F(r)ee Expression: Reconciling Copyright & the First Amendment

This essay explores the relationship between copyright and free speech by critically evaluating the proposition that conflicts between the two can be eliminated because the Framers intended both to be engines for free expression. My purpose is not to set forth a comprehensive theory of copyright and free speech, but is more modest. This essay argues that while useful, reference to the Framers\u27 intent only goes so far in avoiding conflicts between copyright and free speech, and when viewed outside of the facts presented by Harper & Row and Eldred, reliance upon the Framers\u27 intent arguably increases such conflicts. Moreover, this essay suggests that efforts to minimize free speech concerns in copyright cases by relying upon the Framers\u27 intent beyond Harper & Row and Eldred represent copyright Lochnernism

Irreconcilable Differences: Congressional Treatment of Internet Service Providers as Speakers

This Article argues that under the CDA and OCILLA, Congress adopted facially inconsistent approaches towards ISP liability for expression. Nonetheless, despite the overt differences, it is possible to discern an underlying principle for determining when ISPs should be considered speakers that reconciles this inconsistency. Put simply, the CDA and OCILLA support an approach toward determining when ISPs are speakers that focuses on whether an ISP exercises editorial control over its network. This approach is evidenced by the fact that both statutes recognize that ISPs are able to exercise editorial control over any and all content on their networks, and both encourage the exercise of that control in one form or another

Antitrust Immunity, the First Amendment & Settlements: Defining the Boundaries of the Right to Petition

Specifically, this Article examines whether settlement agreements and consent decrees resulting from what would otherwise be immunized litigation are protected from antitrust scrutiny and liability under Noerr. In order to conduct this analysis, this Article develops a methodology for determining immunity by focusing the immunity examination upon the means used to petition government and the source of the alleged injuries. Ultimately, private conduct is immune from antitrust scrutiny when it represents a valid attempt to persuade an independent governmental decision-maker in an effort to solicit government action, and the alleged injuries result from that persuasive effort. The validity of any effort depends upon the forum in which the petitioning is conducted without reference to antitrust. By focusing upon the means used to petition government, this analysis ensures that Noerr immunity protects the people\u27s right to petition their government for the redress of grievances without unnecessarily limiting the protection afforded by the antitrust laws

Privacy is the Problem

A local school district remotely activates laptop web cameras that allegedly record the activities of students, even in their bedrooms.1 The President authorizes the National Security Agency (NSA) to monitor the telephone calls and electronic communications of individuals within the United States on an unprecedented scale in the interest of national security.2 Even a cursory examination of the news suggests that the activities and communications of Americans are increasingly subject to government surveillance from every level of government. Whatever we may think about the necessity for this surveillance, we should question how such programs come into being; in other words, who made the decision to use web cameras or wiretap international communications and how was that decision made and how did the government decide when to turn on a particular web camera or to monitor a particular telephone call or e-mail? And, for the purposes of this discussion, what does the United States Constitution have to say about both of these processes

The Founders’ Privacy: The Fourth Amendment and The Power of Technological Surveillance

Part I of this Article briefly discusses the history and origins of the Fourth Amendment and its relationship to the doc- trine of separation of powers. Part I argues that the central purpose of the amendment was not to define various aspects of life as private, but to guarantee that the people defined the limits of the executive\u27s surveillance power. Part II then examines the Supreme Court\u27s Fourth Amendment jurisprudence dealing with technology prior to Kyllo, and the problems associated with this jurisprudence. Part II argues that the Supreme Court\u27s framing of the privacy question as whether a new search is equivalent to the searches the Founders feared not only fails to provide law enforcement with any guidance, but supplants the decision making authority of the people in part by failing to distinguish between macro-level decisions and micro- level decisions. In this discussion, Part II uses as examples three emerging investigative technologies: Magic Lantern, decryption, and Carnivore. In Part III, this Article discusses the Supreme Court\u27s recent decision in Kyllo and how it might sug- gest an alternative Fourth Amendment analysis based upon the Founders\u27 privacy. This analysis is then applied to the three examples discussed in Part II. Part IV argues that unlike the Supreme Court\u27s current approach, an analysis based upon the Founders\u27 privacy may be consistent with the principles of constitutional self-governance and reconcile the current tension between the Fourth Amendment and the constitutional doc- trine of separation of powers. Part V.A discusses the moderate thesis, and Part lV.B the radical thesis

The Founders’ Privacy: The Fourth Amendment and The Power of Technological Surveillance

Part I of this Article briefly discusses the history and origins of the Fourth Amendment and its relationship to the doc- trine of separation of powers. Part I argues that the central purpose of the amendment was not to define various aspects of life as private, but to guarantee that the people defined the limits of the executive\u27s surveillance power. Part II then examines the Supreme Court\u27s Fourth Amendment jurisprudence dealing with technology prior to Kyllo, and the problems associated with this jurisprudence. Part II argues that the Supreme Court\u27s framing of the privacy question as whether a new search is equivalent to the searches the Founders feared not only fails to provide law enforcement with any guidance, but supplants the decision making authority of the people in part by failing to distinguish between macro-level decisions and micro- level decisions. In this discussion, Part II uses as examples three emerging investigative technologies: Magic Lantern, decryption, and Carnivore. In Part III, this Article discusses the Supreme Court\u27s recent decision in Kyllo and how it might sug- gest an alternative Fourth Amendment analysis based upon the Founders\u27 privacy. This analysis is then applied to the three examples discussed in Part II. Part IV argues that unlike the Supreme Court\u27s current approach, an analysis based upon the Founders\u27 privacy may be consistent with the principles of constitutional self-governance and reconcile the current tension between the Fourth Amendment and the constitutional doc- trine of separation of powers. Part V.A discusses the moderate thesis, and Part lV.B the radical thesis

Irreconcilable Differences: Congressional Treatment of Internet Service Providers as Speakers

This Article argues that under the CDA and OCILLA, Congress adopted facially inconsistent approaches towards ISP liability for expression. Nonetheless, despite the overt differences, it is possible to discern an underlying principle for determining when ISPs should be considered speakers that reconciles this inconsistency. Put simply, the CDA and OCILLA support an approach toward determining when ISPs are speakers that focuses on whether an ISP exercises editorial control over its network. This approach is evidenced by the fact that both statutes recognize that ISPs are able to exercise editorial control over any and all content on their networks, and both encourage the exercise of that control in one form or another