Law Commons^™

A New Compact For Sexual Privacy, Danielle Keats Citron

William & Mary Law Review

Intimate life is under constant surveillance. Firms track people’s periods, hot flashes, abortions, sexual assaults, sex toy use, sexual fantasies, and nude photos. Individuals hardly appreciate the extent of the monitoring, and even if they did, little could be done to curtail it. What is big business for firms is a big risk for individuals. Corporate intimate surveillance undermines sexual privacy—the social norms that manage access to, and information about, human bodies, sex, sexuality, gender, and sexual and reproductive health. At stake is sexual autonomy, self-expression, dignity, intimacy, and equality. So are people’s jobs, housing, insurance, and other life opportunities. …

Free Speech, Rational Deliberation, And Some Truths About Lies, Alan K. Chen

William & Mary Law Review

Could “fake news” have First Amendment value? This claim would seem to be almost frivolous given the potential for fake news to undermine two core functions of the freedom of speech—promoting democracy and facilitating the search for “truth,” as well as the corollary that to be valuable, speech must promote rational deliberation. Some would therefore claim that fake news should be classified as “no value” speech falling outside of the First Amendment’s reach. This Article argues somewhat counterintuitively that fake news has value because speech doctrine should not be focused exclusively on the promotion of rational deliberation, but should also …

Antitrust As Speech Control, Hillary Greene, Dennis A. Yao

William & Mary Law Review

Antitrust law, at times, dictates who, when, and about what people can and cannot speak. It would seem then that the First Amendment might have something to say about those constraints. And it does, though perhaps less directly and to a lesser degree than one might expect. This Article examines the interface between those regimes while recasting antitrust thinking in terms of speech control.

Our review of the antitrust-First Amendment legal landscape focuses on the role of speech control. It reveals that while First Amendment issues are explicitly addressed relatively infrequently within antitrust decisions that is, in part, because certain …

The Politics And Incentives Of First Amendment Coverage, Frederick Schauer

William & Mary Law Review

No abstract provided.

National Security Information Disclosures And The Role Of Intent, Mary-Rose Papandrea

William & Mary Law Review

In the public discourse, the perceived intent of those who disclose national security information without authorization plays an important role in whether they are labeled as heroes or traitors. Should it matter whether Chelsea (formerly Bradley) Manning leaked government information to WikiLeaks knowing that our enemies might benefit from the information? Is it relevant that Edward Snowden believed—or that a reasonable person would believe—that the topsecret government surveillance programs he revealed were illegal, or that the public value in knowing about these programs outweighed any risk of harm to national security? This Article examines whether intent—and what kind of intent— …

The Marrow Of Tradition: The Roberts Court And Categorical First Amendment Speech Exclusions, Gregory P. Magarian

William & Mary Law Review

No abstract provided.

Leak Prosecutions And The First Amendment: New Developments And A Closer Look At The Feasibility Of Protecting Leakers, Heidi Kitrosser

William & Mary Law Review

This Article revisits the free speech protections that leakers are due in light of recent commentaries and events. Among other things, the Article critiques arguments to the effect that the Obama Administration’s uptick in leak prosecutions does not threaten the system of free speech because plenty of classified information still makes its way into newspapers and the absolute number of leaker prosecutions remains very low. Such positions overlook the slanted impact that prosecutions and investigations are likely to have—and reportedly have had—on the speech marketplace. The Article also explains that even though the increase in prosecutions and other recent developments, …

Reconciling Privacy And Speech In The Era Of Big Data: A Comparative Legal Analysis, Ronald J. Krotoszynski Jr.

William & Mary Law Review

In both the United States and the nations of Western Europe, significant constitutional commitments safeguard both expressive freedom (including freedom of speech and of the press) and also a generalized constitutional right of privacy. With some regularity, however, these rights will come into conflict, as the protection of one right can be achieved only at the cost of abridging or denying the other. When a government official or public figure objects to the publication of an embarrassing photograph, perhaps taken by an invasive paparazzo, it is simply not possible to fully vindicate both a newspaper’s interest in publishing the photograph …

Internet Exceptionalism: An Overview From General Constitutional Law, Mark Tushnet

William & Mary Law Review

This Article considers First Amendment Internet exceptionalism. I use that term in what I think is a reasonably standard way to refer to the question of whether the technological characteristics of the Internet (and, more generally, twenty-first-century information technologies) justify treating regulation of information dissemination through the Internet differently from regulation of such dissemination through nineteenth- and twentieth-century media, such as print, radio, and television. My aim here is not to provide an answer to that question, but to identify several subquestions whose answers must be part of the larger answer.

