Law Commons^™

Presuming Trustworthiness, Ronnell Anderson Jones, Sonja R. West

Scholarly Works

A half-century ago, the U.S. Supreme Court often praised speakers performing the press function. While the Justices acknowledged that press reports are sometimes inaccurate and that media motivations are at times less than public-serving, their laudatory statements nonetheless embraced a baseline presumption of the value and trustworthiness of press speech in general. Speech in the exercise of the press function, they told us, is vitally important to public discourse in a democracy and therefore worthy of protection even when it falls short of the ideal in a given instance. Those days are over. Our study of every reference to the …

How The Supreme Court Talks About The Press (And Why We Should Care), Helen Norton

Publications

No abstract provided.

The Invention Of First Amendment Federalism, Jud Campbell

Law Faculty Publications

When insisting that the Sedition Act of 1798 violated the First Amendment, Jeffersonian Republicans cast their argument in historical terms, claiming that the Speech and Press Clauses eliminated any federal power to restrict expression. Scholars, in turn, have generally accepted that Republicans had a consistent understanding of the First Amendment throughout the 1790s. But Founding Era constitutionalism was dynamic in practice, even while often conservative in rhetoric, and scholars have missed the striking novelty of the principal argument against the Sedition Act. Republicans had taken a rights provision and transformed it into a federalism rule.

Mostly ignored in the literature, …

Compelled Subsidies And Original Meaning, Jud Campbell

Law Faculty Publications

The rule against compelled subsidization of speech is at the forefront of modem First Amendment disputes. Challenges to mandatory union dues, laws preventing discrimination on the basis of sexual orientation, and the federal "contraceptive mandate" have all featured variants of the anti-subsidization principle, reasoning that the government cannot compel people to support the objectionable activities of others. But the literature currently fails to evaluate modem compelled-subsidy doctrine in terms of the original meaning of the First Amendment. This Essay takes up that task.

Approaching any question of original meaning requires a willingness to encounter a constitutional world that looks very …

Favoring The Press, Sonja R. West

Scholarly Works

In the 2010 case of Citizens United v. Federal Election Commission, the United States Supreme Court caught the nation’s attention by declaring that corporations have a First Amendment right to independently spend unlimited amounts of money in political campaigns. The Court rested its 5-4 decision in large part on a concept of speaker-based discrimination. In the Court’s words, “the Government may commit a constitutional wrong when by law it identifies certain preferred speakers.”

To drive home its point that speaker-based distinctions are inherently problematic, the Court focused on one type of speaker distinction — the treatment of news media corporations. …

Don’T Expect The First Amendment To Protect The Media, Ronnell Anderson Jones, Sonja R. West

Popular Media

Op-ed in the New York Times about the limits on the protection of the press under the First Amendment.

Natural Rights And The First Amendment, Jud Campbell

Law Faculty Publications

The Supreme Court often claims that the First Amendment reflects an original judgment about the proper scope of expressive freedom. After a century of academic debate, however, the meanings of speech and press freedoms at the Founding remain remarkably hazy. Many scholars, often pointing to Founding Era sedition prosecutions, emphasize the limited scope of these rights. Others focus on the libertarian ideas that helped shape opposition to the Sedition Act of 1798. Still more claim that speech and press freedoms lacked any commonly accepted meaning. The relationship between speech and press freedoms is contested, too. Most scholars view these freedoms …

Press Exceptionalism, Sonja R. West

Scholarly Works

Thanks to advances in mass communication technology, it is now easier and cheaper for all of us to share information with each other. This new ability allows us to act in ways that often seem “press-like.” We might, for example, tweet a warning to our friends about a traffic jam or blog about an upcoming election. Armed with nothing more than a smart phone or a laptop, each of us can share information about matters of public interest to a potentially broad audience in a timely manner — thus engaging in the very activities that were once considered the exclusive …

