Solan on Lies, Deceit, and Bullshit in Law

Lawrence M. Solan, Brooklyn Law School, has published Lies, Deceit, and Bullshit in Law at 56 Duquesne L. Rev. 73 (2018). Here is the abstract.

The law purports to disapprove of dishonesty. But not all species of dishonesty are created equal, and not all contexts are equivalent when it comes to the law’s intolerance of dishonest conduct. This article distinguishes among three types of dishonesty: lies, deceit, and bullshit. Lying is a statement that the speaker projects as true, while believing it to be false. Deceit depends on altering the hearer’s state of mind to believe something the speaker believes to be false, regardless of whether the deceitful statement is true or false. Bullshit, following the work of philosopher Harry Frankfurt, is a statement made without regard to its truth or falsity. The article touches on such areas of law as perjury, making false statements to government agents, fraud, pleading requirements, as well as political speech.

Download the article from SSRN at the link.

Bam on Defending Judicial Speech @UMaineLaw

Dmitry Bam, University of Maine School of Law, has published Seen and Heard: A Defense of Judicial Speech at 11 Liberty U. L. Rev. 765 (2018). Here is the abstract.

Judicial ethics largely prohibits judges from engaging in political activities, including endorsing or opposing candidates for public office. These restrictions on judicial politicking, intended to preserve both the reality and the appearance of judicial integrity, independence, and impartiality, have been in place for decades. Although the Code of Conduct for United States Judges does not apply to the Supreme Court, Supreme Court Justices have long followed the norm that they do not take sides, at least publicly, in partisan political elections. And while elected state judges have some leeway to engage in limited political activities associated with their own candidacy, the Justices of the United States Supreme Court have consistently remained on the sidelines in contested partisan elections. That is why the events of July 2016 were so surprising. With the 2016 presidential election less than four months away, Supreme Court Justice Ruth Bader Ginsburg shocked everyone when she bluntly spoke out against the Republican presidential nominee, and the ultimate winner of the election, Donald Trump. On multiple occasions, she expressed her disdain for Trump in no uncertain terms, calling Trump a "faker," criticizing Trump's failure to release his tax returns, and even joking that her husband would have suggested moving to New Zealand if Trump were to be elected president. Given the ethical rules and the long-standing norms of judicial behavior, these were jarring statements from a sitting Supreme Court Justice. Immediately, there was a near-unanimous outcry against the propriety of Ginsburg's comments, ultimately leading her to apologize. The chorus of critics included both conservative and reliably leftist pundits, media commentators, legal academics, numerous politicians, and Donald Trump himself. It was not just conservatives who rebuked her statements. Despite her near-mythical status in progressive circles, among the critics were some of Justice Ginsburg's biggest supporters. In an election that saw little bipartisan agreement on almost anything, nearly everyone seemed to agree that Justice Ginsburg's statements violated ethical rules and norms. This Article examines whether Ginsburg's many critics were right. I suggest that the norms may be built on a shaky foundation and grounded in long-abandoned myths about the judicial role and judicial decision-making. The traditional restraints on Supreme Court Justices expressing their own strongly-held political views does not further, or at least does not significantly further, any of the important goals generally served by the ethics codes. While Justice Ginsburg's comments, and comments like hers, may change the way the people view the Court and its Justices, their mere utterance causes little damage to the reputation and standing of the federal judiciary generally, or the Supreme Court in particular. In addition, stifling judicial speech disserves the American people by misleading them about judges and judging and concealing potentially important heuristic information from the electorate.

Download the article from SSRN at the link.

Henckels on Dishonoring the Australian Flag

Caroline Henckels, Monash University Faculty of Law, is publishing Dishonouring the Australian Flag in volume 44 of the Monash University Law Review (2018). Here is the abstract.

