First Amendment
Freeing Newsgathering from the Reporter's Privilege
114 Yale L.J. 1827 (2005) A number of recent high-profile cases have forced courts to reexamine whether reporters must respond to subpoenas seeking disclosure of confidential sources or whether they are protected from doing so by the doctrine of reporter's privilege. While these confidential-source cases have garnered the most public attention, the vast majority of subpoenas issued to reporters seek to compel disclosure of nonconfidential information. In a recent case, McKevitt v. Pallasch, Judge Posner suggests that the reporter's privilege, if it exists at all, should not extend to nonconfidential information. In this Comment, I argue that Posner overlooks the unique ways in which a privilege for nonconfidential information protects the newsgathering process. Federal courts should use their common law power under Federal Rule of Evidence 501 to articulate a flexible newsgathering privilege for reporters analogous to the work product immunity that exists for attorneys.
Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It
114 Yale L.J. 535 (2004) Recent cases and scholarship have debated whether copyright law is consistent with the First Amendment. Much of the discussion has centered on copyright law's ability to suppress transformative, creative reuses of copyrighted works and on copyright's fair use doctrine as a mechanism to protect such transformative uses. This Essay argues that the increasing centrality of transformativeness to fair use has made it easier for copyright owners to control all instances of ordinary copying. Yet pure copying also serves valuable First Amendment purposes, both for audiences and, less obviously, for speakers, for whom copying often serves interests in self-expression, persuasion, and participation.
Private Voucher Schools and the First Amendment Right To Discriminate
113 Yale L.J. 743 (2003) At the end of its 2001 Term, the Supreme Court settled one of the most contentious educational debates in recent history, ruling in Zelman v. Simmons-Harris that the inclusion of religious schools in a state school voucher program did not violate the Establishment Clause of the Constitution. There are, however, complex constitutional questions about vouchers that linger in Zelman's wake. This Note addresses one such issue that has only just begun to receive scholarly attention: Can states require private voucher schools--including religious schools--to comply with antidiscrimination policies, or would the enforcement of those policies violate the First Amendment rights of the schools? For example, could a state require a private school to admit racial minorities, women, and gays and lesbians as a condition for eligibility in a state voucher program? What if the school administrators object on principle--perhaps religious principle--to racial integration, coeducational schooling, or homosexuality? Doesn't the First Amendment protect the schools' views? The Supreme Court's jurisprudence does not provide easy answers to these questions, and the relevant body of case law is inconsistent. This Note seeks to make sense of the doctrine and to demonstrate that, as applied to private voucher schools, antidiscrimination laws can--and should--survive a First Amendment challenge. Part I provides a brief overview of the current status of voucher laws and proposals, and discusses the opposition of civil rights organizations to these laws. Part II then analyzes the free speech problems that may arise if states require voucher schools to adhere to antidiscrimination norms. I argue first that voucher programs are a form of "government speech through private actors," and that in such cases the Free Speech Clause does not preclude states from making viewpoint-based distinctions. The remainder of Part II deals with the possibility that courts will reject this analysis. I discuss the various constitutional tests to which courts may subject antidiscrimination requirements, and I argue that antidiscrimination policies should survive any of them. Because the Free Speech Clause poses the most complex problems for antidiscrimination policies, the bulk of the Note centers on this issue. Part III addresses issues raised by the Free Exercise and Establishment Clauses, and argues that religious voucher schools can also be bound to antidiscrimination policies without violating the schools' First Amendment freedoms. The only exception would be for clerical teacher employment disputes at religious schools; such suits are nonjusticiable due to a mixture of Free Exercise and Establishment Clause concerns.
