From Sullivan to Nike: Will the Noble Purpose of the Landmark Free Speech Case Be Subverted to Immunize False Advertising?

In deciding not to rule in Nike, Inc. v. Kasky, the Supreme Court of the United States passed up an ideal opportunity to answer an urgent question that derives from two legacies of New York Times v. Sullivan: When speech implicates both the commercial speech doctrine and the political speech doctrine, how should that speech be assessed in terms of First Amendment protection? This analysis focuses upon the essential principles emphasized in Sullivan's landmark assessment of the societal value in protecting some false speech in the discussion of public issues. Concerns over the Nike case's implications for corporate expression must be weighed against the societal interest in preventing false commercial speech from being immunized by attaching it to a public issue.     

To Filter or Not To Filter: The Role of the Public Library in Determining Internet Access

To filter or not to filter-that is the question facing public librarians who are trying to decide whether to install Internet blocking software on computers. The filtering question hinges on the First Amendment, balancing adults' rights to constitutionally protected speech against the protection of minors and determining what materials might be considered harmful to minors. The purposes of this article are to examine the theoretical and practical aspects of blocking Internet content and to analyze the 1998 federal district court's ruling that found a Virginia library's filtering policy was unconstitutional. In addition, this article will review alternatives designed to protect minors and propose a three-pronged solution that both ensures adults' access to constitutionally protected speech and restores decision-making to the family in protecting minors from harm.     

Naturalizing the Artificial Citizen: Repeating Lochner's Error in Citizens United v. Federal Election Commission

In March, the Supreme Court of the United States, in a 5-4 vote, handed down Citizens United v. Federal Election Commission, a sweeping ruling providing more protection for corporate political media spending as First Amendment “speech” than ever before. This article demonstrates that Citizens United nullified a century of democratic will by representing First Amendment protection for such spending to be part of nature rather than a legal construct. If Cass Sunstein's influential assessment is correct that the lesson of Lochner v. New York is the judicial error inherent in imposing such artificial baselines to measure the constitutionality of government regulation, then Citizens United can be understood to repeat that error.     

The first amendment at the crossroads: Free expression and new media technology

A century and a half after it became part of the Constitution, the First Amendment finally began to fulfill its promise of protecting freedom of speech and press. Only in recent decades have courts extended that protection to a broad range of expressive activity. In an era of emerging media technology, courts will be called on to establish new constitutional principles to deal with the changing communications landscape. Once unleashed, the “new”; First Amendment standards will be available to change the legacy of landmark cases that some consider to be overly‐solicitous of freedom of speech and press. Protecting the First Amendment in the cyberspace era is best accomplished not by creating new standards, but by applying and thus preserving established First Amendment principles.     

The Angry Pamphleteer: True Threats,Political Speech,and Applying Watts v. United States in the Age of Twitter

Since the 1969 case Watts v. United States, courts have consistently held that politically motivated speech about or directed to public figures may be punished if it qualifies as a “true threat” rather than protected political hyperbole. Criticism of public officials lies at the core of First Amendment protection, even when that criticism is caustic or crude. Such caustic speech appears on Twitter with increasing frequency, often pushing the boundaries of the constitutional guarantees of free speech. Through an analysis of the political speech-true threat cases that apply Watts, this study identifies and assesses three distinct modes of analysis that lower courts use to distinguish political speech from true threats. They are: (1) criteria-based analysis; (2) ad hoc balancing; and (3) a form of balancing referred to herein as “line-crossing analysis.” This study concludes that criteria-based analysis is the most prominent mode used by lower courts. As applied to new media and political participation, criteria-based analysis risks unduly restricting valuable political speech.     

Facing the Fear: A Free Market Approach for Economic Expression

Commentators differ on whether a diminished constitutional status for profit-driven speech is consistent with free speech theory. Most recently, the Supreme Court of the United States in Citizens United v. Federal Election Commission largely embraced an unfettered marketplace approach for political speech financed by corporate treasuries. Given the harm a free market approach is said to have produced in the economic realm, is this approach useful for structuring the constitutional protection economic expression receives? This article discusses the placement of economic expression within First Amendment theory and contends that restrictions on economic speech should be aimed at combating deceptive economic activities while overall regulatory goals should focus on requirements that enrich the supply of accurate and timely information.     

When a Commercial is Not a Commercial: Advertising of Violent Entertainment and the First Amendment

The September 2000 release of the Federal Trade Commission's report on the marketing of violent entertainment to children ignited the latest of many rounds of policy debates on violent entertainment and its effects on children. Parties on both sides of the debate have cited the First Amendment as limiting what the government can do to legally restrict the marketing of violent entertainment products to children. However, little detailed analysis of just how the First Amendment would apply to any such marketing restrictions has been presented. That is the subject this article takes up. First, it looks at the First Amendment standard of review applied to restrictions on commercial speech. The article also considers whether violent speech, in either entertainment programming or its advertising, may be restricted under the First Amendment. Finally, this article examines whether the advertising of violent entertainment products is entitled to the same level of First Amendment protection afforded to the products being advertised.     

