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Author: Neil Richards

6

A Few Preliminary Thoughts on Snyder v. Phelps

This morning the Supreme Court handed down its decision in Snyder v. Phelps, No. 09-751, holding that a military funeral protest by the Fred Phelps’ Westboro Baptist Church was protected by the First Amendment, and did not give rise to civil liability under the state law torts of intentional infliction of emotional distress (IIED), invasion of privacy, or civil conspiracy.  The case has generated a lot of media attention, in part because it offered a chance to see whether the Roberts Court would continue its trend of retaining or expanding strong First Amendment protections.  (In United States v. Stevens 130 S.Ct. 1577 (2010), which I blogged about here last year, the Court claimed fidelity to the existing structures of First Amendment law, even though it seems to have expanded corporate speech protections in Citizens United 130 S.Ct. 876 (2010), and cut back on incitement doctrine in Holder v. Humanitarian Law Project, 130 S.Ct. 2705 (2010)).  Snyder v. Phelps is also notable because the defendant, Fred Phelps, is possibly the most unappealing First Amendment claimant that has made it to the Supreme Court.  In an opinion by Chief Justice Roberts, the Court upheld the funeral protest, essentially holding that speech on matters of public concern made peaceably in a public space receives protection even if it causes significant psychological and emotional harm.  As the Chief Justice concluded:

Speech is powerful.  It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain.  On the facts before us, we cannot react to that pain by punishing the speaker.   As a Nation we have chosen a different course—to protect even hurtful speech on public issues to  ensure that we do not stifle public debate.  That choice requires that we shield Westboro from tort liability for its picketing in this case.

There is a lot to say about this important decision, but a few preliminary observations struck me as especially interesting.  First, the holding in the case seems to be correct, at least as a matter of fidelity to existing First Amendment precedent.  In Falwell v. Flynt, 485 U.S. 46 (1988), the Court held that IIED suits by public figures had to satisfy the protective actual malice standard of New York Times v. Sullivan, 376 U.S. 254 (1964), continuing the trend of First Amendment cases protecting speech on matters of public concern even if they caused emotional injury.  Some observers thought that Snyder was a chance for the Court to halt the trend, since Snyder, the plaintiff in this case, was merely the father of an ordinary soldier killed while serving in Iraq and not a public figure.  What’s interesting about today’s opinion is that the Court sidestepped this question entirely, holding that the nature of the speech was a matter of public concern and thus protected.  The Court held that the Church’s rather distasteful message – that God hates America and is punishing it for its tolerance of homosexuality, particularly in the armed forces – was principally a commentary on public affairs rather than a private act of harassment against the Snyder family.  Again, this is consistent with the broad theme of modern First Amendment law that speech on matters of public concern (especially politics) is entitled to very strong protection, and cannot be regulated or made the subject of civil liability even when (like this speech) it is both offensive to many and causes significant harm.

The second aspect of this case that’s notable is what it says about tort liability and free speech.  Dan Solove and I have argued (here) that torts are most threatening to the First Amendment when they allow the state to control the content of public debate.  Snyder is certainly consistent with that theory, and it seems to all but rule out liability for IIED when the speech at issue is about a matter of public concern.  The Court also ruled that the invasion of privacy (intrusion upon seclusion) claim for funeral disruption violated the First Amendment because the speech was protected, and the captive audience doctrine did not save Snyder’s claim.  The invasion of privacy claim is odd, because it seems that the district court in this case mis-applied Maryland law.  Although the intrusion upon seclusion tort would be violated (and probably could to impose liability constitutionally) if a protestor disrupted a funeral by entering a church or menacing a gravesite, those facts weren’t present here.  (In fact, the concurrence by Judge Shedd at the Fourth Circuit level made exactly this point, but the point wasn’t preserved on appeal).  So in reality, the invasion of privacy claim boils down to something like “you hurt my feelings when you picketed the funeral from a public place”; in other words, a classic IIED claim.

