Introduction

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

Introduction


Tushnet, Mark V., Harvard Law Review


I. INTRODUCING THE ARTICLES

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)

II. FIRST AMENDMENT SCHOLARSHIP AND DOCTRINE FROM AN INTEREST GROUP PERSPECTIVE

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. …

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