Television Food Marketing to Children Revisited: The Federal Trade Commission Has the Constitutional and Statutory Authority to Regulate

The evidence reveals that young children are targeted by food and beverage advertisers but are unable to comprehend the commercial context and persuasive intent of marketing. Although the First Amendment protects commercial speech, it does not protect deceptive and misleading speech for profit. Marketing directed at children may fall into this category of unprotected speech. Further, children do not have the same First Amendment right to receive speech as adults. For the first time since the Federal Trade Commission's original attempt to regulate marketing to children in the 1970s (termed KidVid), the political, scientific, and legal climate coalesce to make the time well-suited to reevaluate the FTC's authority for action. This paper analyzes the constitutional authority for the FTC to regulate television food marketing directed at children as deceptive in light of the most robust public health evidence on the subject.     

The Right and the Duty: Jefferson,Sedition and the Birth of the First Amendment's Central Meaning

When the right and duty to criticize government and its officials is under attack in the United States, the democracy is threatened. The idea of holding those in power accountable, and its origin, assume particular importance. While this “central meaning” of the First Amendment culminated with Justice William Brennan's New York Times Co. v. Sullivan opinion in 1964, the process of discovering that meaning actually began more than a century and a half before. Near the end of the eighteenth century, a political battle ensued over the meaning of the First Amendment. The Alien and Sedition Acts of 1798 were signed into law by a chief executive who sought to control political criticism of him and the government over which he presided. This article focuses on the role of Thomas Jefferson in the resistance to these laws. This battle, according to Justice Brennan, “[F]irst crystalized a national awareness of the central meaning of the First Amendment.” This article posits that this conflict resulted in birth of the modern First Amendment – the discovery of its central meaning – and is premised on the notion that revisiting the events described herein is especially relevant within a period in which officials in high office threaten speech and press rights.     

Adventures in the Copyright Zone: The Puzzling Absence of Independent First Amendment Defenses in Contemporary Copyright Disputes

Copyright law, for most of its history, has been exempt from the requirements of the First Amendment free speech and press clauses. As copyright law has expanded in scope and duration, scholars have begun to raise questions about its First Amendment immunity. This essay examines the fundamental conflict between copyright doctrine and the First Amendment. Although courts have been quick to dismiss the application of free speech standards to copyright disputes, the proper relationship between these two areas of the law is less than clear. The essay explores the current understanding of the intersection of free speech and copyright, largely derived from the work of Professor Melville Nimmer. It analyzes the difficulties with two specific doctrines by which the Supreme Court of the United States has justified copyright's free speech immunity – the idea/expression dichotomy and the fair use doctrine – then concludes by offering a new approach to applying the First Amendment to copyright law in a more robust manner.     

美国企业法人的言论自由权与竞选资金规制

竞选资金规制是20世纪70年代以来美国言论自由诉讼的三个焦点问题之一。2010年的“联合公民案”提出了公司法人的言论自由权问题，其核心在于：竞选资金是否是言论？公司法人是否是言论自由权的主体？本文分析议会与最高法院在公司法人的竞选资金规制问题上的分歧，对“联合公民案”中的法律争议进行评析，并在此基础上探析公司法人言论自由权法律争议的深层次原因。     

The Chickens Have Come Home To Roost: Individualism,Collectivism And Conflict In Commercial Speech Doctrine

The Supreme Court of the United States has spent more than two decades constructing its commercial speech doctrine but has failed to articulate a principled approach, which has created disarray in the definition and protection of commercial speech. Analysis of the Court's conception of commercial speech protection, using individualist and collectivist political philosophies, concludes that the Court's commercial speech doctrine has suffered from a fundamental internal conflict arising from the difficulty in choosing one or the other of those political philosophies. That conflict will continue-as will the Court's inability to express a coherent commercial speech doctrine-until the Court makes an overt choice between collectivist and individualist approaches to the protection of commercial speech. The principled solution is for the Court to adopt a strict scrutiny approach to commercial speech, thus giving it protection commensurate with that given ideological speech.     

Originalism 2.0 Meets the First Amendment: The “New Originalism,” Interpretive Methodology,and Freedom of Expression

Constitutional originalism emerged as a legal and political movement in the last quarter of the twentieth century largely as a conservative reaction to perceived excesses of the Supreme Court of the United States. Early originalist attempts to formulate a coherent constitutional methodology were met with stinging criticism from many scholars. In recent years, a group of constitutional scholars has championed a different approach under the rubric “the New Originalism.” One of the key methodological innovations of New Originalism has been to reject the search for the intentions of the framer or ratifiers of constitutional provisions and instead seek to identify the “original public meaning” of such provisions. This article explores New Originalism in the context of the First Amendment speech and press clauses. The article also analyzes originalist opinions by Supreme Court justices to determine if New Originalism is affecting how the justices approach First Amendment interpretation.     

