Law Commons^™

The U.S. Supreme Court's Characterizations Of The Press: An Empirical Study, Sonja R. West, Ronnell Anderson Jones

Scholarly Works

The erosion of constitutional norms in the United States is at the center of an urgent national debate. Among the most crucial of these issues is the fragile and deteriorating relationship between the press and the government. While scholars have responded with sophisticated examinations of the President’s and legislators’ characterizations of the news media, one branch of government has
received little scrutiny—the U.S. Supreme Court. This gap in the scholarship is remarkable in light of the Court’s role as the very institution entrusted with safeguarding the rights of the press. This Article presents the findings of the first comprehensive empirical …

The Disappearing Freedom Of The Press, Sonja R. West, Ronnell Anderson Jones

Scholarly Works

At this moment of unprecedented decline of local news and amplified attacks on the American press, attention is turning to the protection the Constitution might provide to journalism and the journalistic function. New signals that at least some Justices of the U.S. Supreme Court might be willing to rethink the core press-protecting precedent in New York Times v. Sullivan has intensified these conversations. But this scholarly dialogue appears to be taking place against a mistaken foundational assumption: that the U.S. Supreme Court continues to articulate and embrace at least some notion of freedom of the press. Despite the First Amendment …

Suing The President For First Amendment Violations, Sonja R. West

Scholarly Works

On any given day, it seems, President Donald Trump can be found attacking, threatening, or punishing the press and other individuals whose speech he dislikes. His actions, moreover, inevitably raise the question: Do any of these individuals or organizations (or any future ones) have a viable claim against the President for violating their First Amendment rights?

One might think that the ability to sue the President for violation of the First Amendment would be relatively settled. The answer, however, is not quite that straightforward. Due to several unique qualities about the First Amendment and the presidency, it is not entirely …

Presidential Attacks On The Press, Sonja R. West

Scholarly Works

President Donald Trump’s habit of hurling invectives at the press is disturbing. It undermines the work of the press and breaks long-standing norms that presidents show respect for the role of the Fourth Estate. But insults alone rarely raise First Amendment issues. Presidents have long used the bully pulpit to respond to or criticize news reports. Even Trump’s near daily verbal assaults on reporters and news organizations can be considered part of our country’s “uninhibited, robust, and wide-open” marketplace of ideas. Presidents have opinions too, and journalists should be able to handle his rants.

Yet there are also times when …

The Fragility Of The Free American Press, Ronnell Anderson Jones, Sonja R. West

Scholarly Works

President Donald Trump has faced criticism for attacking the press and for abandoning longstanding traditions of accommodating and respecting it. This Essay argues that the national discussion spurred by Trump’s treatment of the press has fallen short of capturing the true seriousness of the situation. Trump’s assault on the custom of press accommodation follows a generation-long collapse of other major press protections. In order to fully understand the critical juncture at which American press freedom now stands, we must expand the discussion beyond talk of a rogue president’s aberrant attacks on the press and consider the increasingly fragile edifice on …

The Media Exemption Puzzle Of Campaign Finance Laws, Sonja R. West

Scholarly Works

In the 2010 case of Citizens United v. Federal Election Commission, the United States Supreme Court solidified the media exemption dilemma in campaign finance law. When attempting to address concerns about corporate campaign expenditures (i.e., corporate political speech), legislatures are now stuck between a rock and a hard place. Regulate media corporations, and they violate press freedoms. Exempt media corporations from the regulations, however, and they are accused of speaker discrimination.

Thus the question of how to treat the press in campaign finance law can no longer be ignored. Can legislatures, without running afoul of the First Amendment, ever regulate …

Why More Antitrust Immunity For The Media Is A Bad Idea, Maurice Stucke, Allen Grunes

Scholarly Works

With their financial difficulties, some traditional media firms have called for greater leniency under the federal antitrust laws. The Federal Trade Commission, for example, in recent hearings inquired as to whether antitrust immunity is necessary for newspapers’ collaboration and under what circumstances, if any, antitrust immunity for certain joint conduct could be justified.

Our essay explores why relaxing the federal antitrust laws for traditional media will not help consumers or the marketplace of ideas. We discuss the past problems with antitrust immunity generally and for the media industries specifically. We address the failures of the Newspaper Preservation Act, how deregulation …

The "Illegal" Tax, Francine J. Lipman

Scholarly Works

No abstract provided.

The Story Of Us: Resolving The Face-Off Between Autobiographical Speech And Information Privacy, Sonja R. West

Scholarly Works

Increasingly more “ordinary” Americans are choosing to share their life experiences with a public audience. In doing so, however, they are revealing more than their own personal stories, they are exposing private information about others as well. The face-off between autobiographical speech and information privacy is coming to a head, and our legal system is not prepared to handle it.

