Law Commons^™

An Architecture For Spam Regulation, David Dickinson

Federal Communications Law Journal

Junk email, commonly referred to as "spam," is the current scourge of the Internet. In late 2004, unwanted email messages were being delivered at a rate of 12.4 billion per day. The variety of tools used to combat spam have failed to make a significant impact. Legislative efforts, such as the CAN-SPAM Act of 2003, met with substantial enforcement complications. The communications industry responded with a variety of technical advances, such as filters and blacklists, but those innovations are still unable to reliably distinguish between wanted and unwanted messages. Real coordination between legislative and technical spam control tactics has yet …

Cross Burning, Hate Speech, And Free Speech In America, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

The Policing Of Demonstrations In The Nation's Capital: Legislative And Judicial Corrections Of A Police Department's Misconception Of Mission And Failure Of Leadership, Ralph Temple

University of the District of Columbia Law Review

No abstract provided.

Not For Attribution: Government's Interest In Protecting The Integrity Of Its Own Expression, Helen L. Norton

Faculty Scholarship

Public entities increasingly maintain that the First Amendment permits them to ensure that private speakers’ views are not mistakenly attributed to the government. Consider, for example, Virginia’s efforts to ban the Sons of Confederate Veterans’ display of the Confederate flag logo on state-sponsored specialty license plates. Seeking to remain neutral in the ongoing debate over whether the Confederate flag is a symbol of “hate” or “heritage,” Virginia argued that the state would be wrongly perceived as endorsing the flag if the logo appeared on a state-issued plate adorned by the identifier “VIRGINIA.” The Fourth Circuit was unpersuaded, holding that the …

The Speech-Enhancing Effect Of Internet Regulation, Emily Buss

Chicago-Kent Law Review

In this Article, the author suggests that certain speech-reducing regulations will, in fact, be speech-enhancing for children. This is because children are vulnerable to far greater censorship at the hands of their parents than at the hands of Internet regulators. Regulations that inspire parents to relax their grip on their children's access to information are likely to produce significant net speech gains for children. Viewed this way, regulations designed to protect children can be conceived as pitting the speech interests of adults against the speech interests of children. The Article suggests a number of reasons we might value the children's …

When Well-Being Trumps Liberty: Political Theory, Jurisprudence, And Children's Rights, William Galston

Chicago-Kent Law Review

Compared to most adults, children are dependent and vulnerable and therefore require special protection. Efforts to safeguard their well-being often collide with one or more of the liberty guarantees of the First Amendment. Professor Etzioni fears that current jurisprudence has tipped the balance too far towards individual liberty, making it difficult to extend children the legal protection they need. Drawing on a theoretical account of constitutionalism as well as existing case law, the author argues that mainstream jurisprudence is up to the task of balancing the well-being of children against the liberty of adults. The Supreme Court's recent decision in …

On Protecting Children From Speech, Amitai Etzioni

Chicago-Kent Law Review

Are children entitled to the same First Amendment rights as adults? This Article explores the constitutionality of limiting children's access to objectionable materials assuming that both free speech rights and the protection of children are two core values that, like all other social values, must be balanced. When used to assess specific court cases and public policies, the balancing principle is a helpful guide in determining whether voluntary or incentives-based programs are sufficient to remedy the problems at hand or whether government regulation of free speech is necessary. The Article analyzes five court cases involving Internet filters in libraries, the …

The Liberal Theory Of Freedom Of Expression For Children, Colin M. Macleod

Chicago-Kent Law Review

This Article develops a liberal theory of freedom of expression which is sensitive to the interests of children as distinct, vulnerable but developing members of society. I argue that children have, in addition to welfare interests, interests in the development and exercise of basic moral powers. In virtue of such interests, children acquire, well before they become adults, nontrivial rights of free expression. Respecting children's rights to free expression entails limits on the prerogatives of parents and others to determine the sorts of cultural materials children should be permitted access. Nonetheless children's rights are importantly different from those of adults. …

Free Speech And Children's Interests, David Archard

Chicago-Kent Law Review

This Article endorses the conclusion of Etzioni's article that the First Amendment right of free speech should not trump the interests of children. However the picture is more complicated once we recognize that parents have a "basic" right to bring up their children as they see fit that may conflict with the state's duty to protect children in its jurisdiction.

