Robert L. Kerr

Naturalizing the Artificial Citizen: Repeating Lochner's Error in Citizens United v. Federal Election Commission

In March, the Supreme Court of the United States, in a 5-4 vote, handed down Citizens United v. Federal Election Commission, a sweeping ruling providing more protection for corporate political media spending as First Amendment “speech” than ever before. This article demonstrates that Citizens United nullified a century of democratic will by representing First Amendment protection for such spending to be part of nature rather than a legal construct. If Cass Sunsteins influential assessment is correct that the lesson of Lochner v. New York is the judicial error inherent in imposing such artificial baselines to measure the constitutionality of government regulation, then Citizens United can be understood to repeat that error.

Impartial Spectator in the Marketplace of Ideas: The Principles of Adam Smith as an Ethical Basis for Regulation of Corporate Speech

The corporate voice is arguably the loudest in mass communication today and has been the subject of a series of landmark Supreme Court decisions since 1978. This integrative essay offers an ethical basis for justifying regulation of corporate speech, based on the neglected moral and political theories of Adam Smith. His essential tenets on free markets are applied to the First Amendment marketplace of ideas concept that has been prominent in developing corporate free-speech rights. This essay argues that regulation of corporate speech on this basis can actually enable more ideas to flourish in the political marketplace—advancing utilitarian ideals of the common good.

A beer a minute in Texas football: Heavy drinking and the heroizing of the antihero in Friday Night Lights

This article applies a qualitative framing analysis to the first three seasons of the television series Friday Night Lights, focusing particularly on its incorporation of heavy drinking into narrative representations of the player whose character is most consistently central to the game of football as fictionally mediated in small-town Texas over the course of those three seasons. The analysis suggests that over the course of that period Friday Night Lights embeds nuanced social meanings in its framing of alcohol use by that player and other characters so as to associate it with multiple potential outcomes. Yet among those outcomes, the most dominant framing works to, in effect, reverse a progression through which media representations historically evolved from a heroic model toward an antihero model, with heavy drinking central to that narrative process of meaning-making in such messages.

Creating the Corporate Citizen: Mobil Oil's Editorial-Advocacy Campaign in The New York Times to Advance the Right and Practice of Corporate Political Speech, 1970–80

Abstract Over the course of the 1970s, Mobil Oil made The New York Times oped page the focus of a groundbreaking advocacy strategy to promote interests that went far beyond its immediate business objectives. This study considers that influential campaign in terms of its significance for intellectual history, particularly Mobils efforts to reframe understanding of the marketplace of ideas in First Amendment theory and practice. Although other corporations produced advocacy messages in the seventies, none spoke so regularly on so many issues of public policy as Mobil did during that period This research documents the way rhetoric was employed in Mobils Times editorial-advocacy campaign to frame the corporate role in democratic processes as identical to that of the individual citizen.

A Justice's Surprise That Has Stood Its Ground: The Enduring Value of the Commercial Speech Doctrine's Powellian Balance

One of the most important concepts of modern commercial speech related to advertising, characterized as the “Powellian balance,” resulted in a compromise between those who thought commercial expression should receive little or no First Amendment protection and those who argued that it receive the same expansive protection accorded to political expression. The private papers of Justice Lewis F. Powell, Jr. reveal the remarkable degree to which he maintained a deep commitment to balancing competing interests in shaping the commercial speech doctrine. The central argument of this monograph is that Powells “middle way” can be employed to best promote todays vital and complex societal interests.

Considering the Meaning of Wisconsin Right to Life for the Corporate Free-Speech Movement

The test for determining the “functional equivalency of express advocacy” established by Chief Justice John Roberts in 2007 could well signal a propitious turning point for the corporate free-speech movement—efforts to develop First Amendment protection for corporate political media spending. The test creates the potential to undermine the doctrine the Supreme Court of the United States constructed in support of more than a century of legislative judgment seeking to wall off the corrupting force of such spending from candidate elections. This article assesses that potential through analysis of Federal Election Commission v. Wisconsin Right to Life, Inc., in which the Chief Justice established that test. His test attracted sharp criticism from so many other justices that the case may offer less than clear guidance for lower courts on its rationale. But the fact that there can be no confusion as to its holding would seem to offer reason for optimism to corporate interests in similar cases.

“Justifying Corporate Speech Regulation Through a Town-Meeting Understanding of the Marketplace of Ideas”

The debate between the majority and the dissenting justices in the Supreme Courts 2003 decision in McConnell v. Federal Election Commission refocused attention on one particularly intense dispute in First Amendment law that has been simmering among the Justices over the past quarter-century: corporate speech doctrine. Although the Court extended First Amendment protection to corporate political media spending in relation to referenda in 1978, subsequent cases have permitted regulation of such spending in order to prevent corruption of democratic processes in candidate elections. The Supreme Courts most recent case on corporate speech highlighted the potential for the Court to shift its jurisprudence back toward a laissez-faire doctrine that would more greatly advantage corporate participants in the marketplace of ideas and signaled the continuing relevance of scholarly and judicial debate on the subject. Dissenting justices have argued repeatedly that there is no basis in principle or in law why business corporations should be denied full First Amendment rights. This monograph argues that such a position contradicts a significant body of relevant case law, but more broadly how the reasoning that forms the constitutional basis for regulation of corporate political spending can compellingly be expressed through the procedural tenets of Alexander Meiklejohns town-meeting model of the First Amendment. The monograph draws upon those tenets to advance a highly principled theory for considering corporate speech jurisprudence in a manner that most truly advances freedom of the political marketplace and democratic debate.

Subordinating the Economic to the Political: The Evolution of the Corporate Speech Doctrine

The jurisprudence of the Supreme Court of the United States on corporate speech regulation has evolved to distinguish markedly what once appeared a more expansive precedent in First National Bank of Boston v. Bellotti. This article considers the manner in which a doctrine of corporate speech regulation has been fashioned in the case law that derives from the special nature of the corporate form and justifies regulation of corporate political spending in candidate elections in order to address the potential for real or apparent corruption of democratic processes. That line of jurisprudence was most recently extended in McConnell v. Federal Election Commission, the Courts landmark ruling on campaign-finance regulation handed down at the end of 2003. As it had done on multiple occasions since early in the twentieth century, the Court accepted legislative judgment that corporate treasuries represent a threat of corruption when deployed directly in candidate elections.

The Great White Father and the Antichrist: Bud Wilkinson’s Football Letteras Cultural History

This study o/Bud Wilkinsons Football Letter ojfers insight into the cultural significance ofan institutional newsletter. From 1947 to 1963, the Football Letter consistently articulated an idealistic vision of college football as a metaphorical realm where wholesome warriors strive for collective progress. Wilkinson saw that vision validated early in his coaching career, then challenged in later years. He was able to dismiss the mostprominent rebel, but not thefuture.

Conclusion: What Matters Most Sociologically

This chapter summarizes what can be understood in conclusion of this study, which documents what people actually do when they engage in the narrative-centered behaviors involved in sports-talk radio today. It explains how the previous chapters suggest that the narrative struggle of sports-talk radio—and of the broader hyper-mediated marketplace to which it contributes so vitally—is never to be resolved, and that the perpetual quality of that dynamic is ultimately the point that matters most sociologically.