Transmitting, Editing, and Communicating: Determining What “The Freedom of Speech” Encompasses

How much can one say with confidence about what constitutes the freedom of speech that Congress shall not abridge? In this Article, I address that question in the context of the transmission of speech specifically, the regulation of Internet access known as net neutrality. This question has implications both for the future of economic regulation, as more and more activity involves the transmission of bits, and for First Amendment interpretation. As for the latter, the question is what a lawyer or judge can conclude without having to choose among competing conceptions of speech. How far can a basic legal toolkit go? Using that toolkit, I find that bare transmission is not speech under the First Amendment, and that most forms of manipulation of bits also would not qualify as speech. Adopting any of the leading conceptions of the First Amendment would narrow the range of activities covered by the First Amendment. But even without choosing among those conceptions we can reach some meaningful conclusions about the limited application of the First Amendment to Internet access providers

Ships Passing in the Night: The Communications Act and the Convergence on Broadband

The Communications Act of 1934 and its amendments (the “Act”), and the regulations implementing them, have been enormously important to traditional telephony, broadcasting, and multichannel video. Meanwhile, the internet is barely mentioned in the Act. It thus might seem reasonable to conclude that the Act stands as a colossus and that the argument for overhauling it has grown much stronger as the Telecommunications Act of 1996 (the “1996 Act”) becomes ever more outdated. In this Article I suggest otherwise. Specifically, I make three claims—one descriptive, one a bit speculative, and one normative. The descriptive claim is that significant portions of the Act and its attendant regulations are dormant, with no significant applications. The slightly speculative claim is that only a few provisions of the Act as applied were necessary (or even important) to the rise of broadband internet service to its current predominance—most significantly, provisions on pole attachments that allowed for deployment of broadband capacity and provisions allowing the FCC to allocate wireless frequencies, which gave the FCC power to create flexible licenses that allowed licensees to offer wireless broadband. Section 230 of the 1996 Act and the FCC’s net neutrality regulations may have played a role, but their centrality is (at best) uncertain. Provisions preempting state regulation and providing for federal non-regulation may well have played an important role, but that is not an argument for the importance of a particular regulation; it is an argument for the importance of the absence of regulation. This leads to my third claim. I think the arguments for overhauling the Act have become weaker, not stronger, over the last twenty-five years, because most of the Act’s elements are becoming less important as telecommunications moves toward the seemingly inevitable dominance of broadband internet service

Affective reactivity of speech disturbances in schizotypy

Speech disturbances (SD) are a stable, pernicious symptom of schizophrenia that increase when negative emotion and/or arousal are elicited. While considerable research has examined SD in patients with schizophrenia, much less is known about individuals at risk for the disorder, who demonstrate schizophrenia-like, or schizotypic, traits. The present study examined SD and speech reactivity to stress, termed affective reactivity (AR), produced during a laboratory procedure in separate groups of controls and individuals with psychometrically identified schizotypy. This project had two primary aims: 1) to examine SD severity across schizotypy symptoms and 2) to examine how SD varies as a function of emotion/stress. We hypothesized that heightened schizotypic traits would be associated with more instances of SD and increased reactivity to emotionally evocative stimuli. In total, 105 participants (schizotypy= 83, control= 22) were examined here. We observed several interesting findings regarding SD and AR when comparing the schizotypy and control groups. On average, participants in the schizotypy group produced a trend level increase in SD across the pleasant and stressful conditions. When examining specific schizotypal symptoms in the stressful condition, disorganized symptoms were positively correlated with SD and negative schizotypy was inversely correlated with SD and AR. These findings indicate that negative and disorganized schizotypy symptoms may be correlated with SD; however, these correlations were only apparent when stress was induced. This study highlights the role of stress reactivity across the schizophrenia-spectrum. Moreover, the incongruous relationships between disorganized and negative symptoms and SD underscore the marked heterogeneity in disease process across schizotypy

Spectrum Abundance and the Choice Between Private and Public Control

Prominent commentators have recently proposed that the government allocate significant portions of the radio spectrum as a wireless commons. The problem for commons proposals is that truly open access leads to interference, which renders a commons unattractive. Those advocating a commons assert, however, that a network comprising devices that operate at low power and repeat each other's messages can eliminate the interference problem. They contend that this possibility renders spectrum commons more efficient than privately owned spectrum, and in fact that private owners would not create these abundant networks (as I call them) in the first place. In this Article I argue that these assertions are not well-founded, and that efficiency considerations favor private ownership of the spectrum. Those advocating a commons do not propose a network in which anyone can transmit as she pleases. The abundant networks they envision involve significant control over the devices that will be allowed to transmit. On the question whether private entities will create these abundant networks, commons advocates emphasize the transaction costs of aggregating spectrum, but those costs can be avoided via allotment of spectrum in large swaths. The comparative question of the efficiency of private versus public control, meanwhile, entails an evaluation of the implications of the profit motive (enhanced ability and desire to devise the best networks, but also the desire to attain monopoly power) versus properties of government action (the avoidance of private monopoly, but also a cumbersome process than can be subject to rent-seeking). The deciding factor, in my view, is that these networks might not develop as planned, and so the flexibility entailed by private ownership, as well as the shifting of the risk of failure from taxpayers to shareholders, makes private ownership the better option. The unattractiveness of a commons in this context casts serious doubt on the desirability of commons more generally. Commons proponents have championed abundant networks because those networks avoid interference problems. If private ownership is a more efficient means of creating abundant networks, then the same would almost certainly be true for networks that run the risk of interference. Most uses of spectrum are subject to interference, so the failure of the commons advocates' arguments undermines the appeal of a commons for most potential uses of spectrum. (Updated December 2003.)

