The University of Chicago Law School Faculty Blog

More Digging: Speech-Speech Tradeoffs

On the airplane on the way back from a conference Friday at George Mason on innovation and competition policy, I reread the Second Circuit’s opinion in Corley and I also read Henry David Thoreau’s 1849 speech on civil disobedience (available here and here and originally given under the title Resistance to Civil Government). There has been continuing discussion about the Digg revolt, the role of free speech and the First Amendment and appropriate scope of civil disobedience (see in particular posts by Ed Felten and Tim Lee). I would like to return to this subject and address some of the comments on my post on this last week.

Stone: "Government Secrecy v. Freedom of the Press"

Yesterday, Geoffrey Stone delivered a Chicago's Best Ideas talk with the title of "Government Secrecy v. Freedom of the Press." A packed house heard Geof discuss the law involved in when national security considerations trump (or should trump) the press's right to publish information, and even when they trump the right of individual citizens to bring such information to light. Listen to the talk to hear him explain why what looks like a balancing test isn't always a balancing test and why this talk is about so much more than the Pentagon Papers.

Listen to the talk here. Professor Stone's full blurb from the posters is after the jump, and podcast instructions for the uninitiated are here.

Martha Nussbaum Talks with Akbar Gangi

Chicago Public Radio has partnered with the University of Chicago (among other organizations) in a project called Chicago Amplified. From their website: "Chicago Amplified is a Web-based audio archive filled with diverse lectures, conversations, panel discussions, forums and other educational events sponsored by community organizations and institutions throughout the Chicago region and presented here for audio streaming or download. The goal of this project is to make some of the most interesting and informative public programs taking place throughout our community widely available. Chicago Amplified allows you to listen to these events again, or discover them for the first time."

Among the University's first entries in Chicago Amplified is a conversation with Akbar Gangi and our own Martha Nussbaum. Gangi is Iran's most prominent political dissident and writer of A Republican Manifesto, laying out the basis for a full-fledged democracy in Iran. You can listen here to their conversation, and also visit the site for the University of Chicago's contributions to Chicago Amplified.

Janet Jackson’s First Amendment Legacy

I don’t know how Janet Jackson rates musically—Thriller is my only contribution to the Jackson family coffers—but she’s top-of-the-charts when it comes to the First Amendment. Janet’s Super Bowl flash has taken us to new legislation that will boost broadcast fines tenfold for content that the FCC finds sufficiently offensive. Plus Sen. McCain introduced a new bill yesterday that tries to push towards cable ala carte, so consumers could get Disney without having to take MTV.

Under the old law, each station faced a maximum fine of $32,500. The new maximum will be $325,000, plus the FCC has announced that it will count each separate use of unacceptable language as a separate incident. String together all seven of George Carlin’s words-that-you-can’t-say-on-TV and you could be out a quick $2.275 million (and remember this is per station broadcasting the content). I don’t know if the FCC has decided whether a topless woman will count as one incident or two.

The House vote on the fine increase was 379-35, while the Senate approved its version of the bill using its unanimous consent procedure, meaning that no Senator opposed the bill. At a time when we seem to be eager to vote on new constitutional amendments, it would be interesting to see how many votes some of the old ones would get. What do we think the over-under would be on the First Amendment?

Stone: "The Commander in Chief"

The Law School was delighted to welcome back so many alumni this past weekend for our annual Reunion. Geoffrey Stone '71 (celebrating his own reunion) kicked off the weekend on Friday, May 5 with a standing-room-only talk entitled "The Commander in Chief." Despite his initial comment that he would be talking about Law School deanship, he settled into a spirited talk and discussion about the very hot issue of the scope of Presidential power. To listen to the talk and the Q&A, click here. Instructions for the uninitiated are, as always, here.

Muhammed Cartoons Continued

I will not revisit my modest point in an earlier post regarding the utility of, or perhaps I should have said substitution to, consumer boycotts for perceived offenses, where domestic governments are disinclined to intervene. Since that post there have been two interesting developments.  One is the escalating violence against things associated with Denmark (broadly described), where the cartoons originated, and the other is the continuing disinclination of American newspapers to republish the cartoons, as they weigh obvious newsworthiness and curioisty against the cost of giving offense, and I do not mean violence alone.

