Depictions of the Pig Roast: Restricting Violent Speech Without Burning the House – Note by Michael Reynolds

From Volume 82, Number 2 (January 2009)

Pornography dominates the discussion about free speech on the Internet. Congress has twice enacted legislation aimed at preventing minors from getting access to online pornography. Federal and local law enforcement agencies have dramatically increased efforts to combat the spread of child pornography. The Department of Justice has renewed attempts to crack down on obscene material after years of lax enforcement.

Yet the debate about online pornography has overshadowed another disturbing Internet phenomenon. The Internet has facilitated growth in the availability of extremely violent images and videos. A little online searching reveals depictions of torture, of both humans and animals; videos depicting murders and executions, including beheadings by Islamic militants; videos of brutal amateur street fights, some consensual, but many not; videos of minors engaged in schoolyard fights and beatings, some posted to humiliate the victims; and videos of cockfighting. Online retailers have sold videos of dog fights and extremely violent video games, including one in which the player is tasked with making graphic snuff videos and another which allows the player to play fetch with dogs using human heads.



The Unabomber Strikes Again: An Investigation into Whether the Victim and Witness Protection Act of 1982 Violates the First Amendment or Conflicts with the Copyright Act of 1976 – Note by Michael B. Norman

From Volume 81, Number 6 (September 2008)

Over a decade after being arrested in a western Montana cabin, Theodore Kaczynski is once again grabbing headlines. Although he is currently in a federal maximum-security prison serving the life sentence that he received for committing the Unabomber crimes, Kaczynski is now engaged “in a legal battle with the federal government and a group of his victims over the future of [his] handwritten papers.” The government has proposed selling “sanitized versions of the materials” via an Internet auction in order to raise money for a group of his victims, and Kaczynski is fighting that plan.

At issue, largely, is the extent of the government’s power under the Victim and Witness Protection Act of 1982 (“VWPA”) and further, what the government may do with the property it seized from Kaczynski. This property includes his “handwritten . . . journals, diaries and drafts of his anti-technology manifesto . . . [which] contain blunt assessments of 16 mail bombings from 1978 to 1995 that killed 3 people and injured 28, as well as his musings on the suffering of victims and their families.” Moreover, due to its unique set of facts, Kaczynski’s case also provides an intriguing opportunity to evaluate whether the VWPA violates the First Amendment of the U.S. Constitution or conflicts with the Copyright Act of 1976 (“Copyright Act”), and to explore the fascinating interplay between these two areas of law, both of which provide protection for individuals’ free expression.



Architectural Censorship and the FCC – Article by Christopher S. Yoo

From Volume 78, Number 3 (March 2005)

Most First Amendment analyses of U.S. media policy have focused predominantly on “behavioral” regulation, which either prohibits the transmission of disfavored content (such as indecent programming) or mandates the dissemination of preferred content (such as children’s educational programming and political speech). In so doing, commentators have largely overlooked how program content is also affected by “structural” regulation, which focuses primarily on increasing the economic competitiveness of media industries. In this Article, Professor Christopher Yoo employs economic analysis to demonstrate how structural regulation can constitute a form of “architectural censorship” that has the unintended consequence of reducing the quantity, quality, and diversity of media content. The specific examples analyzed include (1) efforts to foster and preserve free television and radio, (2) rate regulation of cable television, (3) horizontal restrictions on the number of outlets one entity can own in a local market, and (4) regulations limiting vertical integration in television and radio. Unfortunately, current First Amendment doctrine effectively immunizes architectural censorship from meaningful constitutional scrutiny, and it appears unlikely that existing doctrine will change or that Congress or the Federal Communications Commission will step in to fill the void.



Media Structure, Ownership Policy, and the First Amendment – Commentary by C. Edwin Baker

From Volume 78, Number 3 (March 2005)

Ever since Mark Fowler’s 1982 article laid down the gauntlet to those who favor structural media regulation, legal academia has produced a host of free market acolytes advancing his views. These young academics increasingly dominate media law teaching and the FCC. Professor Christopher Yoo is one of this group’s best (as well as a personal friend). This short Comment on his article, Architectural Censorship and the FCC, is written not because I consider it uniquely objectionable, but rather because its fundamental errors and characteristic distortions are representative of this influential group of scholars. This Comment will start with observations about Yoo’s policy and economic analyses and then conclude with a critique of his desired constitutional regime.



