Communication Law Review

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Volume 23, Issue 2 (2023)

Cancel Culture and the Third Persona

M. Elizabeth Thorpe, SUNY Brockport

For critics, the onslaught of “cancel culture” represents censorship taking hold in everyday, public discourse. But excising speech from public discourse, discouraging it, or marking it as unacceptable in certain forums, are some ways in which a society enforces norms and standards. Censorship is, quite literally, the manifestation of the Third Persona. Philip Wander described the theoretical process of creating silenced audiences in his piece, “The Third Persona: An Ideological Turn in Rhetorical Theory.” Wander describes ways in which speech silences or negates audiences, creating a “rejected” audience.Censorship does this in the most literal and straightforward way. Cancel culture cannot be this manifestation of the Third Persona, because it aims not to silence the audience, but is actually the speech of the audience.

Keywords: censorship, third persona, audience, cancel culture, silencing

Social Media Platforms and Cancel Culture: Cashing in on Outrage

Juliet Dee, University of Delaware

Let’s get one thing straight: social media platform executives know that outrage drives user engagement and “engagement drives ad dollars” (Whitehouse, 2022, 111). So, it makes sense that social media platform executives love cancel culture because the more angry people who post their outrage to various platforms, the more “engaged users” the platforms have to sell to advertisers (we the “users” are the actual product as we are sold like cattle to advertisers). Ironically, social media platform executives hope that we will remain unaware of the fact that whenever we post a message to their platform, we are driving engagement, which enhances their salaries.

Cancel culture can cause tangible (economic) harm to its victims. Platform executives would never admit that they want third-parties’ posts to harm targeted individuals, but if they are honest, they would acknowledge that they do not care. They have no reason to care whether or not their users suffer harm because Section 230 of the Communications Decency Act grants them immunity from liability. In other words, we could not argue that the social media platforms intentionally cause harm to certain users, but the platforms’ advertising sales staff might notice a correlation between high user engagement resulting from “cancelling” someone and increased ad sales. Indeed, former Facebook product managers have acknowledged that “their executive compensation system is largely based on their most important metric: user engagement” (Lauer, 2021). Put simply, the platforms make more money when people get angry and try to cancel each other. We will probably not be able to find out how much money platforms earn in boosted ad sales resulting from cancel culture’s increased ad sales because this information is proprietary (Lauer, 2021).

Houston Community College System v. Wilson: Race, Cancel Culture & the Censure

T. Jake Dionne, University of Arkansas

Houston Community College System v. Wilson is a 2022 US Supreme Court case about whether it is constitutional for elected school board officials to censure, or publicly reprimand, one another. Importantly, Wilson generated media coverage as a “cancel culture” case. In this article, I offer a racial rhetorical criticism of Wilson, focusing on what the Black rhetorical tradition can teach scholars about the distinction between the censure and cancel culture. Toward this end, I advance two arguments. First, I analyze digital media coverage of Wilson. I argue that in their coverage of Wilson, legal pundits perpetuated colorblind definitions of cancel culture, effectively downplaying the worldmaking potential of canceling as a Black discursive accountability practice. Second, I analyze Wilson itself. I argue that when read from the perspective of the Black rhetorical tradition on cancel culture, Wilson is a case that shows how the censure is different from canceling in terms of medium, rhetor, and effect. Ultimately, I conclude that Black rhetorical tradition teaches scholars that cancel culture is best understood as a critique of power, while the censure is an exercise in power.

Keywords: cancel culture, censure, digital rhetoric, First Amendment, legal rhetoric, race, racial rhetorical criticism

We’ll be Keeping AI on You! How Artificial Intelligence Could Escalate Cancel Culture

Jason Zenor, SUNY-Oswego

This essay examines how advancements in artificial intelligence (AI) could magnify the perceived problems of cancel culture in our communication ecosystem. First, the essay outlines how AI is already used in the communication ecosystem and the growth of Generative AI. Next, the essay examines how evolving AI advancements could inflame the worst aspects of cancel culture by increasing surveillance, doxing, deepfakes, and algorithmic bias toward outrage. The essay also shows how contemporary privacy and false speech laws offer little protection. Finally, the essay forwards possible legal solutions such as a right to be forgotten, a right to anonymity, and more transparency by tech companies.

Key Words: Artificial Intelligence, Surveillance, Doxing, Deepfakes, Right to be Forgotten, Right to be Anonymous, Cancel Culture

Social Media, Shame, & Students: Teaching about Cancel Culture is Crucial

Brandon Golob, University of California

Social media is a ubiquitous part of college students’ lives. From networking to news, young adults across the nation rely on social media platforms for countless professional and personal reasons. As an educator, I have a longstanding interest in the ways students utilize these platforms and, by extension, how various platforms can be used as pedagogical tools in courses. Specifically, I explore social media as a vehicle for increasing student engagement.

From Cancel Culture to Structural Chilling of Free Speech: A Case Study Approach

Kevin A. Johnson, California State University, Long Beach 

The purpose of this short essay is twofold. First, this essay seeks to highlight the complicated terrain of cancel culture by drawing attention to cases where people are impacted for good, bad, and worse. These effects happen often simultaneously. Second, the essay culminates in a reflection on content neutrality and the limitations of legal remedies to cancelling certain forms of communication. The essay’s central argument is that those who have the most to lose from cancel culture often have relatively the least material resources, whereas those who

have the least to lose from cancel culture often have the most material resources. The net effect of cancel culture may in at least some cases be, therefore, a legal protection of free speech that may paradoxically and structurally chill speech for those who have relatively the

least amount of material resources.

Keywords: Cancel Culture, Chilled Speech, Wealth Disparities, Risk, Child Pornography Laws

Volume 23, Issue 1 (2023)

Amateurism’s Death in Chicago: The Supreme Court’s Conservative Views of Antitrust in NCAA v. Alston

• Hunter Seidler, University of Mississippi

Place-as-Medium or Place-as-Rhetoric: How Kessler v. Charlottesville Complicates Doctrine on Content-Neutral Speech Restrictions

• Allison V. Doherty, University of Georgia

Persuasive Attack and Defense of Campus Free Speech: Implications for the First Amendment

• Joseph R. Blaney, Illinois State University

• Matthew J. Blaney, Washington University of St. Louis

On Shaky Ground: How Court Opinions Interpret Section 230 in Social Media Cases and the Implications this has on Future Online Political Advertising

• Christine Swartz, Louisiana State University

• Ayla Oden, Louisiana State University 

• Kyle Stanley, Louisiana State University

Communication Regulation on Campus: From Chilling Effect to Spiral of Silence

• Jared M. Luent, M.S., The University of Louisiana at Lafayette

• William R. Davie, Ph.D., The University of Louisiana at Lafayette 

• T. Phillip Madison, Ph.D., The University of Louisiana at Lafayette 

Volume 22, Issue 1 (2022)

Charlottesville, January 6 and Incitement: Can Civil Conspiracy Laws Permit an End-Run around Brandenburg v. Ohio?

Juliet Dee, University of Delaware  

In this article we analyze how courts have applied the federal Anti-Riot Act, the Brandenburg

test for incitement, and civil conspiracy laws to two events: 1) the 2017 Unite the Right march

in Charlottesville, Virginia, and 2) the January 6, 2021 insurrection and the storming of the

U.S. Capitol. The thesis of this article is that civil conspiracy laws will be more effective for

plaintiffs seeking redress of grievances against Donald Trump for the January 6, 2021

insurrection than will invoking the federal Anti-Riot Act because the Brandenburg test’s

requirement of proving a speaker’s intent to incite violence is too steep a hill to climb. When

plaintiffs file civil conspiracy suits, there is no guarantee that they will prevail. Whether they

win or lose, however, they may be trying to turn a civil trial into a public forum in order to

focus society’s attention on grievous wrongs that they have suffered.

Volume 22, Issue 1 (2022)

Shurtleff v. City of Boston: One Case, Two Frames, and Three Flagpoles

Dale A. Herbeck, Northeastern University

Three 83-foot flagpoles tower over Boston City Hall, the seat of local government. On most

days, the American flag flies on the first pole, the Massachusetts state flag flies on the second

pole, and the City of Boston flag flies on the third pole. On special occasions, the City lowers

its banner and raises a flag selected to celebrate a day of observance, a public institution, or

a moment of civic pride. In addition to these displays, private citizens, groups, and

organizations can apply to host a flag raising event on City Hall Plaza. When Harold Shurtleff

and Camp Constitution sought permission to fly the Christian Flag during an event, the City

of Boston denied their application. Pressed for an explanation, local officials claimed flying

a religious flag on the third flagpole might be perceived as “an endorsement of a particular

religion,” which would be “contrary to the concept of separation of church and state or the

constitution’s establishment clause.” Shurtleff and Camp Constitution challenged this

decision in federal court, but a federal district judge and the First Circuit Court of Appeals

framed the selection of flags as a form of government speech. Since the City was speaking,

officials could choose not to display religious flags. Unhappy with this result, Shurtleff and

Camp Constitution appealed to the Supreme Court, arguing that the First Circuit’s decision

“unconstitutionally expands the government speech doctrine.” As an alternative, their

Petition for Writ of Certiorari framed the third flagpole as a designated public forum,

meaning city officials had engaged in unconstitutional viewpoint discrimination when they 

refused to fly the Christian Flag. In a unanimous decision, the Supreme Court rejected the

government speech frame, holding the City of Boston did not exercise meaningful

institutional control over flag raising events. Since the government was not speaking, the

majority held officials violated the First Amendment when they denied the request submitted

by Shurtleff and Camp Constitution. As a result of the decision, the Christian Flag flew over

the City Hall Plaza for two hours, and the City of Boston adopted a new flag raising policy.

While the decision’s immediate effect was limited, Shurtleff v. City of Boston is worthy of

analysis because it refined the test used to distinguish between government speech and a

forum maintained by the government.

Volume 22, Issue 1 (2022)

On Performativity and Compelled Commercial Speech: Toward a Workable Standard

John Banister, University of Georgia   

Contemporary compelled speech doctrine is untenable in the face of increasing tensions

between public accommodations laws and First Amendment protections for free speech and

free exercise of religion. Religious liberty advocates can frame constitutional challenges to

anti-discrimination laws as compelled speech claims because current precedent fails to

satisfactorily operationalize the performative dimensions of expression. Controversies about

how to balance free expression with public accommodations laws call for a reimagining of

compelled speech doctrine. This paper considers how Masterpiece Cakeshop v. Colorado

Civil Rights Commission (2018) illustrates the problems with current compelled speech

precedents and begins to outline a new standard that might protect core First Amendment

principles and the equality interests at stake. Specifically, I assess the arguments advanced in

concurring opinions written by Justices Thomas and Kagan through the lens of performativity

to illustrate the insufficiency of current doctrine. I then argue for a particularity standard that

would provide a more workable test to better balance the demands for equality in public

accommodations with freedoms of speech and religious exercise.

