One more principle: Nondiscrimination
posted by Brett Frischmann
There is one principle that I would add to the five that Marvin examines in the article: nondiscrimination. It seems to me that across public and private, physical and virtual ”space” contexts (and judicial opinions), one persistent principle is that nondiscriminatory approaches to sustaining spaces, platforms, … infrastructures are presumptively legit and normatively attractive — whether government efforts to “sustain” involve public provisioning, subsidization or regulation.
I recognize that this might seem to tread too close to the negative liberty / anti-censorship model, but in my view, it helps connect the anti-censorship model with the pro-architecture model. We should worry when government micro-manages speech and chooses winners and losers, but macro-managing/structuring the speech environment is unavoidable. A nondiscrimination principle guides the latter (macro-management) to avoid the former (micro-management).
This sixth principle is implicit is the other five that Marvin discusses. It’s not articulated as a stand-alone principle, uniform across situations, or even defined completely. Nonetheless, nondiscrimination of *some* sort is part of the spatial analysis for each principle. For example, in the paper, when Marvin discusses designated public spaces, he says that government can designate spaces–so long as it does so in a nondiscriminatory way. The nondiscrimination principle here is limited: government cannot discriminate based on the limited notion of “content.” Another example is limited public forums where government cannot discriminate on viewpoint, but can set aside a forum for particular speakers based on the expected content (say students / educational content). There are other examples that Marvin explores in the paper. In my view, there is something fundamental about nondiscrimnation and the functional role that it plays that warrants further attention.
Frankly, the idea of a nondiscrimination principle connects with my own ideas about the First Amendment being aimed at sustaining infrastructure commons and the many different types of spillovers from speech–or more broadly, sustaining a spillover-rich cultural environment; I explored those ideas in an essay and I expand on them in the book. It is important to make clear that government support for infrastructure commons — whether by direct provisioning or by common carrier style regulation — lessens pressure on both governments and markets to pick winners and losers in the speech marketplace/environment, and as Marvin argues, that is something that is and ought to be fundamental or core in any FA model.
February 6, 2012 at 8:39 am
Tags: First Amendment, free speech, Supreme Court
Posted in: First Amendment, Symposium (First Amendment Architecture), Uncategorized
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Thoughts on Ammori’s Free Speech Architecture and the Golan decision
posted by Brett Frischmann
Thank you to Marvin for an excellent article to read and discuss, and thank you Concurring Opinions for providing a public forum for our discussion.
In the article, the critical approach that Marvin takes to challenge the “standard” model of the First Amendment is really interesting. He claims that the standard model of the First Amendment focuses on preserving speakers’ freedom by restricting government action and leaves any affirmative obligations for government to sustain open public spaces to a patchwork of exceptions lacking any coherent theory or principles. A significant consequence of this model is that open public spaces for speech—I want to substitute “infrastructure” for “spaces”–are marginalized and taken for granted. My forthcoming book—Infrastructure: The Social Value of Shared Resources–explains why such marginalization occurs in this and various other contexts and develops a theory to support the exceptions. But I’ll leave those thoughts aside for now and perhaps explore them in another post. And I’ll leave it to the First Amendment scholars to debate Marvin’s claim about what is the standard model for the First Amendment.
Instead, I would like to point out how a similar (maybe the same) problem can be seen in the Supreme Court’s most recent copyright opinion. In Golan v. Holder , Justice Ginsburg marginalizes the public domain in a startlingly fashion. Since it is a copyright case, the “model” is flipped around: government is empowered to grant exclusive rights (and restrict some speakers’ freedom) and any restrictions on the government’s power to do so is limited to narrow exceptions, i.e., the idea-expression distinction and fair use. A central argument in the case was that the public domain itself is another restriction. The public domain is not expressly mentioned in the IP Clause of the Constitution, but arguably, it is implicit throughout (Progress in Science and the Useful Arts, Limited Times). Besides, the public domain is inescapably part of the reality that we stand on the shoulders of generations of giants. Most copyright scholars believed that Congress could not grant copyright to works in the public domain (and probably thought that the issue raised in the case – involving restoration for foreign works that had not been granted copyright protection in the U.S — presented an exceptional situation that might be dealt with as such). But the Court declined to rule narrowly and firmly rejected the argument that “the Constitution renders the public domain largely untouchable by Congress.” In the end, Congress appears to have incredibly broad latitude to exercise its power, limited only by the need to preserve the “traditional contours.”
