Emory Law Journal

Volume 65Issue 2
The 2015 Randolph W. Thrower Symposium, The New Age of Communication: Freedom of Speech in the 21st Century
Foreword

Foreword

The Editors | 65 Emory L.J. 197 (2015)

The 2015 Randolph W. Thrower Symposium, entitled The New Age of Communication: Freedom of Speech in the 21st Century, was held on February 5 at Emory University School of Law. The Symposium explored the changing doctrine of free speech in the United States. Recent Supreme Court decisions—including McCutcheon v. Federal Election Commission, Snyder v. Phelps, and United States v. Alvarez—have altered the landscape of First Amendment jurisprudence. Reflecting on these recent developments stimulated dialogue on the foundations, current doctrines, and future of free speech. This issue of the Emory Law Journal continues that conversation.

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Thrower Symposium Articles

Copyright = Speech

Derek E. Bambauer | 65 Emory L.J. 199 (2015)

Expression eligible for copyright protection should be presumptively treated as speech for First Amendment purposes. Both copyright and the First Amendment share the goal of fostering the creation and dissemination of information. Copyright’s authorship requirement furnishes the key link between the doctrines. This Essay examines where the two areas of law align and conflict in offering or denying protection. Using copyright law as a guide for the First Amendment offers three benefits. First, many free speech problems can be clarified when examined through copyright’s lens. Second, this approach makes the seeming puzzle of non-human speakers understandable. Finally, it can help end technological exceptionalism in First Amendment doctrine.

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Freedom from Thought

Jane Bambauer | 65 Emory L.J. 219 (2015)

This short Essay explores when ignorance can be supported or even coerced by law, and when it cannot. In the end, although freedom from thought has much to offer to the development of privacy and dignitary rights, interests in self-ignorance are better handled through norms than through law. Like other forms of privacy, First Amendment commitments are likely to frustrate legal efforts to support or coerce self-ignorance. If a speaker wishes to disclose information, the government is unlikely to be able to interfere with that disclosure unless the speaker’s interests are demonstrably weak. However, when both the speaker and the listener prefer silence, government compulsion of information disclosure will offend privacy and First Amendment principles alike.

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Speech or Conduct? The Free Speech Claims of Wedding Vendors

Caroline Mala Corbin | 65 Emory L.J. 241 (2015)

Is baking a cake for a same-sex wedding or photographing the bride-and-bride or groom-and-groom “speech” triggering free speech scrutiny? Or is providing wedding services better viewed as conduct that does not implicate the Free Speech Clause? In other words, do religious bakers and photographers have a compelled speech claim if the government forces them to render services pursuant to public accommodations law? For the speech claims, whether baking a cake or taking a picture counts as speech is pivotal. After all, the Free Speech Clause prohibits the “abridging of freedom of speech.” The question for this Article is not whether public accommodation laws violate the Free Speech Clause but whether they even trigger free speech review. This Article concludes that the bakers do not have a free speech claim, and the photographers probably do not either.

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Southern Dreams and a New Theory of First Amendment Legal Realism

Richard Delgado, Jean Stefancic | 65 Emory L.J. 303 (2015)

When legal realism swept through the law nearly a century ago, spelling the end to what Roscoe Pound called “mechanical jurisprudence,” one enclave that emerged unscathed is the First Amendment, where shopworn rules, hidebound doctrinal boxes, and thought-ending clichés still hold sway. We show how this is so and give examples of a number of areas where change is in order. An examination of federal court cases having to do with hate speech and cross burning, as well as the wave of nativist sentiment that swept the South in the wake of increased Latino immigration, show how an application of legal realism would improve society’s ability to respond more quickly and flexibly to change.

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Transparency in First Amendment Doctrine

David S. Han | 65 Emory L.J. 359 (2015)

The broad tension between rule-like categorical approaches and standard-like balancing approaches to doctrinal design has been a longstanding issue within First Amendment jurisprudence. This Article focuses on one particular dimension of this broad theoretical question: the idea of doctrinal transparency. When doctrine is transparent, it encourages or forces courts to analyze cases openly, in a fashion that elicits direct discussion of foundational speech value and speech harm issues. Such transparency is particularly valuable within the First Amendment context, where difficult or novel questions of speech value and harm are often avoided or distorted by doctrinal formalities and empty sloganeering. Through this lens of doctrinal transparency, this Article analyzes two distinct areas of First Amendment doctrine touched upon in recent Supreme Court cases: the historical test for low-value speech set forth in United States v. Stevens and its progeny, and the longstanding default rule that strict scrutiny applies to content-based speech restrictions that underlay the Court’s decisions last Term in Williams-Yulee v. Florida Bar and Reed v. Town of Gilbert.

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On the Distinction Between Speech and Action

Frederick Schauer | 65 Emory L.J. 427 (2015)

Does the First Amendment rest on a mistake? More specifically, is the First Amendment’s necessary distinction between speech and action fundamentally unsustainable? The basic idea of this Article is that it is hardly clear that respect for an agent’s autonomy ought to lead other agents, or the state, to tolerate autonomous communicative actions that are determined to be likely to cause harm to third parties any more than they should tolerate autonomous non-communicative actions whose consequences are equivalent. If the principle of freedom to engage in autonomous actions is one that is limited to cases of harm to others, then, at the very least, this limitation has more impact on standard autonomy views about freedom of speech than has commonly been appreciated. If there is a reason to protect autonomous speech that does not apply as well to autonomous action, then it cannot be a reason derived from the idea of autonomy itself, and instead needs to be based on a much greater empirical showing of the differential consequences of speech and action than has to date been provided.

