Pub Date : 2020-07-02DOI: 10.1080/10811680.2020.1766311
Theodore L. Glasser
In the first few sentences of what one commentator described as an “arresting opening paragraph,” 1 Jerome Barron began his plea for a broader, affirmative reading of the First Amendment: There is ...
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Pub Date : 2020-07-02DOI: 10.1080/10811680.2020.1765652
Jonathan R. Peters
In 2011 and 2012, when I was a Ph.D. student, I conducted an interview series about free expression issues for the Harvard Law & Policy Review. I talked with lawyers and scholars who had made indelible marks on how people thought about the First Amendment’s promise and limits. One of them was Jack M. Balkin, the Knight Professor of Constitutional Law and the First Amendment at Yale Law School. I asked him to identify, in the final days of 2011, the most serious threat to free expression. He gave me three, the first of which was “the structure of the Internet.” He said he was concerned about “how governments regulate it” and how they “use it to engage in surveillance,” and he said the implications were vast and serious because of the Internet’s standing as the “main conduit for many forms of expression.” Later, when I asked Balkin about Internet intermediaries and censorship, he said, “When we think about freedom of speech in a digital era, we’re thinking about a complex of institutions and technologies that make expression possible.”
{"title":"Balkin, Jack M. The Future of Free Expression in a Digital Age, 36 Pepp. L. Rev. 707 (2009)","authors":"Jonathan R. Peters","doi":"10.1080/10811680.2020.1765652","DOIUrl":"https://doi.org/10.1080/10811680.2020.1765652","url":null,"abstract":"In 2011 and 2012, when I was a Ph.D. student, I conducted an interview series about free expression issues for the Harvard Law & Policy Review. I talked with lawyers and scholars who had made indelible marks on how people thought about the First Amendment’s promise and limits. One of them was Jack M. Balkin, the Knight Professor of Constitutional Law and the First Amendment at Yale Law School. I asked him to identify, in the final days of 2011, the most serious threat to free expression. He gave me three, the first of which was “the structure of the Internet.” He said he was concerned about “how governments regulate it” and how they “use it to engage in surveillance,” and he said the implications were vast and serious because of the Internet’s standing as the “main conduit for many forms of expression.” Later, when I asked Balkin about Internet intermediaries and censorship, he said, “When we think about freedom of speech in a digital era, we’re thinking about a complex of institutions and technologies that make expression possible.”","PeriodicalId":42622,"journal":{"name":"Communication Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2020-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/10811680.2020.1765652","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42840069","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 : 2020-07-02DOI: 10.1080/10811680.2020.1766895
Genelle I. Belmas
John Hart Ely taught me how to be a legal scholar. I first encountered Ely in the late 1980s as an undergrad assigned his brilliant book on judicial interpretation, Democracy and Distrust. 1 I didn...
{"title":"Ely, John Hart. Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 Harv. L. Rev. 1482 (1975)","authors":"Genelle I. Belmas","doi":"10.1080/10811680.2020.1766895","DOIUrl":"https://doi.org/10.1080/10811680.2020.1766895","url":null,"abstract":"John Hart Ely taught me how to be a legal scholar. I first encountered Ely in the late 1980s as an undergrad assigned his brilliant book on judicial interpretation, Democracy and Distrust. 1 I didn...","PeriodicalId":42622,"journal":{"name":"Communication Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2020-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/10811680.2020.1766895","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43187074","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 : 2020-07-02DOI: 10.1080/10811680.2020.1765580
Joseph Russomanno, Kermit Hall, Lee Levine
This is the first of two issues of Communication Law and Policy celebrating the journal’s twenty-five years of publishing. Since the winter of 1996, CL&P has been dedicated to the important work of research and writing about communication law. That is a legacy worth celebrating. In volumes 1-24 (plus one-half of volume 25), CL&P has published 12,674 pages and 368 articles by 464 authors. Many law journals have published more pages, and more articles by more authors during comparable periods of time, but ours is still a good record. Indeed, when the journal was in its planning stages, some members of what was then the Law Division were skeptical about its chances of success. The division, they suggested, would have trouble finding enough quality material to fill each issue. Instead, CL&P has published important research from notable scholars, both inside and outside of the Law and Policy Division. The article that began on page 1 of the first issue of CL&P was written by Joseph Russomanno, which is not surprising – Joe has published fourteen articles in the journal. Only Matt Bunker, with twenty-one, has published more. The journal has
