Pub Date : 2019-10-02DOI: 10.1080/10811680.2019.1660554
Joseph Russomanno
The American college campus is potentially the quintessential marketplace of ideas – the ideal locale for the free and open exchange of concepts and viewpoints, discussion and debate, and the discovery and sharing of knowledge. The setting, however, has not always materialized in that idyllic fashion. Speech freedom on campus, while challenged over time, is being tested by unique influences in the twenty-first century. Now, speakers are disinvited or shouted down, with violent protests sometimes erupting. Fear of trauma abridges classroom discussion. As the nation tribalizes, so do college students – members of iGen, psychologically fragile and raised in a culture of “safetyism.” This article examines the interconnectedness of these issues. It also invokes factions – the tribalism of America’s founding era – and illustrates how James Madison’s approach to control factionalism can be applied to the free speech challenge on the contemporary campus.
{"title":"Tribalism on Campus: Factions, iGen and the Threat to Free Speech","authors":"Joseph Russomanno","doi":"10.1080/10811680.2019.1660554","DOIUrl":"https://doi.org/10.1080/10811680.2019.1660554","url":null,"abstract":"The American college campus is potentially the quintessential marketplace of ideas – the ideal locale for the free and open exchange of concepts and viewpoints, discussion and debate, and the discovery and sharing of knowledge. The setting, however, has not always materialized in that idyllic fashion. Speech freedom on campus, while challenged over time, is being tested by unique influences in the twenty-first century. Now, speakers are disinvited or shouted down, with violent protests sometimes erupting. Fear of trauma abridges classroom discussion. As the nation tribalizes, so do college students – members of iGen, psychologically fragile and raised in a culture of “safetyism.” This article examines the interconnectedness of these issues. It also invokes factions – the tribalism of America’s founding era – and illustrates how James Madison’s approach to control factionalism can be applied to the free speech challenge on the contemporary campus.","PeriodicalId":42622,"journal":{"name":"Communication Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2019-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/10811680.2019.1660554","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46670798","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 : 2019-10-02DOI: 10.1080/10811680.2019.1660552
Rodney A. Smolla
The 1919 First Amendment opinions of Oliver Wendell Holmes and Louis Brandeis comprise the seminal texts in the cannon that now includes hundreds of decisions by the Supreme Court of the United States interpreting the core of the American free speech tradition. The marketplace of ideas metaphor they developed has been invoked constantly by Supreme Court justices in First Amendment cases. It has achieved genuine load-bearing legal significance, particularly in certain arenas of free speech law, and over-arching significance in rendering the entire architecture of modern free speech law reasonably coherent and stable. This essay explores the importance of the marketplace metaphor in three discrete areas of modern free speech law: commercial speech, political campaign finance, and tort liability. While by no means the only arenas in which the marketplace metaphor has exerted important influence, these three exemplars are especially illuminating, exposing at once the strengths and weaknesses of the marketplace metaphor as a persuasive tool for ordering free speech doctrines. The essay then examines the marketplace metaphor from a wide-angle lens, making the argument that it operates to define two of the central continental divides of modern free speech law. The essay goes a long way toward providing a descriptively clear and normatively convincing account of free speech law as it currently stands.