There are thus lots of questions about the relationship between tort liability and free speech that the Court refused to decide and remain open.  For instance, the Court tells us that speech on “matters of public concern” is protected, which it defines as “a subject of general interest and of value and concern to the public.”  But it doesn’t define private speech, so we don’t really know how broad the “public speech” category is.  Presumably, because the Court uses a kind of “enquiring minds want to know” standard, it’s a rather broad category, but it’s hard to be sure from this opinion.  The Court does hint in a couple of places that personally directed harassment, speech to a small number of people, and the publication of someone else’s sex tape would be “private speech” and more readily amenable to regulation based on their content.  In addition, the Court refused to rule on a second IIED claim, one arising from a post on the Church’s website that described the funeral protest in detail.  The court noted only that “an Internet posting may raise distinct issues in this context,” and declined to rule on the question.  This allows the possibility that the Court could create a separate category of cyber-harassment, though given the overall tenor of the opinion, I think this possibility is unlikely to occur in practice.  It is interesting to see the Court treading warily in the Internet speech context, however.

The third notable aspect of this case is Justice Alito’s dissent.  Last year in Stevens, he dissented from the Court’s protection of animal cruelty videos, apparently on the ground that certain images are so horrible that society can regulate them.  Today, he also seemed outraged by the emotionally harmful nature of the Church’s protest, and would have allowed the state to regulate the protest by holding that the tort actions weren’t protected by the First Amendment.  Alito seems willing to approve a per se rule that funerals call for special sensitivity and special protection against “emotional assaults.”  But reading this opinion together with his Stevens dissent, it appears that Justice Alito is the most willing member of the current Court to allow regulation of speech based upon its morally objectionable nature or its emotionally harmful content.  It will be interesting to see how he rules the next time the Court hears a hate speech case, if only to test his fidelity to this principle.  If his vote in that future case is consistent with his vote today, Justice Alito may be the best friend of anyone who seeks a broader protection against hate speech and other words that wound.

Finally, although the case is something of a victory for orthodox free speech theory, there is one note of concern for free speech advocates, which is the opinion’s toleration of “free speech zone” theory.  The opinion notes with approval that the funeral protest took place from a free speech zone from behind a protective fence, and notes at the end that even though Phelps’ speech was protected, it would certainly be amenable to possibly aggressive time, place, and manner restriction.  If, as Tim Zick suggests in his excellent recent book Speech Out of Doors, spatial tactics have become the new frontier of free speech protection, Snyder v. Phelps possibly moves us even further in that direction, for all of its protection of the funeral protest at issue.  So the real message to states from Snyder v. Phelps might be not that lots of speech is protected, but as a blueprint for ways to regulate lots of speech in the future.

6

US v. Stevens: The Dog That Didn’t Bark

Danielle asked me to post a few thoughts about yesterday’s Supreme Court decision in U.S. v. Stevens, in which the Court struck down the 1999 federal Depiction of Animal Cruelty Act.  Apologies for the terrible pun in the title, but I think that Stevens is a significant case precisely because it is the proverbial “dog that didn’t bark.”  The case involved the conviction of Robert J. Stevens for 37 months for selling videos of pit bulls fighting each other and hunting wild boar, which was squarely prohibited by the Act.  In its opinion yesterday, the Court held that the Act violated the First Amendment.  In so doing, it reaffirmed that unpleasant, even offensive speech is protected by the First Amendment, and it rejected three seductive, but seductively wrong doctrinal ways that it could have upheld the Act.

First, the Court could have declared that offensive depictions of violent cruelty were unprotected by the First Amendment.  In so doing, it would have created a new category of unprotected speech like libel, obscenity, or child pornography.  Justice Roberts’ opinion makes clear that First Amendment law disfavors the creation of new categories of unprotected speech, and that the Supreme Court essentially lacks the power to freely create new ones.  The Court explained that while it balances the social costs and benefits of speech to determine what is and is not protected (a technique called “categorical balancing”), this process is not a “free-wheeling” power to declare lots of new categories outside the protection of the First Amendment.  This is an important holding – although the Court declared child pornography to be outside the First Amendment in 1982, Stevens makes clear that the child pornography cases are probably an isolated (and limited) special and exceptional case.  The court then struck down the statute on overbreadth grounds because a substantial number of its applications (e.g., videos of hunting) would restrict protected speech.