A Robust Public Debate: Realizing Free Speech in Workplace Representation Elections
112 Yale L.J. 2415 (2003) The First Amendment stands as a guarantor of political freedom and as the "guardian of our democracy." It seeks to expand the vitality of public discourse in order to enable Americans to become aware of the issues before them and to pursue their ends fully and freely. As the Supreme Court wrote in the canonical case of New York Times Co. v. Sullivan, the First Amendment's function is to create the "uninhibited, robust and wide-open" public debate necessary for the exercise of self-governance. The Amendment plays a prominent role in the regulation of workplace representation elections, the process by which unorganized workers decide whether or not to unionize. Since the 1940s, and particularly since the passage of the Taft-Hartley Act in 1947, Congress and the courts have used the First Amendment to protect the right of employers to campaign against unionization. Holding that employers may say nearly anything in order to persuade their employees to vote "no" in a union election, the Supreme Court has permitted the National Labor Relations Board to proscribe employer speech only when it contains threats of reprisal or coercive promises. In so ruling, the Court has sought to balance employers' right of free speech, as well as their common-law property and managerial rights, with workers' right to unionize. Yet whether deeming speech to be prohibited or protected, the Court has framed the issue with the First Amendment weighing only on the side of employers. For the most part, existing academic work on union elections has implicitly accepted this approach, viewing employers' rights of speech, property, and management as clashing with workers' statutory right to organize, without invoking any countervailing First Amendment right on behalf of workers. This Note challenges the Court's approach to the First Amendment for failing both to recognize and to protect the very real speech interests of workers and union organizers at stake in workplace representation elections. Building on the work of "democratic" free speech scholars, such as Alexander Meiklejohn, Owen Fiss, and Cass Sunstein, and applying their theories to a new arena, this Note argues that the Court's exclusive focus on safeguarding employer speech from state incursion leaves society vulnerable to powerful forces of private censorship. Specifically, the regime governing workplace elections allows employers to suppress worker speech and union messages, even as employers' own speech is protected. In so doing, the current law inhibits robust debate and collective self-governance both within the workplace and in society at large, and thereby contravenes the fundamental purpose of the First Amendment. This Note identifies two distinct, but related, ways in which current doctrine governing workplace elections restricts the freedom of speech. First, it constrains the ability of workers to speak freely and limits the existence of robust debate inside the workplace. The law grants employers extensive rights to campaign against unionization, including the power to compel workers to listen, to suppress their responses, and to exclude the messages of union organizers from the workplace. At the same time, the law fails to protect effectively worker speech. In fact, over the past half-century, reprisals suffered by workers who engage in pro-union speech have increased dramatically to well over 10,000 documented cases per year. Second, the suppression of worker speech and the exclusion of pro-union messages within the workplace hinders employees' exercise of free speech and the existence of robust debate outside of the workplace as well. When Americans spend much of their time without rights of expression and collective self-governance, they lose some ability to participate as active citizens in our society's democratic project. Furthermore, because the suppression of worker speech and pro-union messages enables employers to thwart the formation of unions, the ability of individual worker-citizens to engage effectively in public debate through their own collective organizations is impeded. For these reasons, the First Amendment permits, and indeed requires, us to revise the flawed regime governing workplace representation elections, even if doing so entails some further limits on employer speech. Toward that end, this Note will propose a new framework that protects worker speech and union messages, a framework more faithful to the First Amendment's purpose of safeguarding democracy. Part I of this Note examines the historical development of the "false paradigm," which views employers' First Amendment rights as in tension with statutory collective bargaining rights. It shows that, in the face of concerted pressure from employer groups, the Court, the Board, and Congress increasingly recast property and managerial rights in First Amendment terms while failing to consider the Amendment's democratic purposes. Narrowly focused on protecting individual autonomy from incursion by the state, the Court granted extensive First Amendment protection to employers but neglected the speech interests of workers and union organizers. Part II argues for a revised paradigm: Speech vs. Speech. This Part discusses how employer speech silences workers, and demonstrates that the current doctrine governing union elections fails to provide effective remedies for employer retaliation against pro-union speech, limits the right of workers not to hear employer speech, and constrains the ability of pro-union workers and union organizers to communicate their messages. Part III looks at the purposes of the First Amendment and argues that the jurisprudence on union elections fails to fulfill those purposes, both inside and outside the workplace. Part IV considers what a regime that protects worker and union free speech interests and furthers the democratic aims of the First Amendment might look like. It argues that new regulations on employer speech, as well as regulations to enable worker and union speech, are not only vital public policy, but are both permitted and required by the First Amendment.