{"title":"The Meaning of the “Marketplace of Ideas” in First Amendment Law","authors":"Rodney A. Smolla","doi":"10.1080/10811680.2019.1660552","DOIUrl":"https://doi.org/10.1080/10811680.2019.1660552","url":null,"abstract":"The 1919 First Amendment opinions of Oliver Wendell Holmes and Louis Brandeis comprise the seminal texts in the cannon that now includes hundreds of decisions by the Supreme Court of the United States interpreting the core of the American free speech tradition. The marketplace of ideas metaphor they developed has been invoked constantly by Supreme Court justices in First Amendment cases. It has achieved genuine load-bearing legal significance, particularly in certain arenas of free speech law, and over-arching significance in rendering the entire architecture of modern free speech law reasonably coherent and stable. This essay explores the importance of the marketplace metaphor in three discrete areas of modern free speech law: commercial speech, political campaign finance, and tort liability. While by no means the only arenas in which the marketplace metaphor has exerted important influence, these three exemplars are especially illuminating, exposing at once the strengths and weaknesses of the marketplace metaphor as a persuasive tool for ordering free speech doctrines. The essay then examines the marketplace metaphor from a wide-angle lens, making the argument that it operates to define two of the central continental divides of modern free speech law. The essay goes a long way toward providing a descriptively clear and normatively convincing account of free speech law as it currently stands.","PeriodicalId":42622,"journal":{"name":"Communication Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2019-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/10811680.2019.1660552","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41457709","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 : 2019-10-02DOI: 10.1080/10811680.2019.1660553
Karen M. Markin
Federal public access policy requires recipients of federal research grants to place copies of scientific articles they publish based on the awards in a federal repository. Publishers hold the copyrights to these articles, and not all of them permit authors to comply with the policy. This article argues that public access policy infringes on the First Amendment rights of scientist-authors. The Supreme Court of the United States has held that it is the author’s right to choose where, when and whether to publish. Choice of publication venue is critical to authors, who retain creative and economic interests in their work, even when they transfer copyright. Scientist-authors generally seek to publish in prestigious journals that will lead to promotions and extramural funding. The federal government already exerts a great deal of control over the research it funds and must stay out of the author-publisher relationship.
{"title":"Federal Public Access Policy: A Breach of the First Amendment Rights of Scientists","authors":"Karen M. Markin","doi":"10.1080/10811680.2019.1660553","DOIUrl":"https://doi.org/10.1080/10811680.2019.1660553","url":null,"abstract":"Federal public access policy requires recipients of federal research grants to place copies of scientific articles they publish based on the awards in a federal repository. Publishers hold the copyrights to these articles, and not all of them permit authors to comply with the policy. This article argues that public access policy infringes on the First Amendment rights of scientist-authors. The Supreme Court of the United States has held that it is the author’s right to choose where, when and whether to publish. Choice of publication venue is critical to authors, who retain creative and economic interests in their work, even when they transfer copyright. Scientist-authors generally seek to publish in prestigious journals that will lead to promotions and extramural funding. The federal government already exerts a great deal of control over the research it funds and must stay out of the author-publisher relationship.","PeriodicalId":42622,"journal":{"name":"Communication Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2019-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/10811680.2019.1660553","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49446852","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 : 2019-10-02DOI: 10.1080/10811680.2019.1660543
R. Kerr
As the most influential theory in modern First Amendment law turns 100, this study integrates in a unified format centric to marketplace of ideas theory an assessment of developments with the potential to reconstruct broad media marketplaces into an array of cocoons, silos and bubbles of fabricated reality. That assessment provides the basis to argue that the most fundamental threat to marketplace-of-ideas theory lies in whether an effective framework can be developed for responding to particular uses of socially networked algorithms.
