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Abstract:
One hears the word "federalism" with some frequency these days. The debates over medical marijuana, capital punishment, abortion, assisted suicide, capital punishment, school financing, and even environmental policy, all have vital federalism dimensions. On these and other issues, the word "federalism" has transformed from a tired shibboleth for political conservatism into a more interesting, if complex, focus for conversation and debate.

The debate continues, but lawyers, academics, and concerned citizens who seek guidance on federalism issues in the pages of the United States Reports will not find a consistent theory of federalism within. The United States Supreme Court's fractured federalism opinions provide invariably Byzantine, frequently contradictory, and generally unhelpful advice. We share the frustrations of those who search for a new paradigm. In light of the enormous size and scope of the federalism question, we feel that the best way to move the conversation forward - the best way really to explore the secret workings of American federalism - is to break free of existing categories. What is called for is a free-wheeling, broad ranging, and altogether unreserved dialectic. Accordingly, we offer the reader the following exchange as a contribution to the ongoing scholarly dialogue on federalism.

federalism, commerce clause, federalism issues, developing federalism jurisprudence, intergovernmental immunities, enumerated powers, constitutional provisions

Abstract:
Our manuscript entitled "The Foundations of Federalism: An Exchange" is occasioned by the Supreme Court's federalism jurisprudence which, in our judgment, calls for a broad ranging exploration of the constitutional concept of federalism itself. That exploration takes place in the form of a dialog between us which, while rewritten from its original form, nevertheless reflects our actual exchanges over an 18-month period. Our conclusion is that such terms as "sovereignty" generally have no place in American constitutional federalism, that the Supreme Court's efforts to enforce federalism limitations have been ineffective and, in some instances, counterproductive, and most basically that federalism itself is best seen in non-theoretical terms, but instead as a practical and untidy system of occasions for sober second thought by federal and state governments engaged in the federal legislative process. On federal-state power conflicts, the Constitution should be seen as a purposeful "incompletely theorized agreement," to quote Cass Sunstein.

federalism, Constitution, constitutional history, Supreme Court, political philosophy, constitutional law

Abstract:
Art and the Constitution addresses a longstanding problem in free speech theory: the status of art as expression protected by the First Amendment. The article, drawn from Professor Bezanson's forthcoming book, Art and the First Amendment (U. Ill. Press 2008-09), suggests that art should be broken down into two separate forms, propositional art and non-propositional art, with propositional art to be protected under the traditional speech paradigm and non-propositional art to be protected under an altogether different paradigm that results in art enjoying a distinct and greater degree of freedom under the First Amendment.

First Amendment, Art, Artistic Freedom, Constitutional Law, Supreme Court, Freedom of Speech, Intellectual Property

Abstract:
Since its beginning, the actual malice test first announced in 1964 in New York Times v. Sullivan, has suffered from problems that are increasingly traceable to the changing face of journalism. Its demand that the mind of the reporter be proved with convincing clarity has adverse consequences for plaintiffs and news organizations alike. End runs around the subjective state of mind inquiry by plaintiffs have become more common. And the actual malice test's predictability, its capacity as a standard of liability to yield consistent and coherent results across a body of cases, remains a hollow promise. As Robert Sack famously put it, successful libel plaintiffs resemble the remnants of an army platoon caught in an enemy crossfire. Perhaps the central flaw in the subjective malice/recklessness test is its focus on individual rather than corporate conduct, a shortcoming so fundamental that, in our judgment, the test should be supplemented, in the press setting at least, with what we call an institutional reckless disregard standard. This would be a largely objective assessment of the corporate decisions that affect journalism when they manifest knowing indifference to the risk of defamatory falsehood that flow from the decisions.

Why would such a standard be preferable? First, the actual malice/reckless disregard standard focuses on the state of mind of a reporter or editor instead of on the underlying factors that can give rise to defamatory publication, and over which writers and editors may have little or no control. Second, the actual malice/reckless disregard standard is blunt-edged. Third, while libel actions may be traumatic for journalists, the shift of financial liability to the business as a whole insulates journalists from responsibility for knowing and false misbehavior, thus in effect making them more indifferent to the risks their behavior imposes on others. Fourth, by exacting punishment based on conduct of journalists, not on organizational recklessness, the actual malice/recklessness inquiry frees news organizations to adopt risky practices without fear of consequences. At a time when market-based forces are placing great financial pressure on newsrooms and the publicly traded organizations that own most of them, a rule that frees journalistically dangerous corporate decisions from cost or consequence is likely, perversely, to facilitate the very choices that the law should discourage.

