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Full-Text Articles in Law
The Zombie First Amendment, Julie E. Cohen
The Zombie First Amendment, Julie E. Cohen
Georgetown Law Faculty Publications and Other Works
Scholarly and popular critiques of contemporary free speech jurisprudence have noted an attitude of unquestioning deference to the political power of money. Rather than sheltering the ability to speak truth to power, they have lamented, the contemporary first amendment shelters power’s ability to make and propagate its own truth. This essay relates developments in recent first amendment jurisprudence to a larger struggle now underway to shape the distribution of information power in the era of informational capitalism. In particular, it argues that cases about political speech — cases that lie at the first amendment’s traditional core — tell only a …
Commercial Speech, Commercial Use, And The Intellectual Property Quagmire, Jennifer E. Rothman
Commercial Speech, Commercial Use, And The Intellectual Property Quagmire, Jennifer E. Rothman
All Faculty Scholarship
The commercial speech doctrine in First Amendment jurisprudence has frequently been criticized and is recognized as a highly contested, problematic and shifting landscape. Despite the compelling critique within constitutional law scholarship more broadly, Intellectual Property (“IP”) law has not only embraced the differential treatment of commercial speech, but has done so in ways that disfavor a much broader swath of speech than traditional commercial speech doctrine allows. One of the challenges for courts, litigants, and scholars alike is that the term “commercial” is used to mean multiple things, even within the same body of IP law. In this Article, I …
A Mask That Eats Into The Face: Images And The Right Of Publicity, Rebecca Tushnet
A Mask That Eats Into The Face: Images And The Right Of Publicity, Rebecca Tushnet
Georgetown Law Faculty Publications and Other Works
In their eagerness to reward celebrities for the power of their “images,” and to prevent other people from exploiting those images, courts have allowed the right of publicity to distort the First Amendment. The power of the visual image has allowed courts to create an inconsistent, overly expansive regime that would be easily understood as constitutionally unacceptable were the same rules applied to written words as to drawings and video games. The intersection of a conceptually unbounded right with a category of objects that courts do not handle well has created deep inconsistencies and biases in the treatment of visual …