{"title":"From Holmes to Zuckerberg: Keeping Marketplace-of-Ideas Theory Viable in the Age of Algorithms","authors":"R. Kerr","doi":"10.1080/10811680.2019.1660543","DOIUrl":"https://doi.org/10.1080/10811680.2019.1660543","url":null,"abstract":"As the most influential theory in modern First Amendment law turns 100, this study integrates in a unified format centric to marketplace of ideas theory an assessment of developments with the potential to reconstruct broad media marketplaces into an array of cocoons, silos and bubbles of fabricated reality. That assessment provides the basis to argue that the most fundamental threat to marketplace-of-ideas theory lies in whether an effective framework can be developed for responding to particular uses of socially networked algorithms.","PeriodicalId":42622,"journal":{"name":"Communication Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2019-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/10811680.2019.1660543","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49466994","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 : 2019-10-02DOI: 10.1080/10811680.2019.1660551
Mary Beth Genter
In June 2018, the Supreme Court of the United States demonstrated, as it has done many times in the past, the enduring versatility of the marketplace of ideas theory. The issue in National Institute of Family and Life Advocates v. Becerra was the constitutionality of a California law requiring pregnancy-related clinics to provide information to clients about abortion rights and services. Writing for the five-member majority, Justice Clarence Thomas found the law unconstitutional because, in part, “When the government polices the content of professional speech, it can fail to ‘preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.’” Professionals might have a number of goodfaith disagreements, Justice Thomas wrote, and government interference by requiring some professionals to disseminate certain messages, runs counter to the notion that “‘[t]he best test of truth is the power of the thought to get itself accepted in the competition of the market.’” Writing in dissent, Justice Anthony Kennedy took issue with the use of the marketplace of ideas to suppress information. The marketplace, he wrote, “is fostered, not hindered, by providing information to patients to enable them to make fully informed medical decisions in respect to their pregnancies.” In its most recent application of the marketplace theory, therefore, as has happened many times in the past, both sides found solace in the marketplace of ideas, demonstrating that the theory is arguably the most enduring, most powerful and most versatile of any theory called upon by the Court. Justices have referenced the marketplace of ideas theory hundreds of times since its 1919 emergence as part of free speech
{"title":"Editor’s Note","authors":"Mary Beth Genter","doi":"10.1080/10811680.2019.1660551","DOIUrl":"https://doi.org/10.1080/10811680.2019.1660551","url":null,"abstract":"In June 2018, the Supreme Court of the United States demonstrated, as it has done many times in the past, the enduring versatility of the marketplace of ideas theory. The issue in National Institute of Family and Life Advocates v. Becerra was the constitutionality of a California law requiring pregnancy-related clinics to provide information to clients about abortion rights and services. Writing for the five-member majority, Justice Clarence Thomas found the law unconstitutional because, in part, “When the government polices the content of professional speech, it can fail to ‘preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.’” Professionals might have a number of goodfaith disagreements, Justice Thomas wrote, and government interference by requiring some professionals to disseminate certain messages, runs counter to the notion that “‘[t]he best test of truth is the power of the thought to get itself accepted in the competition of the market.’” Writing in dissent, Justice Anthony Kennedy took issue with the use of the marketplace of ideas to suppress information. The marketplace, he wrote, “is fostered, not hindered, by providing information to patients to enable them to make fully informed medical decisions in respect to their pregnancies.” In its most recent application of the marketplace theory, therefore, as has happened many times in the past, both sides found solace in the marketplace of ideas, demonstrating that the theory is arguably the most enduring, most powerful and most versatile of any theory called upon by the Court. Justices have referenced the marketplace of ideas theory hundreds of times since its 1919 emergence as part of free speech","PeriodicalId":42622,"journal":{"name":"Communication Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2019-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/10811680.2019.1660551","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48852748","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 : 2019-07-03DOI: 10.1080/10811680.2019.1627800
Chris Demaske
There is no way to overstate the severity of the problems related to social inequality today, and treatment of hate speech in the United States is problematic in light of these escalating tensions. Long-standing arguments that free speech serves as a societal pressure valve and that open speech leads to truth hold little sway when, 200 years later, hatred against groups based on their identities is still rampant and insidious. The concept of hate speech and the subsequent calls for possible restriction raise complicated issues. This article proposes a shift in emphasis from the negative protection of individual rights instead toward a more positive support of social equality. Utilizing Axel Honneth’s theory of recognition, this article develops a two-tiered framework for free speech analysis that will promote a strategy for combating hate speech in the global twenty-first century.
