Introduction: Reflections on the First Amendment and the Information Economy
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CitationMark Tushnet, Introduction: Reflections on the First Amendment and the Information Economy, 127 Harv. L. Rev. 2233 (2014).
AbstractApparently it is nearly impossible to write about the First Amendment without mentioning Professor Harry Kalven’s observation, quoting Professor Alexander Meiklejohn, that New York Times Co. v. Sullivan was “an occasion for dancing in the streets.” That mention need not always lead to agreement with Kalven’s assessment. Professor Richard Epstein, for example, begins his article “Was New York Times v. Sullivan Wrong?” with a part headed “No More Dancing.” For Epstein, the dancing stopped in newspaper editorial offices. But, as the years have passed, the dancing has continued in other corporate suites and in the law reviews. The Articles in this Symposium provide an opportunity to speculate about some of the First Amendment issues we are confronting fifty years after Sullivan in the information economy. This Introduction examines those Articles through the lens of general constitutional law. It focuses on broad questions about the roles of courts and legislatures in our constitutional scheme as they affect doctrines ranging from federalism (including preemption and the treaty power) to the state action doctrine. It also brings to bear “realist” or political perspectives on how the Court’s doctrines might be shaped by the Justices’ policy preferences. Those perspectives suggest that the Roberts Court’s probusiness tilt in First Amendment doctrine might conflict with the desires of global Internet businesses.
My observations are divided into four Parts. Part I offers quite brief descriptions of the Articles in this Symposium, primarily to give some background for the remarks that follow in this Introduction. Part II suggests that the structure for producing First Amendment scholarship is skewed in favor of “liking” the First Amendment in a sense I elaborate. This skew tends to isolate First Amendment doctrine and scholarship from the concerns expressed in general constitutional law and theory. Part III shifts focus, briefly describing the development of a business‐friendly First Amendment, as distinct from a press‐friendly one, and then suggesting that a business‐friendly First Amendment might turn out to be business unfriendly in a global information economy. Part IV presents some thoughts about an issue that threads through the Articles — the possibility that our understanding of the state action doctrine, as invoked in First Amendment cases, fits uneasily into the information economy’s operation. Part V follows with a brief conclusion.
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