Pub Date : 2017-07-03DOI: 10.1080/21689725.2017.1422987
Eric P. Robinson
Abstract After a rocky start, polls became ubiquitous in the twentieth century in a variety of fields. However, the courts generally resisted accepting polls and other social science evidence until the early 1950s, on the grounds that they were hearsay. But while social scientists understand reputation in a variety of ways, the law sees an individual’s reputation as a social phenomenon. This makes the opinions of others an inherent part of the legal claim of defamation, and polls an obvious type of evidence in such cases. But use of polling evidence in defamation cases remains rare. This article examines courts’ acceptance of polling data as evidence in defamation cases, including the actual cases in which it has been used as evidence, and concludes with recommendations on how defamation litigants and courts considering defamation cases can use such evidence.
{"title":"Libel by the numbers: The use of public opinion polls in defamation lawsuits","authors":"Eric P. Robinson","doi":"10.1080/21689725.2017.1422987","DOIUrl":"https://doi.org/10.1080/21689725.2017.1422987","url":null,"abstract":"Abstract After a rocky start, polls became ubiquitous in the twentieth century in a variety of fields. However, the courts generally resisted accepting polls and other social science evidence until the early 1950s, on the grounds that they were hearsay. But while social scientists understand reputation in a variety of ways, the law sees an individual’s reputation as a social phenomenon. This makes the opinions of others an inherent part of the legal claim of defamation, and polls an obvious type of evidence in such cases. But use of polling evidence in defamation cases remains rare. This article examines courts’ acceptance of polling data as evidence in defamation cases, including the actual cases in which it has been used as evidence, and concludes with recommendations on how defamation litigants and courts considering defamation cases can use such evidence.","PeriodicalId":37756,"journal":{"name":"First Amendment Studies","volume":"51 1","pages":"62 - 85"},"PeriodicalIF":0.0,"publicationDate":"2017-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/21689725.2017.1422987","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44850170","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 : 2017-01-02DOI: 10.1080/21689725.2017.1308262
Ben Medeiros
Abstract Online speech platforms present novel risks to privacy and reputation. There are situations in which unique kinds of harm can indeed occur but where the law applies imperfectly. Yet legal expansions like the European “Right to Be Forgotten” would contradict several well-established tenets of American free speech law. This paper argues that the reputation-management industry (RMI) represents one set of solutions in the absence of an American Right to Be Forgotten. The RMI counsels assiduous self-monitoring, search engine optimized promotion of one’s own preferred content, and negotiation for voluntary removal by content hosts. This approach arguably helps to address the informational distortions than can be created by true accounts of unseemly conduct and mob-like expressions of vitriolic opinion online. It likewise helps to mitigate the concern that readers will form inaccurate or unduly harsh judgments based on cursory examination of search results.The RMI thus in some ways addresses the underlying gaps between legal protection and perceived harm in a manner that accords better with the emphasis on “counterspeech” in the American free speech tradition. At the same time, the article concludes by addressing some limitations that are necessary to keep the industry from threatening free-speech principles itself.
{"title":"The reputation-management industry and the prospects for a “right to be forgotten” in the US","authors":"Ben Medeiros","doi":"10.1080/21689725.2017.1308262","DOIUrl":"https://doi.org/10.1080/21689725.2017.1308262","url":null,"abstract":"Abstract Online speech platforms present novel risks to privacy and reputation. There are situations in which unique kinds of harm can indeed occur but where the law applies imperfectly. Yet legal expansions like the European “Right to Be Forgotten” would contradict several well-established tenets of American free speech law. This paper argues that the reputation-management industry (RMI) represents one set of solutions in the absence of an American Right to Be Forgotten. The RMI counsels assiduous self-monitoring, search engine optimized promotion of one’s own preferred content, and negotiation for voluntary removal by content hosts. This approach arguably helps to address the informational distortions than can be created by true accounts of unseemly conduct and mob-like expressions of vitriolic opinion online. It likewise helps to mitigate the concern that readers will form inaccurate or unduly harsh judgments based on cursory examination of search results.The RMI thus in some ways addresses the underlying gaps between legal protection and perceived harm in a manner that accords better with the emphasis on “counterspeech” in the American free speech tradition. At the same time, the article concludes by addressing some limitations that are necessary to keep the industry from threatening free-speech principles itself.","PeriodicalId":37756,"journal":{"name":"First Amendment Studies","volume":"51 1","pages":"14 - 29"},"PeriodicalIF":0.0,"publicationDate":"2017-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/21689725.2017.1308262","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47815583","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 : 2017-01-02DOI: 10.1080/21689725.2016.1278177
Alvin J. Primack, Kevin A. Johnson
This essay (1) examines the consequences of cyberbullying, (2) analyzes the patchwork of legal cases that have addressed tensions between cyberbullying and the First Amendment, and (3) offers a standard consistent with the First Amendment for addressing the most egregious forms of cyberbullying.