Volume 22, Issue 1 (2022)

Memory as Law in Germany: Investigating Reactions to the Network Enforcement Act

Sheila B. Lalwani, University of Texas at Austin

In what ways should a democratic society address fake news, bullying, online harassment,

disinformation and fake news on social media platforms? Germany became the first country

to begin to answer this question with the passing of the Network Enforcement Act (NetzDG

for short). The Network Enforcement Act is the first law of a western democracy to regulate

social media platforms and place liability in their hands. While at least one study found that

the Network Enforcement Act enjoys wide public support domestically, this paper challenges

the assertion that the law is widely popular in Germany. This article argues that the German

response to the Network Enforcement Act provides an insight into Germany’s internal

debate on freedom of expression, history and memory. This article provides a genesis for

the Network Enforcement Act and analyzes the divergent domestic reactions to it by drawing

from public consultations prior to the passing of the law. This Article also considers how

social factors, such as demographics, have changed in modern Germany, perhaps indicating 

differing views on speech and media regulation within the population. The “law and culture”

theory may help to explain why the public has greeted the Network Enforcement Act with

mixed reactions.

Keywords: Network Enforcement Act, NetzDG, social media regulation, memory, public

consultations, censorship, freedom of expression

Volume 21, Issue 1 (2021)

The Unfulfilled Promise of the Federal Advisory Committee Act: Ensuring the Transparency of Citizen Advisory Committees Utilized by Federal Agencies

Judson H. Eldredge, Louisiana State University Eunice, and William R. Davie, University of Louisiana-Lafayette

The Federal Advisory Committee Act (FACA) was passed into law in 1972 to provide

guarantees of transparency, balance, and efficiency when the president, a federal officer, or

a federal agency uses a committee of private citizens that functions in an advisory capacity.

Since the passage of FACA, several court decisions have drastically limited the scope of

FACA’s applicability through overly narrow statutory construction of its language and

consequently excluded specific committees that report to the president without addressing

questions regarding the separation of powers. Unfortunately, these narrow interpretations

apply broadly to all relevant committees allowing for the easy creation of FACA-exempt

advisory committees so long as their members include contractors, non-voting members, or

because it is a subcommittee of an advisory committee that generates a final report. This

article explains those crucial decisions and the loopholes created to show how they

undermine FACA’s purpose by limiting its applicability across all committees utilized by

federal agencies allowing the courts to dodge the constitutional separation of powers question

which only applies to the small minority of committees directly utilized by the president.

Because the harm done to FACA was inflicted by judicial interpretation of the statute, it can

be remedied through congressional action. Congress should amend the Act and untangle

these judicial contortions through amendments to section three that make explicit the broad

and inclusive meaning of the terms comprising the definition of “federal advisory

committee,” which courts have misconstrued. Such amendments would close the loopholes,

return FACA’s applicability to its intended scope, and compel federal courts to address the

separation of powers issue they have thus far avoided.

Volume 21, Issue 1 (2021)

Defending the Right to Know: The Foreign Agent Registration Act and the Fight Against Disinformation

Svitlana Jaroszynski, Florida State University, and Jennifer M. Proffitt, Florida State University

The Foreign Agent Registration Act (FARA) was adopted in 1938 to reveal sources of

foreign propaganda and defend the right of the U.S. public to know the origin of

information provided through the media. Using a critical political economic approach,

this article examines the history of FARA, its recent application to Russia’s media agents,

and the FCC’s attempt to regulate media transparency. As demonstrated by the analysis,

the law and the proposed regulation protect the interests of the industry rather than the

interests of the public.

Keywords: Foreign Agent Registration Act, political economy, media transparency,

propaganda

Volume 21, Issue 1 (2021)

“Today I Fear for the Future”: Brett Kavanaugh’s ‘Riveting’ Defense of the American Every-Man from the Vengeful Every-Woman

Hilary A. Rasmussen, University of Wisconsin Parkside, and Megan M. Lambertz-Berndt, California Polytechnic State University

Through this analysis we examine the ways in which Brett Kavanaugh’s enactment of

White male precarity, coupled with institutional and discursive frameworks, facilitated a

compelling narrative during his 2018 confirmation hearing. Within the melodramatic

battlescape of Kavanaugh’s victimage ritual and the formal and informal institutional

structures of the hearing itself, the four Democratic women committee members were

sacrificed as scapegoats, guilty of indicting Kavanaugh, the system in which he stood to

benefit, as well as the American “Every-Man.” The following close textual analysis of

Kavanaugh’s assertion of White, male victimhood in his opening statement interrogates

the contextual constraints within a victimage ritual to address how self-victimization and

vilification gain authority when self-identified victims assert symbolic precarity.

Keywords: Victimage, victimhood, informal institutions, masculinity, precarity

Volume 21, Issue 1 (2021)

Defamation, Trial by Jury, and Internet Libel: Comparing Online Libel Law in the United Kingdom and the United States

Zia Aktar, LLB, The Honourable Society of Gray’s Inn, London, UK

The Defamation Act 2013 has raised the issue of libel trials that favoured the claimant

and led to forum shopping in the UK. The media was disadvantaged in defending their

right of freedom of expression protected under European Convention of Human

Rights (ECHR), Article 10. The changing landscape of libel law in the UK has also

meant the discarding of the trial by jury on the assumption that judges can case manage

trials and keep damages to a reasonable level. The issue is if this reform has met its

objective in the protection of free speech and which leads to fewer defamation claims.

The issue is of particular relevance in social media trials where the judges have to be

conscious of the ‘dictionary’ in libel allegations because of trends in communication. It

needs a comparative analysis with the US defamation law whose origins are on the same

common law principles but under the First Amendment the freedom of speech is

protected, and the print and electronic media have been able to enact a successful

defence more often in libel proceedings. This leads to an enquiry whether the jury is

better informed in delivering a verdict when libel is on the internet by taking into

consideration the approaches of the English and American courts which have preserved

jury trial in order to determine how the interests of the defendant and claimants can be

balanced.

Keywords: Defamation Act 2013, Section 11, freedom of expression, jury trial, civil

procedure, online libel, Communications Decency Act 1996, Section 230

Volume 20, Issue 1 (2020)

The Legitimation Crisis of the Japanese Constitution: Reflections on Japan’s Judicial Rhetoric and its Post-WWII Constitutionalization Process 

Keren Wang, Penn State University, and Tomonori Teraoka, National Taiwan University

Our article examines the issue of constitutional legitimacy in the post-WWII Japanese

legal system. Our analysis proceeds from the judicial rhetoric of postwar Japan, focusing

primarily on the state of judicial review and executive legislative practices throughout the

Japanese postwar constitutionalization process. The aim of our rhetorical analysis is to

identify the main points of discursive tensions as manifested in Japanese judiciary and

legislative norms. Although the postwar Japanese constitution provides a judicial review

process and separation of powers like its American counterpart, their implementation is

constrained by the legislative usurpation of the executive branch and judicial passivity of

the Japanese Supreme Court. Whereas the written language in the postwar Japanese

constitution adheres to the prevailing transnational dóxa for a democratic rule-of-law

society, we find many key constitutional elements are not internationalized within the

operational modality of Japanese judicial rhetoric.

Keywords: constitutionalization, Japanese Constitution, judicial rhetoric, legitimation,

postwar Japan

Volume 20, Issue 1 (2020)

Fake Democracy: The Threats of the Internet to Constitutional Democracy and the Risks of Democratic Governmental 

Countermeasures 

Gustavo Ferreira Santos, Catholic University of Pernambuco

This study uses an interdisciplinary approach to examine the threats to democracy

posed by the Internet, especially the issue of disinformation campaigns. In addition,

the research questions how governments and society are facing the problem. In recent

years, several massive disinformation campaigns against democracies have taken place

in different countries. Governments are responding, but their countermeasures also

pose risks to democracy and fundamental rights. This article points out the

importance of adopting the minimum interventionist measures, without neglecting

the risks entailed by a posture of omission.

Keywords: internet, fake news, disinformation, misinformation, democracy

Volume 20, Issue 1 (2020)

Finding Them Forever Families: Suggested Changes to U.S. Copyright Law in Light of the Growing Orphan Works Problem 

Donald R. Simon, University of Missouri-Kansas City, Northwest Missouri State University, and Avila University

Orphan works are works in which copyright protection still exists, but where the current

owners are either unknown or cannot be identified. People who wish to use these works are

unable to do so because of the risks associated with copyright infringement. If they do not

get permission and go ahead with their project anyway, there is a possibility that the copyright

owner could eventually turn up and sue for infringement. This paper summarizes some of

the causes and effects of the orphan works phenomenon as it relates to the impact of orphan

works on individual artists and media companies seeking to use the works of unknown or

unlocatable authors. It points to certain changes in the copyright law statute and its various

amendments that have given rise to this problem. Primary and secondary research conducted

strengthens the author’s conviction that certain changes need to be made at the statutory level

by Congress.

Keywords: copyright, orphan works, legislation, law

Volume 20, Issue 1 (2020)

Policy Fosters Family: Examining Discourses of Biology and Care in Foster Care-Related Government Texts 

Lindsey J. Thomas, Illinois State University, Joseph P. Zompetti, Illinois State University, and Amber Jannusch, Independent Researcher

Foster care complicates understandings of family and kinship. The term family marks

varied, ideology-couched relational systems, including assumptions of biological/legal

family as (best) providing care, safety, and love. However, families do not always fulfill

cultural expectations; in the U.S., social services exist to intervene when a child is unable

to live safely with their family (of origin). Foster care policy and practice, including court

decisions regarding children’s placements, operate to both reify and resist assumptions

that promoting/maintaining biological/legal family ties are (in the child’s) best (interests).

In this essay, we use Critical Discourse Analysis (CDA) to: (1) explain goals and policies

underlying foster care; (2) demonstrate how federal policies and guidelines privilege

biological families; and (3) reveal how laws are ideological such that state courts and other

entities can interpret guidelines and laws in ways that ease tensions between promoting

the best interest of the child and privileging biological ties.

Keywords: critical discourse analysis, discourse dependency, family ideology,

family law, foster care

Volume 20, Issue 1 (2020)

Emoji Goes to Court: An Analysis of Emoji in Court Proceedings and Implications for Legal Practice 

Kristen A. Foltz, The University of Tampa, and Juliana Fray, The University of Tampa

Emoji, emoticons, and bitmoji are communicative tools that express thoughts, feelings,

and ideas in electronically mediated communication. As a popular form of

communication, it is natural they now appear in court cases as evidence of

communication in both civil and criminal proceedings. Researchers explored the

frequency of the appearance of these terms in reported court cases and analyzed the

context of how these symbols appear in court opinions. Further, researchers identified

that references to these symbols have increased in frequency in court opinions each

year, appear more frequently in criminal cases than civil, and as evidence of

communication among parties. Additionally, there is a large number of cases that

reference emoticons in matters involving sexually related crimes. The increased

appearance of these terms in court cases indicates the need for the judicial branch and

legal professionals to examine the nature of this form of communication to avoid

misunderstandings.

