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Contracting Away the First Amendment?: When Courts Should Intervene in Nondisclosure Agreements
Get PDFJudging Under Fire and the Retreat to Facts
Get PDFAmericans tend to worry about how our current polarized political climate will affect the legitimacy of our courts. Often overlooked in this important conversation is a discussion about what a toxic political dialogue can do—and in fact is doing—to the construction of the law itself. This Article will begin to make the case that judicial decisions themselves change as a result of high-intensity politics. Specifically, I will argue that when judges are “under fire” (to borrow a phrase from Planned Parenthood v. Casey), they tend to cloak their decisions in factual observations about the world that seem neutral and objective, even if that neutrality is an illusion.
To build my case, I draw lessons from a comparison with judges in a sister country also plagued with an epic political gridlock—the United Kingdom. I will make several observations stemming from this comparison, and then I will tie them together in a plausible explanatory story. I claim that (1) American law is anchored in factual claims about the way the world works that is very different from judicial decisions in the United Kingdom; (2) U.K. judges have long been protected from public accusations of acting “political” in a way American judges have not; and (3) these two observations are related.
An important consequence of a culture that throws political mud on judges, therefore, is that judges will shield themselves from it by anchoring their decisions in “neutral” claims of fact. Thus, the Voting Rights Act is dismantled because of factual evidence (laid out in graphs and charts) that voting patterns have changed over time. Campaign spending is protected by the First Amendment because there is no factual “evidence on the record” that it causes corruption. Even older cases penned when the Justices knew the nation was watching critically (Roe v. Wade and Brown v. Board of Education) rest their rationales on factual claims about the way the world works. Put simply, American judges are using facts as shields from accusations that they are behaving politically, and there is every reason to believe this trend will increase as the need to protect themselves continues
Protecting the Role of the Press During Times of Crisis
Get PDFPresident Trump’s daily tweets attacking the media have led many observers to express concern about the state of the press in our nation. Trump has called the press “the ... enemy of the [American] people,” encouraged a climate of hatred toward journalists at his rallies, refused to condemn Saudi Arabia for the brutal killing of reporter Jamal Khashoggi, and accused the media of writing “fake news.” The public’s trust in the institutional press has simultaneously diminished. Combined with the continuing economic challenges journalists face, the press is certainly facing some difficult times.
Nevertheless, things are not as dire as they seem, and it is because the courts have continued to embrace the largely pressprotective interpretation of the First Amendment that arose in another time of crisis in the 1960s and 1970s. In New York Times Co. v. Sullivan and New York Times Co. v. United States (Pentagon Papers), the Supreme Court provided meaningful protection for the press in a time of great crisis and doctrinal uncertainty. Occurring during the civil rights movement and the Vietnam War, respectively, these cases represent the high point of constitutional protection for the press. These landmark decisions continue to provide meaningful protection for the press today. In both of these cases, the press faced fundamental threats to its role in checking government power and informing our democracy, and in both of these high-stakes cases, the press emerged victorious.
Over time, however, these decisions have provided less protection than they may have initially appeared to provide. In the case of Sullivan, the scope of this protection has been narrowed, while the prosecution of Julian Assange threatens to unravel the state of “benign indeterminancy” that resulted from the Pentagon Papers opinion. Although the news from the courts these days is still largely good for the press, we should be cautious about expecting the courts to be the press’s savior. Specifically, the courts have not aggressively protected the rights of journalists to gather information; in addition, court decisions favorable to the press appear to do very little to stem the public’s growing mistrust of the media. It is also far from certain that today’s Supreme Court would be as sympathetic to the role of the press as the Court was in the 1960s and early 1970s.
Part I will discuss defamation law with a focus on the Court’s decision in New York Times Co. v. Sullivan. This decision “constitutionalized” the common law tort of defamation and dealt a death blow to a series of lawsuits by southern government officials aimed at silencing the publication. The decision has since provided an essential foundation for press freedom for over fifty years. At the same time, because the decision did not grant the press (or the public generally) absolute immunity for the publication of defamatory information about matters of public concern, speakers potentially face years of distracting and expensive litigation, even if they ultimately prevail.
Part II turns to protections for the publication of national security secrets. In United States v. New York Times Co. (Pentagon Papers), the Court held that the executive branch could not prevent the press from publishing a damning study of the United States’s involvement in the Vietnam War. But this decision does not provide immunity for defamation or the publication or collection of national security secrets and leaves journalists—as well as their sources—exposed to civil and criminal liability.
Part III examines the Court’s failure to recognize constitutional protection for newsgathering activities. Although the Court has held that the First Amendment provides a broad right of access to criminal proceedings, this right belongs to the public and not the press. Furthermore, this decision stands as something of an anomaly in the Court’s right of access jurisprudence. One reason— although not the only one—for the Court’s reluctance to recognize a more extensive right of access is its unwillingness to give the right to the entire public as well as its inability to define the “press” in a meaningful way. With the enormous changes in our media environment in the last two decades, it seems highly unlikely that the Court will use the Press Clause to provide expansive rights of access.
Despite all of President Trump’s attacks and the public’s growing distrust of the press, the fourth branch continues to play an important role in checking government power and informing our democracy. It is less clear, however, whether the press will be able to continue to rely on the courts to provide these constitutional protections for this important work
Securities Exchange Act Section 4E(A): Toothless Internal-Timing Directive or Statute of Limitation?
Get PDFThe Securities and Exchange Commission has a problem, and everyone knows it: its investigative process suffers from excessive delay, which harms both individuals and entity it investigates and its own enforcement program. This problem has long been recognized and complained about, but never remedied.
