Law Commons^™

Cancelling Dr. Seuss, Cathay Y.N. Smith

Vanderbilt Journal of Entertainment & Technology Law

Dr. Seuss Enterprises announced in March 2021 that it would no longer license or publish six of its children’s books because those books portrayed people in racist or culturally stereotypical ways. Since then, the public has learned through news reports and social media that other publishers have similarly reviewed and altered their catalogues of classic children’s works, including withdrawing them from the public, editing them to remove problematic content, or adding disclaimers to warn the public about racially insensitive or outdated content. The public reaction to Dr. Seuss’s decision and these other actions has been largely divided. Some criticized these …

Comment, Francesca Procaccini

Vanderbilt Law School Faculty Publications

Let's start with the antecedent question that both the theme of this conference and all three papers in this session present. That is, before we ask how law schools might better advance the freedom of expression on campus, and even before asking what role law schools play in protecting or suppressing free speech more generally, we must ask the first order question: whether freedom of expression at U.S. law schools is indeed imperiled?

There is an underlying assumption in all three papers that something is amiss, that things are not quite at their optimal, that improve- ment is needed. And …

No Exit: Ten Years Of "Privacy Vs. Speech" Post-Sorrell, G. S. Hans

Vanderbilt Law School Faculty Publications

A decade has passed since the U.S. Supreme Court held in Sorrell vs. IMS Health that a Vermont privacy law violated the First Amendment. Somewhat surprisingly, the debate about the intersection between privacy laws and free speech protections has not progressed much in the intervening years. If anything, the concerns that some privacy advocates had following Sorrell-that the First Amendment could be used as a tool to overturn privacy regulations-have extended to other areas of economic regulation. As a public interest attorney working on technology law and policy, I entered into practice not long after Sorrell was decided, when it …

Free Speech Or Slavery Profiteering?: Solutions For Policing Online Sex--Trafficking Advertisement, Marguerite A. O'Brien

Vanderbilt Journal of Entertainment & Technology Law

Online sex trafficking is big business. The Department of Homeland Security estimates that sex trafficking generates billions of dollars per year. The marketplace for sex has moved from the street corner to classified ad websites such as Backpage.com, and all too often the victims of online sex trafficking are minors. The National Center for Missing and Exploited Children reported an 846 percent increase in reports of child sexual exploitation between 2010 and 2015--growth the organization attributes to the availability of sex ads on websites such as Backpage.com. Law enforcement agencies and victims have sought to hold Backpage.com liable for facilitating …

Speech Beyond Borders: Extraterritoriality And The First Amendment, Anna Su

Vanderbilt Law Review

Does the First Amendment follow the flag? In Boumediene v. Bush, the Supreme Court categorically rejected the claim that constitutional rights do not apply at all to governmental actions taken against aliens located abroad. Instead, the Court made the application of such rights, the First Amendment presumably included, contingent on "objective factors and practical concerns." In addition, by affirming previous decisions, Boumediene also extended its functional test to cover even U.S. citizens, leaving them in a situation where they might be without any constitutional recourse for violations of their First Amendment rights. But lower courts have found in the recent …

The Institutional Progress Clause, Jake Linford

Vanderbilt Journal of Entertainment & Technology Law

There is a curious anomaly at the intersection of copyright and free speech. In cases like Citizens United v. Federal Election Commission, the United States Supreme Court has exhibited a profound distaste for tailoring free speech rights and restrictions based on the identity of the speaker. The Copyright Act, however, is full of such tailoring, extending special rights to some classes of copyright owners and special defenses to some classes of users. A Supreme Court serious about maintaining speaker neutrality would be appalled.

A set of compromises at the heart of the Copyright Act reflects interest-group lobbying rather than a …

Be A Liar Or You're Fired! First Amendment Protection For Public Employees Who Object To Their Employer's Criminal Demands, Keane A. Barger

Vanderbilt Law Review

Public perception of the Roberts Court has been defined, to a significant degree, by its First Amendment jurisprudence. Defending free speech has been hailed as one of the Court's "signature projects." However, as some commentators have noted, once one looks beyond the high-profile cases, the Roberts Court has been decidedly less pro- speech. Recent Supreme Court rulings have not looked kindly upon free speech claims raised by students, humanitarian organizations, and, most pertinent for this Note, public employees. The apparent disparity between the treatment of corporate and financial interests, on the one hand, and the interests of labor, students, and …

The Anti-Bootlegging Provisions: Congressional Power And Constitutional Limitations, Craig W. Dallon

Vanderbilt Journal of Entertainment & Technology Law

Courts and scholars have considered the constitutional validity of 17 U.S.C. § 1101 (civil), and 18 U.S.C. § 2319A (criminal), known together as "the anti-bootlegging provisions." These provisions prohibit unauthorized recording, copying, and distribution of live musical performances. The provisions have been challenged in three cases, resulting in five published opinions. Two district court opinions held the provisions unconstitutional, but subsequent opinions vacated those decisions. Notwithstanding a sharp division among copyright scholars, the courts have upheld these provisions. The discussion surrounding them is part of a continuing struggle to ascertain limits on congressional power to regulate copying and distribution of …