Keywords: emoji; litigation; court proceedings; pop culture

Volume 19, Issue 1 (2019)

Defending the Press: The Shield that Sets Minnesota Apart

Scott Memmel, University of Minnesota

One year after the 1972 U.S. Supreme Court case Branzburg v. Hayes, the Minnesota

legislature passed the Minnesota Free Flow of Information Act, a shield law providing a

reporter’s privilege to protect confidential sources, as well as unpublished information,

regardless of whether it identifies a source. This article first provides important background

information and new analysis regarding the implications of Branzburg, the current state of

the reporter’s privilege at the federal level, and the history of Minnesota’s statute, including

the intentions of the drafters of the law, who crafted the statute to be among the strongest in

the nation. Second, this article discusses the three strengths of the statute, including its 1)

strong purpose statement, 2) broad definition of journalists, and 3) several protections for

journalists’ sources and information, all of which set Minnesota’s law apart from those in

several other states. Third, this article acknowledges the limitations of the statute, though it

also notes how a 1998 amendment helped alleviate some of these concerns. Finally, this

article suggests that the strengths of the Minnesota Shield Law can, and should, be used in

drafting a federal shield law, especially in an era of anti-press rhetoric and government

interference in the newsgathering process. In so doing, this article not only builds on existing

literature regarding the importance of a federal shield law and protections for the press, but

also suggests a way in which Congress can begin taking meaningful steps toward passing such

a statute.

Volume 19, Issue 1 (2019)

Justice for Sale? The Shadow of Dark Money in State Judicial Elections

Holly Kathleen Hall, Arkansas State University

In recent years, “dark money groups” have infiltrated state judicial elections. The spending

of these groups is usually targeted in the form of attack ads against candidates that many times

are extremely partisan, false and/or misleading. This affects the ability of voters to make

sound decisions in the voting booth. Many times, these dark money groups will not disclose

their donor list. This lack of transparency also leaves voters uninformed. This study

examines rise of dark money in state supreme court judicial elections, represented by specific

election examples from the state of Arkansas, including the use of a “Rapid Response Team”

(RRT) to attempt to handle candidate complaints of false campaign attacks. Moreover, the

marketplace of ideas theory is analyzed in assessing whether the counterspeech doctrine is

applicable in today’s judicial election advertising and information dynamic when the ethos

(speaker credibility) is indeterminate.

Volume 19, Issue 1 (2019)

User-Generated Content and the Regulation of Reputational Harm: The Boston Marathon Bombing as Case Study 

Ben Medeiros, State University of New York-Plattsburgh

Calls for internet platforms to perform more proactive moderation of users’ speech based

on its topical content itself—whether voluntarily or under threat of legal liability—have

proliferated in recent years. Using the reputationally-damaging instances of misidentification

that occurred during the 2013 search for the Boston Marathon bombers as a case study, this

article attempts to construct a more detailed, holistic picture of the mechanisms by which

reputationally-problematic speech is negotiated online in the absence of sweeping changes

to intermediary liability laws. The article argues that the Boston Marathon case study

illustrates a blind spot in the more modest, targeted proposals to reform Section 230 of the

Communications Decency Act in America that have appeared in recent years, and ultimately

recommends placing additional emphasis on further developing norms of responsible

speech in online communities, as their participants are perhaps more receptive to such

endeavors than popular caricatures of “internet vigilantes” might suggest.

Volume 19, Issue 1 (2019)

The Whiteness of Brown: The Failed Constitutive Rhetoric of Brown v. Board 

M. Elizabeth Thorpe, State University of New York

In the Brown v. Board of Education decision, the Supreme Court crafted an argument for

the importance of a unified American identity which, they argued, is protected by the

Fourteenth Amendment. The opinion was a constitutive argument utilizing the importance

of education in modern America and the identity that results from the normative experience

of that education. However, it was a failed piece of constitutive rhetoric, as the opinion failed

to create any space for Black identity. This paper argues that Brown’s failure rests in its

assumption of normative identity. The Brown opinion speaks from a place of “color-

blindness” which, in actuality, perpetuates White dominance.

Volume 19, Issue 1 (2019)

Regulating Social Media and the Internet of Everything: The Precedent of the Radio Act of 1927

Melody Fisher, Mississippi State University; Darvelle Hutchins, University of Missouri; and Mark Goodman, Mississippi State University

People demand Congress act to regulate the Internet. They want Facebook or Google or Twitter

regulated. They want to prevent the Russians from interfering in the 2020 election. Others believe

hate speech or other consequences of free speech need to be controlled. We examine the

precedence of the Radio Act of 1927, as well as other pertinent legal considerations. Our analysis of

those issues demonstrates that there are significant First Amendment and broadcasting law

roadblocks to any attempt to regulate the Internet of Everything.

Volume 19, Issue 1 (2019)

Can Contract Law Trump First Amendment Law?

Juliet Dee, University of Delaware

This article examines the legal issues surrounding non-disclosure agreements (NDAs);

specifically, anyone who signs a non-disclosure agreement waives his or her First

Amendment rights because courts tend to rule that contract law takes precedence over

one's freedom of speech if one willingly enters into the contract by signing it. After

examining past and current cases in which former CIA agents challenged their non-

disclosure agreements, the article turns its focus on recent cases in which those who 

worked on Donald Trump's campaign or White House staffers in the Trump

administration have challenged their non-disclosure agreements. If courts consistently

uphold non-disclosure agreements, the public will not have access to information from

those who are potentially the most knowledgeable and credible sources of the operations

of our government.

Volume 18, Issue 2 (2018)

A Few Words from the Bench: An Exploratory Study of Judges’ Communication “To” and “About” the Jury 

Traci Feller, Ph.D., University of Washington

A judge occupies an important position during a jury trial. In a context that is typically

unfamiliar to jurors, the judge is looked at as just, fair, and wise; what a judge says, matters.

The judge speaks to the jury, as well as about the jury while presiding, and both types of

communication give the jury cues and information about the events occurring. This

exploratory study looked specifically at the communication of judges in civil and criminal

trials with two points of focus: communication to and about the jury. A typology was created,

inclusive of all forms of communication witnessed, and two ceremonial acts a judge engaged

in regarding a jury were examined: allowing jurors to ask questions after witness testimony,

or having the entire room stand when the jury entered or exited; both unrequired and at the

discretion of the judge in the county in which the study took place. This study found that

female and racial minority judges were more likely to advocate for the jury, to allow the jury

to ask questions of witnesses in civil trials, and to have the room stand for the jury when it

entered or exited than did judges who were white and male.

Volume 18, Issue 2 (2018)

Confirming Ideology: The Ideological State Apparatus and “Anti-Ideology Topoi” in Supreme Court Confirmation Literature 

Christopher R. Darr, Ph.D., Indiana University Kokomo and Paul Cook, Ph.D., Indiana University Kokomo

Scholars in fields as diverse as law, communication, and political science argue that

the investigation of a Supreme Court nominee’s “ideology” is detrimental to the

Senate confirmation process and should be tempered, if not removed altogether from

the process. We argue that this position is flawed for several reasons. We begin by

forwarding a broader understanding of ideology, framing our analysis through the

work of Althusser, Eagleton, Žižek, and others, concluding that ideology is a

fundamental part of the confirmation process and cannot be eliminated—it can only

be masked. In the process, we identify four main “anti-ideology” arguments in the

literature: hearings should be objective, they should remain civil, they should focus

on qualifications, and they should be productive moments of government

accountability. We argue that such scholarly arguments are always-already

themselves thoroughly ideological and suggest that these four arguments constitute

topoi that might appear in defense of ideology wherever it is challenged.

Volume 18, Issue 2 (2018)

The Rhetorical Invention of Laws of Sacrifice: Kelo v. New London

Keren Wang, Ph.D., Penn State University

This paper studies the relationship between American legal rhetoric and public ritual

of sacrifice through the analysis of Kelo v. The City of New London, a 2005 U.S.

Supreme Court landmark decision affirming the regulatory seizure of private homes

for commercial redevelopment. Particularly, this paper explores

the rhetorical invention and expansion of the law of irresistible public sacrifice as

articulated in the Kelo decision. The rhetorical analysis of the Kelo decision finds that

the SCOTUS tacitly affirmed the legitimacy of neoliberal logos of governance as

the guiding principle for applying the Takings Clause of the Fifth Amendment.

Furthermore, the judicial rhetoric in the Kelo decision, in effect, re-framed solely

private commercial interest as a sufficient exigence for suspending legal protections

of the right of quiet enjoyment of private property. The judicial rhetoric deployed in

the Kelo case effectively provided constitutional legitimacy for the privatization of

eminent domain power as generally applied in urban redevelopment contexts. More

importantly, the Kelo decision also rhetorically transformed a previously exceptional

transgressive government act of seizure into a repeatable ritual sacrifice, in full

conformity with an updated constitutional memory.

Volume 18, Issue 2 (2018)

Constructing Means and Ends in Defining Obamacare: Contrasting Supreme Court Constructions of Congressional Motives in National Federation of Independent Business v. Sebelius and King v. Burwell

Clarke Rountree, Ph.D., University of Alabama in Huntsville

To the surprise of many commentators, the conservative-leaning U.S. Supreme Court came

to the rescue of the Patient Protection and Affordable Care Act (also known as Obamacare)

twice, defending the individual mandate and subsidies for Americans using federally-run

state insurance exchanges. They did so by constructing congressional motives as

supporting favorable interpretations of the law using ends-means arguments. However, the

two cases drew upon different grammatical resources, either defining means to suit the

ends, or defining ends to suit the means. This paper adds to previous work that

demonstrates the centrality of motive construction to judicial rhetoric and shows in

particular how opinion writers may draw upon different motivational elements to define

the meaning of laws. In particular, it explains how Chief Justice Roberts approached these

two defenses of Obamacare differently. It concludes by considering how these

constructions shaped interpretations of the High Court’s motives.

Scholars arrived at the National Communication Association conference in Philadelphia (2016) on the heels of the presidential election won by Donald Trump. No matter which candidate one supported, there was much speculation about the country’s future following the election of such a polarizing figure. At NCA in Dallas (2017), President Trump and his Administration were the topic of a number of papers and panels. Clearly, as scholars we find the 45th Presidential Administration to be a rich source for study. Thus the inspiration for a special issue of this journal to give scholars an opportunity to examine the Trumpian Era in terms of the First Amendment, particularly freedom of speech and freedom of the press. In this issue, you will find six articles discussing an interesting range of topics related to the call. We hope you enjoy each of them.