Police Accountability and the Media

This article explores First Amendment theory and the role of the media in generating police accountability through public understanding of police organizations. We argue that free speech theory can and should look beyond "abridgment" issues and raise questions about the civic responsibility of the press to inform the public about key governmental institutions. The media's concern with crime news, we found, vastly overshadows its coverage of the police us a complex, in-teresting, and expensive governmental agency. Reporting about police institutional patterns and policies contributes more toward fulfilling First Amendment values-not only that of "checking" police excesses, but of facilitating the goal of enlightened citizen participation in local government.
Those who won our independence believed…that public discussion is a political duty; and that this should be a fundamental principle of American government. They recognized the risks to which all human institutions are subject.     

The Contentious American Debate: The First Amendment and Internet-based Hate Speech

This essay reviews the debate over what constitutes hate speech and whether or not such speech is protected by the American First Amendment. First, the concept of white racialism and white supremacy is defined and illustrated. Then after a brief discussion of the legal debate, the nature and problematic definition(s) of hate speech is presented. The unique speech environment of the internet is reviewed alongside attempts to limit and censor topics available on the internet. The arguments for and against restricting first amendment protection are discussed, with a focus on Michael Israel's five criteria for withdrawing first amendment protections. The work concludes with a discussion of the difficulty in constraining discourse on the internet.     

Logic,licensing and public relations

This article focuses on the need to move past First Amendment concerns to foster a meaningful debate about the licensing of public relations practitioners. Whether, and to what extent, public relations should be licensed is not the subject of this discussion. Instead, this article uses Aristotelian logic to dispute the spurious conclusion that any licensing scheme for public relations work and / or the individuals who perform it is unconstitutional on its face. Relying on First Amendment jurisprudence, the article demonstrates that some restraints on speech in the form of licensing are allowed, that not all public relations work involves protected speech or press, that there is a similarity to the constitutionally permitted licensing of certain speech‐related professions and that a hypothetical case can be constructed regarding those who could qualify as licensed public relations counsel. The article concludes that the First Amendment does not necessarily prevent licensing certain public relations practitioners.     

The Heckler’s Veto: Using First Amendment Theory and Jurisprudence to Understand Current Audience Reactions Against Controversial Speech

Pundits have recently used the term “heckler's veto” to describe instances in which vocal audiences seek to silence offensive or controversial speech by putting pressure on institutions that control the private forums that host the speech. The use of the term in these contexts, however, fails to take into account the jurisprudential nuances of the heckler's veto principle, as well as the principle's unique position within First Amendment theory. This article fills a void in mass communication law scholarship by examining the development of the heckler's veto principle in cases from the Supreme Court of the United States that discuss the persistent challenges that the heckler's veto principle presents and by analyzing the principle from the perspective of First Amendment theory. The purpose of these analyses is to distill the social values of tolerating extreme speech, and to apply those values to the governance of private forums of communication.     

<Emphasis Type="Italic">United States v Stevens</Emphasis>: Gnawing Away at Freedom of Speech or Paving the Way for Animal Rights?

This article examines United States v. Stevens, a case recently decided by the Supreme Court, and its relation to animal law and freedom of speech issues, specifically the contention between the two, caused by the statute in question at the heart of the case. While animal rights advocates wish to frame the case through an anti-animal cruelty perspective, those seeking to protect freedom of speech have made the statute an issue of First Amendment rights. Is 18 USC § 48 an imposition on free speech or a step in the right direction towards protection of animals and promotion of their rights? It is argued here that the Supreme Court should have recognized the Stevens case as an important development in animal rights and held that the statute is narrowly tailored, based on a compelling government interest, and that the protection of animals from harm overshadows any possible speech or expression that is found in crush videos, dog fighting videos, and the like.     

Privacy as Europe's first Amendment

The protection of universal principles varies across jurisdictions: the prominence of free speech in the United States is undisputed. My argument is that the First Amendment took off only during the New Deal and later, the Civil Rights revolution as an identity‐formation and unifying tool in a deeply divided society. The symbolic significance of free speech in the US remains central to this day. In the midst of its identity crisis with looming Brexit, Europe is now experimenting with privacy‐as‐constitutional identity in a similar way. This article seeks to unpack the values encompassed in privacy and freedom of speech, looking into the different functional responses that two different democratic societies place their bets on. As data protection and privacy come to a clash with important trade and security interests in an evermore‐globalized world, the power of the outward‐oriented European privacy discourse is likely to remain above all rhetorical.