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The Quality of First Amendment Speech
No full textOne of the core axioms of First Amendment jurisprudence is that the quality of speech-its goodness or badness from a literary, artistic, or aesthetic perspective, or its effectiveness in communicating to an audienceshould bear no relationship to its protection under the First Amendment. This Article analyzes the Supreme Court\u27s First Amendment doctrine across a wide range of fields: political speech, obscenity, commercial advertising, misrepresentation, entertainment, literature and the arts, and humor. The author demonstrates that the Court regularly, although implicitly and perhaps unconsciously, employs various qualitative criteria in determining whether and to what extent speech is protected under the First Amendment.
The author argues that any First Amendment regime that falls short of absolute protection for all communication will inescapably broach questions of quality. Thus, the important issue is not whether determinations of quality should be relevant to the First Amendment, but instead when, how, to what extent, in what form, and with what justification quality should be considered. The author concludes that determinations of quality are relevant to the First Amendment, but, until that fact is acknowledged, the prevailing notion that quality is irrelevant hinders the development of a systematic and speech-sensitive approach to identifying exactly when and why quality should be a relevant consideration
The Quality of First Amendment Speech
Get PDFOne of the core axioms of First Amendment jurisprudence is that the quality of speech-its goodness or badness from a literary, artistic, or aesthetic perspective, or its effectiveness in communicating to an audienceshould bear no relationship to its protection under the First Amendment. This Article analyzes the Supreme Court\u27s First Amendment doctrine across a wide range of fields: political speech, obscenity, commercial advertising, misrepresentation, entertainment, literature and the arts, and humor. The author demonstrates that the Court regularly, although implicitly and perhaps unconsciously, employs various qualitative criteria in determining whether and to what extent speech is protected under the First Amendment.
The author argues that any First Amendment regime that falls short of absolute protection for all communication will inescapably broach questions of quality. Thus, the important issue is not whether determinations of quality should be relevant to the First Amendment, but instead when, how, to what extent, in what form, and with what justification quality should be considered. The author concludes that determinations of quality are relevant to the First Amendment, but, until that fact is acknowledged, the prevailing notion that quality is irrelevant hinders the development of a systematic and speech-sensitive approach to identifying exactly when and why quality should be a relevant consideration
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Too much free speech? /
No full text"Randall P. Bezanson takes up an essential and timely inquiry into the Constitutional limits of the Supreme Court's power to create, interpret, and enforce one of the essential rights of American citizens. Analyzing contemporary Supreme Court decisions from the past fifteen years, Bezanson argues that judicial interpretations have fundamentally and drastically expanded the meaning and understanding of "speech." Bezanson focuses on judgments such as the much-discussed Citizens United case, which granted the full measure of constitutional protection to speech by corporations, and the Doe vs. Reed case in Washington state, which recognized the signing of petitions and voting in elections as acts of free speech. In each case study, he questions whether the meaning of speech has been expanded too far and critically assesses the Supreme Court's methodology in reaching and explaining its expansive conclusions"--"In this project Randall Bezanson examines judicial interpretations of free speech by means of a broad range of Supreme Court cases, arguing that over the past 15 years the Court has engaged in a truly revolutionary expansion of the reach of the free speech guarantee. The cases include the much-discussed Citizens United decision which granted the full measure of constitutional protection to speech by corporations; the Doe v. Reed case from Washington State that recognized the acts of signing petitions and voting in elections as acts of free speech; the Summum decision holding that the decision to select a monument for a public park and to reject another based on the government's disagreement with the monument's message is an act of government speech immunized from challenge by the First Amendment; and the Hurley and Dale cases that recognized free speech claims for messages and meanings that arose "out of thin air": speech without an author (a parade); and an author without a message (the Boy Scouts). As in earlier books on freedom of the press and of religion, Bezanson aims to arm the reader with the capacity to reach her or his own decision about whether the Court's conduct befitted the independent judicial branch and the consequences of its decisions for a representative democracy"-
Going Beyond Counting First Authors in Author Co-citation Analysis
Get PDFThe present study examines one of the fundamental aspects of author co-citation analysis (ACA) - the way co-citation
counts are defined. Co-citation counting provides the data on which all subsequent statistical analyses and mappings
are based, and we compare ACA results based on two different types of co-citation counting - the traditional type that
only counts the first one among a cited work's authors on the one hand and a non-traditional type that takes into
account the first 5 authors of a cited work on the other hand. Results indicate that the picture produced through this non-traditional author co-citation counting contains more coherent author groups and is therefore considerably clearer. However, this picture represents fewer specialties in the research field being studied than that produced through the traditional first-author co-citation counting when the same number of top-ranked authors is selected and analyzed. Reasons for these effects are discussed
The Developing Law of Editorial Judgment
Get PDFI. Introduction
II. Background on Freedom of the Press and Editorial Judgments Concerning News
III. Staying within the Boundaries of Journalism: Judging Editorial Judgment by Subjective Intent … A. Subjective Intent in State Cases ... B. Subjective Intent in Federal Cases ... C. Conclusion
IV. Measuring Editorial Judgment by its Outcome: Judging the Genre of Journalism by Objective Description ... A. Newsworthy Status ... 1. Newsworthiness in State Cases ... 2. Newsworthiness in Federal Cases ... a. Judging Newsworthiness by Content ... b. Judging Newsworthiness by Genre ... c. Comparing Newsworthiness by Content and Genre ... B. Fact-Opinion Distinction ... 1. Fact-Opinion Distinction in State Cases ... 2. Fact-Opinion Distinction in Federal Cases ... C. Truth-Falsity Distinction ... 1. Truth-Falsity Distinction in State Cases ... D. Conclusion: The Limits of Genre
V. Judging the Interests to be Served: Editorial Judgment as an Instrument of Purpose ... A. State Cases ... 1. Public Interest ... 2. Independence ... 3. Retail-Level Judgment ... B. Federal Cases ... 1. Subject Matter and Audience Breadth ... 2. Purpose ... 3. Specificity ... C. Conclusion
VI. Editorial Judgment as Process: Identifying the Essential Process Qualities of Journalism ... A. State Cases ... 1. Verification Procedures ... 2. Retail-Level Decisions ... 3. The Presence of an Editorial Process ... B. Federal Cases ... 1. Wholesale v. Retail-Level Decisions ... 2. Other Federal Process Cases ... C. Conclusion
VII. Judging the Editorial Enterprise: Some Conclusion
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The Right to Privacy Revisited: Privacy, News, and Social Change, 1890-1990
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The Foundations of Federalism: An Exchange
Get PDFOur manuscript entitled The Foundations of Federalism: An Exchange is occasioned by the Supreme Court\u27s federalism jurisprudence which, in our judgment, calls for a broad ranging exploration of the constitutional concept of federalism itself. That exploration takes place in the form of a dialog between us which, while rewritten from its original form, nevertheless reflects our actual exchanges over an 18 month period. Our conclusion is that such terms as sovereignty generally have no place in American constitutional federalism, that the Supreme Court\u27s efforts to enforce federalism limitations have been ineffective and, in some instances, counterproductive, and most basically that federalism itself is best seen in non-theoretical terms, but instead as a practical and untidy system of occasions for sober second thought by federal and state governments engaged in the federal legislative process. On federal-state power conflicts, the Constitution should be seen as a purposeful incompletely theorized agreement, to quote Cass Sunstein
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