The Limits on University Control of Graduate Student Speech
112 Yale L.J. 1295 (2003) In the spring of 1999, Christopher Brown, a master's degree candidate in material sciences at the University of California at Santa Barbara (UCSB), submitted his thesis for approval. The copy reviewed by Brown's thesis committee contained no acknowledgments page. After the committee approved his thesis, Brown inserted an additional two pages entitled "Disacknowledgements," in which he ranted against professors, the university, former Governor Pete Wilson, and the state of the physical sciences. The opening sentence set the tone for the entire section. Brown began, "I would like to offer special Fuck You's to the following degenerates . . . ." He proceeded to complain about "fascists" in the university administration, label one professor as a "prick," and call the university's Board of Regents a "paragon of corrupt mismanagement." When the university learned about the disacknowledgments page, it declined to file Brown's thesis in its library system and refused to grant him a degree until he removed the offending material. Brown unsuccessfully challenged the decision within the university, and, in June 2000, he filed suit in federal district court under 42 U.S.C. § 1983. Among other claims, Brown alleged that the Dean of the Graduate Division and other named defendants had violated his First Amendment rights. The district court granted the defendants' motion for summary judgment. Brown appealed, and, in a 2-1 decision, a panel of the Ninth Circuit upheld the lower court decision. Judge Susan Graber reasoned as a matter of first impression that the case should be governed by the restrictive First Amendment standard developed by the Supreme Court for high school students in Hazelwood School District v. Kuhlmeier. Her opinion represented the first unequivocal application of Hazelwood to a postsecondary student and stands in tension with decisions in the Sixth Circuit and First Circuit that specifically declined to apply Hazelwood in the context of higher education. This Comment argues that the Ninth Circuit reached the right result in Brown v. Li, but applied the wrong legal standard. The Supreme Court developed the Hazelwood test in a case involving a high school newspaper. Its concerns about the "emotional maturity" of high school students and preventing the views of the speaker from being "erroneously attributed to the school" are less persuasive in a university setting. Consequently, Hazelwood does not provide an appropriate standard for protecting the First Amendment rights of college and graduate students, who otherwise enjoy the full legal rights of adulthood. This Comment suggests that the Ninth Circuit panel should have instead applied the more protective balancing test that governs cases involving the discipline of professors and denial of tenure. Application of that test should not alter the outcome in Brown, but it would lay a better foundation for future cases involving the speech of university students.