Dishonouring a nation’s flag, usually by way of burning, is a form of protest with provocative symbolism. The selective policing of flag use in Australia reveals much about the culture of flag veneration inculcated in Australian society during since the Howard era. Flag burners have been arrested and prosecuted for the offences of disorderly and offensive behaviour, but those who have employed the flag in support of nationalistic or anti-immigration causes have not attracted such opprobrium. Yet, successive attempts to criminalise flag burning have never resulted in the enactment of flag protection legislation – in part on account of a desire on the part of conservative politicians not to martyrise flag-burners, but also due to the vulnerability of such legislation to legal challenge for incompatibility with the implied freedom of political communication protected by the Constitution. High Court authority suggests that it would be difficult for such legislation to survive Constitutional scrutiny unless the relevant provisions were narrowly tailored to welfare concerns such as public safety or public order, and that an objective of preventing offence cannot be a legitimate reason to suppress political communication.

Download the article from SSRN at the link.

Matei on Art on Trial: Freedom of Artistic Expression and the European Court of Human Rights

Andra Matei has published Art on Trial. Freedom of Artistic Expression and the European Court of Human Rights. Here is the abstract.

The way that art is judged in the courtroom shapes the way it is perceived at large and has a direct consequence on how it can be appreciated by the society. Surely, not all art is to everybody's liking. Even the judges at Strasbourg fall into subjective definitions of artistic merit sometimes, despite their commendable attempts to stay detached and open-minded. In the recent Sinkova v. Ukraine case, a divided Fourth Section of the European Court of Human Rights ruled that the applicant's conviction for an artistic performance featuring the applicant frying eggs over the Eternal Flame at a war memorial, did not breach her freedom of expression; finally, protecting the memory of soldiers from insult, outweighs the applicants right to free expression. The artistic nature of the applicant's actions is ignored by the ECtHR and in the absence of an explanatory context, the performance is dismissed as a senseless provocation. But how informed are judges in art theory and form and on what grounds do they speculate about artistic merit and motive? This essay will focus on the significance the ECtHR attaches to the protection of artistic expression and the ways in which it regulates the dynamics between artistic freedom and public morals. A cursory review of the relevant case-law (cases which have at their center controversial artworks) will show that, more often than not, when freedom of artistic expression is set against the need to protect public morals, or "the rights of others", the ECtHR favors the latter.

Download the article from SSRN at the link.

Ted Laros: Literature and the Law in South Africa, 1910-2010 (2017) @Cultuur_OU @rowmanandlittlefield

Ted Laros, Open University of the Netherlands, has published Literature and the Law in South Africa, 1910–2010: The Long Walk to Artistic Freedom (Rowman and Littlefield, 2017). Here from the publisher's website is a description of the book's contents.

In 1994, artistic freedom pertaining inter alia to literature was enshrined in the South African Constitution. Clearly, the establishment of this right was long overdue compared to other nations within the Commonwealth. Indeed, the legal framework and practices regarding the regulation of literature that were introduced following the nation’s transition to a non-racial democracy seemed to form a decisive turning point in the history of South African censorship of literature. This study employs a historical sociological point of view to describe how the nation’s emerging literary field helped pave the way for the constitutional entrenchment of this right in 1994. On the basis of institutional and poetological analyses of all the legal trials concerning literature that were held in South Africa during the period 1910–2010, it describes how the battles fought in and around the courts between literary, judicial and executive elites eventually led to a constitutional exceptio artis for literature. As the South African judiciary displayed an ongoing orientation towards both English and American law in this period, the analyses are firmly placed in the context of developments occurring concurrently in these two legal systems.

 

Adamson on The "Blurred Lines" of Marvin Gaye's "Here, My Dear": Music As a Tortious Act, Divorce Narrative, and First Amendment Totem @seattleulaw

Bryan L. Adamson, Seattle University School of Law, is publishing The 'Blurred Lines' of Marvin Gaye's 'Here, My Dear': Music as a Tortious Act, Divorce Narrative and First Amendment Totem in volume 36 of the Cardozo Arts & Entertainment Law Journal (2018). Here is the abstract.