The Puzzle Of Brandeis, Privacy, And Speech, Neil M. Richards

Vanderbilt Law Review

The Right to Privacy' and his dissent in Olmstead v. United States. In The Right to Privacy, Brandeis and Samuel Warren argued that intrusion into and public disclosure of private affairs by the press was deeply hurtful, and that the common law should be read to recognize a tort remedy for such violations. Their short article is considered by scholars to have established not just the privacy torts but the field of privacy law itself. Brandeis is also famous (though less so) for his Olmstead dissent-a document which introduced modern concepts of privacy into constitutional law, and ultimately led not …

Porn In Their Words: Female Leaders In The Adult Entertainment Industry Address Free Speech, Censorship, Feminism, Culture And The Mainstreaming Of Adult Content, Clay Calvert, Robert D. Richards

Vanderbilt Journal of Entertainment & Technology Law

Part I provides brief biographical information about each of the five women interviewed for this article. Part II then describes the interview and editing processes used by the authors, including details about when and where the interviews took place and the transcription process of the tapes used to record them. Next, Part III--the heart of the article--sets forth the views, opinions and comments of each of the five women, divided into three theme-based sections: 1) free speech and censorship of sexual content; 2) feminism and victimization; and 3) mainstreaming of adult entertainment and shifts of cultural mores. Finally, Part IV …

Warring Ideologies For Regulating Military Blogs: A Cyberlaw Approach For Balancing Free Speech And Security In Cyberspace, Julia E. Mitchell

Vanderbilt Journal of Entertainment & Technology Law

Part I of this note provides an overview of the use of media during war. It also reviews case law relating to the military's limited right to freedom of speech under the First Amendment. Part II analyzes the problems of regulating milblogs in terms of societal costs and the technological challenges of regulating behavior on the Internet. This note argues that the military's "unexceptionalist" approach toward regulation, wherein it applies the traditional principles embodied in the UCMJ to milblog regulation, undermines its goal of maintaining operational security and impedes the free flow of ideas. Finally, Part II introduces an "exceptionalist" …

Defamation Law And Free Speech: Reynolds V. Times Newspapers And The English Media, Andrew T. Kenyon, David F. Partlett, Clive P. Walker

Vanderbilt Journal of Transnational Law

The common law of defamation cut the balance between speech and reputation decisively in favor of reputation and allowed for the imposition of significant damages against media outlets that defamed. For the last four decades, U.S. media outlets have been insulated against the common law rules by the United States Supreme Court's landmark decision in New York Times Co. v. Sullivan. Following Sullivan, Commonwealth countries clung steadfastly to common law rules and are only now beginning to modify the common law rules to provide speech and media protections. Rather than following Sullivan by adopting constitutional protections, however, Commonwealth courts have …

Copyright And Democracy: A Cautionary Note, Christopher S. Yoo

Vanderbilt Law Review

Democratic theories of copyright have become quite the rage in recent years. A growing number of commentators have offered their views on the relationship between copyright law and the process of self-governance.' No scholar has been more committed to developing this perspective than Neil Netanel. In an important series of articles, Netanel has pursued a powerful and innovative project that attempts to reexamine copyright through the lens of democratic theory. His core concern is that the concentration of private wealth and power in communications and mass media is creating unprecedented disparities in the ability to be heard. The "speech hierarchy" …

Striking A Difficult Balance: Combatting The Threat Of Neo-Nazismin Germany While Preserving Individual Liberties, David E. Weiss

Vanderbilt Journal of Transnational Law

Through violence, intolerance, and fascism, neo-Nazis threaten the political and social structure of Germany's democratic state. As the neo-Nazi movement continues to grow throughout Germany, the German government faces the difficult challenge of quelling the neo-Nazis. By invoking the laws enacted to prevent the resurgence of Nazism, the government has infringed upon basic individual liberties such as freedom of expression and association. This Note discusses the various devices implemented by both Germany and the international community to combat neo-Nazis, and the effects these measures have had on the neo-Nazis themselves. This Note concludes that in attempting to strike an appropriate …

Rico Threatens Civil Liberties, Antonio J. Califa

Vanderbilt Law Review

The history of conspiracy, according to Justice Robert Jackson, exemplifies the "'tendency of a principle to expand itself to the limit of its logic.' "" This same phenomenon is present today in the Racketeer Influenced and Corrupt Organizations Act of 1970 (RICO). RICO has moved beyond logic and intent into areas far removed from racketeering. Originally intended to combat organized crime, RICO is used increasingly in ideological disputes. For example, it has been used against abortion clinic protesters and anti-pornography groups.

