Harvard Law Review Symposium on Freedom of the Press

JB

What the President is Willing to Fight For

Frank Pasquale

Ezra Klein has three ways of looking at the freeze. . . . . 1) This is more unwise, unilateral bipartisanship, 2) This is a smart way to protect the federal workforce, 3) This is bad economics and bad policy. I think we should discuss a fourth option: President Obama thinks this is a really good idea and wants to spend political capital and energy to carry it out.

The Comcast Case and Network Neutrality

Guest Blogger

Elana Kagan's Scholarship

Mark Tushnet

SOPA and the Fight for Control of Online Content

Frank Pasquale

SOPA has spawned a powerful alliance of netizens to support basic principles of due process, free expression, and accountability online. But this battle is merely a prelude to a much more contested debate about the proper allocation of digital revenues. Like health care battles between providers and insurers, struggles between content owners and intermediaries will profoundly shape our common life. Stopping SOPA is only one small step toward preserving a fair, free, and democratic culture online.

Why Presidents Cannot Run Against the Court

Guest Blogger

VerGoogle's Plan to Lochnerize the Internet

Frank Pasquale

Who Won the New Deal Confrontation Between FDR and the Court: The Presidency or the Court?

Rick Pildes

As supporters of President Obama in the aftermath of the health-care arguments continue to urge him to confront the Supreme Court more aggressively (see E.J. Dionne, here, and lawyer Marvin Ammori, here) , and as analogies to FDR's confrontation with the Court continue to mount, I want to continue to provide more of a revisionist historical perspective on the New Deal confrontation. In an earlier post, I noted that this confrontation occurred at a moment at which FDR was perhaps the most popular President in modern history and the Court was striking down a staggering array of federal statutes and presidential actions. Yet FDR nonetheless lost the confrontation, at least in the sense that his Court-packing legislation was defeated.

I now want to turn to the aftermath of the confrontation and ask: which institution actually won the Court-packing fight? The conventional wisdom among constitutional academics, focused narrowly on the Court itself, is that FDR lost the battle, but won the war, since the Court soon acceded to the New Deal’s constitutionality. On this standard law-school narrative, FDR won the war because his attacks on the Court forced the Court to back down and change constitutional direction. Here is a different perspective that I provide in my article, Is The Supreme Court A "Majoritarian" Institution?:

For those inclined to think the Court backed down because of the political pressure FDR brought to bear, it is important to keep in mind that FDR was able to make seven appointments to the Court between 1937 and 1943. Thus, we cannot know whether the Court acceded to the New Deal due to the pressure of public opinion and presidential attacks or simply the fortuity that FDR made so many appointments in such a short period.

Of course, President Obama is not proposing legislation challenging the Court, let alone any measure as confrontational as the Court-packing plan. And public criticism of the Court's decisions, by the President or anyone else, is legitimate in a democracy. But while it's common wisdom to believe FDR defeated the Court, it might well be that the right perspective is that the Court defeated FDR -- and there is no doubt that the Court's independence and public support was enhanced as a result of this fight. As a political matter, then, when Presidents take on the Court, even in the mild form of criticizing the Court's decisions, Presidents walk a delicate line. For better or worse, even among those who disagree with the Court's decisions, there is a surprisingly deep reservoir of support for the Court as an institution (I will look at some of the data in another post). That doesn't mean Presidents shouldn't take on the Court; it does mean they should do so with adequate historical appreciation for the nature of the battle they are joining.

New Report Shows Links Between Public Opinion and Free Speech Protections

JB

Over time public support for free speech helps buttress — or undermine — existing legal protections. Public support for free speech tends to be strongest for speech that clearly promotes an informed citizenry and democratic self-governance. However, the public tends to have less tolerance for offensive speech and speech that it regards as extremist, particularly when it fails to see a connection to democracy.

The public is also much less protective of media rights than individual rights. That makes it less likely that the high court will rule for news organizations in First Amendment cases than it would in an environment of high public respect for the news media.

The study points to a wide range of mechanisms by which public opinion affects judicial decisions, ranging from the appointments process — which shifts the median or “swing” Justice on the Supreme Court — to the fact that judges and Justices live in the same culture as everyone else. These effects may often be indirect, but over time they may matter a great deal.

“We are now engaged in a really vital debate over civil liberties after 9/11, and it becomes ever more important for the public to show its support for our basic freedoms,” said [ISP Director Jack M.] Balkin, “It’s a time of challenge but also a time of opportunity. Courts can’t do everything by themselves, nor should we expect them to. If the public rises to the occasion and supports freedom of speech when it is threatened, the judiciary will be far more likely to protect this core freedom.”

What is needed, the study says, are larger efforts to educate the public about the First Amendment. It proposes a model for educating students and the public on First Amendment issues, focusing on how free speech and a free press advance democracy and serve the public interest. The model education program should also educate the public about the difference between using social norms and social disapproval to regulate speech, and using the power of the state in the form of fines and criminal penalties.

The best way to learn about freedom of speech, the study argues, is by doing. Individuals are more likely to support the sort of speech in which they themselves engage or could imagine engaging. Thus the study suggests that schools create programs that allow students to practice journalism and political expression, using new technologies such as blogs and podcasts.

Even marginal improvements in public education may have important long term effects on public support for the First Amendment, the study concludes. Research suggests that the better educated individuals are, the more tolerant they are of even offensive and indecent speech, and the more willing they are to protect routine journalistic practices.

Challenging the Constitutional Framework for Media Regulation

Marvin Ammori

Models for the Internet’s Future: Obama-Open or Julius-Closed

Marvin Ammori