Muhammed Cartoons, Free Speech, and International Relations

Predictably, the enormous fuss over the publication in Denmark of Muhammed cartoons found offensive by many Moslems has caused them to be viewed by many more readers as they are republished across Europe and held up as a free speech cause.  The pattern is familiar and brings to mind Rushdie and "Banned in Boston" experiences. An audience is deeply offended, but is unable to express its indignity without bringing on more of what it finds offensive, and often without generating new opponents who flock to the cause of free speech. I do not mean to suggest that all cases are alike; depictions of the Prophet (though some of the cartoons have more to do with a fictional young boy of the same or similar name) may or may not be tame compared to cartoons involving Jesus, for example, though there is more of a Moslem tradition of finding any depiction blasphemous, but the common features are fairly obvious. The Danish response is also predictable; the government might or might not express some sort of regret, but it is hardly in a position to tell newspapers what to do.

The Solomon Amendment

The Supreme Court heard argument yesterday in Rumsfeld v. FAIR, which poses the question whether the application of the Solomon Amendment to law schools violates the First Amendment. Stated simply, the Solomon Amendment provides that if any part of a university denies military recruiters equal access to its placement facilities and services, the university will lose its federal funding. The Solomon Amendment was enacted in response to the decision of almost all law schools (including the University of Chicago Law School) in the late 1980s and early 1990s to ban military recruiters as part of an overall policy of excluding any recruiter who discriminates among students based on race, religion, gender, sexual orientation, etc.

In Rumsfeld v. FAIR, a group of law schools and law professors challenge the constitutionality of the Solomon Amendment on the ground that it violates their rights to freedom of speech and association. They claim that the Solomon Amendment violates these rights in essentially three ways: (1) It prohibits their symbolic expression of opposition to discrimination in the military. (2) It compels them to associate with the military. (3) It compels them to distribute information about military recruiting.

California Court Overprotects Teen Privacy

Over at Concurring Opinions, the always-interesting Dan Solove has a neat post up about a privacy case arising out of a California high school, which the New York Times covered last week.  The case involves a homosexual teenager who was "out" to many fellow students, but not to her parents.  A school administrator learned of the teen's orientation, and informed her parents, causing a great deal of family turmoil.  One of the legal questions raised is whether the teenager had a "reasonable expectation of privacy" in her sexual orientation.  The court said "yes," and Dan Solove likes that result, invoking a paper I recently published in our law review to support the court's decision.

I'm always happy to see my arguments cited by others, but I'd part ways with Dan (and the court) on this interesting case.  While U.S. courts often protect privacy too little, I think the California court here may be on the path toward overprotecting privacy.

Stone On "Perilous Times"

With the Law School moving into finals mode, we'll have few lunchtime speakers over the next month or so. With that in mind, it's time to post some of our archival materials. We'e had audio (and video) clips available on our website for a while, but not always in the same place. So here we shall aggregate.

First up, Geoffrey Stone talking about his award-winning book, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism. This short interview was part of the Research at Chicago series and is available in both audio and video versions. For instructions, click here.

Shameful Accusations

In recent days, President Bush and Vice President Cheney have attacked their critics as "reckless," "shameless," and "irresponsible." They have accused United States senators and others who have criticized the administration for manipulating the presentation of intelligence data in order to justify our invasion of Iraq with nothing short of lying.This smacks of the same sort of presidential defensiveness and demagoguery that became so familiar to the American people during the Vietnam War under President Richard Nixon and Vice President Spiro Agnew. Such accusations are not only dishonest, but dangerous to democratic values.

When the Bush administration assumed office in 2001, many of its most powerful voices, including Cheney, Rumsfeld, Pearle, and Wolfowitz, were deeply committed to the neo-con position that the United States must oust Saddam Hussein in order to establish stability in the Middle East. Whatever the merits of that position, even its most dedicated adherents understood that the administration could never persuade the American people to invade Iraq for that reason, and they also understood that they could never persuade the American people to invade Iraq because Saddam Hussein was a brutal dictator. The United States does not invade other sovereign nations for such reasons, and certainly not without the full support and endorsement of the United Nations.

Judy Miller: 85 Days for What?

For the past several months, most (though not all) members of the media have been falling all over each other applauding New York Times reporter Judith Miller’s courageous stand in defense of the “freedom of the press.”  Now that she is out of jail, and has both testified and written about this incident, we can see more clearly what this was all about.