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Free Speech, Rational Deliberation, And Some Truths About Lies, Alan K. Chen
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
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
The Politics And Incentives Of First Amendment Coverage, Frederick Schauer
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
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.
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 …
New Problems For Subsidized Speech, Joseph Blocher
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 Zombie First Amendment, Julie E. Cohen
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 …
The First Amendment’S Public Forum, John D. Inazu
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 …
First Amendment Expansionism, Leslie Kendrick
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 …
National Security Information Disclosures And The Role Of Intent, Mary-Rose Papandrea
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 Right Of Publicity And The First Amendment In The Modern Age Of Commercial Speech, Martin H. Redish, Kelsey B. Shust
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 …
When Are Constitutional Rights Non-Absolute? Mccutcheon, Conflicts, And The Sufficiency Question, Mark D. Rosen
When Are Constitutional Rights Non-Absolute? Mccutcheon, Conflicts, And The Sufficiency Question, Mark D. Rosen
William & Mary Law Review
No abstract provided.
Internet Exceptionalism: An Overview From General Constitutional Law, Mark Tushnet
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.
The Marrow Of Tradition: The Roberts Court And Categorical First Amendment Speech Exclusions, Gregory P. Magarian
The Marrow Of Tradition: The Roberts Court And Categorical First Amendment Speech Exclusions, Gregory P. Magarian
William & Mary Law Review
No abstract provided.
Producing Speech, Ashutosh Bhagwat
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 Mechanics Of First Amendment Audience Analysis, David S. Han
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 …
Speech, Intent, And The Chilling Effect, Leslie Kendrick
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
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
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
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 …
Keep Out Of Myspace!: Protecting Students From Unconstitutional Suspensions And Expulsions, Christi Cassel
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
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
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
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.
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
The Brandeis Gambit: The Making Of America's "First Freedom," 1909-1931, Bradley C. Bobertz
William & Mary Law Review
No abstract provided.
Guns, Words, And Constitutional Interpretation, L. A. Powe Jr.
Guns, Words, And Constitutional Interpretation, L. A. Powe Jr.
William & Mary Law Review
No abstract provided.
The Constitution As An Obstacle To Government Ethics - Reformist Legislation After National Treasury Employees Union, George D. Brown
The Constitution As An Obstacle To Government Ethics - Reformist Legislation After National Treasury Employees Union, George D. Brown
William & Mary Law Review
No abstract provided.
Levin, Jeffries, And The Fate Of Academic Autonomy, Nathan Glazer
Levin, Jeffries, And The Fate Of Academic Autonomy, Nathan Glazer
William & Mary Law Review
No abstract provided.
Religion-Plus-Speech: The Constitutionality Of Juror Oaths And Affirmations Under The First Amendment, Jonathan Belcher
Religion-Plus-Speech: The Constitutionality Of Juror Oaths And Affirmations Under The First Amendment, Jonathan Belcher
William & Mary Law Review
No abstract provided.