Guest Editors: Pamela L. Morris, Ph.D., Indiana University-Purdue University Columbus; Susan H. Sarapin, Ph.D., Troy University

Guest Reviewers: Kevin Coe, Ph.D., University of Utah; Jeffrey A. Hamburg, Attorney; Sorin A. Matei. Ph.D., Purdue University; Joseph Sery, Ph.D., Christopher Newport University; Gretchen K. G. Underwood, Ph.D., University of Pittsburgh at Greensburg

Trump, Nixon, and the War on the Press

M. Elizabeth Thorpe, Ph.D., The College at Brockport, State University of New York

War Stories: Trump’s Narratives and Freedom of the Press  Ann E. Burnette, Ph.D., Texas State UniversityRebekah L. Fox, Ph.D., Texas State University

The Cynical Manipulation of Universities as Public Forums in the Age of Trump

Susan Balter-Reitz, Ph.D., Montana State University Billings Michael Bruner, Ph.D., The University of Nevada, Las Vegas

Our Future Democracy: Reconsidering Regulation of Social Media in the Era of Trumpian Politics

John P. Hendry, Georgia State University; Christopher M. Toula, Ph.D., Georgia State University; Gregory Lisby, Ph.D., Georgia State University

Who Speaks and How? Rethinking Citizens United After Donald Trump’s Election 

Joshua Bentley, Ph.D., Texas Christian University; Maureen Taylor, Ph.D., University of TennesseeYing Xiong, University of Tennessee

I Will Fight (For) You’: Donald Trump, The First Amendment, and the LGBTQ Community

Bruce E. Drushel, Ph.D., Miami University

Volume 17, Issue 1 (2017)

Law, Invention, and the Literary Imagination: Toward a Rhetorical Understanding of Martha Nussbaum’s “Poet-Judge”

Joseph Sery, Ph.D., Christopher Newport University   

Censoring Hate Speech in U.S. Social Media Content: Understanding the User’s Perspective 

Caitlin Carlson, Ph.D., Seattle University

Executive Censorship of Science: Muzzling Federal Researchers, Thwarting the Public’s Right to Know, and Impairing Trust in Government   

Susan Sarapin, Ph.D., Troy University, and Pamela Morris, Ph.D., Indiana University-Purdue University, Columbia

When Free Expression Becomes Micro-aggression: The Yale Emails and the Domestication of Halloween Terry Toles-Patkin, Ph.D. Eastern Connecticut State University

Rights Still Protected at Schoolhouse Gate: Work-for-hire for Student Journalists Fails to Diffuse across District Boundaries Bradley Wilson, Ph.D., Midwestern State University

Volume 16, Issue 2 (2016): Special Issue on Antonin Scalia

Antonin Scalia: A Study in Contradictions

Catherine L. Langford, Ph.D., Texas Tech University

Justice Scalia’s Communication Legacy: Going Public and the Republican Rhetorical Style

Jennifer J. Asenas, Ph.D., California State University, Long Beach

Kevin A. Johnson, Ph.D., California State University, Long Beach

Supreme Court Justices Antonin Scalia and Ruth Bader Ginsburg: Communicating the Virtue of Friendliness 

Pat Arneson, Ph.D., Duquesne University

Justice Scalia 2.0: Replacing “The Supreme Court’s Unlikely Defender of Technology” 

Mark Grabowski, J.D., Adelphi University

Volume 16, Issue 1 (2016)

Richard Posner and the Rhetoric of (Economic) Common Sense

Joseph Sery, Ph.D., Christopher Newport University

Free Expression, Privacy, and Intellectual Property Online: Contesting Intermediary Liability

Lucas Logan, Ph.D., University of Houston—Downtown

Rhetorical Criticism as Essential Legal Skill: Some Thoughts on Developing Lawyers as “Public Citizens”

Kirsten K. Davis, J.D., Ph. D., Stetson University College of Law

Media Education v. Censorship: A 100-Year-Old Solution for 21st Century Media

Michael Bowman, Ph.D., Arkansas State UniversityHolly K. Hall, J.D., Arkansas State University

Volume 15, Issue 2 (2015)

Chief Justice Rehnquist’s Preemptive Apologia in Bush v. Gore 

Craig R. Smith, Ph.D. California State University, Long Beach

This article argues that the Supreme Court setting constrains preemptive apologias in unique ways.

To make this point, the article provides a new interpretation of Chief Justice Rehnquist’s

concurring opinion in Bush v. Gore by reading it as a preemptive apologia. This interpretation

helps explain why the dissenters in this ruling focused their attacks on Rehnquist’s concurrence

instead of the majority’s per curiam ruling and why legal scholars believed it to be on sounder

constitutional footing than the majority’s rationale. In its context, Rehnquist’s opinion functions to

preempt criticism from media critics and legal scholars by answering the attacks (kategorias) from

colleagues on the bench.

Volume 15, Issue 2 (2015)

Judicial Interpretation of Civil Rights and Civil Liberties: Beyond the Doctrine of Stare Decisis 

Pat Arneson Ph.D. Duquesne University

Judges are charged with creating justice by considering the civil rights and civil liberties guaranteed

in the U.S. Constitution and Bill of Rights as well as the human rights inherent to all people,

without discrimination. Judicial hermeneutics allows us to understand legal texts and other

documents as interpretive material for judicial decision-making. First, I overview judicial

hermeneutics and consider how interpretive discernment occurs in rendering judicial decisions.

Second, I examine the differences between human rights, civil rights, and civil liberties, recognizing

the relationship between these areas. Third, I draw upon the cases Browder v. Gayle (1956) as well

as Searcy v. Strange (2014, 2015) and Strawser v. Strange (2015a, 2015b) to illustrate the role of

judicial hermeneutics in rulings related to civil rights and civil liberty. An understanding of judicial

hermeneutics is important for sustaining the rhetorical credibility of court decisions beyond the

doctrine of stare decisis.

Volume 15, Issue 2 (2015)

Checking the Checking Value in the Teapot Dome Scandal

David R. Dewberry, Ph.D. Rider University

This article examines the history of journalism in the initial reporting of the Teapot Dome scandal

to argue that the press falls short in fulfilling the checking value of the First Amendment. Similar

arguments have been made about the press in other major scandals (e.g., Watergate, Iran-Contra,

etc.). But this article exclusively focuses on the key journalistic agents in Teapot Dome including

Frederick G. Bonfils and H. H. Tammen of the Denver Post, John C. Schaffer of the Rocky

Mountain News, Carl Magee of New Mexico, and Paul Y. Anderson of the St. Louis Post-

Dispatch, to demonstrate how they were more protagonists in the scandal, rather than members of

the fourth estate.

Volume 15, Issue 1 (2015)

The Living Constitution: Origins and Rhetorical Implications of the Constitution as Agent

Catherine L. Langford, Texas Tech University

The use of the “living” metaphor, the organizing concept around which public debate has revolved for

several centuries, is a reflection of political, legal, scholarly, and lay desires to enable the Constitution to

adapt to shifting social needs. Rather than view the text of the Constitution as the means through which the

U.S. governmental system was constructed, the Constitution became an agent which acts as guardian on

the people’s behalf. As the public at large accepted the “living” metaphor, a rhetorical shift occurred,

deflecting public understanding of the Constitution as a static document not easily altered and ignoring

judicial discretion to adjudicate the law. Rhetorically construing the Constitution as “living” liberates the

people from enacting government, being knowledgeable about political processes or controversies, and being

responsible for governmental failings or wrongdoings.

Volume 15, Issue 1 (2015)

First Amendment Tension: Advocacy and Clear and Present Danger

Mark Goodman, Mississippi State University

A conflict exists in the U.S. legal tradition between protecting national security while securing the freedoms promised

under the First Amendment. This paper reviews those two lines of legal logic in light of the demand by the

American people to be protected from terrorists after the Boston bombing and from the federal government after the

criticism of the NSA that ensued from the Snowden releases.

Volume 15, Issue 1 (2015)

Special Student Forum on Free Speech

Contemporary Lessons in Decorum: Maintaining and Challenging the Status Quo

Ty Lasater, Texas State University

This paper adds to our understanding of how decorum can function hegemonically by focusing our attention

on the events surrounding Wendy Davis’ 2013, 13-hour filibuster and the three types of decorum

violations with which Davis was charged: inappropriate style, inappropriate argumentation and

inappropriate timing or observance of kairos.

From Temporary Incentive to Perpetual Entitlement: Historical Perspective on the Evolving Nature of Copyright in America

Evan Billingsley, University of Arkansas

The original purpose of copyright legislation in America was to grant a temporary economic monopoly to an

author of a creative work. This monopoly is meant to incentivize authors to contribute to the public good

with works that promote progress in science and art. However, increases in the scope and duration of

copyright terms have led to a situation where copyright owners are automatically granted overly broad

protections and controls of creative works. At the same time, advances in technology have provided the

public with the potential for near-limitless access to information. This creates a conflict between proprietary

interest in creative works versus the public’s right and ability to access same. Efforts to balance these

competing interests must consider the history and changing role of copyright in America. This article

employs an historical methodology, examining the numerous American copyright statutes and court

decisions over the last several hundred years, to argue that while there is benefit in incentivizing authors

with temporary economic monopolies, it is in the best interests of society, economically and intellectually, to

implement any new copyright legislation with the same integrity and sense of purpose that was intended by

the framers of the Constitution. If such measures of sound policy are pursued, then individuals may be

rewarded for their intellectual efforts, but not interminably, and not at the expense of the public’s ability to

educate itself.

Communication and the Mexican Constitution: An Examination of Cultural and Literal Implications

Leah Acoach, University of Arkansas

This paper examines the history of freedom of expression in Mexico from Spanish colonial rule to the

present day. This paper includes a three-fold analysis of 1) an examination of the rights granted in

the constitutions of l824, 1836, 1854, 1917, to present day reforms, 2) the cultural reality of free

expression in Mexico since the Revolution in 1910 and the subsequent Constitution of 1917, with

emphasis on violations and changes over the past two decades, and finally 3) an examination of the

structure and practice of the three branches of the Mexican government, particularly the power of the

executive branch and a critical review of the judiciary.

Ward v. Santa Fe Independent School District: A Plaintiff’s Ethnography of First Amendment Litigation

Marian L. Ward, University of Arkansas at Little Rock

The following autoethnography paper is to tell a first-hand, plaintiff’s perspective of a Free Speech court case. It reviews some

of my early experiences as a Christian public school student dealing with the administration and faculty’s confusion about the

state of First Amendment law. It then provides a timeline of events through those that precipitated my lawsuit in the fall of

1999. I discuss the fallout of that decision and my “15 minutes of fame” that followed after I became the face of the school

prayer issues. After some background is provided about my hometown of Santa Fe, TX, the Supreme Court case Santa Fe v.

Doe, and the atmosphere of that time period, I detail actions by Santa Fe Independent School District violating my First

Amendment rights as a student and citizen. The subsequent years are discussed as well as legislation resulting from this

experience.

Volume 14, Issue 2 (2014)

Ordinance 556: The Comic Book Code Comes to Blytheville, Arkansas

Michael Bowman, Arkansas State University

Holly Kathleen Hall, Arkansas State University

This article examines how the national moral panic surrounding crime and horror comic books

during the 1950s contributed to the passage of Ordinance 556 in Blytheville, Arkansas that criminalized

the sale of comics punishable by fines. Ordinance 556 in Blytheville illustrates how perceived threats to

social stability fueled by political posturing and media reports associating comics with criminal behavior

resulted in well-intentioned but misguided public policy. Public policies like Ordinance 556, as well as

other regulatory efforts around the nation during the Fifties, were designed to protect children from media

deemed to be harmful and socially corrosive. Instead, these decrees did little more than provide a false sense

of comfort to those who believe such laws provided a barricade against outside forces that distort morality

for children and threaten their mental and emotionally stability. In reality, these laws do nothing more than

substitute one threat for another by limiting the rights of free speech, freedom of thought, freedom of the press

guaranteed by the Constitution of the United States in hopes of protecting society from communications

perceived to be harmful and destructive.