In a prior article, I established that autobiographical speech is a unique and important category of speech that is at risk of being undervalued under current law. This article builds on my earlier work by addressing the emerging conflict between …

Toward A Better Competition Policy For The Media: The Challenge Of Developing Antitrust Policies That Support The Media Sector's Unique Role In Our Democracy, Maurice Stucke, Allen Grunes

Scholarly Works

It is difficult to formulate meaningful competition policy when there is a fierce debate over the current competitiveness of the media industry. After addressing the importance of the marketplace of ideas in our democracy, our article examines the current state of the media industry, including the response of traditional media to audience declines, the growth of new media, the impact of media consolidation (including its impact on minority and women ownership), and the role of the Internet. In response to recent calls for liberalizing cross-ownership rules to protect traditional media, our article outlines why conventional antitrust policy is difficult to …

Concentrated Media Is Something We Can't Ignore: A Response To Speaker Pelosi, Maurice Stucke

Scholarly Works

This essay briefly responds to a request that the U.S. Department of Justice should give San Francisco Bay Area newspapers more leeway under the federal antitrust laws to merge or consolidate their business operations. The essay agrees with House Speaker Nancy Pelosi's concerns that a strong, free, and independent press is vital to our democracy and in informing our citizens, especially news organizations that devote resources to gathering news. As the essay explains, the antidote is not to weaken the antitrust laws to enable large media conglomerates to become even bigger. Instead, the health of the marketplace of ideas depends …

Culture, Sovereignty, And Hollywood: Unesco And The Future Of Trade In Cultural Products, Christopher M. Bruner

Scholarly Works

On October 20, 2005, the General Conference of the United Nations Educational, Scientific and CulturalOrganization (UNESCO) adopted a treaty - by a vote of 148-2, with 4 abstentions - that legitimates domestic legal measures aimed at the protection of local producers of cultural activities, goods and services. Opposed by the United States and Israel, the Convention represents a major diplomatic victory for Canada and France - its principal proponents - and a major blow to Hollywood and the United States, audiovisual products being among America's most lucrative exports. Both Canada and France, like many countries around the world, have long …

Dr. Jekyll & Mr. Skilling; How Enron's Public Image Morphed From The Most Innovative Company In The Fortune 500 To The Most Notorious Company Ever, Nancy B. Rapoport, Jeffrey D. Van Niel

Scholarly Works

In this article, we explore the hypothesis that Enron's financial releases were so complex and misleading that no one could have predicted its rapid downfall, and we find that, contrary to our hypothesis, a number of people were contradicting Enron's own rosy view of itself long before the middle of 2001. We then talk about the ways in which Enron became part of the public consciousness, far beyond what it had done merely as a business entity.

Popular Culture As A Lens On Legal Professionalism, Alex Scherr, Hillary Farber

Scholarly Works

Why use art to teach lawyering?' Despite divergences in method and intention, the two disciplines overlap. If the prevalence of lawyers in movies, television, literature, and even humor means anything, popular culture remains fascinated with lawyers. Our practices, our ethics, and our professional personae serve as a mine for image and narrative, a target for cultural critique, and a catalyst for expression. Not surprisingly, images of lawyers in cartoons, film, television, and literature offer unique opportunities to teach and explore professionalism. The proliferation of lawyer images in popular culture provides an array of material ranging from career choice to particular …

Malignant Democracy: Core Fallacies Underlying Election Of The Judiciary, Jeffrey W. Stempel

Scholarly Works

There is no requirement of democratic theory that mandates that all public offices be filled by election. This is particularly true in modern democratic states, which are simply too large to justify the administrative burden of electing everyone who has significant responsibilities in our society.

Examples of this are everywhere in modern democracies, such as the United States and Europe. In England, for example, the Prime Minister is not directly elected by the people. Does this mean Great Britain has ceased to be a democracy? In most large, sophisticated nation-states, national cabinet officers have great power but are the political …

Antitrust And The Marketplace Of Ideas, Maurice Stucke, Allen Grunes

Scholarly Works

Article provides an overview of the marketplace of ideas, its relevance to media mergers, and the current approach under the federal antitrust agencies' Horizontal Merger Guidelines. The article examines the legal support for the proposition that antitrust analysis of media mergers should be expanded to include the merger's impact on editorial competition. After finding legal support in the legislative history and Supreme Court decisions, the article explores the pros and cons of evaluating a media merger's impact on the marketplace of ideas, and asks whether this should be left to the FCC. The article concludes with several modest proposals as …

Government–Owned Media: The Government As Speaker And Censor, Linda L. Berger

Scholarly Works

When government operates a communications medium, it may either promote first amendment values, by ensuring a diverse marketplace of ideas, or hinder them, by censoring the information and ideas it conveys. This Note proposes a synthesis of government speech and government forum analyses which would provide first amendment limitations on government-operated media while still allowing government to exercise editorial discretion.