are constitutional under the First Amendment.

Download the article from SSRN at the link.

Religious Expression and Courtroom Oaths

Frederick B. Jonassen, Barry University School of Law, is publishing 'So Help Me?': Religious Expression and Artifacts in the Oath of Office and the Courtroom Oath in volume 12 of the Cardozo Public Law, Policy and Ethics Journal (Spring 2014). Here is the abstract.

For the purpose of taking an oath, the use of the Christian Bible, which includes both the Old Testament (the Jewish scriptures) and the New Testament (the scriptures relating to Jesus Christ), or the use of the New Testament alone, has been traditional and commonplace in Western culture because Christianity was historically the West's predominant religion. However, as non-Christians were permitted to participate more fully in legal proceedings and to work as government officials, the use of other religious texts or symbols, or the non-use of any religious artifact at all, has become more common. Although it is argued that non-Christians could swear on the Bible as the source of the values that animate the American government, the imposition of the Bible as the only means of taking an oath is unacceptable. Such a rule would be a religious test, specifically prohibited by the Constitution, as well as a violation of the Free Exercise and Establishment Clause.

But aside from this, for many, an oath is a personal commitment to tell the truth or keep a promise, so it is appropriate that the oath-taker not be coerced into professing a religious belief she does not have. For most people, the oath long ago became a perfunctory form of asserting the truth of a statement or promise with little regard for the religious text that supported the truth of the declaration. Nevertheless, the Biblical text that accompanies the oath creates a difficulty for the oath-taker who places no credence in Christianity. The act of swearing upon the religious text conveys the appearance of a personal faith or belief in the religion represented by the text. For the individual who does not believe in Biblical revelation, the deception is hardly consistent with a ceremony meant to represent a commitment to truth telling. Indeed, any commitment to be truthful based on a religious belief that one does not hold would appear to be of little value. In the times that required oaths to be sworn upon the Bible, conscientious non-Christians, as well as Christians with religious objections to oath taking, refused to take an oath on the Christian scriptures, and as a result were effectively excluded from legal procedures or public offices.

This article reviews the history of the struggle to remove the obligation to swear an oath with the Bible or with any religious text or artifact. In view of that history, the article concludes that the freedom to choose from a variety of religious or secular texts is consistent with arguments that favored the adoption of the No Religious Test Clause of the Constitution at the ratifying conventions of the states. However, the acceptance of this freedom of choice and diversity raises issues of jury bias in regard to courtroom oaths and of political manipulation by religious symbols in regard to oaths of office. The article concludes that while religious choice may be appropriate for the oath of office, such choice for the oaths of witnesses and jurors is likely to create difficulties that necessitate the complete removal of religious artifacts and expression from the courtroom oath.

Download the article from SSRN at the link.

Speaking and Silence: Boy Scouts v. Dale

Mae Kuykendall, Michigan State University College of Law, is publishing Evaluating the Sociology of First Amendment Silence in volume 42 of the Hastings Constitutional Law Quarterly (2015). Here is the abstract.

The First Amendment expressive associational freedom analysis of the 2000 mid-culture-wars case of Boy Scouts v. Dale adopts an understanding of conventions permitting, or mandating, silence and frames them as a basis for constitutional supervision of customs of silence and speech. The holding in Dale allowed the Scouts to exclude openly gay scout masters, despite a New Jersey statute barring such discrimination from a “public accommodation.” The Court explained that organizational rights to exclude an openly gay Scout, whose presence speaks where silence is preferred, would enrich discourse by enabling organizations to claim a shield of silence with which to strengthen the freedom of speech and association that flourishes in voluntary associations. The silence principle, embraced at the time by legal commentators as a win for free speech and the construction of identity, had the dichotomous effect of engendering more elite speech, as among academics, but silencing non-elite speech, that is, among young men excluded from a group that their peer group could join without identity-based barriers. The effect of the teaching by the Court was to affirm a preference for speech and identity silos, in which customs of silencing enjoyed immunity from unwanted messages and in which certain persons could be deemed inherently unwelcome embodiments of a breach of silence. This Article revisits Dale to explore the implications of Dale for civic engagement — for maintaining open civic space for contact and speech as a First Amendment value. Awarding a shield against contact with contrary views and identities disables policy-makers from supporting principles that, on empirical examination, may enrich discourse and enhance overall civic space. The failure of the Court to engage with a sociology of civic space will be examined for its import for the meeting point between social customs of control and the aspiration of the First Amendment to an engaged, expressive citizenry and to the dissemination of knowledge.