Volume 14, Issue 2 (2014)

The FCC Whence and Wither: How to Protect the Internet’s Golden Age

James Heller, University of New South Wales Law School

This article is intended to engage in the current debate surrounding the May 15, 2014 release of

the FCC’s “Protecting and Promoting the Open Internet” proposal concerning the future of the Internet.

This article is also intended to provide a thorough background to the ongoing debate, which seems to be

missing from much of the current commentary. While the current debate continues to be led by specialists,

its consequences will be felt far and wide, which is why understanding the background to the debate is so

important.

Volume 14, Issue 1 (2014)

From Edicts to Human Flesh Searches: Legal Communication and Practice in China’s New Media Environment

Rya Butterfield, Nicholls State University & Nathan Crick, Texas A&M University

During his stay in China from the outset of the May Fourth Movement in 1919 to 1921, American

philosopher John Dewey wrote about the tension between customary, statute, and edict law which

respectively derived their powers from long standing tradition, from state-sanctioned legal principle, and

from the narrow exertion of force. Even though contemporary China is very different from the China Dewey

observed, the development of legal communication and practice remains continuous with his account. Dewey

predicted that China would develop its own path by integrating customary law into a more transparent and

flexible system. New information and communication technologies have provided the outlet for many of the

contemporary critical thrusts that are reshaping communicative institutions in contemporary Chinese society.

This essay suggests that the increase in these technologies is making Dewey’s prophecy something closer to a

reality. The result is a novel exhibition of customary law through the power of social media in ways that

can appear both emancipatory, as a voice of the people, and oppressive, as a reorientation to the intolerance

of customary law.

Volume 14, Issue 1 (2014)

Obscene or Clean?: A Semiotic Analysis of “Awful Billboard Blight”

Catherine L. Riley, Texas A&M University

In 2001 the townspeople of quiet, little-known Lavonia, Georgia were

shocked when the now infamous Cafe Risque suddenly opened in their

backyard. Worse was their discovery of a series of loud interstate billboards,

announcing to all drivers that Lavonia’s one little exit was also the exit for a

new topless restaurant. The outraged townspeople legally battled the enterprise

while publically arguing that the billboards misrepresented and marred their

community image to drivers on the nearby interstate. Applying semiotic theory,

this study illustrates the potentially obscene nature of the relatively plain, text-

only signs and explains the townspeople’s indignation. The conclusions of this

case study are founded on clear understandings of the Court-established Miller

Test of obscenity and Goodnight’s theory of social controversy. Although

Lavonia did not pursue the legal course of action presented in this paper, the

scholarly documentation of Lavonia’s controversy may help other communities,

individuals, and scholars identify effective means of evaluating and addressing

similarly problematic legal obscurities, community offenses, and social

controversies.

Volume 14, Issue 1 (2014)

The Effects of the Cox Broadcasting Corp. v. Cohn Decision: Almost Four Decades Later

Jefferson Tarter Spurlock, Troy University

In 1975, the U.S. Supreme Court ruled in Cox Broadcasting Corp. v. Cohn that journalists may publish or

broadcast the names of rape victims if the reporters received their information from public documents. Although

reporters have typically refrained from identifying rape victims to prevent stigmatizing the victims, some journalists

have gone beyond the typical practice and have published or broadcast the names of the victims anyway. Almost 40

years after the landmark court decision, it is anticipated that the results of an online survey of television news

directors will show that TV journalists will identify rape victims on a case-by-case basis, if the victims give their

consent or if the victims die during the crimes. Although some media outlets argue that names should be revealed for

purposes mentioned above, this paper argues that journalists should avoid identifying victims of sexual assault in

most cases.

Volume 13, Issue 1 (2013)

Contested Values and Constitutional Lacunae: Sambo, the Sig Eps, and Surreptitious Speech Codes

Stephen A. Smith, University of Arkansas

Corporate Free Speech v. Free Elections:  A Political Economic Analysis of Network News Transcripts Surrounding Citizens United v. Federal Election Commission

Shea Lynn Smock, Florida State University

On January 21, 2010, the United States Supreme Court sided with nonprofit organization, Citizens

United, in its case against the Federal Election Commission. The nonprofit argued that it should be

able to broadcast political speech anytime during an election citing freedom of speech. The Citizens

United case paved the way for SpeechNow.Org v. FEC and a few advisory opinions by the Court that

legitimized unlimited corporate, union, and wealthy individual political spending in the form of Super

PACs. Using a political economic interpretive lens, this analysis focuses on ABC, CBS, and NBC

news coverage of Citizens United v. FEC. The ruling and media coverage is evaluated by how it is

problematic in terms of freedom of speech, the normative role of the news media in a democracy, and

the ever-changing public sphere. This study finds that although the broadcast networks had much to

gain from the ruling, the reporters and anchors failed to disclose that conflict of interest and instead,

focused on the controversy of the decision by framing it as a partisan issue and a bitter argument

between President Obama and the Supreme Court without providing insight into how it might change

elections or lead to political corruption.

Keywords: Citizens United, Federal Election commission, SpeechNow.org, “Hillary”

Volume 13, Issue 1 (2013)

Curbing Deception: Why the FCC Should Establish Formal News Distortion Regulations for Broadcast Programming

Caitlin Ring, University of Colorado Boulder

This paper argues that the FCC should revise the current news distortion doctrine to prevent deliberate

attempts by licensees to mislead the audience. To address this issue, past FCC regulations, outcomes from

prior distortion claims and related court decisions are examined. The resulting analysis serves as the

foundation for the revised definition of news distortion and accompanying evidentiary standard offered here.

Traditional arguments against content-based broadcast regulations, such as those raised in regards to the

Fairness Doctrine, are considered in light of the changes being recommended. Finally, the work of C.

Edwin Baker, who argued that governments are justified in crafting regulation designed to advance the

communication order within today’s commercial media environment, is used to build support for the revised

distortion doctrine being proposed.

Volume 12, Issue 1 (2012)

Enacting Guerilla Marketing to Attain Commercial Speech Protection

Jeremy Langett, Lynchburg College

Volume 12, Issue 1 (2012)

Defeat in Decision, Victory in Action: A Critical Legal Rhetoric Reading of U.S. v. Patridge et al. (1963)

William Harrel Lawson, University of Maryland, College Park; Scott Alan Smith, Westat

U.S. v. Patridge et al. (1963) was one of the first modern Civil Rights cases tried in Federal

Court. While all five defendants were found not guilty after a short deliberation by the jury, the

prosecution claimed a moral victory just for trying the case as it signaled to the rest of the nation the

Federal Government’s newfound willingness to hear civil rights cases—including those in the Deep

South.

Keywords: Hamer, Winona, Patridge, Mississippi, civil rights, federal trial

Volume 12, Issue 1 (2012)

The Sharp Citizen: Applying the Lessons Learned from Joseph Weston to the Criminal Libel Outlook of the Future

Holly K. Hall, J.D., APR, Arkansas State University

Volume 12, Issue 1 (2012)

The Rhetoric of the Web: The Rhetoric of the Streets Revisited Again

Brett Lunceford, University of South Alabama

Protest rhetoric has always provided a prime example of how communication can work to change the

human condition, but strategies of protest have evolved as the United States has transformed into an

information economy. Although protest remains “on the streets,” it has also moved into the digital realm.

This essay builds on the work of Franklyn Haiman by considering the ethical and rhetorical dimensions

of hacktivism (politically motivated computer hacking). After briefly tracing the historical development of

hacktivism, I discuss several recent politically motivated website defacements and denial of service attacks,

concluding that Haiman’s argument that the rhetoric of the streets should be held to different rhetorical

and ethical standards still holds true in the online world.

Volume 11, Issue 2 (2011)

Race and Racism in the Collective Memory of the Law: The Case of Roger B. Taney and Dred Scott v. Sandford

Catherine L. Langford, Texas Tech University

Volume 11, Issue 2 (2011)

Will Someone Please Think of the Children? An Analysis of Congressional Investigations of Violent Media

Greg Blackburn, University of Arkansas

In June of 1954, the Senate Subcommittee on Juvenile Delinquency held an investigation of

crime and horror comic books. Decades later, December 1993 saw Congress launch a series of

hearings on the issue of violence in video games. Both of these hearings led members of the

industries in question to create and implement a system of self-regulation as a means of avoiding

government interference. While these hearings took place in very different times and dealt with

very different media, an examination of these events reveals a remarkable number of similarities

between them. In both cases, those controlling the investigation construct an argument that

children are placed at risk by the explicit content present in the media. They argue that it is the

government’s role to assist parents in protecting children, and that by using their authority to

coerce the industry into “voluntary” self-regulation; they can provide this assistance free of direct

government censorship. The consistencies in the structure of their arguments hint that the

objections to the medium have little to do with the specific content, the historical context, or the

medium itself. Rather, it suggests that these objections are rooted in the recurring struggle between

the conservative forces in power and those who upset the media landscape’s status quo, and that

any future emerging media will likely face similar opposition.

Volume 11, Issue 2 (2011)

Essays Honoring Franklyn S. Haiman

The Insight, Influence, and Inspiration of Franklyn S. Haiman

Stephen A. Smith, University of Arkansas

Speech and Law in a Free Society: Franklyn Haiman and the “Boisterous Sea of Liberty”

Dale A. Herbeck, Boston College

Franklyn Haiman’s Approach to the Problem of Incitement

Juliet Dee, University of Delaware

Reflections and Recollections of Franklyn Haiman as Mentor, Colleague and Civil Libertarian

Robert M. O’Neil, University of Virginia Law School

Volume 11, Issue 1 (2011)

Altering (Dynamic) Social Ideologies through the Exercise of Free Speech

Pat Arneson, Ph.D., Duquesne University

A democratic structure founded on the principle of freedom of speech and action necessarily embraces

the rhetorical tensions between narratives/counter-narratives. This exchange yields a political structure that by

nature accepts the possibility of conflict as ever-present because of varying standpoints. This paper addresses the

structure and construction of political ideology, leveraging space inherent within an ideograph allowing for a

possible change in meaning of the ideology, and the use of narrative/counter-narrative in free speech to break

open ideologies. A brief examination of the conversation between “Joe the Plumber” and Barack Obama during

the 2008 presidential campaign illustrates the discussion.

Volume 11, Issue 1 (2011)

The Anti-Corruption Argument in Freedom of Expression Discourse

W. Thomas Duncanson, Millikin University

Volume 11, Issue 1 (2011)

In Defense of Unity & English-Only: On the Early Political Battles to ‘Unite’ the Nation

Donathan L. Brown, Ph.D.,Ithaca College

Early developments within the English-only movement draw our attention toward the naming and defining of community/

national identity amidst an ever-changing national landscape. Efforts from proponents to legislative an official language,

gave way to the development of a political/legal rhetoric seeking to define “us” as a nation. This essay argues that early

attempts toward uniting the nation around a common language actually produced a fragmented vision of national identity

steeped in racial, ethnic and linguistic homogeneity.

