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.     

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.     

First Amendment influence in argentine republic law and jurisprudence

The First Amendment to the United States Constitution has influenced the development of freedom of expression in a number of countries, including the Argentine Republic. This article focuses on law as it came to affect mass media beginning with assumptions from the 16th century, when Argentina was under Spanish domination, and continues through the 1853–60 constitutional conventions that marked the initiation of First Amendment influence in Argentine law and jurisprudence. The article explains how the de facto governments that ruled Argentina from 1862 to 1983 gave direction to law and court decisions affecting the mass media, including film censorship, press penal responsibility, prior restraint, state of siege and the right to reply. The article concludes by analyzing how these laws and court decisions have influenced media and Argentine society, especially in fostering self‐censorship.     

Dimensions of Censorship: Reconceptualizing Public Willingness to Censor

First Amendment scholars and advocates have often criticized the American public's inconsistent dedication to free expression. Many studies have attempted to identify variables that predict pro-censorship attitudes, but such relationships remain largely enigmatic. The confusion is due, in part, to the myriad ways in which censorship attitudes have been conceptually and operationally defined. Informed by First Amendment theory and case law, a conceptual and operational approach to measuring these attitudes is proposed and tested. The results show it is important to conceptualize censorship attitudes as multifaceted.     

行政裁决诉讼的不确定性及其解决

行政裁决系指行政主体依照法律法规授权,以中间人的身份,按照一定的程序,对与行政管理相关的,发生在平等主体之间的民事纠纷进行裁决的行为。行政裁决行为归属具体行政行为的普遍性与区别具体行政行为的特殊性,带来了从行政裁决的对象上考察案件性质和从行政裁决行为性质本身考察案件性质的不确定性,进而造成了行政裁决司法救济途径的多样性。行政裁决的三种司法救济途径各有利弊,并且都面临理论与实践、法律规定与审判效果的冲突。这些冲突造成了行政裁决理论研究的困惑和司法实践的不统一;因此,应该创设一种新的诉讼形式来解决行政裁决司法救济中的问题。     

Environment, Damages, and Compensation

This article, the first part of a larger study devoted to the compensation of damages caused by pollution, reviews the existing sources of compensation in the United States: the common law of torts, federal and state statutes, and various forms of commercial insurance coverages. It shows how the rules of nuisance law have remained flexible in response to changing customs and public policies, how for a long time prevailing attitudes favored industrial development and economic growth over physical comfort, and how increasing concerns about the long-term health effects of environmental pollution have created a trend in the opposite direction. The author also points out that the existing system of liability and compensation, which relies on individual actions and case-by-case adjudication, is not ideally suited for dealing with the effects of large-scale pollution or for the —primarily political—task of evaluating and balancing all of the interests and values, present and future, economic and noneconomic, that need to be considered before decisions can be made that are bound to affect the health and economic well-being of a large part of the population beyond the immediate parties to a lawsuit. This indicates a need for a comprehensive approach that would not only coordinate the rules concerning liability and those concerning insurance and other sources of compensation but would also make the compensation of pollution damages an integral part of a thoroughly rational and consistent environmental policy. The various possibilities of constructing such a comprehensive compensation system will be discussed in the second part of the study, to be published in a forth-coming issue of the American Bar Foundation Research Journal.     

商法的独立性与商事审判的独立化

商事审判独立化既是商法独立性的必然要求和主要标志,同时也是实现商法独立性的重要保障,没有商事审判的独立化就没有真正意义上的商法独立。实现商事审判独立化的关键首先在于确立独立的商事审判理念,这些理念主要包括重效率的审判理念、侧重动态保护和强调利益均衡的审判理念、尊重当事人意思自治的审判理念及促进商事交易效率与安全并重的理念等。在商事审判程序的具体设计上,应当在充分把握商事审判特殊性的基础上,建立独立的法官队伍并对法官的自由裁量权做出必要限制,注重法院司法能动性的发挥,确立商事惯例和商事判例作为法律渊源的地位和作用,注意发挥诉讼替代程序在商事纠纷争议解决中的作用,强化诚信原则在商事裁判中的独特作用,充分尊重国际惯例在商事审判中的作用。     

Promises to keep: Enforcement of prepublication agreements and first amendment rights

Since the Supreme Court's ruling in Cohen v. Cowles Media, several courts have found that prepublication agreements are legally binding promises between journalists and their sources of information, and that the First Amendment does not protect journalists from civil sanction for the breach of such agreements. An agreement between a journalist and a private individual not to disclose a source's information or the source's identity might constitute a legally binding commitment, especially if the plaintiff is able to show that a clear and specific commitment was made not to reveal certain information and that as a result of the breach of promise the plaintiff suffered specific harm.

However, the Court's analysis of enforcement of confidentiality promises as having merely incidental effects is flawed. Because it did not balance the enforcement of prepublication agreements against the First Amendment interests in nonenforcement of the agreements, the Court in Cohen departed from its compelling interest analysis of prepublication agreements in Snepp v. United States as well as its previous standards in finding incidental effects of generally applicable laws.     

