{"title":"The Supreme Court and Freedom of Expression, 2000–2001","authors":"P. Siegel","doi":"10.1080/08997225.2001.10556274","DOIUrl":"https://doi.org/10.1080/08997225.2001.10556274","url":null,"abstract":"From the perspective of Free Speech Yearbook readers, the 2000-2001 term was an extraordinarily busy one. This essay offers extended discussions of ten court cases that dealt explicitly with the kinds of issues that define the Yearbook's scope-everything from public forum analysis and regulation of advertising to campaign finance reform, FOIA, and copyright law applied to the Internet. We begin by a short discussion of Court actions that mentioned the First Amendment but that either did not produce a written opinion, or where the opinions mentioned free speech interests not at all or only in passing. The first few sentences of City News and Novelty, Inc., v. City of Waukesha 1 would seem to argue for the case's inclusion here. Before the Court was a city ordinance governing the kinds of annually renewable licenses adult-oriented businesses must obtain. The case came to the Court, however, after the specific business at issue had withdrawn its application, gone out of business, and made clear it did not intend to pursue the matter any further. Unsurprisingly, the Court ruled for the city on mootness grounds, and never reached the First Amendment issues. The underlying facts in Saucier v. Katz2 similarly seem at first blush to be highly relevant to the Yearbook's purview. Katz, who was carrying on a protest of Vice President Gore's visit to the Presidio military base in San Francisco in 1994, alleged that his arrest by a military policeman (Saucier) involved excessive force. But this was really a straightforward Fourth Amendment case and raised no free speech issues for the Court's consideration. The Court also dealt with a somewhat obscure intellectual property issue this term involving \"trade dress\"-the overall design features comprising the look or feel of a product line that can be protected in the same way as are trademarks and service marks. The specific product involved in Traffix Devices, Inc., v. Marketing Displays, Inc. 3 were those temporary road signs we sometime see at the side of highways, flashing such messages as \"road work ahead\" or \"left shoulder closed.\" The case will not command much of our attention, however, because the unanimous decision relied on the utilitarian features of the product's design-a dual spring action that made the signs unlikely to tip over even in severe winds-thus creating doctrine more relevant to patent than to trademark law. Brentwood Academy v. Tennessee Secondary School Athletic Association4 dealt primarily with what it means to be a state actor for the purpose of constitutional analysis in general. The TSSAA is a state-wide association whose relationship to Tennessee high schools, public and private, is similar to that between the NCAA and university athletic programs. When the association found that the Brentwood Academy, having written to incoming students and their parents about spring football practice, had thus violated rules against \"undue influence\" in recruiting athletes, the Academy commenced ","PeriodicalId":439135,"journal":{"name":"Free Speech Yearbook","volume":"70 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2001-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114215532","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}
{"title":"Patterns of Suppression in Times of Crisis","authors":"C. Smith","doi":"10.1080/08997225.2001.10556266","DOIUrl":"https://doi.org/10.1080/08997225.2001.10556266","url":null,"abstract":"","PeriodicalId":439135,"journal":{"name":"Free Speech Yearbook","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2001-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124316725","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}
{"title":"Robert M. LaFollette and the Rhetoric of Free Speech","authors":"Grant C. Cos, B. Snee","doi":"10.1080/08997225.2001.10556267","DOIUrl":"https://doi.org/10.1080/08997225.2001.10556267","url":null,"abstract":"I think all men recognize that in time of war the citizen must surrender some rights to the common good which he is entitled to enjoy in time of peace. But, sir, the right to control their own Government according to constitutional forms is not one of the rights that the citizens of this country are called upon to surrender in time of war. -Robert M. La Follette, \"Free Speech and the Right of Congress to Declare the Objects of the War,\" October 6, 1917.","PeriodicalId":439135,"journal":{"name":"Free Speech Yearbook","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2001-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130953542","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}