For these reasons we propose a different method of liability for news organizations, one that rests liability on corporate decisions that are known to present a heightened risk of falsity and defamation because of the impact of such decisions on staffing, training, editorial oversight, copyediting and related factors that affect the reliability of the news product and that cannot be justified on grounds related to the quality or journalistic performance of the news organization. We believe that decisions that are knowingly, indeed often calculatedly, taken to increase profits or personal wealth at the cost of slipshod journalism should not be relieved, as they are now, from consideration in establishing liability.

Defamation, libel, journalism, press, first amendment, freedom of press, actual malice, enterprise liability, product liability, law and economics, constitutional law

Abstract:
The article examines a category of speech acts that I call speech selection judgments. These acts involve the appropriation or selection of speech originally created elsewhere (by another) and the secondary deployment of that material in another context by a person or entity different than the original creator. The practice is essentially citational, in the broad sense that one repeats the words, speech, message, or meaning of another, and yet claims governance and, often, ownership over the repetitive use.

The article explores the variety of forms such speech selection judgments take, the Supreme Court's varied and inconsistent treatment of such acts as speech protected by the First Amendment, and the theoretical justifications for viewing such acts as First Amendment speech. I conclude that the Supreme Court's decisions are often based on conceptions of First Amendment speech that sweep too broadly and threaten to include a limitless variety of acts within the First Amendment simply because they can be perceived to communicate a message.

In light of this, the article concludes that speech selection acts should be treated as protected First Amendment speech acts only when (1) a person makes a speech selection for purposes of expression; (2) the selected speech is adopted as an expression of the speech selector's own ideas or opinions; and (3) the selected expression is transformed in meaning or significance by the act of selection.

Free speech,authorship,originality,republication,intellectual property

Abstract:
In this essay, we will touch upon many subjects that are contributing to the changing face of daily newspapers in the United States. We begin with a brief and conclusory definition of editorial freedom in news, the foundation of journalism, and the key to its educational function in the news setting. We will then turn to markets, technology, economics, organization of the news firm, operation of the newsroom, and the changing definition of news. Our purpose is to identify deep changes that are occurring in the nature and institutions of news, changes that will continue to evolve in un-foreseeable but perhaps controllable ways as the Twenty-first Century unfolds.

daily newspapers, editorial freedom, journalism, news industry, market

Abstract:
Governments must be able to speak, but what should be the status of their speech under the First Amendment? In The Many Faces of Government Speech, seven different forms, or typologies, of government speech are described and analyzed in detail. The typologies are: government programs expressing a specific message; government programs expressing a general or diffuse message; government control of a communication medium; government messages required to be spoken by a private speaker; government preferences for some messages over others; government control of information in its possession; and government speech through private messages attributed to it. These typologies are explored in detail through eight paradigmatic cases involving government speech claims. The exploration focuses on the precise nature of the expressive activity claimed by government; the nature of any free speech claim that government can make with respect to the activity; the risks that various forms of expressive government action present to private speakers and First Amendment values; and the Constitutional status of government speech.

The article concludes that government speech embraces a broad array of government actions and that acting expressively is a valid and indeed essential role for government. Yet there is no practical need or constitutional justification for treating government speech as speech protected by the First Amendment. Without any special First Amendment right the government possesses ample constitutional authority to act expressively. Instead, the important First Amendment question concerns the limits that should be placed on government speech. The article concludes that the limits are threefold: distortion of the private marketplace for expression; displacement of private speech through conversion or alteration of meaning; and deception about who authored a message.

Government, speech, government speech, freedom of speech

Abstract:
The history of art is replete with examples of artists who have broken from existing conventions and genres, redefining the meaning of art and its function in society. Our interest is in emerging forms of art that trespass - occupy space, place, and time as part of their aesthetic identity. These new forms of art, which we call trespassory art, are creatures of a movement that seeks to appropriate cultural norms and cultural signals, reinterpreting them to create new meaning. Marcel DuChamp produced such a result when, in the early twentieth century, he took a urinal, signed his name to it, titled it Fountain, and called it art.

Whether they employ 21st century technologies, such as lasers, or painting, sculpture and mosaic, music, theatre, or merely the human body, these new artists share one thing in common. Integral to their art is the physical invasion of space, the trespass, often challenging our conventional ideas of location, time, ownership, and artistic expression. Their art requires not only borrowing the intellectual assets of others, but their physical assets. This is trespassory art - art that redefines and reinterprets space - art that gives new meaning to a park bench, to a billboard, to a wall, to space itself.

Our purpose is to propose a modified regime in the law of trespass to make room for the many new forms of art with which we are concerned - art that is locationally dependent or site specific. We begin by briefly describing and characterizing these often-new artistic forms. This provides a jumping off point for addressing the basic question this article seeks to address - should the law accommodate these new types of art, and if so, to what degree? We first turn to the law of trespass, with particular focus on real property, both public and private, but also with an eye to personal and intellectual property. We conclude that adjusting trespass remedies for artistic trespass through a set of common law privileges would better balance the competing interests of owners and artists than do current trespass rules. We then turn to a set of constitutional issues and conclude that our common law proposal is consistent with, and in some ways perhaps required by, the First Amendment. Finally, we summarize our proposal and then revisit the value of trespassory art as art in our creative culture.