Volume 11, Issue 1 (2011)

The Speech, Not the Speaker: Protecting Public School Student Expression

Erica R. Salkin, University of Wisconsin-Madison

Student speech in the public K-12 environment has received limited protection from the Supreme Court. After the

Hazelwood v. Kuhlmeier decision, giving public schools greater latitude to restrict student expression, several states

passed legislation to support student speech rights. Examining court cases involving student expression in states with anti-

Hazelwood laws or regulations reveals these efforts have been tailored to the circumstances of the Hazelwood decision,

focusing primarily on student media rather than student expression. Looking at student expression from the perspectives of

“foundation” and “speech” may offer states a path to protecting student expression as well as ensuring administrators retain

control of the educational environment.

Volume 11, Issue 1 (2011)

The Anti-Corruption Argument in Freedom of Expression Discourse

W. Thomas Duncanson, Millikin University

Volume 11, Issue 1 (2011)

In Defense of Unity & English-Only: On the Early Political Battles to ‘Unite’ the Nation

Donathan L. Brown, Ph.D.,Ithaca College

Early developments within the English-only movement draw our attention toward the naming and defining of community/

national identity amidst an ever-changing national landscape. Efforts from proponents to legislative an official language,

gave way to the development of a political/legal rhetoric seeking to define “us” as a nation. This essay argues that early

attempts toward uniting the nation around a common language actually produced a fragmented vision of national identity

steeped in racial, ethnic and linguistic homogeneity.

Volume 11, Issue 1 (2011)

The Speech, Not the Speaker: Protecting Public School Student Expression

Erica R. Salkin, University of Wisconsin-Madison

Student speech in the public K-12 environment has received limited protection from the Supreme Court. After the

Hazelwood v. Kuhlmeier decision, giving public schools greater latitude to restrict student expression, several states

passed legislation to support student speech rights. Examining court cases involving student expression in states with anti-

Hazelwood laws or regulations reveals these efforts have been tailored to the circumstances of the Hazelwood decision,

focusing primarily on student media rather than student expression. Looking at student expression from the perspectives of

“foundation” and “speech” may offer states a path to protecting student expression as well as ensuring administrators retain

control of the educational environment.

Volume 10, Issue 2 (2010)

“Shut Up and Sing”: The Dixie Chicks and the State of Free Speech in the United States

Catherine L. Langford Ph.D., Texas Tech University

Volume 10, Issue 2 (2010)

Arguments Against Use of the Reid Technique for Juvenile Interrogations

Buffie Brooke Merryman M.A., J.D., Merryman Law Firm

Volume 10, Issue 2 (2010)

Conflict of Interest, Bias, and Manipulation: Reassessing Prescriber Education and the Learned Intermediary Doctrine

Michael P. Pagano, PA-C, Ph.D., Fairfield University

The purpose of this essay is to explore how the pharmaceutical industry’s influence impacts the drug

approval process and the resulting information provided by drug manufacturers to healthcare

providers and ultimately to patients. For nearly half a century, United States courts have held

under the Learned Intermediary Doctrine that the makers of prescription drugs are responsible for

educating prescribers, not patients, about their products. The dialectic tension between corporate

profits and required prescriber education calls into question the credibility of drug information from

corporate, medical, and government sources. The key question to be addressed in this paper is,

how credible is the information provided to prescribers by pharmaceutical manufacturers?

Numerous critics have called into question the FDA’s ability to assure that medical drugs are safe

and effective and the communication about them is accurate and unbiased. But the FDA is not the

only healthcare organization that collaborates with the pharmaceutical industry and creates

confusion and perpetuates deceptions. Medical schools accept money for clinical trials, provide

researchers, and cooperate with pharmaceutical manufacturers much to the concern of numerous

critics. In addition, clinical trials data, publications, and continuing education frequently lack

credibility related to researcher/author bias and conflicts of interest. Unless the influence of the

pharmaceutical industry on contemporary healthcare is markedly altered or eliminated, prescribers

cannot rely on the information they are provided and therefore should not be held liable by the

courts as learned intermediaries.

Volume 10, Issue 2 (2010)

“People Did Sometimes Stick Things in my Underwear” The Function of Laughter at the U.S. Supreme Court

Ryan A. Malphurs, Ph.D.

Five years have passed since the New York Times covered Professor Jay Wexler’s study of laughter in the Supreme Court. Professor

Wexler’s study provided a simple tabulation of laughter notations in Supreme Court oral argument transcripts and was the first of its kind

to systematically examine laughter at the Supreme Court. This article expands on Professor Wexler’s topic by exploring the communicative

function of laughter in Supreme Court oral arguments. Using first hand observations during nine weeks of Supreme Court oral arguments,

audio files of 71 oral argument cases, and transcripts from 2006-2007 Supreme Court oral arguments, I argue that laughter plays an

important social and communicative function in Supreme Court oral arguments that enables advocates and justices to negotiate the complex

institutional, social, and intellectual barriers to obtain brief moments of equality within the Courtroom.

Volume 10, Issue 1 (2010) 

A Special Issue on Critical Race Theory 

Critical Race Theory as a Means to Deconstruct, Recover and Evolve in Communication Studies

Rachel Alicia Griffin, Southern Illinois University Guest Editor

Critical Intersections and Comic Possibilities: Extending Racialized Critical Rhetorical Scholarship

Jonathan P. Rossing,Indiana University–Bloomington

Communication scholars conducting work on race must engage work from complementary critical communities to bolster their

own critiques and further advance progressive racial coalitions. Critical, rhetorical scholarship and Critical Race Theory

(CRT) share principle aims that provide significant ground for interdisciplinary racial projects. Together, these interrelated

disciplines can find reinforcement in comedic discourse. This essay locates racial comedy as a space for transformational

critiques. More specifically, the author argues that critical rhetorical scholarship and CRT taken jointly can illuminate

parallel comic discourses and advance their important correctives pertaining to race and racism.

The Ghost of Moby-Dick and the Rhetorical Haunting of the Ninth Court’s Anderson v. Evans Decision

Kelly M. Young, Wayne State University 

This essay explores the rhetorical consequences of the Ninth Circuit Court’s deployment of literary allusions to Herman

Melville’s Moby-Dick in the 2002 Anderson v. Evans decision. Rather than operate as a rhetorical embellishment, the literary

allusions guide the court’s decision through the difficult legal conflicts created by multicultural difference in a globalized age.

Marshalling fundamental tenets of Critical Race Theory (CRT) and Tribal Critical Theory (Tribal Crit), this essay argues

that the allusions to Moby-Dick operate as a cultural technology of truth that rearticulates and masks how ideologies of

whiteness operate as a guide for the court.

Reversal of Privilege: Deconstructing Imperialism, Racism, and Power in the Film White Man’s Burden

Tina M. Harris and Kirsten Weber, University of Georgia

Using the film White Man's Burden (1995), this essay argues for the deconstruction of visual texts using Critical Race

Theory (CRT) to illuminate imperialism and racism. Through our critique, we illustrate the various ways in which the film

(when viewed as a pedagogical tool) contributes to the impetus of CRT by framing imperialism and racism as driving forces

behind the benefits of racial privilege for the dominant group and the discriminatory practices directed toward racial

minorities. Our analysis of White Man’s Burden provides a framework for understanding the intersections of race, class,

privilege, and marginalization. Through our critique, we suggest that the film creates a pedagogical space for understanding

the relatively arbitrary nature of race as a social construction when the representation of race privilege is reversed.

Volume 9, Issue 2 (2009) 

Toward a Genre of Judicial Dissent: Lochner and Casey as Exemplars

Catherine L. Langford, Ph.D., Texas Tech University

Volume 9, Issue 2 (2009) 

Rhetorically Re-visioning the Right of Political Expression: A Critical Analysis of Frazier v. Boomsma

Richard A. Parker, Ph.D., Northern Arizona University

In May 2007 the Arizona Legislature passed, and the Governor signed, Senate Bill 1014, extending the common-law

right of publicity to include civil and criminal penalties for specific unauthorized uses of the identities of American soldiers.

Five other states and the U.S. House of Representatives have passed similar legislation. The Arizona Legislature specifically

intended to prohibit Flagstaff activist Dan Frazier from advertising and selling t-shirts on the Internet which contain antiwar

messages and which list the names of American service personnel who died in the Iraq war. In September 2007, in Frazier v.

Boomsma, Judge Neil Wake of the United States District Court for the District of Arizona granted Frazier’s motion for a

preliminary injunction against enforcement of the bill, and expedited hearing on the constitutional issues raised by the

Arizona law. In August 2008, Judge Wake declared the injunction permanent and enjoined enforcement of the criminal law

as applied to Frazier’s communications.

Frazier raises unique and enduring questions regarding the limits of free expression. First, this essay reviews the

rhetorical/legal foundations for the Frazier court’s conclusion that “the right of publicity cannot justify content-based

restrictions on political or artistic expression” when the communicator’s use of personal names “bears a reasonable

relationship to the message.” Second, this essay analyzes the Frazier opinion and offers applicable insights from rhetorical and

communication theory when the free exercise of the right of political expression arguably compromises individuals’ publicity

and privacy rights.

Volume 9, Issue 2 (2009) 

“Side Effects May Include Headache and Eye Strain” Talk to Your Doctor about Prescription Drug Advertising: A Suggestion for Revision of Prescription Drug Advertising Regulation

Shannon Grace Stevens, J.D.

Volume 9, Issue 2 (2009) 

Protecting “Signal Bleed” as Freedom of Speech: An Analysis of United States et al v. Playboy Entertainment Group, Inc.

Elizabeth Hatfield, M.A.,Texas A&M University

Signal bleed, a common phenomenon through the first two analog decades of cable programming, came under fire

when programmers of indecent content were targeted as part of the 1996 Telecommunication Act. The act required cable

programmers transmitting indecent content to either reduce their programming to the hours of 10 p.m. to 6 a.m. or make

expensive updates to their technology. The metaphorical phrase “signal bleed” described content that viewers could still see

on channels to which they did not subscribe or want to receive. In the case of United States et al v. Playboy Entertainment Group,

Inc., the Supreme Court evaluated whether the 1996 Act’s changes were fair or whether they placed an unfair economic

burden on “sexually explicit” programmers. Additionally, because the new rules effectively placed a limitation on

programmers’ freedom of speech, central to the case became the importance of considering whether the new law violated

constitutional rights and whether that speech should be protected. This paper provides a thorough analysis of all aspects of

United States et al v. Playboy Entertainment Group, Inc.(2000): the oral arguments, the written opinions of the Supreme Court, the

media’s coverage and the outside parties who voiced their concerns and opinions in the form of amicus briefs. Ultimately the

decision went to Playboy and protecting, even indecent, speech. This notable ruling offered the first clear definition for the

treatment of cable as a unique medium – separating it from the stricter rules that govern broadcast television. Additionally,

though the case set a regulatory standard for cable, it also highlighted the fickle nature of technology and the challenge for

regulators working to keep up with the fast pace of change. As digital television’s implementation begins across broadcast

television today – only just over a decade later – issues of “signal bleed” no longer exist.