{"title":"From LaMacchia to the No Electronic Theft Act: Criminal Copyright Infringement and the New Digital Media","authors":"C. Hunter, Dale A. Herbeck","doi":"10.1080/08997225.2001.10556273","DOIUrl":"https://doi.org/10.1080/08997225.2001.10556273","url":null,"abstract":"David LaMacchia was a student at the Massachusetts Institute of Technology (MIT). In 1994 he created two computer bulletin boards on the MIT computer network, Cynosure and Cynosure 11. 1 Hiding behind the veil of various pseudonyms, LaMacchia encouraged users to post software (Excel 5.0 and WordPerfect 6.0) and computer games (Sim City 2000) to Cynosure. After files were posted LaMacchia transferred them to a password protected address, Cynosure II. From this bulletin board users who knew the password could download any of the posted files to their own computers. Through this simple arrangement of bulletin boards LaMacchia made it possible for a large number of users to efficiently share copyrighted computer software with one another. Despite LaMacchia's best efforts to hide these bulletin boards, the sheer volume of traffic attracted the attention of both university officials and federal authorities. While LaMacchia's bulletin boards were quickly shut down by MIT it was not readily apparent to prosecutors that his actions were criminal. After considering a variety of charges, on April 7, 1994, a federal grand jury indicted LaMacchia for conspiring with \"persons unknown\" to violate the federal wire fraud statute. On September 30, 1994, LaMacchia's attorney brought a motion to dismiss the indictment claiming that the Supreme Court's decision in Dowling v. United States preempted the use of the wire fraud statute as a means to punish criminal copyright infringement. In United States v. LaMacchia, the U.S. District Court for Massachusetts agreed, and as a result dismissed the charge against LaMacchia (Lewis I 0). While this may seem a relatively trivial case, LaMacchia has had a dramatic effect on intellectual property law in the United States. In direct response to pressure brought by the copyright industry after the court's decision in LaMacchia, Congress adopted the No Electronic Theft (NET) Act. This article, an analysis of this little known but increasingly significant act, is organized in three parts. The first part offers a brief history of criminal copyright infringement in the United States, the second part discusses legislative responses to LaMacchia culminating with the passage of NET, and the final part offers an analysis of this controversial legislation.","PeriodicalId":439135,"journal":{"name":"Free Speech Yearbook","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2001-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116544599","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}
{"title":"Ruled by Passion, Governed by Reason: First Amendment Hierarchies Within a Cartesian Frame","authors":"Laura A. Wackwitz","doi":"10.1080/08997225.2001.10556272","DOIUrl":"https://doi.org/10.1080/08997225.2001.10556272","url":null,"abstract":"In the United States mediated communication is hierarchically ordered under the law. In cases involving the disputed constitutionality of laws restricting freedom of speech via the mass media, the Supreme Court uses its judicial power to maintain three primary hierarchies: one of speech content, one of speech formats, and one of constitutional rights. These three hierarchies imposed and utilized by the Court are sometimes lost within the language of particular cases and may not always receive the attention they deserve from legal scholars. Attending primarily to the detail and history of specific cases or lines of constitutional reasoning tends to call forth identification of case-specific balancing acts, but not necessarily recognition of the larger hierarchy to which those acts submit. Nevertheless, these Court hierarchies enable justices to evaluate conflicting claims, weigh constitutional issues, and discriminate between communicative contents, forms and situations. The hierarchy of speech content is used by the Court to grant the greatest amount of constitutional protection to works that are considered to be meritorious due to their contributions to various arenas, including politics, science, art and literature. Due to its privileged status as essential to the continuance of the nation, political communication crowns this hierarchy, receiving the greatest amount of First Amendment protection against governmental intervention and suppression (see Mcintyre v. Ohio Elections Commission; Mills v. Alabama; Monitor Patriot Co. v. Roy; New York Times Co. v. Sullivan). Conversely, sexually explicit expression, not considered essential by the Court, is regulated and regulatable, receiving the least amount of First Amendment protection (e.g., City of Renton v. Playtime Theatres; Hamling v. United States; Kaplan v. California; Miller v. California; New York v. Ferber; Osborne v. Ohio; Pinkus v. United States; Splawn v. California; Young v. American Mini Theatres). The hierarchy of speech formats allows the Court to discriminate among assorted media and distributors of communication. Different media occupy different spaces on the hierarchical ladder of constitutional protections guaranteed