{"title":"Editor’s Note","authors":"Joseph Russomanno, Kermit Hall, Lee Levine","doi":"10.1080/10811680.2020.1765580","DOIUrl":"https://doi.org/10.1080/10811680.2020.1765580","url":null,"abstract":"This is the first of two issues of Communication Law and Policy celebrating the journal’s twenty-five years of publishing. Since the winter of 1996, CL&P has been dedicated to the important work of research and writing about communication law. That is a legacy worth celebrating. In volumes 1-24 (plus one-half of volume 25), CL&P has published 12,674 pages and 368 articles by 464 authors. Many law journals have published more pages, and more articles by more authors during comparable periods of time, but ours is still a good record. Indeed, when the journal was in its planning stages, some members of what was then the Law Division were skeptical about its chances of success. The division, they suggested, would have trouble finding enough quality material to fill each issue. Instead, CL&P has published important research from notable scholars, both inside and outside of the Law and Policy Division. The article that began on page 1 of the first issue of CL&P was written by Joseph Russomanno, which is not surprising – Joe has published fourteen articles in the journal. Only Matt Bunker, with twenty-one, has published more. The journal has","PeriodicalId":42622,"journal":{"name":"Communication Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2020-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/10811680.2020.1765580","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48044038","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 : 2020-07-02DOI: 10.1080/10811680.2020.1767410
Joseph Russomanno
Imagining an America in which officials in the highest positions of federal government support laws that criminalize the speech of their critics is not difficult. Not only were such laws passed in 1798 and 1917-18, assaults on First Amendment culture have extended into the twenty-first century. To punish his critics, for example, then-candidate Donald Trump pledged to “open up” libel laws. The ruling most responsible for narrowing libel law and limiting the success of public official plaintiffs was New York Times Co. v. Sullivan Co. A landmark analysis of the ruling followed. Taking Justice William Brennan’s opinion, Harry Kalven Jr. extracted a small phrase and breathed life into the large concept that remains as vital and
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Pub Date : 2020-07-02DOI: 10.1080/10811680.2020.1766894
T. Brennan
When considering cases involving the First Amendment, the Communications Commission Acts of 1934 or 1996, and Federal Communications Commission orders, one should begin by considering three overarching related questions: When interpreting cases, what do judges do, and what should they do?With respect to the First Amendment, how do or should judges determine the meaning of “speech,” “press,” “assemble,” or petition “for a redress of grievances”? What makes something a “law,” andwhenwould this something “abridge” these “freedoms”? To perhaps oversimplify, the philosophy of law has offered two main approaches to answering these questions. One, legal positivism, is that the law is a collection of factual statements about legality, much as chemistry is a collection of factual statements about atomic interactions. This includes identification of a process by which judges (and the public) recognize which statements about conduct are laws. One prominent such process is positive originalism — the import of “positive” to be explained — in which instructions about the content of the law can be found in what those who enacted the law believed to be what it specifically delineated. The other answer, at the extreme opposite, is legal realism. In this view, the law is what judges say it is. To invoke a familiar metaphor from baseball, legal positivism is the umpire saying, “I call ‘em as they is,” and legal realism is “I call ‘em as I see ‘em.” A modern variant on legal realism is critical legal studies, which places courts as part of the overarching set of power relations in society or, as the baseball metaphor concludes, with the umpire saying, “They ain’t nothin’ ‘til I call ‘em.” Volumes have been written on these two philosophies. Legal positivism strips law of its normative force, that breaking the law is not just imprudent but wrong. Using dated applications to delineate the law seems inadequate as societies become more complex. Legal realism
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Pub Date : 2020-07-02DOI: 10.1080/10811680.2020.1765596
C. Calvert
Scholarship related to First Amendment, communications and media law has changed dramatically in the last twenty-five years. This article analyzes how the changes have impacted that scholarship. In the process, it focuses on the rise and leadership of female law professors in these fields over the past several decades. The views of more than a half-dozen of these women about the importance of this development, what led them into their respective areas of scholarly emphasis, and what more needs to be done to diversify these fields are featured. Additionally, the article addresses what might be considered a possible bandwagon effect on First Amendment scholarship in traditional law journals. Furthermore, it explores both the increase in topic-specific journals related to facets of communications law and the growth of online companions to traditional law journals that concentrate on publishing shorter articles, essays and reviews. Finally, the article offers some suggestions regarding submitting articles to traditional law journals.