Download the article from SSRN at the link.  Cross-posted to Media Law Prof Blog.

Defining "Funny", Protecting Speech

More from Laura E. Little on law and humor:

Bob Mankoff, Judging Humor, The New Yorker, March 20, 2013 (discussing Prof. Little's scholarship).

Just a Joke: Defamatory Humor and Incongruity's Promise, 21 Southern California Interdisciplinary Law Journal -- (2010). 

Legal Restriction and Protection of Humor, in Encyclopedia of Humor (Salvatore Attardo, ed., Sage, 2014). 

Regulating Funny: Humor and the Law, 94 Cornell Law Review -- (2009).

Examining and Defending Religious Liberty

Harry G. Hutchison, George Mason University School of Law, has published Metaphysical Univocity and the Immanent Frame: Defending Religious Liberty in a Secular Age? as George Mason Law & Economics Research Paper No. 15-13. Here is the abstract.

This article is the first installment of three articles. This article examines and appropriates concepts such as metaphysical univocity (a scheme initiated by John Duns Scotus and enriched by insights proffered by Muslim philosopher Ibn Sīnā) and then considers the immanent frame as part of my defense of religious liberty. The second installment applies my defense to current controversies in the United States. The third installment utilizes ideas and concepts from the first two articles as part of a comparative study of religious liberty in Turkey wherein I considers the status of religious minorities within Turkey’s borders. This tri-part study is sparked by the contention that:

The freedom to practice one's chosen faith is of vital importance to the United States. It was a quest for religious freedom that motivated many of America's founders, and this remains fundamental to [the United States]. As President Obama said in 2010, "The principle that people of all faiths are welcome in [our] country, and will not be treated differently by their government, is essential to who we are." Today, throughout the world and indeed even here in the [Organization for Security & Cooperation in Europe] (OSCE), governments and societies are struggling with rising religious diversity even as they are called upon to protect the fundamental rights of individuals in all communities who seek to practice their own religious beliefs.

As [former] Secretary Clinton put it, "religious freedom provides a cornerstone for every healthy society." The right to believe or not to believe, and to practice one’s convictions without fear of government interference or restriction, is a basic human right. Today, religious freedom is restricted in ways both overt and subtle in too many countries, including participating States. [Ambassador Ian Kelly, United States Mission to the OSCE, Delivered at the OSCE (March 3, 2011).]

The first installment of this project shows there are, indeed, grounds for pessimism regarding the fate of religious liberty in both the Latin West and the United States.

Download the paper from SSRN at the link.

The First Amendment, Commercial Speech, and Adam Smith

Robert Post and Amanda Shanor, both of Yale Law School, have published Adam Smith's First Amendment at 128 Harvard Law Review Forum 165 (2015). Here is the abstract.

From the time of the New Deal, it has been black letter constitutional law that purely economic regulations should be subject to review under the deferential rational basis standard. This was the meaning of consigning Lochner v. New York to the anticanon. In recent years, however, this constitutional principle has come under severe strain because plaintiffs have begun using First Amendment protections to challenge basic economic regulations. They have sought to transform the First Amendment into a powerful engine of constitutional deregulation.

In this article, we argue that using the First Amendment for this objective contradicts the Amendment’s fundamental democratic purpose. First Amendment freedoms create a protected space in which citizens can discuss and decide how they wish to govern themselves, including how to regulate their economy. Ascribing to the First Amendment a particular social or economic policy contradicts this function. The First Amendment vests the People with the power to choose or reject policies, including policies of libertarian economic deregulation.