{"title":"Social Justice, Recognition Theory and the First Amendment: A New Approach to Hate Speech Restriction","authors":"Chris Demaske","doi":"10.1080/10811680.2019.1627800","DOIUrl":"https://doi.org/10.1080/10811680.2019.1627800","url":null,"abstract":"There is no way to overstate the severity of the problems related to social inequality today, and treatment of hate speech in the United States is problematic in light of these escalating tensions. Long-standing arguments that free speech serves as a societal pressure valve and that open speech leads to truth hold little sway when, 200 years later, hatred against groups based on their identities is still rampant and insidious. The concept of hate speech and the subsequent calls for possible restriction raise complicated issues. This article proposes a shift in emphasis from the negative protection of individual rights instead toward a more positive support of social equality. Utilizing Axel Honneth’s theory of recognition, this article develops a two-tiered framework for free speech analysis that will promote a strategy for combating hate speech in the global twenty-first century.","PeriodicalId":42622,"journal":{"name":"Communication Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2019-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/10811680.2019.1627800","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48838588","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 : 2019-07-03DOI: 10.1080/10811680.2019.1627810
Christopher Terry, C. Carlson
Despite the ongoing legal and regulatory battle over media ownership policy, control of broadcast outlets among racial and ethnic minorities and women has remained at critically low levels. The Federal Communication Commission’s latest proposal, an Incubator program, relies on the idea that new, small entities can be created by incentivizing existing media companies to foster new entrants in exchange for additional ownership consolidation at the local level. This article traces the FCC’s efforts on minority ownership policy, examines relevant literature on the relationship between minority ownership and diversity, and reports empirical data regarding minority focused content production by a variety of ownership types to determine what ownership structures are currently producing minority focused content. The data suggest that the FCC has been correct to focus on smaller ownership structures. The article concludes with a proposal for the FCC to undertake to put stations in the hands of minority owners.
尽管关于媒体所有权政策的法律和监管方面的斗争正在进行，但少数种族和族裔以及妇女对广播机构的控制仍然处于极低的水平。美国联邦通信委员会(Federal Communication Commission)的最新提案是一项孵化器计划(Incubator program)，该计划基于这样一种理念:通过激励现有媒体公司培育新进入者，以换取地方一级的额外所有权整合，可以创建新的小型实体。本文追溯了FCC在少数股权政策方面的努力，考察了少数股权与多样性之间关系的相关文献，并报告了各种所有权类型关于少数股权内容生产的实证数据，以确定目前哪些所有权结构正在生产少数股权内容。数据表明，FCC将重点放在较小的所有权结构上是正确的。文章最后建议联邦通信委员会将电视台交给少数股东。
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Pub Date : 2019-07-03DOI: 10.1080/10811680.2019.1627796
Erin K. Coyle, Stephanie L. Whitenack
Publicly disclosing 911 recordings sometimes sheds light on important matters of public interest. Nonetheless, some state statutes, court opinions, and attorneys general opinions recognize surviving family members’ privacy rights may be harmed by publicly disclosing such recordings when they involve deaths. States take a variety of approaches to balance privacy interests with interests in disclosing 911 records. In some instances, states have found that the likelihood of harm to privacy justified exempting from disclosure 911 call records. This article recommends that states require in camera court review of 911 call recordings related to deaths for judges to assess whether releasing the records would serve a public interest that outweighs interests in nondisclosure.