First Amendment Expansionism, Leslie Kendrick

William & Mary Law Review

In recent years, many litigants have found the First Amendment to be a useful tool. One could mention pornography actors, tattoo artists, death row inmates, and corporate interests from small photography shops to meat trade associations to cigarette manufacturers to pharmaceutical companies. All have raised First Amendment claims in the last few years, and nearly all of them have met with some level of success.

These claims are examples of what has been called First Amendment opportunism, where litigants raise novel free speech claims that may involve the repackaging of other types of legal arguments. To the extent that many …

New Problems For Subsidized Speech, Joseph Blocher

William & Mary Law Review

The constitutionality of conditional offers from the government is a transsubstantive issue with broad and growing practical implications, but it has always been a particular problem for free speech. Recent developments suggest at least three new approaches to the problem, but no easy solutions to it. The first approach would permit conditions that define the limits of the government spending program, while forbidding conditions that leverage funding so as to regulate speech outside the contours of the program. This is an appealing distinction, but runs into some of the same challenges as public forum analysis. The second approach would treat …

The Right Of Publicity And The First Amendment In The Modern Age Of Commercial Speech, Martin H. Redish, Kelsey B. Shust

William & Mary Law Review

The so-called right of publicity gives individuals a legally protected interest against commercially motivated communicators’ use of their names or likenesses for purposes of commercial gain. Although the right is sometimes viewed as a subcategory of the right of privacy, it may be exercised by the best known celebrities, as well as by the most private individual. It is therefore more properly characterized as a property interest in one’s name and likeness than a protection of one’s privacy.

In order to satisfy the concerns of the First Amendment right of free expression, however, the statutory and common law development of …

The Zombie First Amendment, Julie E. Cohen

William & Mary Law Review

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 Article 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 small part of the …

When Are Constitutional Rights Non-Absolute? Mccutcheon, Conflicts, And The Sufficiency Question, Mark D. Rosen

William & Mary Law Review

No abstract provided.

Producing Speech, Ashutosh Bhagwat

William & Mary Law Review

In recent years, a large number of disputes have arisen in which parties invoke the First Amendment, but the government action they challenge does not directly regulate “speech,” as in communication. Instead, the government is restricting the creation of communicative materials that are intended to be disseminated in the future—in other words, they restrict producing speech. Examples of such disputes include bans on recording public officials in public places, Los Angeles County’s ban on bareback (condom-less) pornography, restrictions on tattoo parlors, so-called “Ag-Gag” laws forbidding making records of agricultural operations, as well as many others. The question this Article addresses …

The First Amendment’S Public Forum, John D. Inazu

William & Mary Law Review

The quintessential city park symbolizes a core feature of a democratic polity: the freedom of all citizens to express their views in public spaces free from the constraints of government imposed orthodoxy. The city park finds an unlikely cousin in the federal tax code’s recognition of deductions for contributions made to charitable, religious, and educational organizations. Together, these three categories of tax-exempt organizations encompass a vast array of groups in civil society.

The city park is a traditional public forum under First Amendment doctrine, and the charitable, educational, and religious deductions under the federal tax code function much like a …

The Mechanics Of First Amendment Audience Analysis, David S. Han

William & Mary Law Review

When the government seeks to regulate speech based on its content, it generally assumes that listeners will process the speech in a manner that produces social harm. Because the chain of causation for such speech-based harm runs through the filter of an audience, courts must constantly make judgments regarding the audience’s reception of such speech. How will the speech be interpreted by the audience? To what extent will the speech cause the audience either to suffer direct emotional harm or to react physically to the speech in a harmful manner? Although this sort of inquiry—which I refer to as “audience …

Tinker-Ing With Speech Categories: Solving The Off-Campus Student Speech Problem With A Categorical Approach And A Comprehensive Framework, Scott Dranoff

William & Mary Law Review

No abstract provided.