The second seductively wrong path the court could have taken would have been to expand obscenity law to include a kind of violent obscenity.  This idea would go something like “because we ban obscene depictions of sex that are offensive and valueless, why shouldn’t we also ban offensive and valueless depictions of graphic true violence?”  If you accept the rationale for obscenty being unprotected, this is a serious argument – after all, most people would find depictions of dismemberment more shocking and offensive than depictions of sex.  The Act in Stevens actually suggested such a reading (in a nod to the governing obscenity case of Miller v. California) by excluding  from punishment depictions of animal cruelty that had a “serious religious, political, scientific, educational, journalistic, historical, or artistic value.”  The 1999 Act even had a sexual element, as much of the impetus for banning depictions of animal cruelty seems to have been to prohibit the circulation of “crush films”: sexual fetish videos depicting women in high heels squashing small animals.  But the court rejected the obscenity analogy, again on the grounds that it did not want to expand existing categories of unprotected speech without good reason.  Implicitly, the Court seems to be saying that existing categories of unprotected speech might remain as matters of stare decisis, but the weight of the First Amendment tradition of the past 75 years (Roberts says since 1791, which is a bit of poetic license) means that speech is protected robustly and broadly from government criminal punishment, even if it is offensive.

A third seductively wrong way that the Court might have upheld the Act was by analogy not to obscenity, but child pornography.  Child pornography is not protected by the First Amendment on the ground that the harm to children in the creation of child porn is severe and inextricably linked to its distribution.  Accordingly, criminal punishment of the possession of depictions of child abuse is necessary to “dry up the market” for their creation.  If we take animal cruelty seriously, an almost identical argument would justify the Act in Stevens: animal cruelty is so bad and so often prompted by the demand for crush films or pit bull fighting videos that we should ban possession to dry up the market and stop the creation harm.  But the Court rejected this argument also, suggesting not only that child pornography is a special (and strictly defined) category of First Amendment law, but also that even gratuitous harm to animals is a less important legal interest than harm to human children.

So after Stevens, First Amendment law is pretty much the same as it was before, and the real significance of Stevens seems to be that outside the area of campaign finance law, the Roberts Court sees itself as continuing the tradition of broad protection for speech, even speech that contains offensive or disturbing ideas, images, or information.  I think this is normatively a good development, and one that is well within the mainstream of conventional First Amendment theory.  It also suggests that the Depictions of Animal Cruelty Act was targeted not at animal cruelty per se, but at the niche market of crush films as an offensive idea.  I personally don’t understand why someone would want to watch a crush film (much less find it sexually gratifying), but Congress seems to have been targeting just this weird idea, rather than animal cruelty more generally.  After all, Congress outlawed crush films, but left intensive chicken farming and cattle feedlots legal, which are a much greater source of animal cruelty than crush films or Mr. Stevens’s videos.  And if the Stevens case was about the protection of offensive ideas rather than animal cruelty itself, the Court should be commended for continuing the broad protection of all ideas, even the weird and shocking ones.

5

Alexander Meiklejohn, Blog Comment Policies, and Free Speech

I read with interest a couple of weeks ago the discussion on this and other law professor blogs about comments policies – whether to allow comments, whether to moderate them, and when and whether to edit and/or delete them.  The discussion reminded me of Alexander Meiklejohn’s famous conception of free speech as a moderated town meeting, where the diversity and quality of discussion was more important than any individual right to speak.  Meiklejohn argued that “the First Amendment … is not the guardian of unregulated talkativeness” and that the free speech guarantee was “not that everyone shall speak, but that everything worth saying shall be said.”

I think something similar applies to the moderation of blog comments – moderation in the pursuit of good discussion is a healthy thing.   Of course, there is always the danger that thin-skinned or intellectually dishonest moderators might edit in order to come out better in an argument, but this risk is lessened by the fact that there are lots of blogs, and (at least in the case of law blogs) there is a fairly robust set of professional norms and reputational consequences operating in the background.  So I think blog comment policies (like the one on this blog) are perfectly fine (even though I there us some irony in that the blog comment policy having comments turned off!).  But like Meiklejohn’s moderator, as long as the discussion is being moderated constructively, there are real gains from numerous moderated discussions.  In fact, since different discussions can operate under different conditions of moderation, some discussions can be tightly moderated (ie, books and newspapers), others can have little or no moderation, and at the opposite extreme there is the wiki model, where even the statements of others are subject to revision and alteration.  A wide variety of discussions and forms of discussion is, I think, the key to a robust and healthy discourse.

One natural objection to this line of argument is that we’re not really talking about the First Amendment here, since all of the blogs and fora of discussion are private actors.  I’ve increasingly come to believe that the values of free discussion and debate are too important to be left to the First Amendment.  (I make a mild form of this argument here in a recent article).  Newspapers, blogs, email, water-cooler chats and other forms of relatively public and relatively private discussion are the building blocks of a vibrant expressive culture, and if we only think about free expression from the perspective of avoiding government anti-censorship, we are missing (at least) half of the world.  For this reason, I think discussions about issues like blog comment policies are centrally the concern of free expression, and such discussions can benefit immensely from a little First Amendment theory.