This Article argues that using RICO in ideological disputes is inappropriate and harmful because it results in the chilling …

From Red Lion Square To Skokie To The Fatal Shore: Racial Defamation And Freedom Of Speech, David Partlett

Vanderbilt Journal of Transnational Law

This Article addresses, against the backdrop of possible legislative reforms in Australia, the tension between the desire to eliminate racial defamation and the need to protect freedom of speech. In an historical overview, Mr. Partlett notes an increasing sensitivity to racial issues in Australia in the face of an assumed but nebulously stated value of free speech. Mr. Partlett analyzes theoretical and legal approaches to free speech from Commonwealth and United States perspectives, and analysis of recent legal and social developments in civil rights in the United States makes this Article relevant for both Commonwealth and United States reformers in …

Free Speech, Copyright, And Fair Use, L. Ray Patterson

Vanderbilt Law Review

The copyright clause provides that "[the Congress shall have Power... To promote the Progress of Science. ..by securing for limited Times to Authors .. .the exclusive Right to their . . .writings ...."I The first amendment provides that "Congress shall make no law. . .abridging the freedom of speech, or of the press ."..."

Three modern developments portend a conflict between these two clauses of the Constitution: (1) the emergence of the doctrine that free speech encompasses the right to have access to, as well as the right to disseminate, ideas; (2) the elimination of the requirement of publication, which …

Free Speech And The Assumption Of Rationality, Frederick Schauer

Vanderbilt Law Review

First amendment doctrine is now both broad and complex, and the task of writing about all of it seems at least forbidding and perhaps impossible. Unthwarted by the magnitude of the mission, however, Franklyn Haiman has attempted, in Speech and Law in a Free Society,7 to survey and to integrate almost every area in which the first amendment restricts or should restrict the powers of the states and the federal government. Haiman's book is in some ways reminiscent of Thomas Emer-son's The System of Freedom of Expression." Like Emerson,Haiman devotes only a relatively brief introductory portion of his book to …

Categories And The First Amendment: A Play In Three Acts, Frederick Schauer

Vanderbilt Law Review

In the foregoing pages I have attempted to flesh out three different aspects of what has been broadly called "categorization."Implicit in this project is the premise that it is often quite revealing to search for important differences in the face of superficial similarity. Very often, however, when we search for differences we may discover additional points of similarity that are not at first apparent. This seems to be the case here, in that one recurrent feature is what one might inelegantly call "learnability." The concept of learnability is comprehensible only in the con-text of a separation of roles.' Thus, if …

Private Copyright And Public Communication: Free Speech Endangered, Lyman R. Patterson

Vanderbilt Law Review

Copyright as it has developed is essentially a private copyright for private communications made public for profit. Theoretically,the right to copyright is derived from the act of creation, and the choice of making his creations public is that of the author. As the copyright clause makes clear, the purpose of the private monopoly of copyright is to encourage the author to make his creations available for public learning. Television, on the other hand, is primarily a medium of public communication that has as a major function the transmission of public information to the public. To apply the present law of …

Recent Cases, Robert L. Teicher, Timothy C. Maguire

Vanderbilt Law Review

In the 1930 decision of State ex rel. LaFollette v. Kohler, the Wisconsin Supreme Court rejected the earliest free speech challenge to a candidate expenditure limitation. The court held that the state's interest in protecting the integrity of its electoral process outweighed the individual's right of communicating with the public without governmental infringement." The court's identification of the communicative effect of campaign spending anticipated the United States Supreme Court's ruling in Stromberg v. California" that communicative conduct was entitled to protection from government infringement. The Court, however, hampered the effectuation of this protection by failing to define conclusively the point …

The Free-Ness Of Free Speech, Robert A. Leflar

Vanderbilt Law Review

Freedom of speech under Anglo-American law has never been an absolute right, and numerous exercises of free speech (and of free press)have been subjected to inhibiting legal sanctions, both criminal and civil,almost from the beginning of our common law heritage. It is true that the Blackstonian rule prohibiting "previous restraints upon publications" purported, to protect absolutely the initial right to publish. But an absolute right to publish what one may thereafter be criminally punished or forced to pay civil damages for publishing is obviously illusory in its absoluteness.It is not an absolute right in any real sense of the term. …

Public Speech And Public Order In Britain And The United States, Richard E. Stewart

Vanderbilt Law Review

This paper will not attempt a general comparison of free speech in Britain and the United States. It concentrates on one aspect of the free speech problem. That aspect is speech that does or may lead to a breach of the peace by the audience.'

Mr. Justice Jackson, Free Speech, And The Judicial Function, Walter F. Murphy

Vanderbilt Law Review

All free speech cases decided by the United States Supreme Court are hard cases; and, if they do not, according to the old saw, make bad law, they do make law which is both fragile and fascinating. Wrapped up inside the kernel of each of these cases are many of the most troublesome problems which confront a democratic government: the relation of majority rule to minority rights, the necessity of peace and order but the equally imperative necessity of open discussion, and, not least, the paradoxical role of an appointive judiciary in curbing, in the name of democracy and freedom, …

Mr. Justice Frankfurter -- Law And Choice, Wallace Mendelson

Vanderbilt Law Review

In an opinion that seems destined to live as long as the ideals of democracy survive, Justices Holmes and Brandeis rejected their colleagues' narrow conception of free speech, yet concurred in the judgment affirming conviction. Though the accused had claimed protection under the appropriate constitutional provision, she had failed at the trial level to raise the "clear and present danger" issue. Raising it in the Supreme Court was futile, thought Holmes and Brandeis, because "Our power of review in this case is limited not only to the question whether a right guaranteed by the Federal Constitution was denied [in the …