The Stealth Press Clause, Sonja R. West

Scholarly Works

In this piece, however, I pause to push back on the conventional wisdom that the Court actually has refused to view the press as constitutionally special. Contrary to what we have been told, I contend the Supreme Court has indeed recognized the press as constitutionally unique from nonpress speakers. The justices have done so implicitly and often in dicta, but nonetheless they have continually and repeatedly treated the press differently. While rarely acknowledged explicitly, this "Stealth Press Clause" has been hard at work carving out special protections for the press,guiding the Court's analysis and offering valuable insights into how we …

First Amendment Neighbors, Sonja R. West

Scholarly Works

An abdication of the Press Clause reflects the most basic of analytical errors: It treats the text of the Press Clause as redundant and ignores the specialized functions that the Framers meant for the Press Clause to play. Failing to give the Press Clause constitutional recognition by declaring it too difficult to interpret or by dismissing it as "mere surplusage" is utterly at odds with our constitutional traditions. The Religion Clauses provide an example on how to give the text of the Press Clause true meaning.

In interpreting the Religion Clauses, the Supreme Court has taken a different attitude than …

New York Times V. U.S.: Implications And Relevance In The 21st Century, Maria E. Lombardi

Student Publications

In 1971, the New York Times released the first installment in a series later referred to as the Pentagon Papers that would eventually have significant political, social, and historical impacts that are felt even in the 21st Century. Following the first release, President Nixon’s administration sought an injunction against the publication of the remaining contents of the classified study, ultimately becoming an extensive legal process that culminated in the Supreme Court. In a per curiam opinion, the Court ruled that in accordance with Organization for a Better Austin v. Keefe and Near v. Minnesota that the federal government did not …

Implementing First Amendment Institutionalism, Joseph Blocher

Faculty Scholarship

No abstract provided.

Public Discourse, Expert Knowledge, And The Press, Joseph Blocher

Faculty Scholarship

This Essay identifies and elaborates two complications raised by Robert Post’s Democracy, Expertise, and Academic Freedom, and in doing so attempts to show how Post’s theory can account for constitutional protection of the press. The first complication is a potential circularity arising from the relationships between the concepts of democratic legitimation, public discourse, and protected social practices. Democratic legitimation predicates First Amendment coverage on participation in public discourse, whose boundaries are defined as those social practices necessary for the formation of public opinion. But close examination of the relationships between these three concepts raises the question of whether public discourse …

The Monster In The Courtroom, Sonja R. West

Scholarly Works

It is well known that Supreme Court Justices are not fans of cameras — specifically, video cameras. Despite continued pressure from the press, Congress, and the public to allow cameras into oral arguments, the Justices have steadfastly refused.

The policy arguments for allowing cameras in the courtroom focus on cameras as a means to increased transparency of judicial work. Yet these arguments tend to gloss over a significant point about the Court — it is not secretive. The Court allows several avenues of access to its oral arguments including the presence of the public and the press in the audience, …

Incendiary Speech And Social Media, Lyrissa Lidsky

Faculty Publications

Incidents illustrating the incendiary capacity of social media have rekindled concerns about the "mismatch" between existing doctrinal categories and new types of dangerous speech. This Essay examines two such incidents, one in which an offensive tweet and YouTube video led a hostile audience to riot and murder, and the other in which a blogger urged his nameless, faceless audience to murder federal judges. One incident resulted in liability for the speaker even though no violence occurred; the other did not lead to liability for the speaker even though at least thirty people died as a result of his words. An …

Taking History Seriously: Reflections On A Critique Of Amar’S Treatment Of The Ninth Amendment In His Work On The Bill Of Rights, Thomas B. Mcaffee

Scholarly Works

Dean William Treanor critiques constitutional textualism, contending that it pays too much attention to the words, grammar, and placement of clauses in the Constitution, and too little to the history leading to the adoption of the interpreted language. An important illustration is Professor Amar's treatment of the Ninth Amendment in his well-known book on the Bill of Rights. This treatment shares the perspective that history frequently sheds light on the meaning of constitutional text, but contends that the history yielding the Ninth Amendment demonstrates that it was drafted to secure the rights retained by the granting of limited federal powers—and …