Blog comments are turned off from this post (just kidding!)

0

Lawrence Friedman and the History of Privacy

I recently uploaded to SSRN a short review essay of Lawrence Friedman’s “Guarding Life’s Dark Secrets: Legal and Social Controls over Reputation, Propriety and Privacy (Stanford 2007).  No book is perfect, but this one is probably the best book on the history of privacy law that I have read.

Here’s the abstract of my review:

A short review essay of Lawrence Friedman’s “Guarding Life’s Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy” (Stanford Press 2007). The essay argues that Friedman tells a nuanced and compelling story of the rise and fall of the “Victorian Compromise,” a series of interlocking legal doctrines protecting the reputations of elites around the turn of the twentieth century. “Dark Secrets” undeniably advances our understanding of both the genesis of privacy law and the relationships between law and culture in the Gilded Age. As a work of legal history, it is an instant classic – a must-read for anyone interested in privacy law. But although Dark Secrets is first-rate legal history, it is less successful in its latter chapters when Friedman shifts his focus from the past to the present. The limits of Friedman’s social criticism raise important questions about the ability of history alone to provide answers to social problems in our modern, networked information society.

5

Orwell on Law Scholarship

I recently rediscovered George Orwell’s wonderful essay “Politics and the English Language,” which I read years ago in college but had essentially forgotten. Rereading it years later, I was struck by how much it had to say about the business of writing legal scholarship. In the essay, written in 1946, Orwell makes the case that over-complex and vague language in nonfiction writing leads to laziness of thought and poverty of discourse. (A copy of the essay is here, but Orwell is better read, I think, on paper than on a computer screen.)

Orwell makes the case for simplicity and directness in nonfiction writing, for the avoidance of tired and misleading metaphor, and the rejection of words chosen to confuse the reader or create deliberate ambiguity. Reading the essay made me think immediately of law scholarship, especially scholarship written by beginning legal scholars (including some of mine). Law professors often adopt tired or jargony metaphors (“slam dunk,” “atmospherics”) or use needlessly complicated words (many uses of “deontological”). Part of this trend, I think, is the feeling among untenured scholars to appear smart and able to use fancy words – to sound like a scholar. This can be a reinforcing trend – when your colleagues use needlessly complicated words, there’s often a feeling that you need to as well, in order to seem as scholarly as everyone else. Another overuse of complicated words can occur to hide meaning, or to avoid engaging in serious analysis. Lots of euphemisms (“transaction costs”) would seem to fall into this category.

Orwell concludes his essay with a summary of his rules for good nonfiction writing:

(i) Never use a metaphor, simile, or other figure of speech which you are used to seeing in print.

(ii) Never use a long word where a short one will do.

(iii) If it is possible to cut a word out, always cut it out.

(iv) Never use the passive where you can use the active.

(v) Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equivalent.

(vi) Break any of these rules sooner than say anything outright barbarous.

My point is not to pick on legal scholarship, as much as to suggest that a simpler and more direct style in legal scholarship (and legal discussion generally) should be the way to go, and that there’s a lot for all of us to learn in Orwell. As he puts it, language should be “an instrument for expressing and not for concealing or preventing thought.” When we make our arguments simply and directly, and we don’t hide behind euphemism or wordiness, readers can undersand what we say and agree (or disagree) more readily. There’s a lot to like in such an approach, and it reminds me of some scholars whose work I admire whose work really embodies this approach to writing. Orin Kerr (GW) and Eugene Volokh (UCLA) come to mind. I often disagree with the arguments in their work, but their plain style makes disagreement more obvious, and allows for a more direct, lively, and constructive disagreement.