In 1977, singer Marvin Gaye did an audacious thing: Anna Gordy-Gaye was divorcing him, and asking for $1 million dollars. Despite having a wildly successful career up to that point, Marvin was near financial ruin. His attorney, Curtis Shaw, hit upon an idea: Motown, Marvin’s record label, had given him $305,000 as an advance for his upcoming-but-undeveloped album. Marvin would give Anna the $305,000, and pledge the first $295,000 of the royalties yielded from that recording. Instead of $1 million, Anna agreed to the $600,000, as did Motown’s CEO Berry Gordy, Anna’s brother. The judge wrote up an Order to that effect. Composed, written (with a few exceptions), and vocalized by Marvin alone, he first thought to do “nothing heavy, nothing even good.” Then he changed his mind. The album that resulted? A brilliantly unsettling poison pen to and about Anna, sardonically titled Here, My Dear. Released in December 1978, Here, My Dear laid bare to the world a marriage gone terribly, terribly wrong. From the double album’s jacket illustrations and lyrics, down to the vocal colors and tones Marvin deploys — Anna is portrayed as greedy, vengeful and manipulative. The work was so upsetting to her that Anna publicly threatened to sue Marvin. This Article explores that threat. Here, My Dear is a rich legal document from which to mine the myriad torts Marvin commits against Anna over the course of its seventy three minutes and 10 seconds length. Moreover, given Marvin’s persona as one of the most preeminent celebrity male sex symbols from the 1960s until his death in 1984, Here, My Dear can also be read as a beguiling take on the ways in which masculine perspectives on divorce are constructed and articulated. Here, My Dear is a fascinating artifact also because its analysis impels application of some of the Supreme Court’s seminal constitutional jurisprudence such as New York Times v. Sullivan, Gertz v. Welch and Time v. Firestone. Each, in some form or to some extent, is relevant to the Gaye divorce saga as it raises issues of free speech and artistic expression, who can be considered “media” or a “public figure,” and rights of privacy versus newsworthiness of divorce. Consequently, Here, My Dear serves to illustrate foundational communication and distress torts principles as shaped by First Amendment doctrine.

Download the article from SSRN at the link.

Bricker on After the Golden Age: Libel, Caricature, and the Deverbalization of Satire

Andrew Bricker, Ghent University of Belgium, has published After the Golden Age: Libel, Caricature, and the Deverbalization of Satire, at 51 Eighteenth-Century Studies 305 (2018). Here is the abstract.

It is a commonplace of literary history that satire vanishes in the middle of the eighteenth century. It is clear, however, that written and especially visual satire witnessed massive growth in the final decades of the century and throughout the Romantic era. My goal is to explain this simultaneous contraction and expansion of the satiric marketplace. Rather than dying, I argue, satire began to migrate to visual media, and especially caricature, after mid-century. The reason for this migration was the shifting procedural norms of libel law itself. Over the first half of the century, the courts developed procedures for delimiting verbal ambiguity in trials for libel that made the publication of written satire perilous. These same procedures were largely useless, however, in the prosecution of visual materials, which made at best sparing use of words—they were, as I put it, "deverbalized"—and were therefore not subject to the same rulings and interpretive procedures.

You may be able to download the text from Project Muse at the link.

Marber on Bloody Foundation? The Equestrian Statue of Theodore Roosevelt at the American Museum of Natural History

Sinclaire Deverux Marber, London School of Economics, Law Department, has published Bloody Foundation? The Equestrian Statue of Theodore Roosevelt at the American Museum of Natural History. Here is the abstract.

On October 27, 2017, protestors calling themselves the Monument Removal Brigade ("MRB") splashed red paint on the base of an equestrian statue of Theodore Roosevelt outside the American Museum of Natural History in New York ("AMNH" or the "Museum"). The portrait of the twenty-sixth President of the United States is flanked on either side by African and Native American men intended to represent their respective continents. On its anonymous blog, MRB called for the statue's removal and claimed, “[t]he true damage lies with the patriarchy, white supremacy, and settler-colonialism embodied by the statue.” The Museum responded that because the sculpture rests on public land, AMNH does not have the power to remove it. The AMNH protest occurs within a larger national debate about the place of public monuments. That the equestrian statue is situated on museum grounds presents a unique opportunity to foster thoughtful dialogue around this topic. The AMNH today uses science to look forward, but also to interpret the past. Natural history museums have their own dark histories of discriminatory practices; modern investigations should not just be relegated to artifacts, but to institutional histories. Who created this sculpture? What traditions inform the way it represents these three men? Why does the city own it? What did Theodore Roosevelt have to do with the museum? This interdisciplinary article will present the history of a particular statue and proposals for its future as a case study in dealing with controversial monuments.