Of course, it is much more troublesome that the Supreme Court (rather than scholars interpreting Supreme Court cases) has adopted a flawed conceptual model that marginalizes basic public infrastructure. We’re stuck with it.
February 3, 2012 at 4:38 pm
Tags: First Amendment, free speech, Intellectual Property, Supreme Court
Posted in: First Amendment, Intellectual Property, Uncategorized
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Reviewing The Oral Argument in Hosanna-Tabor (Part Three)
posted by Leslie Griffin
JUSTICE SCALIA: Let’s assume that a Catholic priest is removed from his duties because he married, okay? And, and he claims: No, that’s not the real reason; the real reason is because I threatened to sue the church. Okay? So that reason is just pretextual. Would you allow the government to go into the dismissal of the Catholic priest to see whether indeed it was pretextual?
Assistant Solicitor General Leondra Kruger answered no, apparently because a priest’s employment relationship with his church cannot be outweighed by any government interest. Kruger should have said yes.
Kruger correctly said yes later in the argument when pressed by Justice Samuel Alito about the case of a nun, a canon law professor, who alleged gender discrimination in her denial of tenure. Alito suggested that the case inevitably involved the courts in theological doctrines of canon law. Kruger disagreed:
If on the other hand the plaintiff has evidence that no one ever raised any objections to the quality of her scholarship, but they raised objections to women serving in certain roles in the school, and those roles were not ones that were required to be filled by persons of a particular gender, consistent with religious beliefs, then that’s a case in which a judge can instruct a jury that its job is not to inquire as to the validity of the subjective judgment, just as juries are often instructed that their job is not to determine whether an employer’s business judgment was fair or correct, but only whether the employer was motivated by discrimination or retaliation.
Kruger’s two answers illustrate the confusion about pretext that has bedeviled lawsuits involving employees of religious organizations.
October 11, 2011 at 9:59 pm
Tags: Constitutional Law, discrimination, First Amendment, Supreme Court
Posted in: Constitutional Law, Employment Law, First Amendment, Religion, Uncategorized
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Reviewing The Oral Argument in Hosanna-Tabor (Part Two)
posted by Leslie Griffin
Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC is the first ministerial exception case to make it to the Supreme Court, even though the Fifth Circuit first recognized the exception in 1972. The ministerial exception is a court-created doctrine that requires the dismissal of lawsuits by ministerial employees against religious organizations. At last Wednesday’s oral argument in Hosanna-Tabor, Justice Samuel Alito asked the church’s lawyer, University of Virginia law professor Douglas Laycock, how the exception has worked since its inception.
Justice Alito’s question arose soon after Justice Sonia Sotomayor had asked Laycock whether the ministerial exception should apply to “a teacher who reports sexual abuse to the government and is fired because of that reporting.” Justice Sotomayor’s question was probably based on Weishuhn v. Catholic Diocese of Lansing, which has a cert. petition pending before the Court. Weishuhn, a teacher at a Catholic elementary school, alleged violations of the Michigan Civil Rights Act and Whistleblowers’ Protection Act in being fired because she reported possible sexual abuse of a student’s friend to the authorities without first informing her principal. Justice Alito asked if there have been “a great many cases, a significant number of cases, involving the kinds of things that Justice Sotomayor is certainly rightly concerned about, instances in which ministers have been fired for reporting criminal violations and that sort of thing?”
Laycock gave a confusing answer by suggesting that Weishuhn would lose her case on the facts. He said there is a “cert. petition pending [undoubtedly Weishuhn] in which a teacher with a long series of problems in her school called the police about an allegation of sexual abuse that did not happen at the school, did not involve a student of the school, did not involve a parent at the school, someplace else; and — and called the police and had them come interview a student without any communication with — with her principal. And the Respondents tried to spin that as a case of discharge for reporting sexual abuse. But if you look at the facts it’s really quite different.”