Volume 9, Issue 2 (2009) 

“Something Old Is New Again”: A Note on the Status of the “Government Speech Doctrine” after Pleasant Grove City, Utah v. Summum

Jim Vickrey, Ph.D., J.D., Troy University Montgomery

Volume 9, Issue 1 (2009)

Words on the Market: Consent Theory and the Public Interest 

George Bagley and Tim Brown, Nicholson School of Communication, University of Central Florida

Content regulation of U.S. electronic media–both broadcast and online forms of that media–has historically centered on

notions of a public discourse determined by external forces and that such discourse must be governed in the interest of the

consuming public. Such an ethic fails to account for the nature of discourse in hegemonic cultures, the manner in which such

communication evolves. Hegemonic discourse, even electronic forms of that discourse, originates organically, not

deterministically, rooted in the organization of consent. Thus the overarching claim justifying such content regulation–to

serve the public interest–must finally be questioned as a presumption, controls potentially not coincident with that interest.

Volume 9, Issue 1 (2009)

Standing as Empowering and Limiting: A Rhetorical Analysis of the Office of Communication of the United Church of Christ v. Federal Communications Commission (1966)

William H Lawson & Jennifer M. Proffitt, Florida State University

This essay examines the United States Court of Appeals for the District of Columbia’s decision in Office of Communication for the United

Church of Christ v. Federal Communications Commission (1966), arguing that the decision creates a rhetorical space for resistance to

corporate-controlled broadcast media, a space that is both empowering and limiting in scope. This case ultimately frames the agency available to

citizens in determining what constitutes the public interest. Strengths and weaknesses aside, challenging the renewal of licenses granted to broadcast

stations remains a primary strategy employed by citizens and interest groups.

Volume 9, Issue 1 (2009)

Words on the Market: Consent Theory and the Public Interest 

George Bagley and Tim Brown, Nicholson School of Communication, University of Central Florida

Content regulation of U.S. electronic media–both broadcast and online forms of that media–has historically centered on

notions of a public discourse determined by external forces and that such discourse must be governed in the interest of the

consuming public. Such an ethic fails to account for the nature of discourse in hegemonic cultures, the manner in which such

communication evolves. Hegemonic discourse, even electronic forms of that discourse, originates organically, not

deterministically, rooted in the organization of consent. Thus the overarching claim justifying such content regulation–to

serve the public interest–must finally be questioned as a presumption, controls potentially not coincident with that interest.

Volume 8, Issue 2 (2008)

Law Imitating Art: American Judicial Opinions Performing The Merchant of Venice

Lindsley Armstrong Smith, University of Arkansas

Volume 8, Issue 2 (2008)

The Praxis of Coercion by American Presidents in Times of Crisis

Mark Goodman, Mississippi State University

Volume 8, Issue 2 (2008)

Credibility Lessening Tactics Utilized in the Courtroom by Male and Female Attorneys

Sarah Ubel, Washburn University

Attorneys utilize Credibility Lessening Tactics (CLT) to make their opposing counsel appear less credible. Survey data were collected from

attorneys to identify types of CLT attorneys experience directed at themselves and those they direct at others. Responses were unitized and

content analyzed, resulting in the identification of eight CLT categories. The types of CLT attorneys reported included: Case Knowledge,

Experience, Truthfulness, Legal Knowledge, Name-Calling, Distractions, Exclusion and Reference Gender. All CLT were equally

reported by male and females except Reference Gender, which was reported only by females. Each category is defined, and the implications

of using different types of CLT are discussed.

Volume 8, Issue 2 (2008)

Explorations of Juror Reasoning: Extending our Understanding of the Influence of Attorney Opening Statement/Closing Argument Organizational Strategy

Shelley C. Spiecker, Ph.D., Senior Litigation Consultant Persuasion Strategies, Denver, CO & Debra L. Worthington, Auburn University

Previous research suggests that attorney opening and closing statement organizational patterns interact, affecting jurors’ negligence and

damage awards (Spiecker & Worthington, 2003). Drawing upon unpublished data from this previous study, results of this analysis help

to explain why some combinations of organizational patterns are more advantageous than others. Participants exposed to video-taped

presentations organized around legal elements of a case were more likely to report relying on applicable law when rendering a verdict, while

those exposed to a narrative organizational structure relied more on narrative-based reasoning and less on the applicable law.

Volume 8, Issue 2 (2008)

A Comparative Case Study of Censorship in Public Schools: “The Chocolate Wars” and the “Battle of the Books”

Cortney Smith, University of Arkansas

Volume 8, Issue 1 (2008)

Anarchy and Jurisprudence: Examining Emma Goldman’s Fight to Secure Free Speech by Challenging the Comstock Act

Rebekah L. Fox, Purdue University & Robin Patric Clair, Purdue University

Suggesting that anarchy and jurisprudence are partners in any way may seem

oxymoronic, at best. However, concluding that the relationship between anarchy and

jurisprudence is completely antagonistic may be based on the erroneous acceptance of

a limited definition of anarchy that solely focuses on the outcome of anarchy instead

of the process of anarchy. A case in point can be found in the philosophical definition

of anarchism in relation to how it was actually practiced in the life of Emma

Goldman. In order to understand better the relationship between anarchy and

jurisprudence, this paper begins by examining the supposed tension between anarchy

as outcome and anarchy as process, before turning to the life and works of Emma

Goldman, who both embodies anarchism and uses it as a way to challenge laws.

Volume 8, Issue 1 (2008)

Campaign Finance Regulation of Online Political Speech: Background and Implications of the FEC’s Latest Ruling

Scott W. Dunn, University of North Carolina at Chapel Hill

The Federal Election Commission faces a paradox when regulating political speech

on the Internet. On the one hand, Reno v. ACLU established that Internet content

should be largely free of regulation, and it generally has been. However, many

political actors use the Internet to disseminate content that would be regulated under

campaign finance statutes if distributed through other media. This paper examines

the FEC’s resolution of this tension up to this point. Following passage of the

Bipartisan Campaign Reform Act of 2002, the FEC attempted to exempt all Internet

communication from regulation. After a federal appellate court ruled that at least

some Internet communications must be regulated under the statute (Shays v. FEC),

the commission issued a ruling in 2006 that exempted all Internet communications

except paid advertising. The effect is to give the Internet a nearly complete exemption

analogous to the blanket exemption given to media outlets. The FEC’s rules raise

larger questions about the Constitutionality of campaign finance laws. As new

technologies make political activism more accessible to private citizens, it may be

necessary to reexamine the effects of finance regulation on political speech.

Volume 8, Issue 1 (2008)

Reducing the Hindsight Bias in Mock-Juror Decision Making: Assessing the Effectiveness of a Court-Appointed Witness

Debra L. Worthington, Auburn University

Because the legal system asks jurors to render a verdict with knowledge of the

original outcome of events, jurors become susceptible to the human judgment

phenomenon known as hindsight bias. This exploratory study extends previous

research into hindsight debiasing in the courtroom context by utilizing a court-

appointed expert witness to: 1) explain the bias to jurors, and 2) suggest strategies to

avoid engaging in it when rendering a verdict. Results of this exploratory study

suggest that an integrative trial strategy approach may be needed to effectively

reduce juror tendency to engage in hindsight bias.

Key Words: Hindsight; Hindsight Bias; Juror Decision Making; Expert Witness

Testimony; Verdict Formation

Volume 8, Issue 1 (2008)

The Impact of Modern Copyright Law on the Creation of Derivative Literary Works

Matt Hlinak, Northwestern University

Volume 7, Issue 1 (2007)

Senatorial and Judicial First Amendment Rhetoric of  Hugo LaFayette Black 

Lindsley Armstrong Smith, University of Arkansas

Hugo LaFayette Black is most remembered not as a Senator from Alabama but as a

Justice of the United States Supreme Court. A large part of Justice Black’s Supreme Court

Justice legacy is as a defender of First Amendment freedoms. Justice Black considered the First

Amendment to be “the heart of our government.” While on the Supreme Court, he developed an

absolutist approach to the First Amendment, arguing that even libelous and obscene speech is

protected. To Black, his interpretation of the First Amendment was focused on the Framers’

intent. As such, Black’s opinions have drawn a line between speech and conduct, whereas

speech is protected, but conduct that is not speech (such as picketing and demonstrating) is not

protected.

Less is known of Black’s perspectives on the First Amendment while he was a United

States Senator. Political historians portray Senator Black as a Klansman, a supporter of the

New Deal, an opponent of the Wagner-Costigan Antilynching Bill, and an opponent of

interference with local habits and customs. In particular, historical notice of Black’s political

tenure in the Senate focuses overwhelmingly on his membership in the Ku Klux Klan. Although

Black’s Klan membership is an important factor in reviewing Black’s senatorial career, it has

overshadowed a thorough examination of Black’s rhetoric and political perspectives

demonstrated during his tenure as a Senator from the State of Alabama.

This paper examines Black’s senatorial and judicial rhetoric on the First Amendment to

provide a broader historical perspective of Hugo L. Black during his tenure as a United States

Senator from 1927 to 1937 and tenure as United States Supreme Court Justice from 1937-1971.

The author examines Black’s floor speeches and debates in the Congressional Record and

Black’s judicial opinions and speech to the Columbia University Law School while serving on

the United States Supreme Court. This study is intended to provide a more comprehensive

analysis of Hugo LaFayette Black on the First Amendment.

Volume 7, Issue 1 (2007)

Testing Supreme Court assumptions in California v. la Rue: Is There Justification for Prohibiting Sexually Explicit Messages in Establishments that Sell Liquor?

Daniel Linz, University of California at Santa Barbara, Mike Z. Yao, City University of Hong Kong  & Sahara Byrne, University of California at Santa Barbara

The United States Supreme Court has upheld the idea that a state may prohibit the

communication of sexually explicit messages and adult entertainment in establishments licensed

to sell liquor. State liquor control boards across the country rely on this decision and its progeny

in order to regulate alcohol serving businesses that feature adult entertainment. These boards

have accepted the here-to-fore untested premise that combining liquor service with adult

entertainment leads to greater adverse secondary effects than merely serving liquor alone. In

order to test this assumption a study of prostitution, sexual assault and other sexual offenses in

Toledo, Dayton, Columbus and Cleveland, Ohio was undertaken utilizing crime event data

provided by the police. The results revealed that adult businesses were not the primary source of

sex crime events and in some instances sex crime was inversely correlated with the presence of

these businesses in a community. Most often these businesses showed zero sex crime events.

Instead, alcohol serving, non-adult establishments are a significant source of such events. The

consistency of the results of the present study with past research and the implications of this

study and past research for assumptions made about state regulations of sex-related

communication are discussed.

