Law Commons^™

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 Rhetoric Of Constitutional Absolutism, Eric Berger

William & Mary Law Review

Though constitutional doctrine is famously unpredictable, Supreme Court Justices often imbue their constitutional opinions with a sense of inevitability. Rather than concede that evidence is sometimes equivocal, Justices insist with great certainty that they have divined the correct answer. This Article examines this rhetoric of constitutional absolutism and its place in our broader popular constitutional discourse. After considering examples of the Justices’ rhetorical performances, this Article explores strategic, institutional, and psychological explanations for the phenomenon. It then turns to the rhetoric’s implications, weighing its costs and benefits. This Article ultimately argues that the costs outweigh the benefits and proposes a …

Harmony At The Farm: Rediscovering The “Community” In Community Supported Agriculture, Christopher Kaltsas

William & Mary Law Review

No abstract provided.

Criminal Innovation And The Warrant Requirement: Reconsidering The Rights-Police Efficiency Trade-Off, Tonja Jacobi, Jonah Kind

William & Mary Law Review

It is routinely assumed that there is a trade-off between police efficiency and the warrant requirement. But existing analysis ignores the interaction between law-enforcement investigative practices and criminal innovation. Narrowing the definition of a search or otherwise limiting the requirement for a warrant gives criminals greater incentive to innovate to avoid detection. With limited resources to develop countermeasures, law enforcement officers will often be just as effective at capturing criminals when facing higher Fourth Amendment hurdles. We provide a game-theoretic model that shows that when law-enforcement investigation and criminal innovation are considered in a dynamic context, the police efficiency rationale …

Should The Law Preserve Party Control? Litigation Investment, Insurance Law, And Double Standards, Anthony J. Sebok

William & Mary Law Review

Litigation investment, sometimes known as litigation finance, is increasingly accepted around the world. Once prohibited as champerty, litigation investment is now embraced in England, Canada, and Australia, as well as in many civil law nations. In the United States, the development of a robust market for investment in litigation has been met by various objections. One objection is that litigation investment interferes with the autonomy of lawyers. A second objection is that it promotes frivolous litigation.

This Article takes up a popular argument against litigation investment: the legal system should not encourage parties to sell their control over litigation that …

Legal Ignorance And Information-Forcing Rules, J. H. Verkerke

William & Mary Law Review

People are often ignorant about the legal rules that govern the most common transactions in their lives. This Article analyzes one common regulatory response to our widespread legal ignorance. A surprisingly broad range of legal rules have the ostensible purpose of inducing sophisticated parties to draft express contract language that will inform their contractual partners about the legal rules governing a particular transaction. However, this “legal-informationforcing” objective often remains unrealized because people routinely sign contracts without reading and understanding their terms. In theory, courts could design information-forcing rules that would be truly informative. But recognizing the potential futility of attempts …

Don’T Text A Driver: Civil Liability Of Remote Third-Party Texters After Kubert V. Best, Emily K. Strider

William & Mary Law Review

No abstract provided.