First Amendment Law
This Note asks whether computer source code, when developed as a means to an end—as distinct from source code intended for third-party review—is covered speech under the First Amendment. I argue it is not. My argument has two parts. First, I describe case law treating First Amendment challenges to regulations of source code to demonstrate courts’ failure to address the status of purely functional source code. Second, I describe how courts should address such a question, by referencing an array of theories used to explain the scope of the First Amendment. I conclude no theory alone or in combination with others justifies the constitutional coverage of purely functional source code. I thereby undermine a key constitutional argument by technology manufacturers contesting, in the context of criminal investigations, the government-compelled creation of software to circumvent encryption technologies.
Labor laws in twenty-two states permit government employers to compel all employees to pay “fair share fees” to support a union’s collective bargaining activities, even if the union advocates policies to which some workers are ideologically opposed. Thousands of collective bargaining agreements include provisions to this effect, and hundreds of thousands of objecting workers are forced to pay such fees each year.
At its core, this practice implicates a significant tension between two important principles: the First Amendment’s objective of protecting individuals from compelled support of unwanted messages, and labor law’s concern with fostering the collective benefits of worker representation. When confronted with a challenge to fair share fees nearly forty years ago in Abood v. Detroit Board of Education, the Supreme Court held that labor law takes precedence, such that the First Amendment intrusions produced by fair share fees are constitutionally justified. Twice in the past four years, however, the Supreme Court has indicated that it is poised to reverse course and strike down fair share fee clauses under the First Amendment, overruling Abood in the process. And on the last day of the 2014 Term, the Court granted certiorari in a case presenting just that opportunity.
In this Article, I challenge the conventional wisdom that public sector union financing implicates an inevitable trade-off between First Amendment principles and labor law’s core objectives. There is a simple alternative to the fair share fee union financing model that would permit public employers to pursue their broad interests in effective workplace representation without sacrificing the individual expressive interests of objecting employees: In lieu of fair share fee clauses, government employers can negotiate provisions under which they reimburse a union for its collective bargaining costs directly. Such an approach would free objecting workers of the compulsion to support an objectionable message and ensure that unions have the financial security they need to zealously represent worker interests. Moreover, the government can implement this alternative in a cost-neutral fashion, reducing future wage raises or gratuitous benefits to offset the added costs of union reimbursement.
But this government-payer alternative is not just a theoretical solution to what has been widely understood as an intractable debate—it has doctrinal significance, too. For once identified, the government-payer workaround becomes part of the constitutional analysis itself. That is to say, under First Amendment doctrine, the government’s ability to reimburse a union for its bargaining costs directly is a less restrictive alternative that renders fair share fees unconstitutional by comparison.
This Article explores the theoretical and doctrinal consequences of the government-payer alternative to fair share fees. In doing so, it proposes an answer to a longstanding puzzle in the Court’s First Amendment jurisprudence regarding the proper standard of scrutiny for compelled fees—a puzzle that the Supreme Court has explicitly recognized yet left unresolved. The Article concludes by offering a few observations concerning the impact of the government-payer alternative for the future of public sector labor unions and the First Amendment more broadly.
Sexual pleasure is a valuable source of happiness and personal fulfillment. Yet several areas of law assume just the opposite—that sexual pleasure in itself has negligible value, and we sacrifice nothing of importance when our laws circumscribe it. Many laws even rely on the assumption that sexual pleasure merits constraint because it is inherently negative. These assumptions are so entrenched in our law that they remain largely unquestioned by courts, legislatures, and legal scholarship.
This Article exposes and challenges the law’s unspoken assumption that sexual pleasure has negligible or negative value and examines how rejecting this assumption requires us to reconceptualize several areas of law. Until now, legal scholarship has lacked a robust analysis of how deeply this assumption runs through various areas of law and how fundamentally the law must change if we reject it. This Article fills that gap and provides a framework for “sex-positive” law that appropriately recognizes the intrinsic value of sexual pleasure. Such an approach transforms the debate surrounding several areas of law and requires lawmakers and legal scholars to undertake a more honest assessment of what we choose to regulate, what we fail to regulate, and our justifications for those choices.
This Note explores the recent expansion of child pornography law and its impact on socially valuable art and film. It focuses on how the federal government regulates “virtual child pornography”—both computer-generated materials that are produced without real children and authentic images made with seemingly young adult actors. First, I trace the history of child pornography doctrine from the Supreme Court’s foundational case, New York v. Ferber, to its recent discussion of virtual child pornography in Ashcroft v. Free Speech Coalition. I argue that modern laws and court decisions have become increasingly untethered from Ferber’s limiting interest in protecting children from physical and emotional harm. In Free Speech Coalition, the Supreme Court added a key limitation to child pornography doctrine, categorically protecting non-obscene virtual child pornography. As with all sexually themed materials, the obscenity test established in Miller v. California applies as a backstop, allowing the government to regulate material that violates community standards of decency and that lacks serious literary, artistic, political, or scientific value. Yet Congress’s post-Free Speech Coalition statute, the Prosecutorial Remedies and Other Tools Against the Exploitation of Children Today (PROTECT) Act, threatens to undermine the First Amendment by once again shifting focus from punishing crimes against children to preventing disturbing but nevertheless protected private thoughts. Despite United States v. Williams, a recent, narrow Supreme Court decision upholding the PROTECT Act’s pandering provision, I argue that Congress should reexamine the PROTECT Act as a whole. Looking for guidance in the Supreme Court’s foundational child pornography cases, as well as recent decisions in other First Amendment contexts, I conclude that Congress should amend the Act to comport with established doctrine.