{"title":"Student cyberbullying inside the digital schoolhouse gate: Toward a standard for determining where a “School” is","authors":"Alvin J. Primack, Kevin A. Johnson","doi":"10.1080/21689725.2016.1278177","DOIUrl":"https://doi.org/10.1080/21689725.2016.1278177","url":null,"abstract":"This essay (1) examines the consequences of cyberbullying, (2) analyzes the patchwork of legal cases that have addressed tensions between cyberbullying and the First Amendment, and (3) offers a standard consistent with the First Amendment for addressing the most egregious forms of cyberbullying.","PeriodicalId":37756,"journal":{"name":"First Amendment Studies","volume":"51 1","pages":"30 - 48"},"PeriodicalIF":0.0,"publicationDate":"2017-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/21689725.2016.1278177","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47852675","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 : 2017-01-02DOI: 10.1080/21689725.2017.1301264
M. Bezanson
Abstract On January 7, 2015, 12 people were killed during the bombing of the Charlie Hebdo offices. What makes this especially chilling was that the attack was launched against a newspaper for publishing images of Muhammad used for satiric commentary. The following day, CNN’s Nick Thompson posted a series of political cartoons responding to the attack. Many employed the idiom, “The pen is mightier than the sword.” This analysis focuses on two of the cartoons using that idiom: Linus MacLeod’s “Powerful, More Powerful” and James Walmesley’s “Pencil and Eraser.” MacLeod’s cartoon maintains a fidelity to the adage, in that he employs the image of a pen, while Walmseley instead depicts a pencil, the writing instrument more typically associated with a cartoonist’s work. After a discussion of the history and nature of the idiom, this piece analyzes the comics by using the construction of narrative by Barry Brummett, and the construction of image offered by Molly Bang. The piece argues that the images function epideictically by praising freedom of speech and blaming terrorists.
{"title":"Political cartoons as epideictic: Rhetorical analysis of two of the Charlie Hebdo political cartoons*","authors":"M. Bezanson","doi":"10.1080/21689725.2017.1301264","DOIUrl":"https://doi.org/10.1080/21689725.2017.1301264","url":null,"abstract":"Abstract On January 7, 2015, 12 people were killed during the bombing of the Charlie Hebdo offices. What makes this especially chilling was that the attack was launched against a newspaper for publishing images of Muhammad used for satiric commentary. The following day, CNN’s Nick Thompson posted a series of political cartoons responding to the attack. Many employed the idiom, “The pen is mightier than the sword.” This analysis focuses on two of the cartoons using that idiom: Linus MacLeod’s “Powerful, More Powerful” and James Walmesley’s “Pencil and Eraser.” MacLeod’s cartoon maintains a fidelity to the adage, in that he employs the image of a pen, while Walmseley instead depicts a pencil, the writing instrument more typically associated with a cartoonist’s work. After a discussion of the history and nature of the idiom, this piece analyzes the comics by using the construction of narrative by Barry Brummett, and the construction of image offered by Molly Bang. The piece argues that the images function epideictically by praising freedom of speech and blaming terrorists.","PeriodicalId":37756,"journal":{"name":"First Amendment Studies","volume":"51 1","pages":"1 - 13"},"PeriodicalIF":0.0,"publicationDate":"2017-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/21689725.2017.1301264","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45652422","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 : 2016-07-02DOI: 10.1080/21689725.2016.1219270
M. E. Thorpe
Abstract In this article I respond to my fellow contributors’ thoughts on trigger warnings, and expand the conversation in terms of trigger warnings’ effect on pedagogy and practice in the classroom. I parse out some definitions that make the debate difficult to negotiate, separate TWs from microaggressions, and apply this analysis to the dialogic classroom. I call for a civil discussion on this controversial topic, and challenge colleagues from all reaches of the ideological spectrum to approach the topic with respect for each other.