"Exceedingly Vexed and Difficult": Games and the First Amendment
112 Yale L.J. 361 (2002) The mayor of Tinley Park, Illinois, describes his village as a "dynamic, progressive community" of more than 45,000 people. He claims it is a "great place to live, work and play." Until September 22, 2000, however, the village was a "great" place to play only for those who didn't mind being ticketed and fined. Far from encouraging the "outdoor recreation and family oriented fun" promised on its website, the village enforced a draconian ordinance making it unlawful to "play any games upon any street, alley, or sidewalk, or other public place except when a block party permit has been issued" by the village government. The local code went on to define "public place" as including "any street, sidewalk, park, cemetery, school yard, [or] body of water." On its face, the ordinance prohibit[ed] children from playing tag at recess in the schoolyard without a block party permit from the Village President and the Board of Trustees; likewise it would [have] apparently bar[red] a child from playing with his Gameboy on the sidewalk, or kids from playing in a pool or river--bodies of water--or skating in the park without obtaining a permit, and similar absurdities. During the summer of 2000, Karen Weigand and two other Tinley Park residents were charged with "parental irresponsibility," because their children violated the ordinance by "play[ing] baseball in the street of their cul-de-sac." A Cook County judge upheld the measure, saying it "does not seem to be beyond the scope of the legislative body of the city." In response, Weigand and several other local parents challenged the law in federal court. U.S. District Judge Elaine Bucklo issued a preliminary injunction against its enforcement, ruling that the parents were likely to prevail at trial on the issue of the ordinance's constitutionality. A month after the ruling, the ordinance was repealed. In January 2001, Judge Bucklo made the injunction permanent, forever barring the village from reinstating the ordinance. In her initial ruling, Judge Bucklo noted that the ordinance was constitutionally flawed in three different ways. First, she held that the ordinance failed the rational basis test because the village lacked a legitimate reason for banning games in schoolyards, parks, and pools. Second, she found that the ordinance implicated the First Amendment by infringing upon people's constitutional right to assemble for the purpose of engaging in a form of expressive conduct--namely, playing games. The ordinance could not survive strict scrutiny, and so was unconstitutional. Finally, citing philosopher Ludwig Wittgenstein, she ruled that "[t]he term 'game' is exceedingly vexed and difficult." Because the ordinance did not define what a "game" was, it "fail[ed] to articulate with any specificity the conduct to be proscribed," and so was void for vagueness. Although I believe Judge Bucklo was correct in invalidating the ordinance, I disagree with some of her constitutional analysis. This Comment concentrates on her second rationale for invalidating the ordinance, challenging the conclusion that games are a type of expressive conduct that gives rise to the right of assembly. Part I of this Comment argues that games in general, including certain types of video games, do not constitute a form of expressive conduct protected by the First Amendment. Part II considers the special case of sporting events meant to be watched by an audience. Part III concludes.
The Freedom of Imagination: Copyright's Constitutionality
112 Yale L.J. 1 (2002) In some parts of the world, you can go to jail for reciting a poem in public without permission from state-licensed authorities. Where is this true? One place is the United States of America. Copyright law is a kind of giant First Amendment duty-free zone. It flouts basic free speech obligations and standards of review. It routinely produces results that, outside copyright's domain, would be viewed as gross First Amendment violations. Outside of copyright, for example, a court order suppressing a book (especially in the form of a preliminary injunction) is called a "prior restraint," "the most serious and the least tolerable infringement on First Amendment rights." In copyright law, however, such orders are routine. Just last year, in a much-publicized case, a federal district court enjoined publication of The Wind Done Gone, the novel about a slave born on Gone with the Wind's Tara plantation. (Disclosure: I was counsel to Alice Randall, author of The Wind Done Gone, in this litigation.) Or again, in 1995, a former member of the Church of Scientology posted on the Internet portions of the Church's "spiritual healing technology" materials, with the intention of exposing the Church as a "fraud." For this offense, police searched the individual's home for seven hours, seized books, and went through his personal computer files, copying some and erasing others, with the help of a "computer expert" provided by the Church. In the ensuing litigation, did the district court express concern about police officers assisting a "church" to suppress dissent? On the contrary, the court held that the defendant was likely guilty of copyright infringement and therefore issued a prior restraint "prohibiting any further copying" of Church materials. What is particularly disturbing about these cases is that both district courts expressly declined to consider the defendants' First Amendment arguments. In this respect, the two cases were typical. Courts consistently hold that copyright does not have to answer to First Amendment scrutiny. "[C]opyrights," as the District of Columbia Circuit recently put it, "are