Dale A. Herbeck

The Affirmative Topicality Burden: Any Reasonable Example of the Resolution.

This essay addresses the nature of topicality, first, examining the function of the debate resolution as a topic area that divides the argumentative ground for debate and, second, considering the m...

Intellectual property in cyberspace: The use of protected images on the World Wide Web

The growth of the Internet has created a host of thorny legal issues that range from defamatory postings on computer bulletin boards to “spamming”; (unwanted email) and invasion of privacy rights. This study reviewed 400 student‐authored World Wide Web pages to assess the use of intellectual property. A review of these pages found that 43.8 percent appropriated images that would likely qualify as protected intellectual property, and that the students who used images averaged three such uses per page. The final section briefly discusses three of the more troublesome implications of these findings.

From LaMacchia to the No Electronic Theft Act: Criminal Copyright Infringement and the New Digital Media

David LaMacchia was a student at the Massachusetts Institute of Technology (MIT). In 1994 he created two computer bulletin boards on the MIT computer network, Cynosure and Cynosure 11. 1 Hiding behind the veil of various pseudonyms, LaMacchia encouraged users to post software (Excel 5.0 and WordPerfect 6.0) and computer games (Sim City 2000) to Cynosure. After files were posted LaMacchia transferred them to a password protected address, Cynosure II. From this bulletin board users who knew the password could download any of the posted files to their own computers. Through this simple arrangement of bulletin boards LaMacchia made it possible for a large number of users to efficiently share copyrighted computer software with one another. Despite LaMacchias best efforts to hide these bulletin boards, the sheer volume of traffic attracted the attention of both university officials and federal authorities. While LaMacchias bulletin boards were quickly shut down by MIT it was not readily apparent to prosecutors that his actions were criminal. After considering a variety of charges, on April 7, 1994, a federal grand jury indicted LaMacchia for conspiring with persons unknown to violate the federal wire fraud statute. On September 30, 1994, LaMacchias attorney brought a motion to dismiss the indictment claiming that the Supreme Courts decision in Dowling v. United States preempted the use of the wire fraud statute as a means to punish criminal copyright infringement. In United States v. LaMacchia, the U.S. District Court for Massachusetts agreed, and as a result dismissed the charge against LaMacchia (Lewis I 0). While this may seem a relatively trivial case, LaMacchia has had a dramatic effect on intellectual property law in the United States. In direct response to pressure brought by the copyright industry after the courts decision in LaMacchia, Congress adopted the No Electronic Theft (NET) Act. This article, an analysis of this little known but increasingly significant act, is organized in three parts. The first part offers a brief history of criminal copyright infringement in the United States, the second part discusses legislative responses to LaMacchia culminating with the passage of NET, and the final part offers an analysis of this controversial legislation.

The Cheerleader and the Athlete: A Sad Tale About the Dismal State of Student Speech Rights

In Tinker v. Des Moines Independent Community School District (1969), the United States Supreme Court extended freedom of speech to public school students. Writing for a 7-to-2 majority, Justice Abe Fortas famously proclaimed that neither students nor teachers “shed their constitutional right to freedom of speech or expression at the schoolhouse gate” (506). Recognizing that these rights are necessarily limited, the Court added that there were instances “where students in the exercise of First Amendment rights collide with the rules of school authorities” (507). In an effort to define these circumstances, Justice Fortas explained that student speech could be limited by demonstrating that it would “substantially interfere with the work of the school or impinge upon the rights of other students” (508). Particular attention must be paid, the opinion continued, to distinguish between legitimate regulation of disruptive student speech and efforts to “avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint” (509). To insure that school officials did not engage in any content-based discrimination, Justice Fortas called on federal judges to independently review the facts and determine whether there was sufficient evidence to justify suppressing student speech. Since Tinker was the first decision to extend speech rights to public school students, it was celebrated as a ringing affirmation of the importance of the freedoms guaranteed by the First Amendment to the United States Constitution. According to the majority opinion, “students in public schools [had rights] that were previously thought to belong only to adult citizens” (Arum 61). Over time, however, court decisions have steadily undermined the bold proclamation of student speech rights in Tinker. Although the Supreme Court has neither overruled nor qualified the holding, lower court decisions have systematically diluted this landmark decision (Miller 640). A judgment that was intended to protect student speech rights is now invoked to justify limits on student expression. Any number of cases might be used to illustrate this unfortunate trend. One case, however, has received considerable attention in recent months. In Doe v. Silsbee Independent School District (2010), the Fifth Circuit Court of Appeals summarily dismissed the free speech claim of a Texas high school student. Although few were surprised by the outcome, the treatment of student speech rights contained in the decision is so distressing that it deserves extended discussion. In that spirit, this analysis offers a brief summary of the facts in Doe v. Silsbee, summarizes the Fifth Circuit’s reasoning, and concludes by arguing the court wrongly decided the case. Since the decision is part of a larger trend, this case study provides new insight into the dismal state of free speech in public schools.