Freedom Of Speech, Defamation, And Injunctions, David S. Ardia

William & Mary Law Review

It has long been a fixture of Anglo-American law that defamation plaintiffs are not entitled to injunctive relief; their remedies are solely monetary. Indeed, it has been repeated as a truism: “equity will not enjoin a libel.” This precept rests on one of the strongest presumptions in First Amendment jurisprudence: that injunctions against libel and other kinds of speech are unconstitutional prior restraints. But it may not be true, at least not anymore.

Over the past decade, the Internet has brought increased attention to the adequacy of the remedies available in defamation cases. Prior to the widespread availability of digital …

Speech, Intent, And The Chilling Effect, Leslie Kendrick

William & Mary Law Review

Speaker’s intent requirements are a common but unremarked feature of First Amendment law. From the “actual malice” standard for defamation to the specific-intent requirement for incitement, many types of expression are protected or unprotected depending on the state of mind with which they are said. To the extent that courts and commentators have considered why speaker’s intent should determine First Amendment protection, they have relied upon the chilling effect. On this view, imposing strict liability for harmful speech, such as defamatory statements, would overdeter, or chill, valuable speech, such as true political information. Intent requirements are necessary prophylactically to provide …

Free Speech And Parity: A Theory Of Public Employee Rights, Randy J. Kozel

William & Mary Law Review

More than four decades have passed since the U.S. Supreme Court revolutionized the First Amendment rights of the public workforce. In the ensuing years the Court has embarked upon an ambitious quest to protect expressive liberties while facilitating orderly and efficient government. Yet it has never articulated an adequate theoretical framework to guide its jurisprudence.

This Article suggests a conceptual reorientation of the modern doctrine. The proposal flows naturally from the Court’s rejection of its former view that one who accepts a government job has no constitutional right to complain about its conditions. As a result of that rejection, the …

Technologies Of Control And The Future Of The First Amendment, Christopher S. Yoo

William & Mary Law Review

No abstract provided.

Citizens, United And Citizens United: The Future Of Labor Speech Rights?, Charlotte Garden

William & Mary Law Review

Within hours of its announcement, the Supreme Court’s decision in Citizens United v. FEC came under attack from progressive groups. Among these groups were some of America’s largest laborunions—even though the decision applies equally to unions and for profit corporations. The reason is clear: there exist both practical andstructural impediments that will prevent unions from benefittingfrom Citizens United to the same extent as corporations. Therefore,Citizens United stands to unleash a torrent of corporate electioneering that could drown out the countervailing voice of organized labor.

This Article, however, takes a broader view of Citizens United to explore a possible silver lining …

First Amendment Based Copyright Misuse, David S. Olson

William & Mary Law Review

We are at a crossroads with respect to the underdeveloped equitable defense of copyright misuse. The defense may go the way of its sibling, antitrust-based patent misuse, which seems to be in a state of inevitable decline. Or—if judges accept the proposal of this Article—courts could reinvigorate the copyright misuse defense to better protect First Amendment speech that is guaranteed by statute, but that is often chilled by copyright holders misusing their copyrights to control others’ speech. The Copyright Act serves First Amendment interests by encouraging authors to create works. But copyright law can also discourage the creation of new …

Keep Out Of Myspace!: Protecting Students From Unconstitutional Suspensions And Expulsions, Christi Cassel

William & Mary Law Review

No abstract provided.

Protecting Our Children And The Constitution: An Analysis Of The "Virtual" Child Pornography Provisions Of The Protect Act Of 2003, James Nicholas Kornegay

William & Mary Law Review

No abstract provided.

St. George Tucker And The Legacy Of Slavery, Michael Kent Curtis

William & Mary Law Review

No abstract provided.

Government Messages And Government Money: Santa Fe, Mitchell V. Helms, And The Arc Of The Establishment Clause, Ira C. Lupu

William & Mary Law Review

No abstract provided.

Recalibrating The Cost Of Harm Advocacy: Getting Beyond Brandenburg, S. Elizabeth Wilborn Malloy, Ronald J. Krotoszynski Jr.

William & Mary Law Review

No abstract provided.

The Brandeis Gambit: The Making Of America's "First Freedom," 1909-1931, Bradley C. Bobertz

William & Mary Law Review

No abstract provided.