First Amendment potluck

This essay argues that the marketplace‐of‐ideas metaphor for law is inadequate to deal with contemporary problems in free expression because many of the entailments of the metaphor are destructive of communication and community. After a review of how metaphors work in the world and the law, the essay reviews the history of the marketplace metaphor, critiques the metaphor and its entailments, and makes a case for a potluck supper metaphor that would be more helpful in resolving contemporary conflicts over freedom of expression.     

Lawyer Advertising and the First Amendment

A current Supreme Court case concerning lawyer advertising, In re R.M.J., is analyzed in the context of a discussion of the diverse state regulations governing lawyer advertising and solicitation. The article considers the regulations in terms of their constitutionality, their tendency to impede effective advertising, and the effect they have on the legal profession's provision of information to potential clients about the nature, availability, and cost of legal services. Analysis of the major commercial speech cases, from Virginia State Board of Pharmacy to Central Hudson, indicates that many state rules infringe on attorneys' First Amendment rights.     

Taking Liberties with the First Amendment

Law and Philosophy -     

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.     

Obscenity and the law

This paper examines whether a random sample of adults can apply local contemporary community standards regarding the acceptability of explicit sexual material. Inasmuch as the legal test employed in the U.S. for determining obscenity requires a jury to apply such standards, the research examines the practicality of such an approach. The analysis indicates that the best predictor of what an individual will perceive the community standards to be is the individual's own standards concerning sexual material. The implications of these findings are examined from both a legal and social science perspective. In addition, the consequences of not providing jurors information concerning local standards are discussed.A previous version of this paper was presented at the Annual Meeting of the Law and Society Association in Chicago, May 29–June 1, 1986. The authors wish to thank Debbie Edwards, Jane Warne, and the anonymous reviewers fromLaw and Human Behavior for their helpful comments and suggestions concerning the paper.     

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.     

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.     

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.     

Fredrick Siebert's Absolute,Adjustable First Amendment

Fredrick Siebert is known for his analysis of the role of "stresses" in shaping freedom of expression. How flexible did he think First Amendment rights should be? His career and writings are examined to identify his positions and to understand how they may have been formed. Siebert believed that the founders were absolutists on government restraints, and he questioned subsequent efforts to define liberties in other ways. Like a scholar who influenced his career, Willard Bleyer, Siebert was a prominent journalism educator who could be a critic of the media. While Bleyer complained about communication monopolies and called for self-regulation, Siebert generally took a libertarian approach. He wanted protection for the business interests of the press and few, if any, government restrictions on content.     

First Amendment Limits on Government Holiday Displays

Abstract

“No holiday season is complete . . . without one or more First Amendment challenges to public holiday displays.” While Santa, Rudolph, and Frosty typically appear at city hall without controversy, government holiday displays that include religious symbols—such as a Christian creche, a Jewish menorah, or a Muslim star and crescent—are more likely to attract legal scrutiny under the Establishment Clause of the First Amendment to the U.S. Constitution. For governments that sponsor holiday displays with religious symbols, the resulting litigation can be costly. If the court concludes that the challenged display violates the Constitution, the government must pay the plaintiff’s costs and attorney fees. And even longstanding displays can be challenged—mere tradition is not a defense.