Moreover there is an important difference between protecting children now from harms and safeguarding the interests of the adults they will grow into. Society has an interest in protecting children based upon its fundamental interest in ensuring the conditions of …

Toward A Constitutional Regulation Of Minors' Access To Harmful Internet Speech, Dawn C. Nunziato

Chicago-Kent Law Review

In this Article, Prof. Nunziato scrutinizes Congress's recent efforts to regulate access to sexually-themed Internet speech. The first such effort, embodied in the Communications Decency Act, failed to take into account the Supreme Court's carefully-honed obscenity and obscenity-for-minors jurisprudence. The second, embodied in the Child Online Protection Act, attended carefully to Supreme Court precedent, but failed to account for the geographic variability in definitions of obscene speech. Finally, the recently-enacted Children's Internet Protection Act apparently remedies the constitutional deficiencies identified in these two prior legislative efforts, but runs the risk of being implemented in a manner that fails to protect …

Shielding Children: The European Way, Michael D. Birnhack, Jacob H. Rowbottom

Chicago-Kent Law Review

The Internet crosses physical borders, and carries with it both its promises and its harms to many different countries and societies. These countries thus share the same technology, but they do not necessarily share the same set of values or legal system. This Article compares the legal response in the United States and in Europe to one important issue: the exposure of children to certain materials, which are deemed harmful to them but not harmful to adults.

This US-European comparison, in which the experience in the United Kingdom serves as a leading example, illustrates the traits of various kinds of …

On Protecting Children—From Censorship: A Reply To Amitai Etzioni, Marjorie Heins

Chicago-Kent Law Review

Etzioni's argument for censorship of minors ignores the fundamental problem with Internet filters, misstates the results of media-effects research, and uses emotional terms like "protection" and "harm" to mask moral judgments about what is appropriate for youth.

Given the size and constantly changing character of the Internet, filters necessarily rely on key words and phrases. As a result, thousands of valuable Web pages are mistakenly blocked by filters, even at their narrowest settings. The problem is inherent in the system.

Most media-effects studies do not show a causal link between violent content and violent (or "aggressive") behavior. The studies that …

The Need For A Two (Or More) Tiered First Amendment To Provide For The Protection Of Children, Kevin W. Saunders

Chicago-Kent Law Review

This Article addresses the two sorts of problems raised by Professor Etzioni, while also responding to the earlier articles in this Symposium. With regard to the spillover effect, the author argues that there are ways to limit the effect on adults of restrictions designed to protect children, even on the Internet. Furthermore, some spillover effect is allowed and may leave open the possibility of protecting children from tobacco or alcohol advertisements. The Article also addresses areas in which material has been seen as protected even for children. While agreeing that depictions of violence pose an important problem, the Article also …

Response, Amitai Etzioni

Chicago-Kent Law Review

No abstract provided.

Rehearsal For Media Regulation: Congress Versus The Telegraph-News Monopoly, 1866-1900, Menahem Blondheim

Federal Communications Law Journal

In this Article, Menahem Blondheim presents a critical historical analysis of the dawn of communications regulation as it began with the evolution of domestic telegraphy and developed into a coherent link between 19th century technological, business, and social developments and twentieth century First Amendment thought. First, the Article examines the political and economic environment which led to the development of national telegraph and news networks, like Western Union and the Associated Press. The Author then proceeds to assess the role of the mid-to-late nineteenth century American legislature, and how the debate over telegraph and wire service regulation realigned the powers …

Legislating The Tower Of Babel: International Restrictions On Internet Content And The Marketplace Of Ideas, Michael F. Sutton

Federal Communications Law Journal

The First Amendment to the U.S. Constitution protects the expression of diverse viewpoints in virtually any medium. Nevertheless, the modern novelty of "borderless" communication via the Internet strains our ideal of keeping government out of the business of regulating speech. This Note reveals the conflict between the First Amendment's national protections and the Internet's lack of national boundaries, while also arguing for international intervention for the protection of free speech. This Author articulates the real danger of "watered-down speech" unless both the FCC and the international community provide regulations and harmonized international standards for online content that reflect First Amendment …

New York Times V. Sullivan: Core Doctrine Likely To Hold, Rodney Smolla

Rod Smolla

No abstract provided.

