Edward L. Carter

Defining Government Speech: Recent Approaches and the Germaneness Principle

In the last decade, the U.S. Supreme Court and lower federal courts have fashioned the -principle that the First Amendment does not limit the governments ability to determine the content of its own messages. Yet the Supreme Court has not defined what is meant by “government speech.” Defined broadly, it may encompass viewpoint-based messages on controversial social issues, privately funded advocacy on behalf of certain industries, and official endorsement of certain ideologies. In the face of this uncertainty, and confronted with numerous recent cases in which the government asserts its right to expression, the U.S. courts of appeal have devised three major approaches to distinguishing government speech from private speech. The Supreme Court touched on aspects of these approaches in an important 2005 opinion, yet significant questions remain about the definitional contours of the Courts developing government speech doctrine.

Arrogance Cloaked as Humility and the Majoritarian First Amendment: The Free Speech Legacy of Chief Justice William H. Rehnquist

In his nineteen years as chief justice of the United States, William H. Rehnquist voted in favor of the individual expression interest asserted in approximately one-fifth of the Speech Clause cases heard by the Supreme Court. Meanwhile, he opposed protecting those constitutional interests in approximately two-thirds of the speech cases during that time. (His votes evidenced both speech-protective and non-protective elements just more than 10% of the time). This analysis compares Rehnquists jurisprudence with that of his two immediate predecessors, Chief Justices Warren Burger and Earl Warren. Rehnquists deference to government, reliance on history, and formalist categorization of cases represented a shift of focus from the First Amendment as protector of minority views to the First Amendment as bastion of majoritarianism.

“Error But Without Malice” in Defamation of Public Officials: The Value of Free Expression in International Human Rights Law

Government officials in various parts of the world use defamation to silence critics, but defamation liability may curtail freedom of expression on topics of public interest and undermine human rights generally. Article 19 of the International Covenant on Civil and Political Rights guarantees freedom of expression unless a state can show need to protect individual reputation and acts proportionally. In its adjudication of complaints for violations of Article 19, and in its General Comment 34, the United Nations Human Rights Committee has crafted the principle that defamation liability may not be imposed if an erroneous statement about a public official was made in “error but without malice.” Although soft law, General Comment 34 represents the committees most compelling articulation of the values animating freedom of expression in international human rights law, and chief among the values is the role played by free expression to promote realization of all human rights.

Chile and the Right to Enjoy the Benefits of Scientific Progress by Controlling One's Online Identity

The academic and policy debates over the right to be forgotten primarily focus on a zero-sum game pitting privacy versus freedom of expression. However, a more nuanced approach could satisfy the various important interests at stake. This article contends that Article 15 of the International Covenant on Economic, Social and Cultural Rights allows individuals to define their own online identities while also accounting for the public interest in freedom of information and expression. Given Chiles historical and contemporary role in crafting and promoting economic, social and cultural rights, the article examines that countrys experience with, and approach to, remembering and forgetting. The legal and cultural experience of Chile provides support for an international human rights-based alternative to the right to be forgotten based on Article 15 of ICESCR.

Copyright Ownership of Online News: Cultivating a Transformation Ethos in America's Emerging Statutory Attribution Right

Several federal district courts in 2009 and 2010 interpreted a relatively obscure provision of the Digital Millennium Copyright Act to grant a potentially broad right of attribution to owners of copyright in creative works. The statutory provision prohibits removal or alteration of copyright management information. The law gives reason for both hope and fear for news organizations. On one hand, an attribution requirement is seen by some in the news industry as relief from negative effects of technology, including online news aggregators. On the other hand, news organizations already have been sued under the copyright management provision for their conduct in newsgathering. This article examines the copyright management information provision and concludes that transformation will be a key consideration in balancing the interest in attribution with preservation of newsgatherings reliance on access to and fair use of copyright-protected works.

Reclaiming Copyright from Privacy: Public Interest in Use of Unpublished Materials

Although the primary justification for Anglo-American copyright law is a utilitarian economic incentive, copyright law is sometimes invoked to protect privacy in unpublished materials. These efforts may present obstacles to those seeking to access and convey information about matters of public interest. While the U.S. Copyright Acts fair use doctrine has generally been protective of access and expression interests relating to copyright-protected unpublished materials, some deficiencies in treatment are noted in this study of U.S. appellate court opinions. A companion doctrine, the public interest defense from the United Kingdom, is examined for what it could add to U.S. copyright jurisprudence.

Democratic Learning and The Sober Second Thought: The Effect of Reading John Stuart Mill's Essay “On Liberty” on Tolerance for Free Speech Among Highly Religious, Politically Conservative Students

A survey (n = 349) of highly religious, politically conservative students (religiosity and political conservatism being among the highest predictors of intolerance) shows a significant statistical effect on increased tolerance (both abstract and specific) for free speech resulting from reading John Stuart Mills (1859/2002) essay “On Liberty” and taking a course in the history and theory of the First Amendment. Other variables also affect tolerance, including missionary service and print and Internet news use. TV news use does not.

Membership in a Particular Social Group: International Journalists and U.S. Asylum Law

At least thirty non-U.S. journalists in the last decade have argued in U.S. Courts of Appeal that U.S. immigration authorities erroneously denied their asylum applications based on persecution in their native countries. However, only about 20% of journalists were successful, mirroring the approximate national asylum success rate for all applicants. The U.S. Immigration and Nationality Act does not include journalism as a basis for asylum, but some circuit court judges have stated that reporting on systemic official corruption is inherently political and, as a result could be grounds for asylum for persecuted journalists. A 2007 opinion from the U.S. Board of Immigration Appeals defining “particular social group,” a key requirement for asylum, is examined for its application to journalists.

Mass Communication Law and Policy Research and the Values of Free Expression

Mass communication law and policy research, including on values and theory of freedom of expression, has played an important role in Journalism & Mass Communication Quarterly for decades. Mass communication law research in Quarterly reached a high point with a special issue on the First Amendment in 1992 and numerous articles in the decade that followed. A relationship is explored between First Amendment theory and structural archetypes of constitutional argument. Future research could focus on international law and contemporary challenges involving technology, surveillance and changes in democratic citizenship.

“Much Dispute and Wonderful Contentions”: Free-Speech Values in The Book of Mormon

Although some scholars have called for religious speech in the public square to be curtailed in ways other expression is not, a careful examination of Mormon scripture demonstrates broad and deep support for the values that animate secular free expression. If religious speech enables the search for truth, facilitates democracy, provides a safety valve, promotes tolerance, and fosters autonomy, then the argument for restricting religious speech is undermined. The Book of Mormon teaches that while not all speech is of equal value, both secular and religious free expression deserve legal protection and respect.