October 10, 2011 at 4:07 pm
Tags: Civil Rights, Constitutional Law, discrimination, First Amendment, Supreme Court
Posted in: Constitutional Law, Employment Law, First Amendment, Religion, Uncategorized
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Reviewing the Oral Argument in Hosanna-Tabor (Part One)
posted by Leslie Griffin
Lost in the muddled oral argument of Hosanna-Tabor Evangelical Lutheran Church and School v EEOC was the case’s central question: Are religious groups entitled to disobey the law?
The contested issue in Hosanna-Tabor is whether Lutheran elementary schoolteacher Cheryl Perich can sue her former employer, Hosanna-Tabor Evangelical Lutheran Church and School, for retaliation under the Americans With Disabilities Act. The school fired Perich after she threatened to report the school’s disabilities discrimination against her to the EEOC. The specific legal question is whether the ministerial exception, a court-created doctrine that holds that the First Amendment requires the dismissal of many employment discrimination cases against religious employers, applies to schoolteacher Perich because the church considers her to be a minister.
Justice Sonia Sotomayor identified the important legal issue early in the oral argument when she asked the church’s lawyer, University of Virginia Professor Douglas Laycock, “doesn’t society have a right at some point to say certain conduct is unacceptable, even if religious?” That is what the ministerial exception is all about: at what point do religious organizations have to obey the law?
Justice Sotomayor was concerned about “a church whose religious beliefs centered around sexually exploiting women and children,” which Laycock did not defend. But how can courts determine which laws must be obeyed and which may be flouted? In the past, lower courts have held that Baptist churches’ religious, Scripture-based belief that men are heads of households and therefore entitled to higher pay than women did not allow them to violate the equal pay laws; that the Shiloh True Light Church of Christ’s religious belief in children’s vocational training did not permit it to violate the child labor laws; and that the Quaker tradition of hospitality to the stranger did not allow Quakers to ignore the alien worker requirements of the immigration laws. Those cases focused on how strong the government’s interest was in enforcing the laws. The courts concluded that the government’s interest in enforcing the equal pay, child labor and immigration laws was strong enough to overcome important religious beliefs.
October 9, 2011 at 8:18 am
Tags: Constitutional Law, First Amendment, Supreme Court
Posted in: Constitutional Law, First Amendment, Religion, Supreme Court, Uncategorized
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Vanderbilt Law Review En Banc Golan Roundtable
posted by Vanderbilt Law Review
Vanderbilt Law Review En Banc is pleased to present our current Roundtable on Golan v. Holder, which is to be argued at the Supreme Court on October 5, 2011. In Golan, the Court will consider whether Congress may constitutionally confer copyright on works that have fallen into the public domain. Congress created a new class of “restored” works in 1996 in order to fulfill its obligations under the Berne Convention, an international copyright treaty. Professor Tyler T. Ochoa introduces the case, discusses the history of the Berne Convention, and analyzes how the Court’s decision will affect the idea of the public domain. Professor Daniel Gervais takes a closer look at the Berne Convention. He argues that Berne is a flexible document and that Congress provided greater protection to restored works than is actually required by the treaty. Dale Nelson, Senior Intellectual Property Counsel at Warner Bros., questions whether restoration has had as significant an effect on the public domain as its detractors believe. She argues that the benefits of restoring foreign works to copyright greatly outweigh the burdens to users. Professor David Olson looks at Golan’s constitutional questions from a perspective not emphasized in the parties’ briefs. He argues that, because restoration is in violation of the Progress Clause, the Government can assert no legitimate interest to support its claim that restoration does not unconstitutionally restrict the Petitioners’ First Amendment speech rights. Finally, Professor Elizabeth Townsend Gard takes a detailed look at the mechanics of the statute enacting copyright restoration. In her view, the statute does not achieve the Government’s stated interests and transgresses the traditional contours of copyright. She provides several recommendations for statutory amendments that would make determination of public domain status a more manageable exercise.
Tyler T. Ochoa, Is the Copyright Public Domain Irrevocable? An Introduction to Golan v. Holder, 64 Vand. L. Rev. En Banc 123 (2011).