Inchoate Liability And The Espionage Act: The Statutory Framework And The Freedom Of The Press, Stephen I. Vladeck

Articles in Law Reviews & Other Academic Journals

The debate over the proper balance between national security and freedom of the press has increasingly focused on the media's potential criminal liability for publishing sensitive information, as was threatened after the New York Times and the Washington Post disclosed the U.S. government's secret and warrantless wiretapping of domestic phone calls. With the issue of press liability for the publication of national security information, however, comes a bevy of difficult questions concerning the scope of the protections afforded to the press under the First Amendment.

This essay attempts to survey these questions in light of the absence of an overarching …

The Independent Significance Of The Press Clause Under Existing Law, C. Edwin Baker

All Faculty Scholarship

The paper argues that only the assumption that the Press Clause has a meaning independent of the Speech Clause could explain either different First Amendment treatment of individuals and the press or different First Amendment treatment of the press and other businesses. Suggesting an interpretation of the Press Clause as protecting the institutional integrity of the Fourth Estate, it then examines fifteen areas of law and finds that in each area the press receives different treatment – precisely the different treatment that the Fourth Estate theory predicts. Moreover, no area of law is found to be inconsistent with this independent …

The “Midnight Assassination Law” And Minnesota’S Anti-Death Penalty Movement, John Bessler

All Faculty Scholarship

This article traces the history of Minnesota's anti-death penalty movement and the 1889 Minnesota law - dubbed by contemporaries as the "midnight assassination law" - requiring private, nighttime executions. That law, authored by Minnesota legislator John Day Smith, restricted the number of execution spectators, prohibited newspapers from printing any execution details, and provided that only the fact of the execution could be lawfully printed. Also commonly referred to as the "John Day Smith law," this Minnesota statute was challenged as being unconstitutional by Minnesota newspapers after those newspapers printed details of a botched hanging and were charged with violating the …

Televised Executions And The Constitution: Recognizing A First Amendment Right Of Access To State Executions, John Bessler

All Faculty Scholarship

This article examines the history of public and private executions and the passage of private execution laws. It concludes that existing laws restricting media access to executions – and requiring private executions that exclude television cameras – are unconstitutional. The author examines existing statutory schemes which curtail media access and prohibit the filming of executions, discusses legal challenges to such laws, and explores freedom of the press jurisprudence. In particular, the article analyzes First Amendment case law and right-of-access cases. The author also discusses the Eighth Amendment's relationship to First Amendment case law in the area of media coverage of …

Congressional Power And Free Speech: Levy’S Legacy Revisited, William W. Van Alstyne

Faculty Scholarship

No abstract provided.

On Complaining About The Burger Court, Robert F. Nagel

Publications

No abstract provided.

The Origins Of Freedom Of Speech And Press, David S. Bogen

Faculty Scholarship

No abstract provided.

The Ambush Interview: A False Light Invasion Of Privacy, Kevin F. O'Neill

Law Faculty Articles and Essays

The ''ambush" interview is a controversial investigative reporting technique permeating both national and local television news programming. In the typical ambush interview, a reporter and his news crew intercept an unsuspecting newsworthy subject on the street and bombard him with incriminating accusations ostensibly framed as questions. The ambush interviewee inevitably appears guilty before the viewing audience. This is due to a variety of forces, including the subject's severe credibility disadvantage and the accusatory nature of the reporter's questions. This Note applies a false light invasion of privacy analysis to the ambush technique and examines the nexus between the technique and …

The First Amendment And The Free Press: A Comment On Some New Trends And Some Old Theories, William W. Van Alstyne

Faculty Scholarship

Responding to the trend of media rights being subjugated through the legal process, this article examines Justice Stewart's suggestion that the media should be treated with extra deference in First Amendment cases. This examination looks at the sufficiency of the press's claim of judicial harshness, whether the press should be treated differently than other speakers, and also compares press freedom in foreign nations.