The Supreme Court that created the commercial speech doctrine — now the key site of dispute in this constitutional conflict — was well aware of this potential contradiction. The Court therefore defined the doctrine to protect the rights of listeners to receive information rather than to safeguard the autonomy of speakers. Some recent court decisions have lost track of this basic distinction, and have used the First Amendment to shield the undisturbed operation of the laissez faire market. Astonishingly, they have even cited Adam Smith to justify their decisions. This approach is inconsistent with the architecture and history of the commercial speech doctrine as well as with the First Amendment’s most basic role in safeguarding democratic governance.

Commercial speech advocates justify their position by arguing that the First Amendment must protect speech in the marketplace because it protects all speech, wherever and however it occurs. But this contention does not survive even the most casual scrutiny. It would lead to the absurd result that constitutional protections extend to those who commit crimes with speech, such as conspiracy or violations of the antitrust laws; to doctors, lawyers, and bankers who commit malpractice or fraud; or to the contracts that make up our commercial transactions. Speech is in fact everywhere. If all speech were to receive the same protections as public discourse, the country would become, literally, ungovernable. Were the First Amendment to extend in such an undifferentiated way, it would simultaneously authorize democratic deliberation and render powerless the government produced by that deliberation.

We argue that the First Amendment can continue to serve as the guardian of our democracy only if it is regarded as plural. Different forms of speech must receive different forms of constitutional protection. Unless this principle is clearly kept it mind, First Amendment decision-making threatens to revive the long-lost world of Lochner and to destroy the very democratic governance the First Amendment is designed to protect.

Download the article from SSRN at the link.

Policing the Perps

Jeffrey Ian Ross University of Baltimore School of Law, and Benjamin Wright, University of Baltimore, have published 'I've Got Better Things to Worry About': Police Perceptions of Graffiti and Street Art in a Large Mid-Atlantic City at 17 Police Quarterly 176 (2014). Here is the abstract.

The majority of scholarly research on graffiti and street art has examined this phenomenon in terms of its distribution and the nature of the perpetrators. Rarely has the law enforcement response been investigated. To better understand this neglected aspect, the investigators constructed a survey that they administered to a sample of officers in a large Mid-Atlantic police department to determine their attitudes, in particular their perceptions, regarding graffiti, street art, and perpetrators of this behavior. The survey takes into consideration important police-related variables and situational factors to provide a portrait of officer perceptions. The major finding indicates that the shift and race of police officers might have an influence on their decisions to stop, question, and arrest suspects on graffiti and street art vandalism-related charges. This is consistent with other studies of police perceptions of illegal behavior.

Download the article from SSRN at the link.

Cross-posted at Media Law Prof Blog.

Balancing Privacy and Free Speech In "Time, Inc. v. Hill" (1967)

Samantha Barbas, State University of New York (SUNY), Buffalo, Law School, is publishing When Privacy Almost Won: Time, Inc. v. Hill (1967) in the University of Pennsylvania Journal of Constitutional Law. Here is the abstract.

Drawing on previously unexplored and unpublished archival papers of Richard Nixon, the plaintiffs’ lawyer in the case, and the justices of the Warren Court, this article tells the story of the seminal First Amendment case Time, Inc. v. Hill (1967). In Hill, the Supreme Court for the first time addressed the conflict between the right to privacy and freedom of the press. The Court constitutionalized tort liability for invasion of privacy, acknowledging that it raised First Amendment issues and must be governed by constitutional standards. Hill substantially diminished privacy rights; today it is difficult if not impossible to recover against the press for the publication of nondefamatory private facts.

The Hill case represented the culmination of a longstanding tension in American law. Since the early 20th century, states had recognized a “right to privacy” that permitted the victims of unwanted, embarrassing media publicity to recover damages for emotional distress. The privacy tort was praised for offering protection against an exploitative press, and at the same time decried by the publishing industry as an infringement on its freedoms. In the 1950s and 60s, with the growth of the media, an increase in privacy actions, and large judgments against the press, the privacy-free press conflict raised contentious debate.

