By Tushnet, Mark V. | Harvard Law Review, June 2014 | Go to article overview


Tushnet, Mark V., Harvard Law Review


This Introduction tries to extract some general themes from the Articles here and to present them in the light cast by general constitutional theory. To that end, I provide brief summaries, focusing in particular on matters that I take up later in this Introduction. Each Article contains much more than what I summarize and extract from it for my own purposes, of course, and this Introduction is no substitute for reading the Articles themselves.

Professor Marvin Ammori describes the working environment of lawyers for major Internet participants, relying on interviews with the firms' general counsels. These lawyers, Ammori tells us, grapple with First Amendment issues daily. In shaping corporate strategies, the general counsels are not Holmes's "bad men" concerned only with the circumstances under which they might face court-imposed liability. Instead, as Ammori puts it, they "write the rules governing" speech. (5) And more, because their clients operate on a global scale, these lawyers are not solely concerned with the U.S. Constitution's First Amendment, but also with the laws, customs, and practices of foreign nations. (6)

Professor Jack Balkin provides a catalogue of the ways in which contemporary speech regulations--"new-school" regulations--differ from traditional "old-school" ones. Old-school regulations dealt with physical spaces, the classic streets and parks, whereas new-school regulations deal with the "streets" over which digital information passes. Old-school regulations involved prior restraints and licensing targeted at disfavored speakers; new-school ones deal with the intermediaries who deliver what disfavored speakers say. And relatedly, new-school regulation is characterized by a substantial amount of cooperation between public and private actors and the cooptation of the latter in the service of the former's regulatory goals. (7)

Professor Susan Crawford describes the modern technology that commercial providers of Internet services use to disseminate information and entertainment. She focuses on a challenge by Verizon to proposed regulations that would prevent such providers from operating business models that favor some information and entertainment sources over others. The providers, she argues, are modern common carriers, and equal access rules no more violate their First Amendment rights than do ordinary common-carrier rules violate the property rights of railroads and other traditional common carriers. (8)

Comparing the legal treatment of different advertising regulations, Professor Rebecca Tushnet observes that courts treat emotions inconsistently. Sometimes the fact that a regulation is more effective because it is predicated on the association between expression and emotion is a reason for upholding one regulation, and yet sometimes that very same fact is given as a reason for invalidating another. She concludes with a plea for more consistent treatment of emotions in the law of free expression. (9)

Finally, Professor Sonja West offers a defense of the position, so far rejected by the Supreme Court, that the institutional press deserves greater protection from government regulation than others, including those she describes as "occasional public commentators." (10) Responding to critics of that position, West provides a cluster of criteria that could guide courts in identifying the entities entitled to special protection as "the press." (11)


This Part examines First Amendment scholarship and doctrine with reference to the incentives and background thinking that underlie its production. Section A develops an argument that these incentives lead to something like agency capture as it occurs in other domains: the phenomenon of "liking" the First Amendment arises from the structural fact that advocates of specific regulations limiting expression are scholars only of their specific regulatory domains and so are less well tutored in First Amendment doctrine than are scholars whose focus is the First Amendment itself. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Cite this article

Cited article

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)


1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

Cited article



Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.