Volume 7, Issue 1 (2007)

Freedom of Expression, Hate Speech, and Models of Personhood in Hungarian Political Discourse

David Boromisza-Habashi, University of Massachusetts, Amherst 

In this ethnography of communication study I will explore how the cultural concepts “freedom of

expression/opinion” (véleménynyilvánítás szabadsága) and “hate speech” (gyűlöletbeszéd)

function in a specific cultural discursive system, Hungarian political discourse. I will accomplish

this goal through the analysis of situated interaction at a series of parliamentary committee

meetings. The ethnographic data under consideration consists of instances in which members of

the Hungarian Parliament discussed the implications of a bill proposing changes to the criminal

code regarding hate speech. I will show that the freedom of expression as a cultural concept is

inextricably linked with the concept of “the violation of human dignity” in situated political

discourse. This linkage, however, becomes the site of conflict as it is interpreted in competing

ways by those who see human dignity as the possession of persons-as-individuals and those who

assign it to persons-as-members-of-communities. These models of personhood give rise to

conflicting communal norms, and the norms animate conflicting proposals for sanctioning hate

speech. My analysis joins a small but increasing body of field-level studies of the freedom of

expression that approach the concept of free expression as a cultural construct.

Volume 7, Issue 1 (2007)

From Hazelwood to Hosty: Student Publications as Public Forums

Christopher J. Hunker, Boston College

Volume 7, Issue 1 (2007)

A First Amendment Analysis of Hate Speech Aimed at Illegal Immigrants: When Intolerant Speech is No Longer Protected

Joshua Azriel, Kennesaw State University

Volume 6, Issue 2 (2006)

Grandma’s Book on Sex and the Comstock Act: Censorship, Anthony Comstock, and Mary Ware Dennett

Linda Baughman, Christopher Newport University

Volume 6, Issue 2 (2006)

Expanding the Public Forum Doctrine in Cyberspace: Some Lessons from Jersey

Faith M. Sparr, University of Michigan 

Volume 6, Issue 2 (2006)

Revisiting Red Lion By Way of O’Brien

Richard Vogel, Ashland University 

There are currently two bills in Congressional committees that would bring back a form

of the Fairness Doctrine. Two previous attempts at resurrecting the Doctrine received strong

bipartisan support only to fall to a Presidential veto (Reagan) and threat of a veto (the first

George Bush).

Should the right mix of Congressional will and Presidential willingness occur and the

Fairness Doctrine reemerges, there will no doubt be a test of whether Red Lion is still

constitutional given the current status of the broadcast industry. This study uses the criteria put

forth in U.S. v. O'Brien to analyze whether the Doctrine would still serve a substantial state

interest and whether it would lead to an impermissible infringement of broadcaster's First

Amendment rights. The answers to these questions lie largely in the choice of definitions of

various terms that the FCC and Supreme Court might utilize.

These decisions include which definition of marketplace, which definition of scarcity and

what level of First Amendment scrutiny will be applied to the broadcast industry. This study will

analyze the choices within the context of the current telecommunications industry and the

intended audience.

The original rationale for the FCC's vote to terminate the Fairness Doctrine will be

analyzed. Included in that discussion will be analysis of whether the Commission illegally

changed the definition of scarcity from its use in Red Lion to a different standard in the 80's.

Evidence will be presented that an arbitrary change in definition used to justify a change in

policy is contrary to federal law and Supreme Court holdings.

Volume 6, Issue 2 (2006)

The Effects of a Crowded Deliberation Environment on Mock Jurors’ Attitudes and Decision-Making

Charles P. Short, Burt Pryor, Jeff Butler & Sally O. Hastings, University of Central Florida

This study examined the effects of crowding on juror attitudes and decision-making.

Participants were placed in a mock jury scenario, given a hypothetical court case, and asked to

reach an individual determination of the guilt or innocence of the defendant. Participants then

deliberated a verdict and completed a second questionnaire to assess perceptions of their

surroundings and attitudes toward the defendant. Individuals in the crowded condition were

more likely to find the defendant guilty than those in the uncrowded condition. Additionally,

crowded participants rated the room as more uncomfortable compared to the room ratings of the

uncrowded participants.

Volume 6, Issue 1 (2006)

Being James Madison: The Supreme Court’s Use of Madison’s Arguments in First Amendment Jurisprudence

Lindsley Armstrong Smith, University of Arkansas

Volume 6, Issue 1 (2006)

The Question Remains-Can Government Intervention Promote Free Speech?: Revisiting Arguments for Structural Regulation 

Jennifer M. Proffitt, Florida State University

Volume 6, Issue 1 (2006)

Privacy: Ethical and Legal Considerations

Raphael Cohen-Almagor, University of Haifa, Mount Carmel

Privacy is commonly understood as insulation from observability, a value asserted by

individuals against the demands of a curious and intrusive society. It is intimately associated

with our most profound values, our understanding of what it means to be an autonomous moral

agent capable of self-reflection and choice.

When news is becoming entertainment and private stories become public spectacle,

individual lives can be mercilessly exposed to the glaring spotlight of unwanted publicity. In

delineating the boundaries of intrusion, distinctions are made between children and adults;

between public figures and ordinary citizens; between people who choose to live in the

spotlights, and ordinary citizens who stumble into the public forum, either because fate played

with them or because they did something of public significance.

The Competing Free Speech Philosophies of Franklyn Haiman and John Dunham Peters Through the Lens of Skokie, Illinois 1978

Robert Margesson, Regis University 

Book Review: Democracy Off Balance: Freedom of Expression and Hate Propaganda Law in Canada

Cara M. Huwieler, Wake Forrest Law School

Volume 5, Issue 2 (2005)

The Rhetorical Construction of Justice and Money in Citizens Bank v. Strumpf

Irwin Mallin,University of Indiana-Purdue Fort Wayne

Volume 5, Issue 2 (2005)

Rally ‘Round the Burning Cross, Boys: A Legal and Rhetorical Analysis of Virginia v. Black

Michael A. Cavanagh, East Carolina University

In this paper, I present a traditional legal analysis and a rhetorical analysis of the U.S.

Supreme Court’s recent ruling, Virginia v. Black. In Black, a State of Virginia statute which

made it a felony to burn crosses with an intent to intimidate was found to be an unconstitutional

abridgment of the First Amendment’s right of free expression.

The legal analysis discusses the legal precedents and other justifications for the Court’s

ruling. The rhetorical analysis identifies central terms of meaning and value, the reasoning held

out as valid, and examines the new legal culture thereby created.

Volume 5, Issue 2 (2005)

An Analysis of Congressional Arguments Limiting Free Speech

Laura Long, University of Oklahoma Law School

The Alien and Sedition Acts, Espionage and Sedition Acts, and USA PATRIOT Act are all

war-time acts passed by Congress which are viewed as blatant civil rights violations. This study

identifies recurring arguments presented during congressional debates of these acts. Analysis of

the arguments suggests that Terror Management Theory may explain why civil rights were given

up in the name of security. Further, the citizen and non-citizen distinction in addition to political

ramifications are discussed.

Volume 5, Issue 2 (2005)

A History of Copyright in the United States

Andy S. Long, University of Oklahoma Law School

Volume 5, Issue 1 (2005)

From Nationalism to Migrancy: The Politics of Asian American Transnationalism

Kent A. Ono, University of Illinois 

Volume 5, Issue 1 (2005)

Picking at Scabs: Labor Rhetoric and Free Speech in the 1940’s

Lindsley Armstrong Smith, University of Arkansas

Volume 5, Issue 1 (2005)

Is South Park Next? A Look at the Supreme Court, Congress and Regulation of Indecency on Cable Television

Faith M. Sparr, Hawaii Pacific University

Volume 5, Issue 1 (2005)

Attorney Eye Contact and Control In the Courtroom: Act I

Philip J. Aust, Kennesaw State University 

This ethnography examines attorney eye behavior patterns unique to courtroom trials and

hearings. The courtroom procedures of over 40 lawyers were observed in several Midwestern

courtrooms and around the country vis-a-vis television. Data assessing the attorney eye

engagement behaviors of practicing trial attorneys were drawn through observation in the

courtroom and on Court TV, field notes, informal interviews, and lawyer artifacts. The

courtroom is advanced as a "stage" (Goffman, 1959, 1963; Leathers, 1986; Sellers, 1993)in

which the lead actors, the attorneys in this case, use eye behaviors to guide their performance in

each scene. As is evident here, lawyers employ distinctive eye engagement patterns as a crucial

mediating process in court proceedings. Results demonstrate that attorneys use eye contact in

lawyer/client, lawyer/lawyer, and lawyer/judge relationships in distinguishable ways in an effort

to exert control in communicative acts. Finally, future research implications of this analysis are

considered.

Volume 4, Issue 1 (2002)

Jury Instructions: Are They too Complicated for Jurors to Understand?

Bill G. Horton, University of Arkansas & Leah R. Thompson 

Family and Medical Leave Act: Its Communicative Impact on Families and Employers

Patricia Amason, University of Arkansas, Danna M. Gibson, Columbus UniversityLynne M. Webb, University of Arkansas, Myria Watkins Allen, University of Arkansas 

Juror Assessment of Veracity, Deception, and Credibility 

Lindsley Smith, University of Arkansas

Attorney/Witness Stories in the Courtroom: Analyzing the Collaborative Dialogue of Direct Examination

Philip Aust, Kennesaw State University  

Comstock Revisited: Janet Reno’s First Amendment

Bernadette Reda Mink, University of Arkansas

The issue is unavailable as it has been lost to the ages.

Volume 2, Issue 1 (1984) Click here for PDF

Equal Time for Political Candidates: But May They Say Bullshit on the Air?

Franklyn S. Haiman

Voluntary School Prayer and Equal Access in the Public Schools

Sen. Dale Bumpers

The Big Push to End Broadcast Content Controls

Craig R. Smith

Freedom of Interpretation at Baylor University

Carl Kell

Privacy: A Research Priority for the Eighties

Robert Anderson

The Phantom Public: Another Look at the Scientific Creationism Controversy

Robert Savage and Diane Blair

Technology, Mind-Manipulation, and First Amendment Freedoms

Daniel Ross Chandler

Censorship of Sexual Materials: A Bibliography

Thomas L. Tedford

First Amendment Advertorials: A Collection

Stephen A. Smith

Volume 1, Issue 2 (1983) Click here for PDF

School libraries in Peril

Gregg Phifer

Repression As a Righteous Reign: Anti-Gay Legislation in Florida, Louisiana, Alabama, and Oklahoma

Daniel Ross Chandler

Scientific of Creationism in Arkansas: A Study of Public Opinion, Public Persuasion, and Public Policy

Stephen A. Smith

Freedom of Speech: A Selected Annotated Bibliography

Thomas L. Tedford

Volume 1, Issue 1 (1983) Click here for PDF

It’s Time You Tigers Roared

Daniel Patrick Moynihan

Contemporary Issues in Freedom of Expression: A Review of the Southern States 

Stephen A. Smith