Privacy and free speech were charged issues in American culture more generally. In an era that saw the introduction of computers, large-scale data collection, and increasing government surveillance, “privacy” emerged as a major national focus. Free expression rights also assumed new meaning and urgency in the turbulent social climate of the postwar era. These concerns were reflected in the Supreme Court’s decisions from this time. New York Times v. Sullivan (1964) held that the press had an expansive right to report on the public conduct of public officials, including a right to publish falsehoods, unless they were made with reckless disregard of the truth. One year later, Griswold v. Connecticut declared a constitutional right to privacy, protected by “penumbras” and “emanations” of guarantees in the Bill of Rights.

Time, Inc. v. Hill cast these freedoms in opposition. The case called upon the Warren Court, the Sullivan Court and the Griswold Court, to reconcile the two constitutional rights it had championed and created. A majority led by Justices Warren and Fortas initially voted to uphold the Hills’ claim. But after a bitter fight, votes switched, and a narrow majority voted for Time, Inc. The opinion by Justice Brennan rejected the notion of a constitutional right against unwanted publicity and declared an expansive view of the First Amendment as protection for all “newsworthy” material. The right of the press to publish on “matters of public interest,” from political reporting to articles about Broadway plays to movies and comic books, outweighed the privacy interests of unwilling subjects of media publicity.

This article explains how privacy almost won -- how the Supreme Court almost recognized a constitutional right to privacy against the press -- and why it didn’t. Time, Inc. v. Hill marked a crossroads, a moment when the law could have gone in one of two directions: towards privacy and a measure of press restraint, or towards a freer -- if not at times unruly and uncivil -- marketplace of ideas. The Court chose the latter, and we have lived with the consequences since.

Download the article from SSRN at the link.

Holding Law Enforcement Officers Accountable: Participation and Protest

Jocelyn Simonson, New York University School of Law, is publishing Copwatching in volume 104 of the California Law Review (2016). Here is the abstract.

Legal scholars today rightly criticize the lack of public participation in local policing as a barrier to true police accountability. When searching for solutions, however, scholars are often preoccupied with studying and perfecting consensus-based methods of participation such as community policing, neglecting the study of more adversarial, confrontational forms of local participation in policing. This article challenges the scholarly focus on consensus-based strategies of police accountability through an exploration of the phenomenon of organized copwatching – groups of local residents who wear uniforms, carry visible recording devices, patrol neighborhoods, and film police-citizen interactions in an effort to hold police departments accountable to the populations they police.

This article argues that the practice of copwatching illustrates both the promise of adversarialism as a form of civic engagement and the potential of traditionally powerless populations to contribute to constitutional norms governing police conduct. Organized copwatching serves a unique function in the world of police accountability by giving these populations a vehicle through which to have direct, real-time input into policing decisions that affect their neighborhoods. This article urges scholars and reformers to take adversarial, bottom-up mechanisms of police accountability seriously – not just as protest, but as true participation. Doing so requires respecting observation and contestation as legitimate civic gestures worthy of protection.

Download the article from SSRN at the link.

The Blues Brothers and the First Amendment

Julien Mailland, Indiana University Department of Telecommunications & University of Southern California, Annenberg School for Communication, has published The Blues Brothers and the American Constitutional Protection of Hate Speech: Teaching the Meaning of the First Amendment to Foreign Audiences, at 21 Michigan State International Law Review 451 (2013). Here is the abstract.

