Pub Date : 2020-01-02DOI: 10.1080/21689725.2020.1742760
P. Morris, Susan H. Sarapin
ABSTRACT Since their inception, social media spaces such as Facebook and Twitter have been legally considered private spaces that are not subject to the protections of the First Amendment. Rightly so, for (as many forget) the First Amendment applies to government actors, action, and public spaces, and the Internet is not one of those. However, in 2018, the Knight v. Trump ruling in favor of plaintiffs extended First Amendment protections via the public forum doctrine to those seeking access to (but who have been blocked from) participating in discussions on President Trump’s Twitter account. Numerous other similar cases across the country have found that public officials who use social media to communicate with constituents have established a designated public forum. They therefore cannot choose who is allowed into that space and who is not by blocking (disallowing access for) some members of the public, because this constitutes viewpoint discrimination. This decision is important in bringing forum doctrine into the technological age, and it opens important spaces for democratic deliberation. This article explains the specific requirements for a social media space to be considered a public forum from Knight v. Trump, describes related cases that are using it as a precedent, and explores the implications and unresolved issues related to this case.
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Pub Date : 2020-01-02DOI: 10.1080/21689725.2020.1743196
Jared Schroeder
ABSTRACT Artificially intelligent communicators are increasingly influencing human discourse. Algorithms and bots are determining the range and frequency of ideas individuals encounter, ultimately raising questions about whether the marketplace of ideas theory of the First Amendment, as it has traditionally been envisioned by the Supreme Court, can continue to endure as justices’ dominant tool for rationalizing extensive safeguards for free expression. In particular, the emergence of AI actors, which drown out human ideas and spread false and misleading information, appear to only worsen the long-standing criticisms of the theory’s assumptions. This article draws from Hannah Arendt’s political philosophy to construct a revised approach to marketplace theory as it enters its second century of use by the Supreme Court. Arendt’s ideas, especially as they pertain to the power of human-made machines to condition human behavior, as well as her concerns regarding community, truth, and the dichotomy between animal laborans and homo faber, are uniquely suited, as well as relatively under considered, when it comes to revising the marketplace approach.
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Pub Date : 2019-06-19DOI: 10.1080/21689725.2019.1621446
Omar Swartz
As suggested by this book, the First Amendment has been a “victim” of its own success. Written by a leading First Amendment scholar, it provides the analytical tools for making sense of this sentiment and for understanding, why, as free speech rights expanded in the last 15 years, the total realm of liberty has been contracting in this country. For instance, Brown v. Entertainment Merchants Association (2011), Burwell v. Hobby Lobby Stores (2014), Citizens United v. FEC (2010), Janus v. AFSCME (2018), and Reed v. Town of Gilbert (2015) were all major First Amendment “victories” that were counter-intuitive under traditional First Amendment rationales that liberals have long championed. More such “victories” are likely to occur in the future, portending setbacks for women’s rights, gay rights, and environmental justice – as feared by progressive jurists, people who long championed the First Amendment to achieve the aims of social justice. As a nation, we romanticize the First Amendment while being ignorant of it. As Zick points out, the First Amendment has a magmatism or gravity that redefines other legal and cultural interests in its image. Hence, the press, litigants, courts, the media, and scholars tend to approach constitutional rights as isolated concepts grounded in heroic figures, with First Amendment heroes being the most towering. This makes it difficult to appreciate that rights do not exist in isolation, nor are they static or hierarchical (i.e., no constitutional right has preference over another; the role of courts is to find ways to balance the different interests involved in a specific case). The problem, according to Zick, is a reading of the First Amendment that collapses its five parts into one generic “freedom of speech” sentiment, which loses the “relational dimensions” of rights generally to capitalize upon their synergies with each other. Other clauses and amendments are weakened by zealous protection of “free speech” against other equally important non-speech interests. To remedy this, Zick champions a “Rights Pluralism” grounded in a “Rights Dynamism,” which emphasizes interactions that construct their meanings, creating jurisprudential and rhetorical opportunity on both the left and the right to promote their interests:
