ABSTRACT We explore student attitudes toward freedom of speech on campus using a think-aloud method, in which students are exposed to source material on a subject and “think aloud” as they work through the controversies. We gain an in-depth picture of how students understand and make judgments about who should and should not be allowed to speak on campus. Utilizing the think-aloud method to examine various cases of invited speakers on campus, we learn that students have difficult times differentiating legal and political reasons for preventing certain campus speakers. We also find that students tend to be more restrictive than a civil libertarian might like, albeit in (usually) internally consistent and sympathetic ways. We conclude by suggesting interventions that could help students better understand the way First Amendment rights are typically adjudicated and balanced against other lofty goals.

ABSTRACT This essay responds to the holding in National Institute of Family and Life Advocates (NIFLA) v. Becerra (2018), arguing that the signal contribution of the majority opinion is its attempt to move commercial speech further into the absolute realm of protected public discourse. In finding the California FACT Act to be unconstitutional, the 5–4 majority uses a fractured commercial speech standard to define NIFLA’s marketplace communications as protected ideological speech. In so doing, Justice Thomas, author of the majority opinion, considers only the state’s speech – its compelled disclosures – and does not assess the rhetorical properties of NIFLA’s commercial communications. But the majority concludes nevertheless that NIFLA’s speech is impervious to publicly interested legislation, despite well-documented evidence of misleading and harmful advertising. Ultimately, it is argued that the question of whether NIFLA’s right to free speech has been violated cannot be squarely addressed if the speech with which the state’s disclosures dialogue remains nebulous. NIFLA seems to undermine the longstanding conception of commercial speech as a form that legitimates both the interests of speakers and the informational interests of publics, with the latter sustained when necessary by governmental initiatives that enable informed choice-making by regulating deceptive information in commercial marketplaces.

ABSTRACTThe right to protest is central to democratic participation. This essay suggests that recent attempts to use the right to assemble as a doctrinal hook to better protect protest are correct but incomplete. Such attempts rightly suggest that the Court’s current approach through free speech inadequately protects protest directed at public officials. But this essay argues that such accounts and the Court’s jurisprudence also inadequately protect citizens’ privacy in public spaces. By looking at current cases, history and theory it proposes an alternative account of assembly that better protects participation and the equality necessary to make participation effective.

ABSTRACTStriking the proper balance between private intellectual property interests and the public interest is especially important in the context of news, given its fundamental role in democracy. This article examines the scope of copyright protection for photojournalism, as well as the First Amendment safeguards that may limit that protection. It focuses on current understandings of the fair use doctrine and the idea/expression dichotomy (and idea/expression merger.) Next it focuses on the federal district court ruling in the Zapruder film case, which was based on one of the fair use doctrine’s key questions, but which also considered and rejected an idea/expression merger defense. An analysis of that case, and also a pair of key law review articles on copyright and images, leads to a proposal for a new “public-interest merger” doctrine for balancing public and rights holders’ interests in cases involving news images. That proposal argues for focus on whether the news images are exclusive (or at least nearly so), and evidentiary.

As lines between public and private spaces online continue to blur, contracts are moving closer to the day when government actors will be involved in all of them. When 90%+ of online users do not read the terms-of-service (ToS) agreements of social media sites, they are unaware of possible repercussions of blindly assenting to these unread contracts, including potentially relinquishing a number of their constitutional rights. Primary among these is their First Amendment right to petition the government for relief in a court of law. In most ToSs, the online user must agree to mandatory arbitration in the site owner’s venue of choice. Secondary is their sole right to their intellectual property afforded by the Constitution. Through an online survey (N = 235), this article reports data concerning respondents’ attitudes toward reading ToSs, their demographic information, and their likelihood of accepting a forum-selection term from Twitter, contrary to their potential constitutional rights. Two major findings are that: (a) there was no effect of education on the likelihood of rejecting Google’s unfavorable copyright-related terms; and (b) 63.2% of those who state they would not, under any condition, accept the unfavorable Twitter forum-selection term do, indeed, belong to or have belonged to Twitter.

Online speech platforms present novel risks to privacy and reputation. There are situations in which unique kinds of harm can indeed occur but where the law applies imperfectly. Yet legal expansions like the European “Right to Be Forgotten” would contradict several well-established tenets of American free speech law. This paper argues that the reputation-management industry (RMI) represents one set of solutions in the absence of an American Right to Be Forgotten. The RMI counsels assiduous self-monitoring, search engine optimized promotion of one’s own preferred content, and negotiation for voluntary removal by content hosts. This approach arguably helps to address the informational distortions than can be created by true accounts of unseemly conduct and mob-like expressions of vitriolic opinion online. It likewise helps to mitigate the concern that readers will form inaccurate or unduly harsh judgments based on cursory examination of search results.The RMI thus in some ways addresses the underlying gaps between legal protection and perceived harm in a manner that accords better with the emphasis on “counterspeech” in the American free speech tradition. At the same time, the article concludes by addressing some limitations that are necessary to keep the industry from threatening free-speech principles itself.

In response to a panel discussion from the Eastern Communication Association (ECA) and the article written by Dr. Robert Vatz in this issue, I make a case for the usefulness and benefit of the practice of trigger warnings in the classroom. I draw on my own experience as a transsexual woman teaching at a conservative school, as well as contemporary psychological theory and ethics. I argue that trigger warnings are not detrimental to freedom of speech (as others, such as Dr. Vatz here, contend) and that they are in fact necessary for the well-being of some students. Moreover, judicial use of warnings can enhance classroom participation and discussion, and the intellectual development of students and faculty.

In 2013, the Third Circuit Court of Appeals ruled that a group of students were within their constitutional rights to wear breast cancer awareness bracelets that read: “I ♥ Boobies!” The majority opinion in B.H. and K.M. v. Easton Area School District called on judges to determine whether a student’s speech was “plainly” or “ambiguously” lewd, and also whether it could “plausibly be interpreted as commenting on political or social issues.” Cases like B.H. provide an excellent opportunity for rhetorical scholars to engage the law—asserting their expertise in the methods of interpretation germane to vernacular persuasive discourses.

At its core, feminist rhetorical scholarship is about freedom of expression. However, few scholars of free speech engage questions of gender, and those that do largely limit their focus to the harm expression has had on women, situating women objects of speech instead of speaking subjects. To create a stronger foundation from which free speech scholars may explore issues of gender, this paper seeks to suture together feminist and free speech scholarship by exploring how Emmeline Pankhurst’s speech, “Freedom or Death,” lends unique insight into how suffrage advocates envisioned the vote as voice.