First Amendment, free speech, freedom of speech, art, aesthetics, torts, property, common law, incitement, blasphemy, performance art

Abstract:
In this modified version of a chapter in his forthcoming book, Art and Freedom of Speech, (Univ. of Illinois Press, 2008-09), Professor Bezanson begins to probe the nature of art and its relation to the first amendment free speech guarantee. The article, to appear in the Federal Communication Law Journal, uses the Karen Finley v. NEA case, and specifically discussion of Finley's performance art, to critique the Supreme Court's very approach to the Finley case and to view the issues from the perspective of art, artistic freedom, and the Supreme Court's role in fashioning constitutional protection for art as art, and not simply as cognitive speech.

First Amendment, Art, Artistic Freedom, Constitutional Law, Supreme Court, Freedom of Speech, Intellectual Property

Abstract:
The article explores two competing conceptions of the meaning of "speech" under the First Amendment, and the principal (sub)variants on each of the general conceptions. The two basic models are: speech as a communicative stimulant - an artifact given meaning by one or more audiences; and speech as a human act of free will, engaged in a social or transactional setting. The practical, jurisprudential, historical and textual, and communicative implications of the two principal views and their basic subvariants are analyzed. Specific attention (by way of illustration) is given to the Supreme Court's recent opinion in Boy Scouts of America v. Dale, which the author claims is a confused mixture of both artifactual and human liberty-based ideas.

free speech, communication, free will, Boy Scouts of America v. Dale

Abstract:
This book analyzes the broad range of Supreme Court cases that concern the protection of art and free speech under the First Amendment. Finding that debates about free expression (whether in speech or art) swirl around sex and cultural blasphemy, the work tracks and interprets the Court's decisions on film, nude dancing, music, painting, and other visual expressions.

The book draws on settings as diverse as homosexuality in the Boy Scouts, gay and lesbian parade floats, 2 Live Crew's alleged copyright infringement, National Endowment for the Arts grants and diversity, dangerous art, and screenings of the film Carnal Knowledge. In considering the transformative meaning of art, the importance of community judgments, and the definition of speech in Court rulings, the book focuses on the fundamental questions underlying the discussion of art as protected free speech: What are the boundaries of art? What are the limits on the government's role as supporter and "patron" of the arts? And what role, if any, may core social values of decency, respect, and equality play in limiting the production or distribution of art?

Art and Freedom of Speech explores these questions and concludes with the argument that, for legal purposes, art should be absolutely free under the First Amendment - in fact, even more free than other forms of speech.

Constitutional Law, First Amendment, Free Speech, Aesthetic Speech, Art, Freedom of Speech

Abstract:
"How Free Can Religion Be?" traces the evolution of the Supreme Court's treatment of the First Amendment Religion Guarantees, ranging from strict separation to neutrality to accommodation and nonendorsement to equality and nonpreferentialism. The text employs eight principle cases (Reynolds, Everson, Yoder, Epperson, Engel, Smith, Rosenberger, Locke v. Davey) as the foundation for a wide-ranging and Socratic discussion of the evolving meanings of religious freedom in America.

First Amendment, Religion, Constitutional Law, Religious Freedom, Supreme Court

Abstract:
The Iowa Law Review is one of the oldest law journals in the country. Professors Bezanson and Boyd trace the history of the Review from its beginning in 1891, often through the stories of and by Deans and Faculty Advisors and Editors. Major events and developments in the history of the Law Review and American legal education are traced over the Review's 90-year-life, leading to the Review's part in the development of a uniquely writing-based curriculum at the Iowa College of Law in the 1960s, under the leadership of Dean David Vernon.

legal education, law journals, Iowa, law review

Abstract:
The paper explores various manifestations of the public/private distinction in the context of freedom of the press, identifying content-neutral attributes of private ownership, private editorial judgment, public audience, and public orientation that serve as structural premises of press freedom, and then applies these ideas to the interests in privacy reflected in the privacy tort and newsgathering.

Press freedom, freedom of speech, constitutional law, first amendment, privacy, intrusion, newsgathering

Abstract:
The article concerns speech selection judgments, which are defined to involve the appropriation or selection of speech originally created elsewhere and the secondary deployment of that material in another context by a person or entity different than the original creator. What is the nature of the selection and republication act that might justify treating the selector as a First Amendment speaker and the expression as an instance of speech by the selector?