The full text is not available for download from SSRN.

Gibson on Taming Uncivil Discourse: Does Reappropriating Group Insults Work? @WUSTL @SimonTheTam

James L. Gibson, Washington University in St. Louis, Department of Political Science, has published Taming Uncivil Discourse: Does Reappropriating Group Insults Work? Here is the abstract.

In an era of increasingly intense populist politics, a variety of issues of intergroup prejudice, discrimination, and conflict have moved center stage in American politics. Among these is “political correctness” and, in particular, what constitutes a legitimate discourse of political conflict and opposition. Yet the meaning of legitimate discourse is being turned on its head as some disparaged groups seek to reclaim, or reappropriate, the slurs directed against them. Using a Supreme Court decision about whether “The Slants” – a band named after a traditional slur against Asians – can trademark its name, we test several hypotheses about reappropriation processes, based on a nationally representative sample with an oversample of Asian-Americans and several survey experiments. In general, we find that contextual factors influence how people understand and evaluate potentially disparaging words, and we suggest that the political discourse of intergroup relations in the U.S. has become more complicated by processes of reappropriation.

Download the article from SSRN at the link.

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. 

New From McGill University Press: Censored: A Literary History of Subversion, by Matthew Fellion and Katherine Inglis @EdinburghUni

Via Simon Stern (ArsScripta)

New from McGill University Press:


Matthew Fellion, Independent Scholar, and Katherine Inglis, Department of English, University of Edinburgh, have published Censored: A Literary History of Subversion and Control (2017).

When Henry Vizetelly was imprisoned in 1889 for publishing the novels of Émile Zola in English, the problem was not just Zola’s French candour about sex - it was that Vizetelly’s books were cheap, and ordinary people could read them. Censored exposes the role that power plays in censorship. In twenty-five chapters focusing on a wide range of texts, including the Bible, slave narratives, modernist classics, comic books, and Chicana/o literature, Matthew Fellion and Katherine Inglis chart the forces that have driven censorship in the United Kingdom and the United States for over six hundred years, from fears of civil unrest and corruptible youth to the oppression of various groups - religious and political dissidents, same-sex lovers, the working class, immigrants, women, racialized people, and those who have been incarcerated or enslaved. The authors also consider the weight of speech, and when restraints might be justified. Rich with illustrations that bring to life the personalities and the books that feature in its stories, Censored takes readers behind the scenes into the courtroom battles, legislative debates, public campaigns, and private exchanges that have shaped the course of literature. A vital reminder that the freedom of speech has always been fragile and never enjoyed equally by all, Censored offers lessons from the past to guard against threats to literature in a new political era.

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.

Gordon on The Propaganda Prosecutions at Nuremberg: The Origins of Atrocity Speech Law and the Touchstone for Normative Evolution

Gregory S. Gordon, The Chinese University of Hong Kong, Faculty of Law, is publishing The Propaganda Prosecutions at Nuremberg: The Origin of Atrocity Speech Law and the Touchstone for Normative Evolution is volume 39 of the Loyola of Los Angeles International and Comparative Law Review (2017). Here is the abstract.