{"title":"The dynamic free speech clause: Free speech and its relation to other constitutional rights","authors":"Omar Swartz","doi":"10.1080/21689725.2019.1621446","DOIUrl":"https://doi.org/10.1080/21689725.2019.1621446","url":null,"abstract":"As suggested by this book, the First Amendment has been a “victim” of its own success. Written by a leading First Amendment scholar, it provides the analytical tools for making sense of this sentiment and for understanding, why, as free speech rights expanded in the last 15 years, the total realm of liberty has been contracting in this country. For instance, Brown v. Entertainment Merchants Association (2011), Burwell v. Hobby Lobby Stores (2014), Citizens United v. FEC (2010), Janus v. AFSCME (2018), and Reed v. Town of Gilbert (2015) were all major First Amendment “victories” that were counter-intuitive under traditional First Amendment rationales that liberals have long championed. More such “victories” are likely to occur in the future, portending setbacks for women’s rights, gay rights, and environmental justice – as feared by progressive jurists, people who long championed the First Amendment to achieve the aims of social justice. As a nation, we romanticize the First Amendment while being ignorant of it. As Zick points out, the First Amendment has a magmatism or gravity that redefines other legal and cultural interests in its image. Hence, the press, litigants, courts, the media, and scholars tend to approach constitutional rights as isolated concepts grounded in heroic figures, with First Amendment heroes being the most towering. This makes it difficult to appreciate that rights do not exist in isolation, nor are they static or hierarchical (i.e., no constitutional right has preference over another; the role of courts is to find ways to balance the different interests involved in a specific case). The problem, according to Zick, is a reading of the First Amendment that collapses its five parts into one generic “freedom of speech” sentiment, which loses the “relational dimensions” of rights generally to capitalize upon their synergies with each other. Other clauses and amendments are weakened by zealous protection of “free speech” against other equally important non-speech interests. To remedy this, Zick champions a “Rights Pluralism” grounded in a “Rights Dynamism,” which emphasizes interactions that construct their meanings, creating jurisprudential and rhetorical opportunity on both the left and the right to promote their interests:","PeriodicalId":37756,"journal":{"name":"First Amendment Studies","volume":"53 1","pages":"128 - 130"},"PeriodicalIF":0.0,"publicationDate":"2019-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/21689725.2019.1621446","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41775310","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-05-21DOI: 10.1080/21689725.2019.1601579
R. Cohen-Almagor
ABSTRACT The First Amendment is an important value in American liberal polity. Under this value, racism, hate speech and offensive speech are protected speech. This article scrutinizes one of the clear representatives of the American liberal polity – Thomas Scanlon. The paper tracks the developments in his theory over the years. It is argued that Scanlon’s arguments downplay tangible harm that speech might inflict on its target victim audience. Scanlon’s distinction between participant interests, audience interests, and the interests of bystanders is put under close scrutiny. The article criticizes viewpoint neutrality and suggests a balancing approach, further arguing that democracy is required to develop protective mechanisms against harm-facilitating speech as well as profound offences. Both should be taken most seriously.
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Pub Date : 2019-05-20DOI: 10.1080/21689725.2019.1604246
Isaac West
ABSTRACT Wedding cakes are a site of vigorous debate about the meaning and scope of religious freedom. Unfortunately, when we privilege religious freedom as a frame for understanding these controversies we do so at the expense of a fuller commitment to equality. In an analysis of three conservative news sources as well as three sites of discourse, small business, religious freedom, and wedding cakes, this essay explores how and why particular assertions of religious freedom inform the sense that religious freedom should be favored over the full and fair application of state and federal equality laws.
{"title":"Wedding cakes, equality, and rhetorics of religious freedom","authors":"Isaac West","doi":"10.1080/21689725.2019.1604246","DOIUrl":"https://doi.org/10.1080/21689725.2019.1604246","url":null,"abstract":"ABSTRACT Wedding cakes are a site of vigorous debate about the meaning and scope of religious freedom. Unfortunately, when we privilege religious freedom as a frame for understanding these controversies we do so at the expense of a fuller commitment to equality. In an analysis of three conservative news sources as well as three sites of discourse, small business, religious freedom, and wedding cakes, this essay explores how and why particular assertions of religious freedom inform the sense that religious freedom should be favored over the full and fair application of state and federal equality laws.","PeriodicalId":37756,"journal":{"name":"First Amendment Studies","volume":"53 1","pages":"1 - 21"},"PeriodicalIF":0.0,"publicationDate":"2019-05-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/21689725.2019.1604246","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45336538","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-05-20DOI: 10.1080/21689725.2019.1601580
Kevin McGravey
ABSTRACT The right to protest is central to democratic participation. This essay suggests that recent attempts to use the right to assemble as a doctrinal hook to better protect protest are correct but incomplete. Such attempts rightly suggest that the Court’s current approach through free speech inadequately protects protest directed at public officials. But this essay argues that such accounts and the Court’s jurisprudence also inadequately protect citizens’ privacy in public spaces. By looking at current cases, history and theory it proposes an alternative account of assembly that better protects participation and the equality necessary to make participation effective.