In 2010, Congress passed a law specifically designed to solve the problem of excessive delay but, the way the SEC has read the law—which has been acquiesced in by the courts and ignored by subsequent Congresses—has rendered it toothless and essentially meaningless. This has been accomplished, first, by the Commission’s cabined interpretation of the purpose of the law and its flawed review of supposed Supreme Court precedent, and then by the lower courts’ overly strong deference to this administrative agency’s reading of a law designed to curb its penchant for excessive delay.
Even though the problem of excessive delay remains unsolved and unchanged, there has been no serious published analysis of the 2010 law or of the courts’ (or of the SEC’s) reading of that law. The purposes of this Article are first, to attempt to quantify the problem of excessive delay; and second, to explore, in more depth than it appears has ever been assayed, both the 2010 law and the court decisions that have considered it, to the end of determining whether new life can properly be breathed into this law. I conclude that the 2010 law, while hardly a model of ideal statutory craftsmanship, should be viewed as an actual deadline, akin to a statute of limitations. Or, Congress should revisit the issue of unnecessary delay and enact a clearer and more meaningful legislative solution
Reintegration of Female Rape Survivors: The Overlooked Priority of Transitional Justice in the Face of Mass Wartime Rape
Get PDFWhile mass wartime rape has become a core characteristic of modern armed conflict, transitional justice mechanisms have continuously failed to bring about successful achievement of justice, reconciliation, and truth for female survivors. The abuse, exile, and humiliation of large numbers of female rape survivors by their families and communities leaves entire societies destabilized and susceptible to prolonged instability and state failure, thus obstructing attempts by transitional justice mechanisms to usher in long-lasting peace and stability. To achieve more successful post-conflict reconstruction, transitional justice mechanisms situated in the aftermath of wars marked by mass rape must first focus on the reintegration of rape survivors. Positive reintegration can lead to greater success in transitional justice as a whole through greater survivor participation, a greater chance for restoration of survivor and community dignity, and an increase in survivor and community trust in the process as a whole, eventually leading to a domino effect on the success of subsequent goals of the mechanism and the mechanism itself
Free Speech, Rational Deliberation, and Some Truths About Lies
Get PDFCould “fake news” have First Amendment value? This claim would seem to be almost frivolous given the potential for fake news to undermine two core functions of the freedom of speech—promoting democracy and facilitating the search for “truth,” as well as the corollary that to be valuable, speech must promote rational deliberation. Some would therefore claim that fake news should be classified as “no value” speech falling outside of the First Amendment’s reach. This Article argues somewhat counterintuitively that fake news has value because speech doctrine should not be focused exclusively on the promotion of rational deliberation, but should also limit the state’s ability to control the way we emotionally experience ideas, beliefs, and even facts. It claims that like art, music, religious expression, and other forms of human communication that do not facilitate rational deliberation in their audiences, fake news can promote a form of expressive experiential autonomy. It can allow individuals to experience individual self-realization and identity formation and also form cultural connections with like-minded people, advancing social cohesion. Drawing on First Amendment theory and on the fields of cognitive and social psychology and political science, this Article views consumers of fake news not simply as uninformed, gullible rubes, but as individuals seeking simultaneously to distinguish themselves through individualization or self-identification and to connect themselves through group association with a community of people with whom they share values. Understood in this way, this inquiry illustrates why the rational deliberation principle is incomplete because it does not explain much of what we ought to recognize as “speech.” This more nuanced understanding of the way that fake news connects with much of its audience has implications for free speech theory, First Amendment doctrine, and policy-making options for addressing the potential harms of fake news. To be clear, this Article is not a defense of fake news or those who intentionally attempt to influence others’ behavior by spreading false facts disguised as legitimate news. Thus, this Article concludes by explaining that while fake news should always be covered by the First Amendment, it should not always be protected
Library Elevator Rules
No full textA sign outside an elevator in the Wolf Law Library directs visitors to wear a mask and maintain social distancing.https://scholarship.law.wm.edu/covidimages/1008/thumbnail.jp
Right On Time: A Reply to Professors Allen, Claeys, Epstein, Gordon, Holbrook, Mossoff, Rose, and Van Houweling
Get PDFA simple observation started us off in writing Right on Time. Studying and teaching intellectual property law, we noticed striking parallels between traditional first possession rules in property law and analagous rules governing the acquisition of patent, copyright, and trademark rights. We thought that established first possession principles could illuminate the workings of IP law. As we dug in, however, it became increasingly clear that our premise wasn’t quite right. While many penetrating commentators had said many penetrating things about first possession, the leading treatments tended to focus on significant individual aspects of the overall issue. What we could not find was a synthetic treatment that knitted together the accumulated insights in the literature in a comprehensive way, showing how the different parts of the puzzle relate to one another. And so our project grew. The final article sought to accomplish two goals: first, to set out a unified theoretical framework for first possession of the sort that seemed to be missing from the literature and, second, as originally planned, to apply that framework to patent, copyright, and trademark law to show both the similarities and differences with real and tangible property.
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Our goals were thus reasonably ambitious, and it is immensely gratifying to have elicited responses from eight leading property and intellectual property scholars, all of whom influenced our own thinking in developing our thesis. We are even more gratified by their kind words about the fruits of our labors. But like them, we are probably more interested in points of departure than in our many areas of agreement. Our attempt to articulate an omnibus account of the dynamics of first possession systems was always going to be vulnerable to charges that some variables deserved greater emphasis than we could give them, and several of the thoughtful responses to our article single out elements of the first possession story for greater attention. These comments have spurred some further thinking on our part and in some cases called attention to aspects of our original article that may need clarification, and we are grateful to the editors of this journal for the chance to add a few additional words to the conversation.
This abstract has been taken from the authors\u27 introductory paragraphs