The black and white image of a two-tiered bench seating the cream of surviving Nazi leadership, framed by white-helmeted Allied sentries and dark-wood paneling, is by now the definitive meme for the birth of international criminal law (ICL). Less associated with that grainy photograph, though, is the origin of an important sub-branch of ICL – one that I call “atrocity speech law.” For among the defendants in that iconic Nuremberg dock were Julius Streicher, editor-in-chief of the rabidly anti-Semitic tabloid Der Stürmer, and Hans Frtizsche, head of the Radio Division of Joseph Goebbels’s Propaganda Ministry. Nearly two years later, the Third Reich’s Press Chief, Otto Dietrich, assumed his place on the same set of pews as part of the Ministries trial of the so-called “subsequent Nuremberg proceedings.” From the judgments rendered in respect of these three defendants, Allied judges formulated a set of nascent but influential principles regulating the relationship between hate speech and large-scale human rights violations. This article, an invited submission for a special symposium issue on the Nuremberg trials, revisits those cases, which centered on persecution as a crime against humanity. In doing so, the article provides an overview of Nazi Holocaust propaganda, the rhetorical template for the modern mass-murder campaign. Within this historical context, it traces the development of atrocity speech law in the decades since, paying particular attention to the normative wellsprings of incitement to genocide at the International Criminal Tribunal for Rwanda (ICTR). And its analysis regarding persecution’s subsequent development provides an indispensable point of repair for understanding the jurisprudential split between the ICTR (concluding that hate speech on its own can satisfy persecution’s conduct element) and the International Criminal Tribunal for the former Yugoslavia (ICTY) (reaching the opposite conclusion). As the article points out, on balance, the Nuremberg jurisprudence favors the ICTR approach. With important contemporary cases before domestic courts, the ICTY and the International Criminal Court, the Nuremberg propaganda judgments will continue to function as important doctrinal touchstones going forward. This article, which develops and expands on the Nazi propaganda sections featured in my recently-released Oxford University Press book, “Atrocity Speech Law: Foundation, Fragmentation, Fruition,” permits readers to see the Nuremberg judgments in a new light and understand their likely normative impact on international hate speech law for generations to come.

Download the article from SSRN at the link.

Bodrova and Zubkov on Nikitenko's Diary and the History of Censorship

Alina Bodrova and Kirill Zubkov, both of the National Research University Higher School of Economics, have published From A Historical Source To a Narrative Form: A. V. Nikitenko’s Diary and the History of Censorship as Research Paper No. WP BRP 23/LS/2017. Here is the abstract.

The study explores the narrative structure of Alexandr Nikitenko’s diary, one of the core sources for the history of Russian censorship, and on the role of the genre of anecdote in particular. Through an analysis of the ‘anecdotal’ entries about censorship in Nikitenko’s diary and their evolution (their number peaks during the years of Nicholas I’s reign, and plummets in the parts of the account dealing with Alexander II, particularly in the period of 1860-ies), the authors demonstrate the peculiarities of the ‘anecdotal’ frame in picturing the interactions between literary circles and censorship. The literary form of anecdote, whose strength is in picturing singular oddities and excesses, fails to account for the everyday quality of routine practices, the day-to-day modes of interaction between authors and censors, so that the ‘anecdotal’ narrative can only work as a segment of a more complex and multidimensional vision of how literary agency and censoring authorities interacted.

Download the article from SSRN at the link.

Leiter on Justifying Academic Freedom : Revisiting Mill and Marcuse @BrianLeiter

Brian Leiter, University of Chicago Law School, has published Justifying Academic Freedom: Mill and Marcuse Revisited. Here is the abstract.