The Logic of Scarcity: Idle Spectrum as a First Amendment Violation

The Supreme Court has distinguished the regulation of radio spectrum from the regulation of printing presses, and applied more lenient scrutiny to the regulation of spectrum, based on its conclusion that the spectrum is unusually scarce. The Court has never confronted an allegation that government actions resulted in unused or underused spectrum, but there is good reason to believe that such government-created idle spectrum exists. Government limits on the number of printing presses almost assuredly would be subject to heightened scrutiny and would not survive such scrutiny. This article addresses the question whether the scarcity rationale ,or any other reasoning, supports distinguishing spectrum from print such that government actions constricting the supply of spectrum would pass muster. I argue that the scarcity rationale does not support, and instead undercuts, government actions that limit the use of the spectrum. Government decisions that exacerbate the problems that gave riseTechnology and Industry, Regulatory Reform

The Paradoxical Impact of Scalia\u27s Campaign Against Legislative History

Beginning in 1985, Judge and then Justice Antonin Scalia advocated forcefully against the use of legislative history in statutory interpretation. Justice Scalia’s position, in line with his textualism, was that legislative history was irrelevant and judges should avoid invoking it. Reactions to his attacks among Justices and prominent circuit judges had an ideological quality, with greater support from ideological conservatives. In this Article, we consider the role that political party and timing of judicial nomination played in circuit judges’ use of legislative history. Specifically, we hypothesize that Republican circuit judges were more likely to respond to the attacks on legislative history than their Democratic counterparts, and that judges who joined the bench during or after these attacks were more likely to be influenced than their counterparts who were appointed before the attacks. Utilizing a dataset containing all published federal appellate court majority opinions between 1965 and 2011 (more than 240,000 opinions), we find that, for both hypotheses, the judges whom we would expect to be more influenced by the attacks on legislative history were in fact less likely than their counterparts to cite statements from floor debates or committee hearings, traditionally regarded as among the least reliable forms of legislative history. But they were more likely than their counterparts to cite committee reports, traditionally regarded as the most reliable form of legislative history. The attacks on legislative history thus seem to have had the effect of pushing judges who might be expected to be influenced to (re)examine their treatment of legislative history but not (as Scalia had advocated) to avoid citing it. Instead, they adopted what had been the consensus approach for most of the twentieth century. Scalia influenced, but he did not persuade

Anti-Patents

Conventional wisdom has long perceived the patent and tort systems as separate legal entities, each tasked with a starkly different mission. Patent law rewards novel ideas; tort law deters harmful conduct. Against this backdrop, this Essay uncovers the opposing effects of patent and tort law on innovation, introducing the injurer-innovator problem. Patent law incentivizes injurers --often uniquely positioned to make technological breakthroughs--by allowing them to profit from licensing their inventions to competitors. Yet tort law, by imposing liability for failures to invest in care, forces injurers to incur the cost of implementing their own innovations. When the cost of self-implementation exceeds the revenues that may be reaped from patenting new technologies, injurers are better off refraining from developing socially desirable inventions. The injurer-innovator problem remarkably persists under both negligence and strict liability regimes, and in the face of different victim types. Multiple real-world examples demonstrate the extent and pervasiveness of this phenomenon. To realign the incentives provided by the patent and tort systems, this Essay proposes a new legal construct: anti-patents. While a standard patent grants an inventor the exclusive right to use its invention, an anti-patent creates the converse exclusivity regime: the inventor, and only the inventor, is not required to use the invention. Importantly, anti-patents retain the existing patent protection, allowing injurer-innovators to charge monopolistic prices from competitors but simultaneously eliminating the obstacle created by tort law. An injurer-innovator who owns an anti-patent will enjoy immunity from the heightened standard of care to which the rest of the industry would now be subject. The Essay further shows that the anti-patent mechanism not only succeeds at harmonizing patent and tort law toward the advancement of technological progress but also outperforms alternative schemes employed to stimulate innovation (i.e., prizes, grants, and tax benefits). Finally, it ties the logic that underlies anti-patents to existing doctrines designated to elicit the disclosure of private information