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Pub Date : 2020-07-02DOI: 10.1080/10811680.2020.1767414
V. Ekstrand
Cyberlaw taught us everything, actually. The year was 1999 and undergraduate media law professors across the country were hearing what was initially an astounding claim from their students: Illegally sharing and downloading music online were acts of free expression. For seasoned instructors at the time, the statement was initially a source of amusement. For those of us entering the academy, the claim was less surprising. Whatever was going on in this new thing called cyberspace, it would certainly never be the case that music lovers could indefinitely infringe on the copyrights of musicians and their publishers. Indeed, the legal histories of Napster and Grokster, two early music file sharing services that found themselves in frequent legal battles with music publishers, eventually proved the professors right. Infringers were sued, the services were punished, and new business models around online music were birthed. The law seemed to win. Or did it? When Larry Lessig, then a 38-year old law professor at Stanford University, published one of the most-cited and celebrated articles of his career, “The Law of the Horse: What Cyberlaw Might Teach,” and his book, Code and Other Laws of Cyberspace, the media law community seemed to take a collective deep breath. In one fell swoop, Lessig argued that something was fundamentally different for law in cyberspace, a shift so consequential that he felt compelled to take on not only Judge Frank Easterbrook of the United States Seventh Circuit Court of Appeals, who had declared that there was “no more a law of cyberspace than there was a ‘Law of the Horse,’” but also the growing
实际上，网络法教会了我们一切。那一年是1999年，全国各地的媒体法本科教授都听到了学生们最初令人震惊的说法:在网上非法分享和下载音乐是言论自由的行为。对于当时经验丰富的教师来说，这一声明最初只是一种娱乐。对于我们这些刚进入学院的人来说，这种说法并不令人惊讶。无论在这个被称为网络空间的新事物中发生了什么，音乐爱好者可以无限期地侵犯音乐家及其出版商的版权肯定是不可能的。事实上，Napster和Grokster这两家早期音乐文件共享服务公司的法律历史，最终证明了教授们是正确的。这两家公司发现自己经常与音乐出版商发生法律纠纷。侵权者被起诉，服务受到惩罚，围绕在线音乐的新商业模式诞生了。法律似乎赢了。是吗?当当时38岁的斯坦福大学法学教授拉里·莱西格(Larry Lessig)发表了他职业生涯中被引用最多、最著名的文章之一《马的法则:网络法可能会教什么》(the law of the Horse: What Cyberlaw Might Teach)和他的书《网络空间的代码和其他法律》(Code and Other Laws of Cyberspace)时，媒体法律界似乎集体深吸了一口气。莱西格一下子提出，网络空间的法律发生了根本性的变化，这一变化如此重要，以至于他觉得有必要不仅挑战美国第七巡回上诉法院(United States Seventh Circuit Court of Appeals)的法官弗兰克·伊斯特布鲁克(Frank Easterbrook)，后者曾宣称“网络空间的法律并不比‘马的法律’多”，而且还要挑战不断增长的网络空间法律
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Pub Date : 2020-07-02DOI: 10.1080/10811680.2020.1766897
Karen M. Markin
I have probably referred to Thomas I. Emerson’s “Toward a General Theory of the First Amendment” more often than any other article. Emerson’s theory – which covers the values served by the First Amendment, the problems with maintaining a system of freedom of expression, the role of law and legal institutions in this effort, and the formulation of legal doctrine – remains remarkably apt as a framework for analyzing freedom of expression issues, despite the passage of more than half a century since its publication. Emerson identified as a key threat to freedom of expression the tendency of the powerful in society to suppress opposition. He wrote:
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Pub Date : 2020-07-02DOI: 10.1080/10811680.2020.1767422
Roy S. Gutterman
If the law of invasion of privacy is the child of the seminal Samuel Warren and Louis Brandeis law review article of 1890, 1 then the modern newsgathering and privacy law in Larissa Lidsky’s 1998 a...
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