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Table of Contents

Compelled Commercial Speech

Robert Post, Yale Law School

Knocked Out: The Once and Future Demise of Football

Chris D. Birkel, College of Charleston

Communications Innovations at the United Kingdom Supreme Court - A New Constitutional Actor Asserts Itself

Richard M. Cornes, University of Essex - School of Law

Political Advertising Bans and Freedom of Expression

Ronan Ó Fathaigh, University of Amsterdam - Institute for Information Law (IViR)

Corrupting the Cyber-Commons: Social Media as a Tool of Autocratic Stability

Seva Gunitsky, University of Toronto, Princeton Institute for International and Regional Studies

Freedom of Expression in South Korea

Stephan M. Haggard, University of California, San Diego (UCSD) - Graduate School of International Relations and Pacific Studies (IRPS)
Jong-sung You, The Australian National University

Sponsored by Institute for the Study of the Judiciary,
Politics, and the Media (IJPM) at Syracuse University

"Compelled Commercial Speech" Free Download

ROBERT POST, Yale Law School

This paper is the text of the fourth annual C. Edwin Baker Lecture for Liberty, Equality, and Democracy at the West Virginia University College of Law, which will be delivered in November and subsequently published in the West Virginia Law Review. The article explores the burgeoning doctrine of “compelled commercial speech,? with special emphasis on recent decisions of the United States Court of Appeals for District of Columbia Circuit, including American Meat Institute (“AMI?) v. Department of Agriculture, an en banc decision upholding the mandated labeling of meat products; National Association of Manufacturers (“NAM?) v. SEC, which struck down features of SEC mandated reports about the origins of conflict minerals; and R.J. Reynolds Tobacco Co. v. FDA, which invalidated FDA mandated graphic cigarette warnings.

Commercial speech doctrine was established in order to protect what Central Hudson called the “informational function? of commercial communications. The object of the doctrine was explicitly to protect the capacity of an audience to receive information rather than to safeguard the autonomy of a commercial speaker. The informational function implies a constitutional asymmetry between restrictions on commercial speech and compelled disclosures of commercial speech. The former impair the distribution of information; the latter enhance it. The tendency of many judges to adjudicate compelled commercial speech cases in light of decisions like West Virginia State Board of Education v. Barnette, which defend the autonomy of speakers within public discourse, is deeply misplaced. The article defends the proposition that First Amendment jurisprudence is plural, not unitary.

The Court embraced the plurality of First Amendment jurisprudence in Zauderer v. Office of Disciplinary Counsel, which holds that factual commercial speech can be compelled if it is “reasonably related? to an appropriate government purpose. First Amendment rights of commercial speakers in such circumstances are deemed to be “minimal.? The article discusses the relationship between the Zauderer test for compelled commercial speech and the Central Hudson test for restrictions on commercial speech, which is the object of much unfocused discussion in AMI.

Compelled commercial speech, like government speech, is an effort to affect the content of public opinion. Both compelled commercial speech and government speech raise questions about how a democratic government may constitutionally influence the shape of a public opinion to which it is in theory responsive. The article seeks to explain certain doctrinal restrictions on compelled commercial speech in light of constitutional concerns that arise when government seeks to affect the content of public opinion. It offers an analysis of why government efforts to inform public opinion through the required disclosure of facts is constitutionally distinct from government efforts to shape public opinion through the required disclosure of opinions. The article explores how compelled disclosures of opinion may constitutionally be distinguished from compelled disclosures of fact, a distinction that lies at the heart of decisions like NAM and R.J. Reynolds. The article also discusses the kinds of state interests that may justify compelled commercial speech, which is the subject of great dispute in AMI.

"Knocked Out: The Once and Future Demise of Football" Free Download
Berkeley Journal of Sports & Entertainment Law 4:1 (April 2015 Forthcoming)

CHRIS D. BIRKEL, College of Charleston

This paper will analyze one strategic threat to the National Football League (NFL). Football is king. Football is the most popular sport in America. The NFL is the most profitable professional sports league in America. From the sharp increase in fantasy football participation to television ratings, the NFL has enjoyed unparalleled success recently. This paper will argue that significant market forces will threaten the NFL.

This paper acknowledges the many recent public relations difficulties the NFL has faced. Player conduct ranging from domestic abuse to performance enhancing drug use has created a difficult media environment. Further, NFL owners have faced difficulties ranging from drug addiction to accusation of complicity when handling player discipline issues. This paper will argue that while those things are damaging in the short-term they do not represent a strategic threat to the sport itself.