These questions are explored through the application of various ideas of communication, applied in the particular setting of the Supreme Court's opinion in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston. In Hurley the Court treats a parade organizer as a First Amendment speaker and the selection decisions made by the organizer as First Amendment speech by the organizer. The article attempts to expose, in an evocative and not prescriptive way, the complicated elements lying beneath the surface of the Court's opinion, and the deep ambiguity in the Court's articulated and implicit conceptions of communication and speech.

Freedom of Speech, republication, speech selection, communication theory

Abstract:
"Taking Stock" explores the place of newspaper journalism in the publicly traded newspaper companies. It does so through an analysis at the level of the firm and the organization of the publicly held business entity and its subsidiaries, analyzing financial operations, organization and control arrangements; influences of various investor groups and market forces on management of the holding companies and the operating newspaper companies; the dynamics of financial and operating control; and incentives placed throughout the firm to orient employees, including newsroom personnel, to corporate objectives. The technological and surrounding economic environments in which the newspaper firms operate are also analyzed in detail. The objective of the analysis is to draw conclusions about the consequences to journalism of the commerce in newspaper company stock, much of it by large institutional investors; and the influence of investment markets on the operation and incentives within the public firms. James Risser describes the book as "a pathbreaking work...which will produce intense discussion and soul-searching in the newspaper industry, as it should."

newspapers, stock options, market specialization, institutional investors, stock analysts' influence, media organization, journalism

Abstract:
The article assesses the rapidly growing caselaw involving claims of freedom of editorial judgment for the press. The cases are organized around four, often overlapping, approaches by which editorial judgment-type claims are measured: (a) subjective intention; (2) objective description; (3) purpose; and (4) process.

After outlining and discussing the approaches in federal and state law, the article concludes they are not distinct or completing, but often complementary, reflecting a single coherent idea of the press's editorial judgment under the First Amendment, an idea grounded in purpose and served by process.

Abstract:
Recent technological advances in the health care delivery and payment system have complicated the traditional notions of confidentiality between patients and physicians, other health care providers, employers and insurers. While new laws are enacted to reflect the increasing concerns with the issue, they often fail to create certainty. The Model Health Information Disclosure Act represents an effort to provide clearer guidance in the area. Regulating the disclosure and maintenance of health care information, the Act focuses on the confidentiality of all forms of health care information. The Act imposes a general duty of nondisclosure and proposes criminal sanctions as well as civil remedies for breach of confidentiality. However, in certain instances, disclosure may become permissive or mandatory, depending on whether the benefit of disclosure outweighs the patient's privacy interest.

Abstract:
The article explores the implications for First Amendment theory and doctrine -- especially public forum doctrine -- of the Supreme Court's 1998 decisions in Arksansas Educational Television Comm'n v. Forbes and Nat'l Endowment for the Arts v. Finley. Specifically, the article examines whether the two cases, viewed together, rest on a principle of government immunity from free speech restrictions when government acts in the capacity of a speaker; and if so, what limits should be placed on government claims of immunity.

The article explores this issue through four more specific questions: (i) How can a line be drawn between government acting as regulator of speech and government acting as speaker? (ii) When, if ever, may the government speak in the form of editorial judgment? (iii) Is a government speech selection judgment about news or public affairs, as in Forbes, different from a judgment about artistic or aesthetic expression, as in Finley? (iv) Does a government's "freedom" to speak (directly or through selection of speech by others) itself justify limiting the freedom of others to speak? Do Forbes and Finley, in other words, announce the arrival of an entirely new constitutional idea, the "government speech forum," and with it presage the radical realignment of the public forum doctrine? The article concludes that this is precisely what Forbes and Finley imply.

Abstract:
One of the core axioms of First Amendment jurisprudence is that the quality of speech, its goodness or badness from a literary, artistic, or aesthetic perspective, or its effectiveness in communicating to an audience should bear no relationship to its protection under the First Amendment. This Article analyzes the Supreme Court's First Amendment doctrine across a wide range of fields: political speech, obscenity, commercial advertising, misrepresentation, entertainment, literature and the arts, and humor. The author demonstrates that the Court regularly, although implicitly and perhaps unconsciously, employs various qualitative criteria in determining whether and to what extent speech is protected under the First Amendment. The author argues that any First Amendment regime that falls short of absolute protection for all communication will inescapably broach questions of quality. Thus, the important issue is not whether determinations of quality should be relevant to the First Amendment, but instead when, how, to what extent, in what form, and with what justification quality should be considered. The author concludes that determinations of quality are relevant to the First Amendment, but, until that fact is acknowledged, the prevailing notion that quality is irrelevant hinders the development of a systematic and speech-sensitive approach to identifying exactly when and why quality should be a relevant consideration.