{"title":"Trigger warnings, the organic classroom, and civil discourse","authors":"M. E. Thorpe","doi":"10.1080/21689725.2016.1219270","DOIUrl":"https://doi.org/10.1080/21689725.2016.1219270","url":null,"abstract":"Abstract In this article I respond to my fellow contributors’ thoughts on trigger warnings, and expand the conversation in terms of trigger warnings’ effect on pedagogy and practice in the classroom. I parse out some definitions that make the debate difficult to negotiate, separate TWs from microaggressions, and apply this analysis to the dialogic classroom. I call for a civil discussion on this controversial topic, and challenge colleagues from all reaches of the ideological spectrum to approach the topic with respect for each other.","PeriodicalId":37756,"journal":{"name":"First Amendment Studies","volume":"54 1","pages":"83 - 94"},"PeriodicalIF":0.0,"publicationDate":"2016-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/21689725.2016.1219270","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60483958","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 : 2016-07-02DOI: 10.1080/21689725.2016.1230508
R. E. Vatz
Abstract Trigger warnings are the latest concession to the notion espoused by some students and progressive professors that learning, particularly in higher education, should be pain-free psychologically. Such a premise is antithetical to the values of academic freedom and the marketplace of ideas and is inconsistent with students’ learning and confronting ideas with which they are unfamiliar and which are outside of their comfort zone. Yielding to demands for trigger warnings when exposing students to ideas, topics and exchanges that may become uncomfortable negates growth for students. In short, acquiescing to the self-serving demands for trigger warnings makes education nothing but the reaffirming of ideas and positions with which students enter the academy. This article may upset undergraduates and progressive faculty and administrators…deal with it.
{"title":"The academically destructive nature of trigger warnings","authors":"R. E. Vatz","doi":"10.1080/21689725.2016.1230508","DOIUrl":"https://doi.org/10.1080/21689725.2016.1230508","url":null,"abstract":"Abstract Trigger warnings are the latest concession to the notion espoused by some students and progressive professors that learning, particularly in higher education, should be pain-free psychologically. Such a premise is antithetical to the values of academic freedom and the marketplace of ideas and is inconsistent with students’ learning and confronting ideas with which they are unfamiliar and which are outside of their comfort zone. Yielding to demands for trigger warnings when exposing students to ideas, topics and exchanges that may become uncomfortable negates growth for students. In short, acquiescing to the self-serving demands for trigger warnings makes education nothing but the reaffirming of ideas and positions with which students enter the academy. This article may upset undergraduates and progressive faculty and administrators…deal with it.","PeriodicalId":37756,"journal":{"name":"First Amendment Studies","volume":"50 1","pages":"51 - 58"},"PeriodicalIF":0.0,"publicationDate":"2016-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/21689725.2016.1230508","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60484197","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 : 2016-07-02DOI: 10.1080/21689725.2016.1224677
Logan Rae
Abstract The use of trigger warnings has been a hot topic both in academic circles and the popular press. Unfortunately, the focus has thus far been on whether or not students need to “toughen up.” The backlash trigger warnings receive is largely due to the fact that scholars and commentators alike have conflated trauma and discomfort in the classroom environment to mean the same thing. In this essay, I argue that trigger warnings should be seen primarily as a means of ensuring disability access in the classroom. In order to do so, I contend that terms such as trauma and discomfort can no longer be treated as synonyms in order to understand the ways in which trigger warnings alert students to utilize their coping strategies. The inability to recognize the necessity of trigger warnings stems largely from some instructors’ failure to identify their own privileges. Writing from and through my own embodied experiences, I seek to find clarity in existing conversations in support of trigger warnings and refocus the discussion toward equal access to an education.
{"title":"Re-focusing the debate on trigger warnings: Privilege, trauma, and disability in the classroom","authors":"Logan Rae","doi":"10.1080/21689725.2016.1224677","DOIUrl":"https://doi.org/10.1080/21689725.2016.1224677","url":null,"abstract":"Abstract The use of trigger warnings has been a hot topic both in academic circles and the popular press. Unfortunately, the focus has thus far been on whether or not students need to “toughen up.” The backlash trigger warnings receive is largely due to the fact that scholars and commentators alike have conflated trauma and discomfort in the classroom environment to mean the same thing. In this essay, I argue that trigger warnings should be seen primarily as a means of ensuring disability access in the classroom. In order to do so, I contend that terms such as trauma and discomfort can no longer be treated as synonyms in order to understand the ways in which trigger warnings alert students to utilize their coping strategies. The inability to recognize the necessity of trigger warnings stems largely from some instructors’ failure to identify their own privileges. Writing from and through my own embodied experiences, I seek to find clarity in existing conversations in support of trigger warnings and refocus the discussion toward equal access to an education.","PeriodicalId":37756,"journal":{"name":"First Amendment Studies","volume":"50 1","pages":"102 - 95"},"PeriodicalIF":0.0,"publicationDate":"2016-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/21689725.2016.1224677","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60484045","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 : 2016-07-02DOI: 10.1080/21689725.2016.1233073
Jeremiah Hickey
Abstract In the controversy over trigger warnings, authors tend to focus more on the warning rather than the trigger aspect of the debate. Trigger warnings serve as an important means to understand the nature of universities as well as how students, professors, and administrators view the university experience. I contend that trigger warnings should be seen as campus-wide interventions, not limited only to classrooms. After all, trauma can be triggered anywhere. This article argues that the trigger warnings controversy signifies the presence of an institutional crisis for universities, especially in relation to the allocation of resources necessary to help students suffering from trauma. Debating the use of trigger warnings is one thing; however, if students feel threatened or if they suffer trauma from controversial material, then the university needs to set aside resources to help students succeed.
