The Needle and the Damage Done: The Pervasive Presence of Obsolete Mass Media Audience Models in First Amendment Doctrine

Do audiences need the government\u27s protection from mass media? Or are they capable of choosing media and protecting themselves? For decades, judicial opinion on this issue developed in the form of judicial notice, speculation, and assumption. Yet during that time, a rich social science discipline was emerging that could have helped to address these issues based on empirical research about mass media effects and audiences. Given the renewed importance of this issue, it is time to bridge the gap between the law of mass media content regulation and the social science research into mass media consumption. To that end, this article presents an interdisciplinary critique of the law\u27s assumptions about the effects of mass media on the audience, the nature of that audience, and how those assumptions have shaped First Amendment doctrine. Part I reviews important First Amendment rulings concerning content regulation of electronic media, as well as analogous cases involving non-broadcast speech. The goal is to identify the judicial assumptions used to justify giving less First Amendment protection to broadcasting than to other media. Part II critiques these assumptions against the conclusions of social science theorists who have been studying the question of mass communications effects and audiences since the early twentieth century. This critique shows that most of the law\u27s current assumptions about the nature of mass communications are based on an early, and now discredited, view of mass communications effects known as the Hypodermic Needle Model. More sophisticated models have since supplanted the Hypodermic Needle Model, which failed to account for the interactive and social dimensions of mass communication. Finally, Part III returns to the question of how new media should be treated under the First Amendment and analyzes the potential impact of the critique presented in Part II on the development of the law of content regulation in the twenty-first century

In Re Annandale and the Disconnections Between Minnesota and Federal Agency Deference Doctrine

This article explores each of these differences between Annandale’s view of deference and comparable federal authority. Part II begins the discussion with an explanation of the somewhat complicated legal and factual background that gave rise to Annandale’s unusually thorny agency deference issues. This section includes an extended discussion of the Annandale administrative record and the reasoning of the Minnesota Court of Appeals and Minnesota Supreme Court. Part III then critically analyzes the Annandale court’s claims to have acted consistently with federal agency deference case law in each of the three areas discussed above. Part IV concludes with some post-Annandale developments and practical observations for Minnesota administrative law practitioners

Root and Branch: The Thirteenth Amendment and Environmental Justice

Forty years since the birth of the environmental justice movement, environmental injustice persists. One reason is the failure to identify a viable constitutional root for environmental justice doctrine in either the Fourteenth Amendment or Commerce Clause. Accordingly, this essay argues that the Thirteenth Amendment might provide a fertile environment for a flourishing law of environmental justice. Part I will describes how environmental justice’s distributive justice vision was at odds with environmental law’s positivist, proceduralist core, and how that difference helps to account for the constitutional difficulties that followed. Part II describe one of those difficulties: the disparate impact problem and the considerable drag it has imposed on equal protection-based efforts to pursue environmental justice. Part III discusses the potential federalism issues for environmental justice arising under the equal protection clause and Commerce Clause, respectively. Part IV explains the relative advantages that a Thirteenth Amendment approach over equal protection and Commerce Clause approaches in relation to the disparate impact problem and the federalism problem

Radke v. County of Freeborn: The Return of the Public Duty Rule?

Article explores when Minnesota law provides a cause of action against government actors who are negligent in the performance of their duties. Part II of this Article traces the separate development of the common law public duty rule and the implied statutory cause of action analysis. Part III examines the Hoppe case, where the supreme court seemed to hold that the absence of an implied statutory cause of action precluded the existence of a common law cause of action. Part IV then assesses the Radke court’s effort to resolve the confusion flowing from Hoppe