Daniel Gervais, Golan v. Holder: A Look at the Constraints Imposed by the Berne Convention, 64 Vand. L. Rev. En Banc 147 (2011).
Dale Nelson, Golan Restoration: Small Burden, Big Gains, 64 Vand. L. Rev. En Banc 165 (2011).
David S. Olson, A Legitimate Interest in Promoting the Progress of Science: Constitutional Constraints on Copyright Laws, 64 Vand. L. Rev. En Banc 185 (2011).
Elizabeth Townsend Gard, In the Trenches with § 104A: An Evaluation of the Parties’ Arguments in Golan v. Holder as It Heads to the Supreme Court, 64 Vand. L. Rev. En Banc 199 (2011).
October 3, 2011 at 3:17 pm
Tags: copyright, First Amendment, Supreme Court
Posted in: Law Rev (Vanderbilt)
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Schwarzenegger, Entertainment Merchants Association, and Irony
posted by Joshua Fairfield
First, thanks so much to Danielle and the other authors at Concurring Opinions for taking me aboard for a while! Let’s get right down to it: I wanted to talk about Schwarzenegger v. EMA before the month was out, given that oral argument was on November 2. Oral argument always goes in twisty directions, but the court seemed to me to be just barely grazing two huge issues that go to the realities of the video game industry — first, how content for games is produced, and second, how games are now distributed. More after the leap.
November 30, 2010 at 12:42 pm
Tags: before time runs out, First Amendment, industry, video games
Posted in: Uncategorized
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Contracts, Confidentiality, and Speech: Connecticut Supreme Court Upholds Agreement Not To Speak
posted by Deven Desai
I am sure that free speech, First Amendment gurus/junkies will have more to say about this one, but a recent case out of the Connecticut Supreme Court, Perricone v. Perricone, seems to merit a mention here. As the title of the case indicates, it is a divorce case. Apparently the husband runs a skin care company and millions of dollars are at stake. According to The Connecticut Law Tribune, the New York Post covered the divorce. Nonetheless, during the case Ms. Perricone “signed a confidentiality agreement to prevent pretrial discovery documents from being publicized. In it, she agreed that Perricone’s lucrative skin care business ‘may be severely harmed’ if she made disparaging or defamatory statements about him.” When she wanted to talk to 20/20 about the case, however, Mr. Perricone obtained an injunction by arguing that the confidentiality agreement controlled and that an integration clause in the final settlement did not supersede that agreement. In short, Ms. Perricone was still prevented from talking about the divorce. The court agreed with Mr. Perricone.
As First Amendment matter, the Connecticut Supreme Court held that the agreement was not a prior restraint on speech. I am sure that there are articles about the problem of what is state action in this context and whether one can waive First Amendment rights via contract. The court in this case relied on Cohen v Cowles Media Co. and held: “that a party’s contractual waiver of the first amendment’s prohibition on prior restraints on speech constitutionally may be enforced by the courts even if the contract is not narrowly tailored to advance a compelling state interest.”
As I am not a First Amendment guru and/or junkie, all I can say here is that it seems that there are some continuing problems here. The idea “that a judicial restraining order that enforces an agreement restricting speech between private parties [does not] constitute[] a per se violation of the first amendment’s prohibition on prior restraints on speech” appears correct if non-disclosure agreements and other confidentiality agreements are to work. Indeed, as our own Dan Solove and Neil Richards discuss in Rethinking Speech and Civil Liability:
Since New York Times v. Sullivan, the First Amendment requires heightened protection against tort liability for speech, such as defamation and invasion of privacy. But in other contexts involving civil liability for speech, the First Amendment provides virtually no protection. According to Cohen v. Cowles, there is no First Amendment scrutiny for speech restricted by promissory estoppel and contract. The First Amendment rarely requires scrutiny when property rules limit speech. Both of these rules are widely-accepted. However, there is a major problem – in a large range of situations, the rules collide.
Although I am not sure I agree with the paper’s solution, I recommend the paper as a way to think not only about the Perricone case but the problems encountered when free speech and private law intersect.
June 24, 2009 at 2:50 pm
Tags: contract, divorce, First Amendment, free speech, Perricone
Posted in: Contract Law & Beyond, First Amendment
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