An Apologia To Radical Dissent And A Supreme Court Test To Protect It

Some framers of the Constitution of the United States, scholars and Supreme Court justices have argued that protection and encouragement of democratic deliberation are at the core purpose of the First Amendment. Most of these individuals would, nevertheless, exclude radical political dissent from constitutional protection. They seem to disagree with Thomas Jefferson, who believed in the salutary effects of revolutionary speech and even the occasional revolution. Government action targeting terrorist speech and association extends from this reasoning. This article argues that extreme political speech has benefit to society. Building on a varied body of First Amendment opinions, the author proposes a five-part test to better protect the radical speech vital to self-government and the search for truth.     

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.     

POSTAL 2 plays in US court - Schwarzenegger v. Entertainment Merchants Association

In an unprecedented legal development, the case of violence in video games has now reached the highest American court. The US Supreme Court is set to decide whether states can restrict minors from buying violent video games in the case of Schwarzenegger v. Entertainment Merchants Association. The decision could have serious implications on the future of First Amendment rights and children’s ’welfare. To resolve Schwarzenegger, the Justices will need to decide how much First Amendment protection should be extended to violent video games and whether minors have a greater constitutional right to violence than they do to obscenity.     

Gag orders: Shields or swords in the constitutional conflict between fair trial and free press?

In 1976, in Nebraska Press Association v. Stuart, the Supreme Court characterized gag orders as the “most serious and least tolerable infringement on First Amendment rights.”; Yet courts impose gag orders that restrict media coverage of courts and trial participants. Many groups believe the use of gag orders is increasing. However, no previous study has attempted to quantify the frequency of gag orders or to explore judicial attitudes about the issuance of such orders. This analysis of the case law and exploratory survey of judges in Florida suggests that courts issue gag orders to protect fair trials, participant safety and privacy, and the sanctity of the courtroom.

This article also suggests that conflict over gag orders arises because judges disagree about the core meanings of the First and Sixth Amendments. This research indicates that judges' individual interpretations of the Constitution color their determinations of whether indirect gags on trial participants, rather than on the media, are impermissible assaults on the First Amendment or are permissible shields of fair trials. Judges tend to be either First Amendment apostles or Sixth Amendment followers, and Sixth Amendment judges are more likely to impose and uphold gag orders. The authors suggest that this schism is unlikely to be resolved without guidance from the Supreme Court.     

Courtroom Access After 9/11: A Pathological Perspective

The dangers that times of national stress inevitably pose for First Amendment freedoms led legal scholar Vincent Blasi to formulate what he called the "pathological perspective." Blasi argued that, because the nation is more willing to give up fundamental liberties during these periods, it is incumbent upon the courts to anticipate such times and create legal rules that will withstand such pressures. This article examines the Supreme Court's courtroom access doctrine from a pathological perspective. It concludes that the confusing legacy of the Court's decisions in courtroom access cases has increased the danger to First Amendment rights during this critical time, and it proposes a more robust doctrine of courtroom access drawn from the pathological perspective.     

宪法裁判与民主的悖论

当今许多国家为了维护民主纷纷建立了宪法裁判制度,然而也有些国家却为了民主不被侵害而拒绝宪法裁判。宪法裁判与民主的紧张自始至今从未消除,其实它们之间无矛盾性又无必然性,宪法裁判有助于民主,同时它也存在一定的民主风险。为发挥宪法裁判对民主的优长,应该运用法院的司法功能去避免其对民主的危害,这需要在宪法裁判与民主之间进行调适,恰当界定宪法裁判机关与立法机关之间的适当领域。对存在民主缺憾的国家来说,宪法裁判不失为至关重要的选择。     

Internal Contradictions of Judicial Mediation in China

Judicial mediation in China represents an extreme case of integration between adjudication and mediation. Based on ethnographic work and extensive interviews, this article studies how judicial mediation actually works in China. It finds that the incorporation of mediation as part of the official trial process creates a set of internal contradictions. In addition to the role conflict inherent in a judge's acting also as a mediator, adjudication and mediation stages are organized by different principles. When the rather rigid format of adjudication is carried over to in‐trial mediation, it curtails the flexible, nonlegalistic approach that mediation is meant to promote. Challenged authority, an uncontrolled process, narrowed issues, and weakened norms all make a settled outcome difficult to achieve. In comparison with judicial mediation in other jurisdictions, this case study from China has important theoretical implications for understanding the limits of informal justice.     

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.     

美国打击色情物品犯罪的司法实践及困境

美国联邦最高法院从1957年开始掀起审查色情案件的高潮,形成了一系列先例,确立了"硬核色情物品"和"儿童色情物品"不受宪法第一修正案保护的原则.但是美国社会,尤其是联邦最高法院的大法官们对色情物品的危害、淫秽物品的标准以及色情物品受不受宪法第一修正案的保护等问题一直争论不休,导致色情物品泛滥成灾.     

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.     

First amendment protection for online platforms

The United States is home to some of the largest online platforms in the world, in part due to Section 230 of the Communications Decency Act of 1996. Section 230 provides platforms with extraordinarily broad immunity from lawsuits arising from user content. The statute is under unprecedented scrutiny, and Congress already has amended the statute to weaken its protections. This Article examines the First Amendment protections that would remain for online platforms if Congress were to entirely eliminate Section 230. After reviewing pre-Internet cases involving offline distributors such as bookstores and newsstands, this Article concludes that although the First Amendment would offer some protections to platforms, these protections would be limited and likely would require platforms to significantly alter their operations and business models.     

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.