Falsely Shouting Fire in a Crowded Theater, a Revolutionary Spark, and Burning the House to Roast the Pig: Fire Metaphors and the First Amendment

Over the course of the twentieth century, the United States Supreme Court gradually extended First Amendment protection to include progressively more speech. This dramatic change in thinking was the result of a remarkable judicial debate that started in 1919, when the clear-and-present-danger principle was announced in Schenck v. United States, a case brought under the Espionage Act of 1917. While the Espionage Act cases are “among the most anthologized cases in American constitutional law” (White 312-313), most of the voluminous legal analysis has ignored the rhetorical dimension of these landmark decisions (Smith 20). This is a curious oversight, as the tropes and figures featured in these remarkable opinions are arguably as important as the legal standards in understanding the nature of freedom of speech. The “dominant metaphor” of the Espionage Act cases is fire (Bobertz 591). The first of the fire metaphors occurred in Schenck v. United States where Justice Oliver Wendell Holmes’ majority opinion asserted that “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic” (52). This is not, however, the only reference to fire in the Supreme Court’s many decisions on freedom of speech. While Holmes’ reference to the “shouting fire” may be most famous, the justices have offered a variety of fire metaphors to justify their decisions over the decades. One of the most powerful was the image of “a single revolutionary spark,” an image that portrayed radical speech as a prelude to a fiery conflagration (Gitlow 669). More recently, an entirely different fire metaphor was offered to argue against overbroad laws that might suppress protected expression. Instead of being invoked to suppress speech, the appeal to “burn[ing] the house to roast the pig” was used to defend the freedom of speech (Butler 383). While traditional legal analysis often regards such metaphors as a form of embellishment, a more sophisticated understanding suggests that these rhetorical devices are an integral part of the argument. By tracing the fire metaphors featured in notable Supreme Court decisions across the decades, it is possible to appreciate the powerful role played by these simple appeals. Moreover, an awareness of the shifting fire metaphors yields insight into the evolution of freedom of speech in the United States. At several key junctures, the use of the metaphor actually preceded the announcement of new legal doctrine.

The First Amendment and Popular Culture: “The People vs. Larry Flynt”

Abstract In “The People v. Larry Flynt,” Milos Forman offers a sympathetic rendition of the many legal woes of Larry Flynt. While this movie was a financial disappointment, it remains worthy of scholarly attention as it contributes to an informed understanding of the complex relationship between popular culture and the freedom of expression.

Critical Legal Studies and Argumentation Theory

Critical Legal Studies poses a direct and expressed challenge to the basic tenets of American legal education and scholarship. Critical Legal Studies postulates that law is not a scientific exercise involving the application of objective principles, but rather a creative process involving the selection of conflicting rules which has the effect of reinforcing the existing political order. In an effort to explain the contribution of Critical Legal Studies to argumentation theory, this essay briefly discusses the role of legal reasoning in the American legal system, describes and critiques Legal Positivism, lays the intellectual foundation for Critical Legal Studies, and considers the implications that this conception of jurisprudence has for argumentation theory.

Beyond Snyder v. Phelps: Free Speech and Funeral Picketing Laws

Reverend Fred W. Phelps, Sr. and the members of his Westboro Baptist Church of Topeka, Kansas, are “fire and brimstone” fundamentalists who believe that God hates all homosexuals. Because of our national toleration of homosexuality, Phelps and his followers believe God is punishing the United States, particularly U.S. military forces. The Westboro Baptist Church has voiced this position on the church’s web site and during protests at funerals held for prominent people and for United States servicemen killed in Iraq and Afghanistan. As a direct result of these activities, the federal government and 45 states have adopted laws that restrict or prohibit protests at funeral services or internment ceremonies. “The scope of state activity,” Stephen R. McAllister observes, “speaks volumes about the American public’s reaction to the funeral picketers” (579). The Supreme Court did not rule on the constitutionality of funeral picketing laws in Snyder v. Phelps. This case, brought by a distraught father named Albert Snyder, involved a lawsuit filed under Maryland law alleging intrusion on seclusion, intentional infliction of emotional distress, and civil conspiracy. In an 8-to-1 decision, the Supreme Court ruled in favor of Phelps, holding that the First Amendment shielded the picketers from tort liability because of the political nature of the issues that their protest raised (1216-1217). Since Maryland did not have a law against picketing at funerals when the Westboro Baptist Church protested at the funeral of Lance Corporal Matthew Snyder, the Justices had “no occasion to consider” whether such a law would be a reasonable time, place, or manner restriction under standards previously announced by the Court (1218). Because Snyder’s civil suit ultimately failed, these picketing laws take on new significance because they may offer the best means for federal, state, and local authorities to limit the expressive activities of Reverend Phelps and his followers. This analysis briefly considers whether such statutes unconstitutionally restrict freedom of speech guaranteed by the First Amendment.

Freedom of Expression

Freedom of expression is especially important in an academic community, where the search for truth holds a primary value. In 1975, a faculty committee chaired by the late C. Vann Woodward issued the Report of the Committee on Freedom of Expression at Yale, informally called the Woodward Report. This document emphasizes that the history of intellectual growth and discovery demonstrates the need to be able to “think the unthinkable, discuss the unmentionable, and challenge the unchallengeable.” The report acknowledges that such freedom may sometimes make life uncomfortable in a small society such as a college. But it also asserts that “because no other institution combines the discovery and dissemination of basic knowledge with teaching, few need assign such high priority to it.”