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First Amendment Theory Study Aid: Make No Law

Thanks to Dan and everyone else for inviting me back (and then putting up with me as I delayed accepting the invitation). At this time of the year, as the semester ends and the opportunities for faculty writing time increase, student attention turns understandably towards exams. I’ve been teaching the basic First Amendment course at Wash. U. for six years now, and the more I have taught the course, the more interested I have become in the theory and structure of free speech law at the expense of its often technical doctrinal rules. As my course has evolved to reflect these interests, my students understandably have asked me to suggest a study aid that could supplement some of the things I talk about in class (though “gibberish” may be more accurate). For doctrine, I have always suggested the First Amendment section of Erwin Chemerinsky’s excellent one-volume treatise Constitutional Law. But I always struggled to suggest a good, one-volume, accessible primer on the history and theory of the First Amendment. But in rereading Anthony Lewis’ Make No Law (Vintage 1991) for a paper earlier this semester, I think I might have found the answer. Lewis’ book tells the story of the landmark 1964 case of New York Times v. Sullivan, which applied rigorous First Amendment scrutiny to state defamation law, and held the “core meaning” of the First Amendment to be criticism of public officials. What I had forgotten about the book is the masterful and accessible way that Lewis situates the Times case in the evolution of First Amendment thought more broadly, both in its intellectual origins in the work of Milton, Madison, Holmes, and Brandeis, as well as in its effect on First Amendment law more generally. It’s not perfect; Lewis has a tendency at times to be uncritical of the Court’s opinion in Times and to view the result as foreordained. But although it is a bit of a hagiography of the case, its early chapters are the best basic treatment of elementary First Amendment history and theory that I’ve seen. So I thought I’d pass it on, should any First Amendment teachers or students feel the need to brush up on their free speech theory as we approach the business end of the semester.

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Privacy’s Other Path: Recovering the Law of Confidentiality

confidential4a.bmp

Dan and I have just uploaded the final published version of our article, Privacy’s Other Path: Recovering the Law of Confidentiality up on SSRN. The paper is in print in the latest volume of the Georgetown Law Journal and we’re both very excited it’s out. Our paper tells the story of how privacy and confidentiality law diverged in Britain and America after 1890, how they have begun to converge once again in recent years, and how the law of confidentiality holds great promise for American law as it continues to grapple with the problems of personal information. Here’s the abstract:

The familiar legend of privacy law holds that Samuel Warren and Louis Brandeis invented the right to privacy in 1890, and that William Prosser aided its development by recognizing four privacy torts in 1960. In this article, Professors Richards and Solove contend that Warren, Brandeis, and Prosser did not invent privacy law, but took it down a new path. Well before 1890, a considerable body of Anglo-American law protected confidentiality, which safeguards the information people share with others. Warren, Brandeis, and later Prosser turned away from the law of confidentiality to create a new conception of privacy based on the individual’s inviolate personality. English law, however, rejected Warren and Brandeis’s conception of privacy and developed a conception of privacy as confidentiality from the same sources used by Warren and Brandeis. Today, in contrast to the individualistic conception of privacy in American law, the English law of confidence recognizes and enforces expectations of trust within relationships. Richards and Solove explore how and why privacy law developed so differently in America and England. Understanding the origins and developments of privacy law’s divergent paths reveals that each body of law’s conception of privacy has much to teach the other.

0

My Absolute Favorite Item for Sale on eBay.co.uk

park_van.jpg Dan makes a strong case for you to buy a tank, but what happens if everyone buys one? You and other followers of the fad would look foolish driving something that looks like a dalek or a rusty bucket, and you wouldn’t even have the uniqueness factor to offset the crime against design that you’d be driving. Much better, I think to buy a unique classic vehicle, like this one, which Nick Park has put up for sale on eBay.co.uk. Yes, for currently 6,000 British Pounds (a little over $12,000 due to the currency nosedive), you can be the proud owner of the green 1958 Austin A35 that inspired the Anti-Pesto Van in the Wallace & Gromit movie. Much better than a tank, with plenty of room for your prized marrow (changed to “Melon” in the U.S. Release), and the proceeds benefit charity, too. The only problem is, that like Dan’s tank, shipping isn’t included, so you have to get to Bristol to take possession of the van. I’d also assume that the steering wheel is on the right side. But I still think it’s better than a tank. And cheaper, too.

8

Eighth Circuit Rules Against MLB In Fantasy Baseball Suit

baseball7.jpgEarlier today, the Eighth Circuit ruled against Major League Baseball in the high-profile fantasy baseball case of CBC Distribution and Marketing, Inc. v. Major League Baseball Advanced Media. The case was brought by CBC, a St. Louis-based fantasy sports company against Major League Baseball seeking a declaratory judgment that CBC’s fantasy baseball games did not infringe upon the players’ rights of publicity or in the alternative that the First Amendment immunized it from liability. Dan and Kaimi blogged about this case last year here and here. In today’s ruling, the Eighth Circuit held that CBC infringed the players’ rights of publicity (which they had licensed to MLB) but that any state-law publicity claim was preempted by CBC’s First Amendment right to use player names and statistics.