categorically immune from challenges under the First Amendment." It is time to put copyright on trial. The familiar explanations of copyright's insulation from the First Amendment are wholly inadequate. A new First Amendment analysis of copyright is needed. This means, however, that we also need an account of the First Amendment status of art and entertainment. Art and entertainment are central to (although not exhaustive of) the business of copyright; how central are they to the First Amendment? A painting by Pollock is "unquestionably shielded" by current free speech law, but what makes it so is less clear. Are video games--typical subjects of copyright law--similarly protected? What does their protectedness depend on, and would the level of protection change if they qualified as "art"? Thinking through copyright's constitutionality requires answers to these questions. Contemporary First Amendment scholarship offers two principal accounts of art's protection: one based on art's contribution to democracy, the other based on art's contribution to individual self-realization. Both approaches are driven by preconceptions of First Amendment theory; neither is satisfactory. The first paints art too politically, the second too narcissistically. It is no coincidence that a free speech jurisprudence lacking a good account of art's protection also lacks an appropriate framework within which to evaluate copyright. I will suggest that the constitutional protection of art is best understood through a principle I will call the freedom of imagination. Under this freedom, no one can be penalized for imagining or for communicating what he imagines. Nor can a person be required to obtain permission from anyone in order to exercise his imagination. Copyright, I will argue, must answer to this freedom. Part I of this Article describes copyright's conflicts with the First Amendment and shows how, notwithstanding these conflicts, courts refuse to subject copyright to independent First Amendment review. Part II addresses the most common explanations of copyright's First Amendment immunity. These explanations are, for the most part, standard fare in the literature. None of them, however, is remotely adequate. Part III elaborates the freedom of imagination, defining, defending, and delimiting it. This freedom, I will suggest, not only best captures the First Amendment's protection of art, but also underlies a number of other paradigmatic First Amendment protections as well. Part IV measures copyright against this freedom. I argue that copyright's core prohibition against piracy is consistent with the freedom of imagination, but that a good deal of copyright law outside this core is not. In particular, the freedom of imagination calls into question the enormous and growing set of prohibitions imposed by modern copyright law on so-called "derivative" works. I conclude that copyright's prohibition of unauthorized derivative works is unconstitutional, but that it could be saved if its regime of injunctions and damages were replaced by an action for profit allocation.
Free Speech and the Visage Culturel: Canadian and American Perspectives on Pop Culture Discrimination
111 Yale L.J. 2289 (2002)
The Kabuki Mask of Bush v. Gore
111 Yale L.J. 223 (2001) Is law merely Kabuki politics? Many critics consider the Supreme Court's recent foray into electoral matters, Bush v. Gore, as resounding evidence that it is, with concerns for equality and electoral deadlines constituting the "conservative" Justices' masks. These critics point to flaws in the equal protection argument, the "conservative" Justices' decision not to remand the case to determine appropriate vote-counting standards, and the irony of the pro-federalism Rehnquist Court's intervention in a state supreme court's interpretation of state law. They conclude that political animus must explain the result. In this Case Note, I assume arguendo that the equal protection critiques are valid (even though some disagree ). I nevertheless seek to justify the Court's equal protection holding, not as correct on its own terms, but as a vehicle through which the Court addressed a likely First Amendment freedom of association violation. The real problem was not that the difference between standards was inherently too large but rather that political partisanship (i.e., viewpoint discrimination) may have caused it. In particular, I focus on how the absence of specific standards guiding permissible legal votes--when the instrumental effect of a county's choice of recount standard was immediately apparent--provided counties with an opportunity to try to manipulate the election results. The risk of viewpoint discrimination arose because the county canvassing boards in predominantly Democratic counties, such as Broward (on which I focus in this Case Note), knew that Gore would lose if the pre-recount vote held. There was a substantial possibility that Broward's Democratic agenda may have caused it to choose a more lenient vote-counting standard in order "to maximize the number of recovered votes." Even if the resulting standard were applied equally to Bush and Gore votes (which I presume to be true), this partisan choice of standards would--for reasons that I explain--unconstitutionally restrict Bush voters' freedom of association by intentionally providing Gore with a relative gain. Part I explains the bare-bones facts pertinent to this Case Note and briefly restates the Court's equal protection holding. Part II discusses the doctrinal underpinnings of freedom of association analysis. Part III describes how Bush v. Gore would have presented a unique but cognizable--and potentially meritorious--relative restriction of association.