{"title":"Exempting the university: Trigger warnings and intellectual space","authors":"Jeremiah Hickey","doi":"10.1080/21689725.2016.1233073","DOIUrl":"https://doi.org/10.1080/21689725.2016.1233073","url":null,"abstract":"Abstract In the controversy over trigger warnings, authors tend to focus more on the warning rather than the trigger aspect of the debate. Trigger warnings serve as an important means to understand the nature of universities as well as how students, professors, and administrators view the university experience. I contend that trigger warnings should be seen as campus-wide interventions, not limited only to classrooms. After all, trauma can be triggered anywhere. This article argues that the trigger warnings controversy signifies the presence of an institutional crisis for universities, especially in relation to the allocation of resources necessary to help students suffering from trauma. Debating the use of trigger warnings is one thing; however, if students feel threatened or if they suffer trauma from controversial material, then the university needs to set aside resources to help students succeed.","PeriodicalId":37756,"journal":{"name":"First Amendment Studies","volume":"7 1","pages":"70 - 82"},"PeriodicalIF":0.0,"publicationDate":"2016-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/21689725.2016.1233073","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60484179","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 : 2016-07-02DOI: 10.1080/21689725.2016.1232623
E. Lockhart
Abstract In response to a panel discussion from the Eastern Communication Association (ECA) and the article written by Dr. Robert Vatz in this issue, I make a case for the usefulness and benefit of the practice of trigger warnings in the classroom. I draw on my own experience as a transsexual woman teaching at a conservative school, as well as contemporary psychological theory and ethics. I argue that trigger warnings are not detrimental to freedom of speech (as others, such as Dr. Vatz here, contend) and that they are in fact necessary for the well-being of some students. Moreover, judicial use of warnings can enhance classroom participation and discussion, and the intellectual development of students and faculty.
{"title":"Why trigger warnings are beneficial, perhaps even necessary","authors":"E. Lockhart","doi":"10.1080/21689725.2016.1232623","DOIUrl":"https://doi.org/10.1080/21689725.2016.1232623","url":null,"abstract":"Abstract In response to a panel discussion from the Eastern Communication Association (ECA) and the article written by Dr. Robert Vatz in this issue, I make a case for the usefulness and benefit of the practice of trigger warnings in the classroom. I draw on my own experience as a transsexual woman teaching at a conservative school, as well as contemporary psychological theory and ethics. I argue that trigger warnings are not detrimental to freedom of speech (as others, such as Dr. Vatz here, contend) and that they are in fact necessary for the well-being of some students. Moreover, judicial use of warnings can enhance classroom participation and discussion, and the intellectual development of students and faculty.","PeriodicalId":37756,"journal":{"name":"First Amendment Studies","volume":"50 1","pages":"59 - 69"},"PeriodicalIF":0.0,"publicationDate":"2016-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/21689725.2016.1232623","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60484213","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 : 2016-01-02DOI: 10.1080/21689725.2016.1189345
Billie Murray
Abstract In the following essay, I argue that the U.S. Supreme Court decision in Snyder v. Phelps, together with the symbolic and spatial contexts surrounding funeral picketing, enables and constrains particular modes of community response to hate speech. Exploring community responses to Westboro Baptist Church’s hate speech reveals a mode of resistance based in corporeal presence, as counter-demonstrators’ bodies are used to shield mourners from messages of hate. The corporeal nature of these responses reasserts the boundaries between the public and private, and the sacred and profane, in ways that judicial responses do not.
{"title":"Words that wound, bodies that shield: Corporeal responses to Westboro Baptist Church’s hate speech","authors":"Billie Murray","doi":"10.1080/21689725.2016.1189345","DOIUrl":"https://doi.org/10.1080/21689725.2016.1189345","url":null,"abstract":"Abstract In the following essay, I argue that the U.S. Supreme Court decision in Snyder v. Phelps, together with the symbolic and spatial contexts surrounding funeral picketing, enables and constrains particular modes of community response to hate speech. Exploring community responses to Westboro Baptist Church’s hate speech reveals a mode of resistance based in corporeal presence, as counter-demonstrators’ bodies are used to shield mourners from messages of hate. The corporeal nature of these responses reasserts the boundaries between the public and private, and the sacred and profane, in ways that judicial responses do not.","PeriodicalId":37756,"journal":{"name":"First Amendment Studies","volume":"50 1","pages":"32 - 47"},"PeriodicalIF":0.0,"publicationDate":"2016-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/21689725.2016.1189345","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60483353","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}
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