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Uncertainty Is the Only Certainty: A Five-Category Test to Clarify the Unsure Boundaries Between Content-Based and Content-Neutral Restrictions on Speech

Jay Alan Sekulow, Erik M. Zimmerman | 65 Emory L.J. 455 (2015)

The lines between content-neutral, content-based, and viewpoint-based restrictions on speech remain unclear in key respects despite the critical importance that these characterizations hold within First Amendment jurisprudence. This Article will analyze the law concerning the boundaries between these categories of laws with respect to speech activities in public and limited forums. The Article argues that five categories of laws are inherently suspect under the Free Speech Clause and should be treated as such. Formal recognition by the Court that laws of this nature should be subject to strict scrutiny would bring much needed clarity to this area of law and would help to ensure that freedom of speech receives the robust protection that it deserves, while affording the government ample room to enact reasonable, narrowly tailored laws that address legitimate concerns.

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The Categorical Free Speech Doctrine and Contextualization

Alexander Tsesis | 65 Emory L.J. 495 (2015)

This Article discusses the impact of the Supreme Court’s recently enhanced categorical approach to free speech analysis. It demonstrates that, contrary to the concerns of some other scholars, the Court should not be understood to be entirely averse to balancing interests. In several cases—such as those dealing with government employee speech, civil defamation, and fraud—the Court continues to rely on balancing approaches. This has created a seeming internal contradiction among precedents that appear only to recognize the constitutionality of content-based restrictions on low-value categories of speech that have historically and traditionally been unprotected. These two lines of cases can and should be reconciled for the sake of adjudicative predictability and stability. The Court’s categorical free speech doctrine should be understood as a bar only against ad hoc balancing, but not as a total prohibition against a contextual analysis of expressive and countervailing social interests.

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Article

Excessive Corporate Risk-Taking and the Decline of Personal Blame

Steven L. Schwarcz | 65 Emory L.J. 533 (2015)

Government agencies and prosecutors are being criticized for seeking so few indictments against individuals in the wake of the 2008–2009 financial crisis and its resulting banking failures. This Article analyzes why—contrary to a longstanding historical trend—personal liability may be on the decline, and whether agencies and prosecutors should be doing more. The analysis confronts fundamental policy questions concerning changing corporate and social norms. The public and the media perceive the crisis’s harm as a “wrong” caused by excessive risk-taking. But that view can be too simplistic, ignoring the reality that firms must take greater risks to try to innovate and create value in the increasingly competitive and complex global economy. This Article examines how law should control that risk-taking and internalize its costs without impeding broader economic progress, focusing on two key elements of that inquiry: the extent to which corporate risk-taking should be regarded as excessive, and the extent to which personal liability should be used to control that excessive risk-taking.

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Comments

Redundant Prior Art References and Their Prejudicial Effects on Post-Issuance Review Petitioners

Bob High | 65 Emory L.J. 581 (2015)

The recent passing of the America Invents Act came with the creation of three brand new forms of post-issuance review: inter partes review, post-grant review, and covered business method patent review. Through the first three years, inter partes review has been widely utilized, while covered business method patent review has received considerable attention as well. However, the PTAB has created a procedural tool not explicitly included in either the statutes or regulations. The issue with this procedural tool is the costly estoppel effects it could have on the petitioner in the event of an unfavorable decision either at the PTAB or Federal Circuit level. This Comment suggests two potential solutions: (1) the PTAB could conditionally institute proceedings on all grounds it agrees show a reasonable likelihood of success, have the petitioner choose what it thinks are the strongest grounds for unpatentability, and continue the proceeding based on those grounds; or (2) interpret the statute so that determinations of redundancy are appealable to the Federal Circuit, allowing the petitioner to subsequently assert those grounds of unpatentability if it can demonstrate that they are not redundant.

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A Troubling Collision: Overbroad Coercion Statutes and Unchecked State Prosecutors

Elizabeth Rosenwasser | 65 Emory L.J. 619 (2015)

Overbroad laws trespass on First Amendment rights of expression. Overbroad coercion statutes, which prohibit communication limiting a listener’s legitimate options, exist in a variety of states and municipalities. By failing to narrowly prohibit unlawful coercive speech, these overbroad statutes criminalize a broad range of protected First Amendment speech. These statutes can be particularly problematic for political actors because they can criminalize political bargains and discussion characteristic of the American political system. As the crime control model has grown, state prosecutors’ charging power and discretion have vastly increased. This Comment argues for a judicial and legislative response to this problem and explains why legislators and judges should have a strong interest in invalidating and narrowing these overbroad coercion statutes. Ultimately, this Comment proposes a framework through which judges should invalidate these statutes and describes why legislators have a duty both to the Constitution and to themselves to proactively narrow these statutes to avoid overbreadth.

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