{"title":"Reimagining the First Amendment: The Assembly Clause as a substantive right","authors":"Kevin McGravey","doi":"10.1080/21689725.2019.1601580","DOIUrl":"https://doi.org/10.1080/21689725.2019.1601580","url":null,"abstract":"ABSTRACT The right to protest is central to democratic participation. This essay suggests that recent attempts to use the right to assemble as a doctrinal hook to better protect protest are correct but incomplete. Such attempts rightly suggest that the Court’s current approach through free speech inadequately protects protest directed at public officials. But this essay argues that such accounts and the Court’s jurisprudence also inadequately protect citizens’ privacy in public spaces. By looking at current cases, history and theory it proposes an alternative account of assembly that better protects participation and the equality necessary to make participation effective.","PeriodicalId":37756,"journal":{"name":"First Amendment Studies","volume":"53 1","pages":"67 - 90"},"PeriodicalIF":0.0,"publicationDate":"2019-05-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/21689725.2019.1601580","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42370835","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-05-20DOI: 10.1080/21689725.2019.1601578
J. Dee
ABSTRACT This article will compare the ways in which the European Union’s Office of Intellectual Property (EUIPO) and the US Patent and Trademark Office (PTO) have interpreted and applied their respective trademark laws, sometimes reaching opposite conclusions. Whereas EUIPO may not register trademarks considered to be “contrary to public policy and accepted principles of morality,” the US Supreme Court has struck down as unconstitutional a Lanham Act provision that had prohibited trademarks that were “disparaging,” and the US Court of Appeals for the Federal Circuit has struck down a Lanham Act provision that had prohibited trademarks that were “immoral” or scandalous.” After analyzing the legal arguments in trademark litigation in both Europe and the United States, this article concludes that the US Supreme Court should affirm the Federal Circuit’s decision in In re Brunetti because it is more efficient to “allow the marketplace to decide” rather than place the onus of keeping up with changes in cultural values on PTO examiners. This article assumes that the European Union will continue in its efforts to prevent registration of trademarks containing hate speech or racial slurs.
摘要本文将比较欧盟知识产权局（EUIPO）和美国专利商标局（PTO）对各自商标法的解释和适用方式，有时会得出相反的结论。尽管EUIPO可能不会注册被认为“违反公共政策和公认的道德原则”的商标，但美国最高法院已将《兰厄姆法案》中禁止“贬损”商标的条款视为违宪，美国联邦巡回上诉法院已将兰厄姆法中禁止“不道德的”或可耻的在分析了欧洲和美国商标诉讼中的法律论据后，本文得出结论，美国最高法院应该确认联邦巡回法院在in re Brunetti案中的裁决，因为“让市场来决定”比将跟上文化价值观变化的责任交给PTO审查员更有效。本文假设欧盟将继续努力阻止含有仇恨言论或种族诽谤的商标注册。
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Pub Date : 2019-05-20DOI: 10.1080/21689725.2019.1601581
Ben Medeiros
ABSTRACT This paper focuses on the “institutional neutrality” provisions commonly included in recent state-level “campus free speech” legislation. I argue that their normative promotion of “neutrality” in fact reinforces ideologies of colorblindness, neoliberal individualism, and corporate hegemony. To perform the analysis, I examine the text of the bills and the intellectual lineage from which they descend in conjunction with statements by their proponents and allies in the campus speech debates. The theoretical significance of this analysis thus lies in further interrogating how the norms of the liberal free-speech tradition are imbued with ideological meaning. Relatedly, the article shows that the logic of older critiques regarding media industry concentration and the laissez-faire “marketplace” framework can also be applied to calls for educational institutions to strive for “neutrality.”
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Pub Date : 2018-07-03DOI: 10.1080/21689725.2018.1500930
David R. Dewberry, Ann E. Burnette, Rebekah L. Fox, Pat Arneson
ABSTRACT While we applaud the efforts of those instructors who teach classes in free speech, we recognize that as a discipline we are often missing important opportunities to teach students about free speech in a variety of other communication studies courses. Our discipline and our democracy rest on the tenets of free speech, and our classrooms should reflect its importance. In this essay, we outline how topics in free speech can be integrated into four different types of classes in the communication curriculum that do not focus solely on the First Amendment.
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