This paper will argue that the recent NFL Players’ Association lawsuit against the league for damages caused by concussions will lead to very serious difficulties for the sport itself. The lawsuit has been settled for hundreds of millions of dollars. This paper will argue, however, that the lawsuit itself is not a grave threat to football. This paper will argue that the strategic threat revealed in the lawsuit is subtle. This paper will argue that increasing insurance costs – driven by threats of future lawsuits – will create changes to the current marketplace for football that could threaten the long-term viability of organized football.

This paper acknowledges the inherent difficulty of predicting future events. Therefore, this paper uses argument by analogy to show how increasing insurance costs have affected popular, youth-oriented activities previously. While this paper does acknowledge there may be some important differences between the analogues selected and football, this paper argues that the insurance mechanism will create significant supply problems that will hamper the sustained popularity of the sport.

"Communications Innovations at the United Kingdom Supreme Court - A New Constitutional Actor Asserts Itself" Free Download

RICHARD M. CORNES, University of Essex - School of Law

A short review of communications innovations at the UK Supreme Court: to what extent is a comms operation ever able to be neutral; how has the comms operation helped the Court assert itself; and what is the relationship between the Court's comms activities, and those of its justices?

"Political Advertising Bans and Freedom of Expression" Free Download
Greek Public Law Journal, Vol. 27 (2014 Forthcoming)

RONAN Ó FATHAIGH, University of Amsterdam - Institute for Information Law (IViR)

In Animal Defenders International v UK, the 17-judge Grand Chamber of the European Court of Human Rights ruled that the UK’s ban on political advertising on television, as applied to an animal rights organisation, did not violate freedom of expression. The Court divided nine votes to eight, with the majority opinion abandoning the Court’s previous ‘strict scrutiny’ review, and laying down a new doctrine for reviewing political advertising bans. This article, first, examines the role the composition of the Grand Chamber played in the outcome of the case. Second, questions the basis of the new doctrine of review. And third, criticises the majority’s treatment of precedent.

"Corrupting the Cyber-Commons: Social Media as a Tool of Autocratic Stability" Free Download
Forthcoming in Perspectives on Politics 13.1, March 2015

SEVA GUNITSKY, University of Toronto, Princeton Institute for International and Regional Studies

While the study of social media has focused on how this technology can help mobilize anti-regime protests, its role as a tool of autocratic resilience has rarely been examined. Yet non-democratic regimes have evolved beyond merely censoring or suppressing online discourse, and are shifting toward proactively subverting and co-opting social media for their own purposes. Namely, social media is increasingly being used to undermine the opposition, to shape the contours of public discussion, and to cheaply gather information about falsified public preferences. I lay out four mechanisms that link social media co-optation to autocratic resilience: 1) counter-mobilization, 2) discourse framing, 3) preference divulgence, and 4) elite coordination. I then detail the recent use of these tactics in mixed and autocratic regimes, with a particular focus on Russia, China, and the Middle East. This rapid evolution of government social media strategy has critical consequences for the future of electoral democracy and state-society relations.

"Freedom of Expression in South Korea" 
Journal of Contemporary Asia (2014)

STEPHAN M. HAGGARD, University of California, San Diego (UCSD) - Graduate School of International Relations and Pacific Studies (IRPS)
JONG-SUNG YOU, The Australian National University

South Korea is widely considered a consolidated democracy, but there is growing evidence that freedom of expression in South Korea has lagged behind that of comparable Asian countries and that it has deteriorated since 2008. Freedom House downgraded South Korea’s “freedom of the press? status from “free? to “partly free? in 2010 and other international reports also raised concerns on the status of freedom of expression in the country. We identify five problems that have contributed to the deterioration in South Korea’s rankings with respect to civil liberties: abuse of criminal defamation, the rules governing election campaigns, national security limitations on free speech, restrictions related to the internet and partisan use of state power to control the media. We close by considering possible explanations of the phenomenon, ranging from more distant cultural factors and the influence of the Japanese legal systems through the enduring impact of the Cold War. However, the main problems appear political. Governments on both the political right and left have placed limits on freedom of expression in order to contain political opposition, and constitutional, legal and political checks have proven insufficient to stop them.


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Law, Politics & the Media eJournal

Reporter, SCOTUSblog

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Gordon Hirabayashi Professor for Advancement of Citizenship; Director, Comparative Law and Society Studies (CLASS) Center, University of Washington - Department of Political Science

William Nelson Cromwell Professor of Jurisprudence & Political Science, Amherst College