Fire, Metaphor, And Constitutional Myth-Making, Robert Tsai

Articles in Law Reviews & Other Academic Journals

From the standpoint of traditional legal thought, metaphor is at best a dash of poetry adorning lawyerly analysis, and at worst an unjustifiable distraction from what is actually at stake in a legal contest. By contrast, in the eyes of those who view law as a close relative of ordinary language, metaphor is a basic building block of human understanding. This article accepts that metaphor helps us to comprehend a court's decision. At the same time, it argues that metaphor plays a special role in the realm of constitutional discourse. Metaphor in constitutional law not only reinforces doctrinal categories, but …

Sound And Fury Signifying Nothing?: Jurgen Bϋssow’S Battle Against Hate-Speech On The Internet, Eric T. Eberwine

NYLS Law Review

No abstract provided.

Not For Attribution: Government's Interest In Protecting The Integrity Of Its Own Expression, Helen Norton

Publications

Public entities increasingly maintain that the First Amendment permits them to ensure that private speakers' views are not mistakenly attributed to the government. Consider, for example, Virginia's efforts to ban the Sons of Confederate Veterans' display of the Confederate flag logo on state-sponsored specialty license plates. Seeking to remain neutral in the ongoing debate over whether the Confederate flag is a symbol of "hate" or "heritage," Virginia argued that the state would be wrongly perceived as endorsing the flag if the logo appeared on a state-issued plate adorned by the identifier "VIRGINIA." The Fourth Circuit was unpersuaded, holding that the …

Protecting The Lady From Toledo: Post-Usa Patriot Act Electronic Surveillance At The Library, Susan Nevelow Mart

Publications

Library patrons are worried about the government looking over their shoulder while they read and surf the Internet. Because of the broad provisions of the USA PATRIOT Act, the lack of judicial and legislative oversight, the potential for content overcollection, and the ease with which applications for pen register, section 215 orders, or national security letters can be obtained, these fears cannot be dismissed.

Raiding Islam: Searches That Target Religious Institutions, John G. Douglass

Law Faculty Publications

On the morning of March 20, 2002, while television cameras recorded the events for the evening news, dozens of federal agents entered and searched the offices of several Islamic educational and religious organizations in Northern Virginia. The agents were searching, it appears, for evidence that those organizations contributed money to international groups known to have sponsored terrorist acts. By most public accounts, the targeted institutions were regarded as moderate and progressive voices in American Islam. For that reason, the searches sent shock waves through the American Muslim community. Muslims who had supported the Administration's domestic war on terrorism began to …

Adult Entertainment And The First Amendment: A Dialogue And Analysis With The Industry's Leading Litigator, Clay Calvert, Robert D. Richards

Vanderbilt Journal of Entertainment & Technology Law

This article gives Cambria the legal spotlight, at a time when conservatives control the White House and Congress, to discuss the never-ending tension between the First Amendment freedom of speech, which sometimes, although certainly not always, protects the $10 billion adult entertainment industry in the United States and the voices of censorship who would squelch such content. It is a tension that clearly affects many people, given the sheer popularity of sexually explicit speech and the mainstreaming today of adult content; sales and rentals of adult videos in 2002 totaled more than $4 billion, according to the Adult Video News. …

Typosquatters, The Tactical Fight Being Waged By Corporations, And Congress' Attempt To Fight Back In The Criminal Arena, David A. Gusewelle

