Violence as Obscenity: Offensiveness and the First Amendment

Many efforts have been made to restrict minors' access to violent media content basing the definition of the content to be restricted on the legal definition of obscenity, which requires the content to be offensive. Without exception, such restrictions have been found to violate the First Amendment, partly because the laws have defined the violence to be restricted with reference to its offensiveness, while the purpose of the laws has been to protect children from the harms believed to be caused by exposure to such content. This has created a problematic lack of fit between the content to be restricted and the purpose of restrictions. This article examines whether restricting minors' access to offensive violent media content to protect them from its offensiveness makes it any more likely such restrictions will survive First Amendment scrutiny.     

Imperial paradigms: First Amendment theory,legal interdisciplinarity and reductionism

Increasingly, legal scholars are bringing the theories and vocabularies of other disciplines to bear upon legal issues, including First Amendment theory. While legal interdisciplinarity has many advantages, it also raises questions when scholars attempt to “reduce” legal theory to the conceptual frameworks of other disciplines. This article examines two such attempts, one by a feminist legal scholar, the other by an advocate of the economic analysis of law. The article critiques these approaches and explores some possible limits of interdisciplinary First Amendment scholarship.     

Field Theory,Cultural Capital,and the First Amendment: Two Paradoxes in the Legitimation of News

Does law influence the legitimation of news? I examine legitimations offered during ethics debates about news stories in which private people are thrust into the media spotlight. When navigating the space between what can be published lawfully and what should be published, journalism organizations offer legitimations that vary in ways that reflect the hierarchy of legal frameworks for decision. According to field theory, the cultural capital of the juridical field is constitutive of status hierarchies in the journalism field, even though the First Amendment leaves journalism to structure itself. This structuring leads to two paradoxes. First, in the performance of negative legitimation, news organizations justify ethics violations by converting the minimum standard of lawful speech into claimsmaking about laudable speech. Second, in acts of displacing legitimation, reporters suggest that more publicity is the remedy for invading privacy, translating the valorization of speech rights over privacy rights into a puzzling norm.     

Advisory committees at FDA: the Hinchey Amendment and "conflict of interest" waivers

In approving the Food and Drug Administration's (FDA) Fiscal Year 2007 budget, the House approved an amendment that would prevent the agency from using appropriated funds to waive certain conflicts of interest identified by members of its advisory committees. The amendment, introduced by Representative Hinchey and known as the Hinchey Amendment, provides that no funds may be used to: waive a conflict of interest under Section 505(n)(4) of the Federal Food, Drug, and Cosmetic Act (FDCA) for any voting member of an FDA advisory committee or panel; or make a certification under Section 208(b)(3) of Title 18 of the U.S. Code for any such voting member. This creates a problem, as ties to industry create the very expertise that FDA values in its outside advisors-under the Hinchey Amendment, these very ties would prevent them from serving as advisors to FDA during the drug approval process. The author opposes this change in the law and argues that the Hinchey Amendment would undermine congressional efforts in 1962 and 1989 to carefully balance the goals of attracting qualified experts and protecting agency decisionmaking. Further, the author argues, this change is unnecessary at FDA, because experts on FDA advisory committees divulge their connections to the industry, because the committees offer only advice and do not make agency decisions, and because the agency is under the watchful eye of Congress, the public, and public interest groups. The Article concludes that although FDA's advisory committee conflict-of-interest process can be improved, congressional action is unnecessary, and a change in the law through amendment to an appropriations bill that does not go through the ordinary legislative process (as an amendment to the FDCA or Title 18 would) is inappropriate. Instead, recommendations from organizations studying FDA practice, such as the OIG, GAO, and IOM, should be used to carefully and reflectively amend the process at the agency level, within the existing statutory framework.     

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.     

First Amendment Showdown: Intellectual Diversity Mandates and the Academic Marketplace

Once described as a quintessential marketplace of ideas by the Supreme Court of the United States, the academic marketplace has been criticized recently for institutionalizing a left-leaning ideology within its curriculum and academic discourse. As a result, national activists and organizations have been calling on state legislatures and university administrators to adopt policies and report on steps taken to encourage intellectual diversity and protect political and cultural minorities from faculty bias and academic retribution in the classroom and other university settings. But who would win a constitutional showdown between the academy and those seeking to infuse academic discourse with alternative viewpoints? Based on an analysis of the First Amendment concerns at stake in this ongoing controversy, this article concludes that university administrators should have the upper hand in such a constitutional challenge given the specific characteristics and selective nature of the academic marketplace.     

Unmasking Jane and John Doe: Online Anonymity and the First Amendment

When individuals turn on the television, listen to the radio, or purchase newspapers, they are not forming contractual relationships. Yet, almost without exception, online readers, viewers and listeners are required to enter into “terms of use” contracts. These ubiquitous agreements are generally unfavorable for the user in areas of intellectual property rights and privacy. In addition, the terms often restrict users’ behavior and their ability to litigate any disputes with a Web site. In analyzing the implications of contracts for Web site users, this article examines whether courts have recognized a distinction between online consumers, interactive users, and “passive media users”—online readers, listeners or viewers who engage in little, if any, of the activity traditionally required to form contracts. Case law reveals a frequent de facto exemption from online agreements for passive media users, but not highly interactive users. This exemption could be formally recognized to benefit all parties to a contract.     

The First Amendment Originalism of Justices Brennan,Scalia and Thomas

Originalism holds that the U.S. Constitution should be interpreted based on the original intent or original meaning of the Constitution, that original intent is not only relevant but authoritative, and that judges are obligated to follow the framers’ original intent and meaning when resolving cases. Normative questions surrounding originalism's merit have produced one of the great constitutional debates of recent decades. This article compares and contrasts the First Amendment originalism of three justices: William Brennan, Antonin Scalia and Clarence Thomas. It examines every First Amendment opinion prior to the 2011 term written by the justices that contains originalism. The article concludes that all three justices used originalism to support a wide variety of arguments in a wide variety of First Amendment cases. In addition, the analysis demonstrates that Justices Scalia and Thomas more frequently supported the First Amendment in opinions in which they used originalism, a finding that contradicts the idea that originalism is associated with judicial restraint. The article contends that, with a few minor exceptions, none of the justices used originalism in a consistent way. Finally, the article offers perspectives on originalism's influence on current First Amendment jurisprudence and the limitations of using originalism for constitutional interpretations.