Courts have increasingly scaled back children’s First Amendment rights and deferred to schools’ fear of disruption; today, children face discipline for even off-campus expression. Meanwhile, in the name of others’ free speech rights, the Supreme Court has discounted the state’s claimed interest in children’s welfare and has repeatedly rejected restrictions on third parties’ abilities to approach children with sexually explicit, commercial, and violent speech. These dueling trends have created a paradox: Although First Amendment principles indicate that children’s ability to speak is more important than their access to others’ speech, the doctrine errs in the wrong direction and protects speech to children more strongly than it protects children’s own expression. Therefore, the Court should both allow for greater government restrictions on speech to children and more strongly protect children’s speech rights, especially outside school. This modified doctrine would be more sensitive to the government’s regulatory interest in children and to the principles behind the First Amendment.
The 2004 federal elections witnessed an unprecedented rise in activity by independent political organizations called "527s." The current campaign finance regime limits how much individuals and groups may contribute to candidates, parties, and political committees, but leaves 527s virtually unregulated. As a result, wealthy donors were able to circumvent federal contribution limits by giving large amounts to 527 groups. In 2004, these groups raised millions of dollars, which they spent on highly influential advertisements and voter mobilization campaigns. The groups were so successful that they are expected to play a significant role in the 2006 and 2008 elections, and both Congress and the Federal Election Commission (FEC) have considered regulating the groups more closely.
This Note examines the role of 527 organizations in the 2004 election and proposes ways to prevent future circumvention of the campaign finance regime. It argues that Congress should address the 527 problem by passing legislation regulating coordination between outside groups and political campaigns. A statute regulating coordination presents several benefits over current proposals for 527 reform. First, it is more likely to satisfy the constitutional limits on campaign finance regulation. Second, it provides a long-term solution that is not dependent on how a group is classified under tax or campaign finance law. Third, it will encourage donors seeking to buy influence over candidates to give smaller, "hard money" contributions. Finally, congressional legislation will avoid the delay and confusion seen in recent FEC efforts to regulate coordination.
In November 2001, after delaying the release of President Reagan's presidential papers, President Bush issued Executive Order 13,233, which limits the ability of the public to access presidential documents by giving the sitting president and former presidents an effective veto over the release of their records. In this Note, Stephen H. Yuhan argues that Executive Order 13,233 is an impermissible aggrandizement of presidential power at the expense of Congress, the National Archives, and the public. In an effort to find the outer limits of the President's power to issue executive orders, Yuhan looks first to the watershed case of Youngstown Sheet & Tube Co. v. Sawyer. Finding that Youngstown fails to yield any definitive answers, Yuhan then draws on case law and legal scholarship on the President's appointment and removal powers. Yuhan contends that preventing arbitrary decisionmakinginterested considerations rather than the public good, Yuhan concludes, the executive order violates separation of powers.
What is it about the nude female body that inspires irrationality, fear, and pandemonium, or at least inspires judges to write bad decisions? This Article offers an analysis of the Supreme Court's nude dancing cases from a perspective that is surprising within First Amendment discourse. This perspective is surprising because it is feminist in spirit and because it is literary and psychoanalytic in methodology. In my view, this unique approach is warranted because the cases have been so notoriously resistant to traditional legal logic. I show that the legal struggles over the meanings and the dangers of the gyrating, naked female body can be fully understood only when placed within a broader context: the highly charged terrain of female sexuality. By rereading the cases as texts regulating gender and sexuality and not just speech, a dramatically new understanding of them emerges: The nude dancing cases are built on a foundation of sexual panic, driven by dread of the female body. Ultimately, this analysis reveals a previously hidden gender anxiety that has implications not only for the law of nude dancing, but for First Amendment law more broadly. By presenting the ways in which irrational cultural forces shape the Court's supposedly rational analysis in the nude dancing cases, in the end I point toward an unusual conception of First Amendment law: Free speech law governs culture, yet in surprising ways, culture also governs free speech law.
The Supreme Court's decisions in the Turner Broadcasting cases ushered in a new era of rigorous judicial oversight of regulations aimed at shaping the economic structure of the media industry. The Turner decisions, and especially their application by lower courts, have expanded the range of regulations subject to heightened First Amendment scrutiny, consistently granted lower levels of deference to legislative and administrative judgments, and applied a degree of economic scrutiny of regulatory choices unseen since the Lochner era. In this Note, Michael Burstein argues that such scrutiny is inappropriate in light of the quickening pace of technological and economic change that marks the modern information environment. He observes that the technological balkanization of First Amendment jurisprudence has outlived its usefulness and that applying a unitary standard to all activities of a particular type of media fails to focus judicial attention on the entity's core speech activities. Instead, Burstein proposes that courts draw a distinction between regulations that impact content production or editorial choices and those which aim to structure the distribution of information. The former remain deserving of heightened scrutiny, but the latter implicate a long tradition of allowing government regulation to improve the information order. Because government necessarily must make choices among competing instrumental arrangements, none of which implicates a particular normative theory of the First Amendment, such choices are entitled to judicial deference. As technology blurs the lines between different media outlets, this framework should provide the needed flexibility to protect the First Amendment interests of both media entities and the public they serve.