Skokie, Illinois, 1978. A retired black and white police car is stuck in traffic before a bridge where a political rally is being held by Nazis of the American Socialist White People’s Party. In the car, two men, wearing black suits, black hats, and black sunglasses, stand idle. The Nazis’ venomous leader delivers a racist and violence-mongering speech, which infuriates the onlookers. The Nazis are protected from the angry crowd of hecklers by a line of police. One of the men in black calmly states: “I hate Illinois Nazis,” as the other slams the gas pedal, charges the ranks of the brownshirts and stampedes them off the bridge into the water, to the cheers of the crowd. As they drive off, the soaked Nazi commander vows revenge. (THE BLUES BROTHERS (Universal Studios 1980). Long Synopsis).This scene from the 1980 blockbuster comedy The Blues Brothers is a popular cultural expression of a uniquely-American legal provision: the constitutional protection of hate speech by virtue of the free speech clause of the First Amendment to the United States Constitution. The legal regime for hate speech in the United States has no equivalent anywhere in the world and is baffling to non-Americans. Europeans, in particular, whose countries served as the locus of Nazism’s horrors, tend to hold the U.S. constitutional protection of hate speech in disbelief, before shaking their heads in contempt and concluding something along the lines of “those crazy Americans.” This protection of hate speech, however, makes a lot of sense in the American context. In this paper, I argue that the aforementioned scene from The Blues Brothers has great potential to elucidate the meaning of the constitutional protection of hate speech, and, more broadly, of the First Amendment, for a non-American audience. I propose that the scene be used by comparative jurists teaching the First Amendment to the United States Constitution. I focus the comparison between the United States and France, for “France and the United States start from such different assumptions regarding freedom of speech and the relationship between speech and other rights that it is virtually impossible to reconcile their competing approaches,” a situation that creates deep cultural misunderstandings, which in turn can be reconciled using this case study. France is also relevant because it is one of the countries that has taken the most aggressive stance against American companies in the context of Nazi speech distributed globally over the Internet, which has resulted, in particular, in Yahoo!, Inc. and its executives being criminally prosecuted in France for violation of anti-hate speech laws. Fostering mutual understanding between the U.S. and France is therefore particularly important in this age of global digital information distribution.In Part I, I first theoretically ground the argument that consumption of cultural artifacts is a prerequisite to understanding the law of a country, and beyond it, the country’s people and society themselves (I). Part II involves a detailed case study of the aforementioned scene from The Blues Brothers as such an artifact, in order to lift the veil on the cultural signified hidden beyond the legal signifier that is the First Amendment, and foster mutual understanding between the people of the United States and other peoples (II). I conclude that the Blues Brothers’ Nazi scene should be used by comparative jurists teaching the meaning of the First Amendment to foreign audiences, as an aid to shine a light on the cultural, social, and political principles that ground the constitutional protection of hate speech in the United States.

Download the article from SSRN at the link.

Tracing the History of Freedom of Sexual Expression Under the First Amendment

Ronald K. L. Collins, University of Washington School of Law, has published Theodore Schroeder and the Pre-1919 Defenses of Free Speech: The Case for Freedom of Sexual Expression as University of Washington School of Law Research Paper No. 2013-16. Here is the abstract.

The modern First Amendment began with a turn of the clock, on a Monday on March 13, 1919, the moment of the release of Justice Holmes’s seminal opinion in Schenck v. United States. At that pinpoint in time, First Amendment history was reconfigured and the liberty-denying past gradually began to fade away in the years and opinions that followed. Holmes laid his claim to the conceptual turf and what followed is what we call modernity. True, Learned Hand had his moment, too, in 1917 with his district court opinion in Masses Publishing Co. v. Patten. But that opinion, for all its insights, took on meaning primarily as a comparative point to the work of the Great Holmes. And then there is the work of Zechariah Chafee, the scholar who lent his own measure of staying power to the Holmesian notion of free speech law. Before these three Harvard men, however, there was Utah born man who came onto the First Amendment scene, a man far less credentialed and polished, a University of Wisconsin Law School trained lawyer who championed a libertarian creed and contested the will of a very powerful man, Anthony Comstock. That radical lawyer, whose name and work have largely remained cabined in the confines of forgotten history, was Theodore A. Schroeder. Like Holmes, he too had a vision of free speech law. What follows is the first of a series of articles that introduces the reader to Schroeder and his many works concerning free expression. Those works first took root not in political speech, but in area of freedom far more important to the progressives of his day – sexual expression. We come to his story thirteen years before Holmes’s glorious moment in 1919, on an occasion when Messrs. Schroeder and Comstock were to debate the topic of sexual expression. Several months later, Theodore Schroeder published an article in the Albany Law Journal (“The Constitution and Obscenity Postal Laws”), which is the main focus of this article. Drawing on a measure of history and analysis, the aim is to provide the reader with an idea of how Schroeder conceptualized his vision of free speech freedom.

Download the paper from SSRN at the link.