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Free Speech, Strict Scrutiny, And Self-Help: How Technology Upgrades Constitutional Jurisprudence, Tom Bell
Free Speech, Strict Scrutiny, And Self-Help: How Technology Upgrades Constitutional Jurisprudence, Tom Bell
Tom W. Bell
Self-help plays a nearly unnoticed but increasingly important role in free speech jurisprudence. Under both the compelling interest and least restrictive means prongs of strict scrutiny, courts have determined the constitutionality of content-based restrictions on speech by comparing the efficacy of state action to that of alternative, self-help remedies. Courts and commentators, however, have yet to explore and justify how self-help does and should influence First Amendment law. Thanks largely to the obscuring effect of the captive audience doctrine, courts have invoked self-help in compelling interest inquiries in a consistent, but only implicit, manner. In contrast, although the Supreme Court …
Authors' Welfare: Copyright As A Statutory Mechanism For Redistributing Rights, Tom Bell
Authors' Welfare: Copyright As A Statutory Mechanism For Redistributing Rights, Tom Bell
Tom W. Bell
Copyright exhibits means and ends remarkably similar to those of social welfare programs. Yet discussions about copyright do not tend to echo discussions about welfare. This paper examines that interesting contrast. It begins by comparing social welfare policy to copyright policy, uncovering several material parallels. Both welfare and copyright primarily aim to correct the market's failure to sufficiently support a particular class of beneficiaries. Both encourage rights-based claims to the entitlements that they create, too. The welfare system and the copyright system each uses statutory mechanisms to redistribute rights - rights to wealth in the first instance, rights to chattels …