I argue that the core of genuinely academic freedom ought to be freedom in research and teaching, subject to disciplinary standards of expertise. I discuss the law in the United States, Germany, and England, and express doubts about the American view that distinctively academic freedom ought to encompass "extramural" speech on matters of public importance (speakers should be protected from employment repercussions for such speech, but not because of their freedom qua academics). I treat freedom of academic expression as a subset of general freedom of expression, focusing on the Millian argument that freedom of expression maximizes discovery of the truth, one regularly invoked by defenders of academic freedom. Marcuse argued against Mill (in 1965) that "indiscriminate" toleration of expression would not maximize discovery of the truth. I show that Marcuse agreed with Mill that free expression is only truth- and utility-maximizing if certain background conditions obtain: thus Mill argues that the British colony in India would be better off with "benevolent despotism" than Millian liberty of expression, given that its inhabitants purportedly lacked the maturity and education requisite for expression to be utility-maximizing. Marcuse agrees with Mill that the background conditions are essential, but has an empirical disagreement with him about what those are and when they obtain: Mill finds them wanting in colonial India, Marcuse finds them wanting in capitalist America. Perhaps surprisingly, Marcuse believes that "indiscriminate" toleration of expression should be the norm governing academic discussions, despite his doubts about the utility-maximizing value of free expression in capitalist America. Why think that? Here is a reason: where disciplinary standards of expertise govern debate, the discovery of truth really is more likely, but only under conditions of "indiscriminate" freedom of argument, i.e., academic freedom. This freedom is not truly "indiscriminate": its boundaries are set by disciplinary competence, which raises an additional question I try to address. In sum, the libertarians (Mill and Popper) and the Marxists (Marcuse) can agree that academic freedom is justified, at least when universities are genuine sites of scientific expertise and open debate.

Download the article from SSRN at the link.

Tourkochoriti on Challenging Historical Facts and National Truths: An Analysis of Cases From France and Greece @IoannaTourkocho

Ioanna Tourkochoriti, Harvard Law School and National University of Ireland, Galway, School of Law, is publishing Challenging Historical Facts and National Truths: An Analysis of Cases from France and Greece in Law and Memory: Addressing Historical Injustice by Law (U. Belavusau and & A. Gliszczyńska-Grabias, eds., Cambridge University Press (2017).

The denial of crimes against humanity is a criminal offense in various European legal orders, e.g. France. The European Union has endorsed this approach through a Council Framework Decision that crystallizes legislation already existing in a number of Member States and asks others to consider enacting measures criminalizing this category of speech. This paper discusses the dangers for academic freedom from the need to express our collective disapproval of atrocities against humanity through memory laws. Memory laws serve collective needs, they express collective imaginaries that can be associated with a national identity or with a European conception of shared values. Drawing from Durkheim’s analysis of the collective consciousness it signals the dangers that exist when the irrational elements that form this consciousness win over the rational elements. Memory laws can serve to prescribe or proscribe an official version of historical truth. Using the mechanisms of state constraint against opinions that are contrary to this official version of the truth can be very dangerous for individual and collective liberties. This paper examines a number of cases where courts have imposed legal sanctions to those who made claims either denying the Holocaust, or challenging elements of national identity that seemed unacceptable to national authorities as well as legislative proposals attempting to impose an official version of historical facts. It also points out inconsistencies in the relevant case law of the European Court of Human Rights.

Download the essay from SSRN at the link.

Brophy on Black Power in a Prison Library @unc_law

Alfred L. Brophy, University of North Carolina, Chapel Hill, School of Law, has published Black Power in a Prison Library as UNC Legal Studies Research Paper No. 2901475. Here is the abstract.

"Black Power in a Prison Library" focuses on a list of 90 books on the black experience in America that were ordered added to the Marion, Ohio Correctional Institution in 1972. It uses the list as a way of gauging what books the plaintiffs (and thus the court) thought were essential to telling the African American experience. And in that way, we can use the list to reconstruct the contours of the bibliographic world of the African American experience in the early 1970s. The list reflects an interest in history of slavery, Reconstruction and Jim Crow, the literature of the Harlem Renaissance, the 1960s Civil Rights Movement, and contemporary works on Black Power. Notably thin is prison literature. Together the books help form a picture of the critique of law made by Black Power writers and the ways those claims built on historical, sociological, and civil rights literature. The book list, thus, suggests some of the ways that books propagated and gave definition to Black Power claims.

Download the article from SSRN at the link.

"Madame Bovary"'s Obscenity Trial: Was It Really About IP Rights?

Erin Blakemore writes about the obscenity trial of Gustave Flaubert's Madame Bovary for JSTOR Daily., discussing Christine Haynes' article The Politics of Publishing During the Second Empire: The Trial of "Madame Bovary" Revisited which argues that the author and fellow artists were interested in upholding their intellectual property rights more than their right to freedom of expression. More 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.