by the Court and may therefore be subjected to varying levels of governmental interference (FCC v. Pacifica Foundation; Metromedia v. City of San Diego, Southeastern Promotions, Ltd. v. Conrad). Of all the mass communication outlets, for example, distributors of print media are afforded the greatest amount of protection by the Court while broadcasters and other distributors of electronic media may find their communications subject to greater governmental scrutiny, regulation and suppression (e.g., FCC v. Pacifica Foundation; Los Angeles v. Preferred Communications; Red Lion Broadcasting Co. v. FCC; Turner Broadcasting System v. FCC). The hierarchy of constitutional rights provides the Court with a means of justifying regulation of expression in the face of other righ","PeriodicalId":439135,"journal":{"name":"Free Speech Yearbook","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2001-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130834297","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}
{"title":"Free Speech in the European Region","authors":"C. Hamelink","doi":"10.1080/08997225.2001.10556275","DOIUrl":"https://doi.org/10.1080/08997225.2001.10556275","url":null,"abstract":"I. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.","PeriodicalId":439135,"journal":{"name":"Free Speech Yearbook","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2001-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114514946","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}
{"title":"George Creel: Freedom of Speech, the Film Industry, and Censorship During World War I","authors":"Donald Fishman","doi":"10.1080/08997225.2001.10556268","DOIUrl":"https://doi.org/10.1080/08997225.2001.10556268","url":null,"abstract":"For scholars interested in the evolution of freedom of speech in the United States, the World I era continues to serve as a pivotal seedbed. From the outset, the war led to a stronger, more centralized federal government. As the government attempted to quickly mobilize wartime resources, individuals and groups emerged to advocate the criminalization of harmful spoken and written expression, including the outright censorship of expression designed to question the war effort. Under its crisis war powers clause, Congress subsequently enacted restrictive legislation that posed a serious threat to long-held civil liberties. Moreover, official in several of the federal agencies were granted broad discretion to promote the war, discretion that easily was channeled into wartime repression against dissident groups. As several writers have noted, violations of civil liberties during World War I were extensive, and government officials curtailed speech and press activities long thought to have been permissible (Scheiber; Murphy; Peterson and Fite 13-20; Rabban 1217-1219). Ironically, the World War I period also witnessed the coming of maturity of several new technologies that made it more difficult to regulate expression. The telephone, the phonograph, high-quality photo-journalism, and motion pictures offered new opportunities to communicate with a public who did not read but that could respond to voices and symbols. In addition, posters and graphic-art works reached a new level of persuasiveness as the war ensued, and they, too, had a visceral rather than intellectual impact on the efforts to mobilize favorable public opinion about the war. Among the then-new communication technologies, the film industry experienced especially rapid growth in the early part of the twentieth century. Beginning shortly after the turn-of-thecentury, the industry's growth was meteoric, evolving quickly from a \"peep show novelty\" into a major form of mass communication (Ward 16). By 1914, there were 18,000 movie houses with approximately seven million daily admissions yielding $300 million annually (Czitrom 42). In New York City, for instance, attending the movies became especially popular among immigrants and working class groups who lived in the tenement districts. But middle class American also became regular movie goers as the industry began to mature (Czitrom 44-52). The motion picture industry not only provided viewers with factual information, but it touched people emotionally. As Czitrom observes, \"The act of movie-going became a powerful ritual for millions, a new way of experiencing and defining the shared values of peer and family\" (59). By 1917, the film industry had become an important instrument of persuasion capable of arousing enthusiasm and influencing behavior. This article examines the strategy of benign censorship employed by George Creel during World War I. Pat One of the article discusses the public relations and censorship objectives of the Wilson admini","PeriodicalId":439135,"journal":{"name":"Free Speech Yearbook","volume":"140 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2001-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116610321","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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