I’ve got a lot to say about this case (which I think got the First Amendment issues exactly right), but in the interests of full disclosure, I should note that I consulted with lawyers from the St. Louis office of Harness Dickey in structuring the First Amendment and publicity arguments, and that I helped draft some of the briefs. Since this compromises any appearance of objectivity, I’ll say only this by way of comment: I think the case was straightforward from a First Amendment point of view, but the really interesting implication of the case is what it will mean for the massive (and profitable) fantasy sports industry. CBC had been a licensee of baseball for the statistics, but baseball terminated the license a few years ago, apparently in an attempt to bring all fantasy baseball (and all of its profits) under its control. Today’s holding seems to stand for the proposition that baseball cannot “own” the historical facts of its games (just as famous people can’t own the facts of their biographies), and it protects fantasy sports companies to continue to offer games that are not merely “official” licensed products controlled by the major sports leagues. It’s also a much-needed strike against the rise of unnecessary intellectual property licensing, which my colleague Jennifer Rothman, as well as Jim Gibson and Elizabeth Winston have written about recently.

4

BBC America and The Virtues of a Free Press

bbc news_final.JPGLike most British expats, I subscribe to the digital cable channel BBC America to help keep in touch with culture back home, whether it’s Graham Norton, The Office, or the fantastically entertaining car-show-that’s-not-really-about-cars Top Gear. BBC America’s lineup used to be largely fluff, though hugely entertaining and well-written fluff. As a First Amendment scholar, though, I was quite interested by their recent decision to produce a nightly BBC News telecast for the American market, which they call BBC World News America (it also airs later each evening under a slightly different name).

I’ve only watched the show a few times, but have been very impressed by it. Two stories in particular struck me for what they say about the potential for television journalism. The first story was an interview with former Pakistan Prime Minister Benazir Bhutto, in which she discussed her intentions to return to Pakistan and run for election as a moderate. Broadly speaking, Bhutto is certainly the kind of candidate that many Westerners would like to see in charge in Pakistan – moderate, Westernized, and a speaker of fluent English. One could thus have forgiven the BBC for giving her an easy time. But they didn’t. The interviewer (also the anchor) Matt Frei gave her a torrid time, asking her tough questions about how she could believe that a moderate woman could effectively lead an increasingly radicalized and fundamentalist Islamic state. Bhutto rose to the challenge, but that’s not really the point. The point is the willingness of a television news reporter to subject a world figure to sustained questioning, going beyond the offered platitudes of a politician to try to get at the truth. It’s something that the major US networks (let’s not mention local news) with the possible exception of PBS could learn from.

The second story was earlier this week – a video of life in Burma smuggled out of the country by a brave BBC journalist who could have been imprisoned or worse for merely making the video. The video showed the streets of Myanmar, armed soldiers, and interviews with pro-democracy activists and Buddhist monks in hiding. It showed the value of an independent press, as well as why the media is often the first thing authoritarians (or would be authoritarians) seek to discredit or control.

My point about all this is not to praise BBC America for airing such a serious program (though they deserve praise, even if the commercials they air during it are a bit odd), but rather to make a more general point about First Amendment law and social norms. In the US, First Amendment doctrine guarantees broad protections for the media, freeing them (in practice, if not overtly in theory) from government control, defamation liability, privacy claims, and other sorts of public or private legal controls. But when it comes to a free, independent, and vibrant press (I’m tempted to say uninhibited and robust also, to quote NYT v. Sullivan), law is not enough. Press protections are necessary but not sufficient. We still need journalists who are willing to ask tough questions of important national and international figures, and we still need journalists who are willing to risk imprisonment or even death to report the news. In other words, the social norms of journalists need to be strong, and they need to be oriented to their traditional mission of informing us about what we need to know. We live in a time of infotainment and profit-driven media where we seem to have more reporters covering Brangelina than the War in Iraq. I also think it’s true that there is more hard news on Comedy Central than on NBC. These realities can (and should) give us pause. But the BBC World News America blueprint is a courageous one, and as someone that cares about a vibrant and aggressive free press, I hope it not only succeeds but catches on.