The First Chink in the Armor? The Constitutionality of State Laws Burdening Judicial Candidates After Republican Party of Minnesota v. White – Note by Alexandrea Haskell Young

From Volume 77, Number 2 (January 2004)

Thirty-nine states use some form of popular elections to select judges in their appellate courts, general jurisdiction trial courts, or both. In June of 2002, the Supreme Court handed down its first ruling regarding judicial elections. A 5-4 majority in Republican Party of Minnesota v. White held that part of the Minnesota Code of Judicial Conduct was unconstitutional as violating the First Amendment of the U.S. Constitution. The specific clause at issue is known as the “announce clause” and states that “[a] candidate for a judicial office, including an incumbent judge,” shall not “announce his or her views on disputed legal or political issues.” In White, a judicial candidate alleged that he was forced to refrain from announcing his views on disputed issues during a campaign because of this provision, in violation of the First Amendment. A majority of the Supreme Court agreed and struck down Minnesota’s announce clause as unconstitutional.

The White decision has the potential to impact all thirty-nine states with elected judiciaries. Eight states besides Minnesota have or had the announce clause language as part of their judicial codes, and those states have either amended or most likely will need to amend their codes. The announce clause, however, is not the only statutory provision restricting judicial candidates. The majority opinion in White was clear in noting that its holding applies only to the announce clause, and the Court refused to grant certiorari to challenges of other state provisions affecting judicial speech. Nevertheless, the decision has sent the other thirty states with elected judiciaries scrambling to their codebooks to determine how this decision will affect their statutes and future judicial elections. One thing seems to be certain: Litigation is sure to follow. This Note will explore the potential fallout from the White decision by analyzing facial constitutional challenges to various state laws that limit the speech of candidates for judicial office.



Copyright Law and Free Speech After Eldred v. Ashcroft – Article by Michael D. Birnhack

From Volume 76, Number 6 (September 2003)

Eldred v. Ashcroft, as decided by the Supreme Court in January 2003, added another chapter regarding the relationship between copyright law and freedom of speech to the judicial “chain novel” that has been in the writing for the past three decades. The Court affirmed the constitutionality of the Sonny Bono Copyright Term Extension Act of 1998 (“CTEA”), which extended the copyright term by twenty years, both for existing works and for new works. As in previous chapters, the Court reached the conclusion that there is no conflict between the two legal fields. It repeated the judicial sound bite that “the Framers intended copyright itself to be the engine of free expression.” Eldred nicely fits the conflict discourse, which is mostly one of denial. But Eldred also included novel and interesting elements that offer a new direction to the conflict discourse, or at least a potential for redirection.

Eldred raises many intriguing copyright law and constitutional law questions. Here, however, I wish to focus on the possible ramifications the case might have on the conflict discourse with respect to its constitutional level. Surprisingly, Eldred is the first facial constitutional challenge to copyright law in 213 years. As copyright law continues to expand into new territories and in unpredictable ways, and as new bills are introduced at a staggering rate to further the scope of the rights of copyright owners, it is crucial that we study the contours of copyright law. This need is especially acute in light of the Court’s comment that “[w]hen, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.”

In this Article, I wish to challenge the constitutional dimension of the judicial rejection of the conflict argument, which concerns the conflict between copyright law and the First Amendment. I will structure the critique along the lines of an important distinction. When we pause and ask what it is that the courts have been denying in rejecting the conflict argument, we see, after close study of over thirty cases that addressed the conflict argument, that, surprisingly, courts reject different things at different points. This leads us to identify two kinds of conflict: one is internal to copyright law, and the other is external to it. These two conflicts derive, respectively, from an internal view of the relationship of copyright law and free speech, and also from an external view.



A Haven for Hate: The Foreign and Domestic Implications of Protecting Internet Hate Speech Under the First Amendment – Note by Peter J. Breckheimer

From Volume 75, Number 6 (September 2002)

The U.S. Constitution is unique even among democratic nations for the guarantees it grants to U.S. citizens. The interpretation of the Constitution further distinguishes American notions of freedom and liberty from every other country in the world. The Internet Age, however, has ushered in a period where national boundaries and guarantees are blurred among the many intersections of the World Wide Web. This uncertainty has raised serious questions relating to the fundamental rights and liberties established by our forefathers: Can the United States maintain its guarantee of freedom of speech for the Internet? Who profits from such a guarantee? What are the implications for other nations if the United States ignores their pleas to rein in such guarantees?

Given the nearly unanimous international institution of regulations restricting online hate speech, the United States stands alone in its support of free speech—including Internet hate speech. Because of such a stance, however, the United States may become a beacon of hope for hate-mongers around the world whose views are stifled by the restrictions on speech in their homelands. Will the United States become a haven for online hate speech by continuing to guarantee such speech near-absolute protection? This Note attempts to answer the above questions and examines the desirability of U.S. protection of hate speech on the Internet.