Vanderbilt Journal of Entertainment & Technology Law

Part II of this Note presents an overview of domain names as well as a general overview of cybersquatting and trademarks. Part III analyzes some of the measures Congress has taken against cybersquatting and the case law under those measures. Part IV gives a general overview of typosquatters, who constitute a subgroup of cybersquatters. Part V discusses the TDNA and issues that have been addressed through U.S. v. Zuccarini. Part VI asks whether the TDNA is an unconstitutional restriction on free speech. Part VII questions whether criminal liability is appropriate and argues for a higher culpability standard in § 2252(B)(b) …

The Freedom To Speak And The Freedom To Listen: The Admissibility Of The Criminal Defendant's Taste In Entertainment, Helen A. Anderson

Articles

In Part I of this Article, I will establish that the First Amendment protects both consumers and producers of expression, although the scope of consumer protection has not been greatly elaborated. Part II discusses attempts to hold the entertainment industry liable for crimes by third persons, as well as legislative efforts to restrict or ban certain kinds of entertainment or art deemed to cause violence. For the most part, these efforts against producers have failed.

Part III then shows how a criminal defendant's viewing, listening, or reading habits may be used as evidence against that defendant, and that the constitutional …

The First Amendment, The Public-Private Distinction, And Nongovernmental Suppression Of Wartime Political Debate, Gregory P. Magarian

Scholarship@WashULaw

This article proposes a major expansion in the scope of First Amendment law and offers a fresh way of understanding the public-private distinction. It contends that the Supreme Court should invoke the First Amendment to enjoin nongovernmental behavior that substantially impedes public political debate during times of war and national emergency. As the article explains, the present campaign against international terrorism has seen employers, property owners, and media corporations restrict political discussion more frequently and aggressively than the government has. If political debate is the most important object of First Amendment protection - which the article contends it is - …

The Antipaternalism Principle In The First Amendment, Dale Carpenter

Faculty Journal Articles and Book Chapters

Commentators generally agree the First Amendment is hostile to paternalism. Yet, most analysts invoke the idea of free speech antipaternalism without examining its roots, explaining what it means, or discussing what it entails. There has been no attempt to identify and to explain the antipaternalism principle across a variety of free speech domains. This Article examines the nature and reach of this particular brand of First Amendment exceptionalism.

In Part I the author reviews First Amendment jurisprudence where the Supreme Court evinces, either explicitly or implicitly, some aversion to paternalism. This review covers several free speech frontiers, including commercial speech, …

Copy This Essay: How Fair Use Doctrine Harms Free Speech And How Copying Serves It, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Defenders of transformative uses have invoked the First Amendment to bolster claims that such uses should not be subject to the copyright owner’s permission. But this focus on transformation is critically incomplete, leaving unchallenged much of copyright’s scope, despite the large number of nontransformative copying activities that are also instances of free speech. The current debate leaves the way open for expansions of copyright that, while not targeted at dissenting viewpoints, nonetheless may have a profoundly negative effect on freedom of speech. In other words, transformation has limited our thinking about the free speech interests implicated by copying. This essay …

Institutional Academic Freedom - A Constitutional Misconception: Did Grutter V. Bollinger Perpetuate The Confusion?, Richard H. Hiers

UF Law Faculty Publications

This article begins with a review of language that eventually gave rise to the concept of institutional academic freedom, and includes a summary of lower court decisions embracing that concept or notion. The second part identifies certain constitutional problems in connection with the idea that institutional academic freedom can somehow be derived from or based upon the First Amendment. The third part describes and analyzes language in the Court's Grutter decision, language that may or may not have the effect of validating the concept of institutional academic freedom under the First Amendment.

More Is Less, Philip A. Hamburger

Faculty Scholarship

Is the First Amendment's right of free exercise of religion conditional upon government interests? Many eighteenth-century Americans said it was utterly unconditional. For example, James Madison and numerous contemporaries declared in 1785 that "the right of every man to exercise ['Religion'] ... is in its nature an unalienable right" and "therefore that in matters of Religion, no mans right is abridged by the institution of Civil Society." In contrast, during the past forty years, the United States Supreme Court has repeatedly conditioned the right of free exercise on compelling government interests. The Court not merely qualifies the practice of the …