The Jurisprudence of Transformation: Intellectual Incoherence and Doctrinal Murkiness Twenty Years After Campbell v. Acuff-Rose Music

Examining recent judicial opinions, this Article analyzes and critiques the transformative-use doctrine two decades after the U.S. Supreme Court introduced it into copyright law in Campbell v. Acuff-Rose Music. When the Court established the transformative-use concept, which plays a critical role in fair-use determinations today, its contours were relatively undefined. Drawing on an influential law-review article, the Court described a transformative use as one that adds “new expression, meaning or message.” Unfortunately, the doctrine and its application are increasingly ambiguous, with lower courts developing competing conceptions of transformation. This doctrinal murkiness is particularly disturbing because fair use is a key proxy for First Amendment interests in copyright law. This Article traces the evolution of transformative use, analyzes three key paradigms of transformative use that have gained prominence in the post-Campbell environment, and offers suggestions for a jurisprudence in which transformative use is a less significant component of the fair-use analysis

Fissures, Fractures & Doctrinal Drifts: Paying the Price in First Amendment Jurisprudence for a Half Decade of Avoidance, Minimalism & Partisanship

This Article comprehensively examines how the U.S. Supreme Court’s adherence to principles of constitutional avoidance and judicial minimalism, along with partisan rifts among the Justices, have detrimentally affected multiple First Amendment doctrines over the past five years. The doctrines analyzed here include true threats, broadcast indecency, offensive expression, government speech, and strict scrutiny, as well as the fundamental dichotomy between content-based and contentneutral regulations

An Actual Problem in First Amendment Jurisprudence: Examining the Immediate Impact of Brown\u27s Proof-of-Causation Doctrine on Free Speech and Its Compatibility with the Marketplace Theory

This article analyzes the immediate impact on First Amendment jurisprudence of the U.S. Supreme Court\u27s direct causal link requirement adopted in 2011 in Brown v. Entertainment Merchants Association. In embracing an empirically focused proof-of-causation doctrine, Brown marked the first time in the Court\u27s history it had used the phrase direct causal link in any free speech case. But just one year later, in a very different factual context in United States v. Alvarez, the Court struck down a federal law making it a crime to lie about earning military medals. In December 2012, a federal judge used Brown\u27s direct causal link test to enjoin a California law that prohibits healthcare providers from engaging in sexual orientation change efforts with gay minors. This article explores problems with adopting Brown\u27s quantitative and empirical causation standard in cases like Alvarez where an intangible injury (reputational harm) to an inanimate object (a medal) is the alleged compelling interest. Bridging doctrine with theory, the article also examines how the direct causal link requirement comports with the marketplace of ideas theory upon which much of First Amendment jurisprudence is premised

Free Speech, Fleeting Expletives, and the Causation Quagmire: Was Justice Scalia Wrong in Fox Television Stations?

This Article concentrates on one particular issue raised in the Fox Television Stations ruling - the critical question of causation of harm caused by mass media messages and, in particular, the quantum of evidentiary proof needed by a federal agency to demonstrate causation sufficient to justify restricting the speech in question. The issue is ripe for review

Know Your Audience: Risky Speech At The Intersection Of Meaning And Value In First Amendment Jurisprudence

Using the U.S. Supreme Court’s 2014 decision in Air Wisconsin Airlines Corp. v. Hoeper as an analytical springboard, this article examines the vast burdens placed on speakers in four realms of First Amendment law to correctly know their audiences, in advance of communication, if they want to receive constitutional protection. Specifically, the article asserts that speakers are freighted with accurately understanding both the meaning and the value audiences will ascribe to their messages, ex ante, in the areas of obscenity, intentional infliction of emotional distress, student speech, and true threats. A speaker’s inability to effectively predict a recipient’s reaction to his message could result in a loss of speech rights and, in turn, lead to either criminal punishment or civil liability. Dangerous disconnects and chasms between speakers and audiences can arise, negating free expression when a message’s meaning or its value is lost in translation. Ultimately, speakers should not be forced to engage in complicated guesswork and multiple layers of abstraction in order to safely exercise their First Amendment rights

Transformative Variations: The Uses and Abuses of the Transformative Use Doctrine in Right of Publicity Law

In 2001, the California Supreme Court embarked upon a novel experiment in its right of publicity jurisprudence. The court imported a single element from copyright\u27s fair use analysis. That element—transformative use—has since become an enormously important defense for publicity defendants. Unfortunately, the transformative use doctrine is notoriously protean, and has resulted in significant confusion in publicity law that almost certainly chills protected speech. Many courts seem to lack a clear idea of what a sophisticated transformative use analysis should even look like. This article unpacks these issues and proposes improvements to this difficult legal area