{"title":"Access to 911 Recordings: Balancing Privacy Interests and the Public’s Right to Know about Deaths","authors":"Erin K. Coyle, Stephanie L. Whitenack","doi":"10.1080/10811680.2019.1627796","DOIUrl":"https://doi.org/10.1080/10811680.2019.1627796","url":null,"abstract":"Publicly disclosing 911 recordings sometimes sheds light on important matters of public interest. Nonetheless, some state statutes, court opinions, and attorneys general opinions recognize surviving family members’ privacy rights may be harmed by publicly disclosing such recordings when they involve deaths. States take a variety of approaches to balance privacy interests with interests in disclosing 911 records. In some instances, states have found that the likelihood of harm to privacy justified exempting from disclosure 911 call records. This article recommends that states require in camera court review of 911 call recordings related to deaths for judges to assess whether releasing the records would serve a public interest that outweighs interests in nondisclosure.","PeriodicalId":42622,"journal":{"name":"Communication Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2019-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/10811680.2019.1627796","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45756933","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 : 2019-04-03DOI: 10.1080/10811680.2019.1586407
E. Ugland
The changes brought about by the Digital Age have not triggered significant increases in political participation or meaningful reductions in longstanding social power asymmetries, which are now increasingly negotiated in policy contexts that involve mass media (surveillance, big data, net neutrality). At the same time, new technology and communication patterns have opened fissures in public opinion about the limits of free expression while also creating new legal risks for citizen-communicators. This article suggests that universities need to recalibrate their curricula to meet the exigencies of this moment, which should include an increased emphasis on media law and policy courses and initiatives. The article outlines a rationale for action, and some strategies, based on the need to: (1) expand citizens’ expressive agency by equipping them with the knowledge to shield themselves from overt restraints and subtle forms of coercion; (2) deepen citizens’ civics knowledge, enhance their political efficacy and enable their political participation; (3) facilitate citizens’ engagement in reemerging debates about the meaning and scope of the First Amendment; and (4) spur citizen involvement in confronting pressing constitutional and media policy issues whose resolution will ultimately shape the broader balance of social power.
{"title":"Expanding Media Law and Policy Education: Confronting Power, Defining Freedom, Awakening Participation","authors":"E. Ugland","doi":"10.1080/10811680.2019.1586407","DOIUrl":"https://doi.org/10.1080/10811680.2019.1586407","url":null,"abstract":"The changes brought about by the Digital Age have not triggered significant increases in political participation or meaningful reductions in longstanding social power asymmetries, which are now increasingly negotiated in policy contexts that involve mass media (surveillance, big data, net neutrality). At the same time, new technology and communication patterns have opened fissures in public opinion about the limits of free expression while also creating new legal risks for citizen-communicators. This article suggests that universities need to recalibrate their curricula to meet the exigencies of this moment, which should include an increased emphasis on media law and policy courses and initiatives. The article outlines a rationale for action, and some strategies, based on the need to: (1) expand citizens’ expressive agency by equipping them with the knowledge to shield themselves from overt restraints and subtle forms of coercion; (2) deepen citizens’ civics knowledge, enhance their political efficacy and enable their political participation; (3) facilitate citizens’ engagement in reemerging debates about the meaning and scope of the First Amendment; and (4) spur citizen involvement in confronting pressing constitutional and media policy issues whose resolution will ultimately shape the broader balance of social power.","PeriodicalId":42622,"journal":{"name":"Communication Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2019-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/10811680.2019.1586407","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44696111","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 : 2019-04-03DOI: 10.1080/10811680.2019.1586406
Dan V. Kozlowski, Derigan A. Silver
Commentators and justices on the Supreme Court of the United States speculated when the Court delivered its opinion in Reed v. Town of Gilbert in 2015 that the case would dramatically reshape First Amendment law. This article analyzes Reed’s impact to date in the United States Circuit Courts of Appeals. The article demonstrates that, although Reed has been consequential in some circuits, it has not been the basis of any First Amendment revolution. Indeed, the research supports the conclusion that many circuit courts seem to be actively working to narrow Reed’s reach. Moreover, the article concludes that Reed did little to clarify — and in some ways made worse — what has been a problematic doctrine for decades.
2015年，当美国最高法院在里德诉吉尔伯特镇案(Reed v. Town of Gilbert)中发表意见时，法院的评论人士和法官们推测，此案将极大地重塑第一修正案。本文分析了里德案迄今在美国巡回上诉法院的影响。这篇文章表明，尽管里德案在一些巡回法院起到了重要作用，但它并不是任何第一修正案革命的基础。事实上，这项研究支持了这样一个结论，即许多巡回法院似乎正在积极地缩小里德的影响范围。此外，这篇文章的结论是，里德在澄清几十年来一直存在问题的教义方面几乎没有做什么——在某些方面甚至更糟。
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