Federal vs. State Power in Antebellum America
Before the Civil War, the states and the federal government were locked in an uneasy balance of power. The federal constitution listed certain areas (treaties, post offices, patents, interstate commerce, constitutional interpretation, and more) where federal supremacy was clear (via Article VI, Clause 2), but other areas defaulted to the states (made explicit by the 10th Amendment).
Lecture on 19th-Century Legal History Before the Civil War
I gave a lecture the other day to an undergraduate history class on the topic of 19th-century legal history, mostly before the start of the Civil War (with hints to the future, of course). This is hardly comprehensive – I only had 50 minutes! – but I thought I’d share anyway.
Privacy and the silo/filter/echo problem
The push for “privacy” that demands an ability to allow us to restrict who sees what – enabled, for example, by new tools in Facebook and Google+ – also creates and reinforces silos (filter bubbles, echo chambers) that prevent our exposure to different ideas. But this move highlights potential conflicts between a number of rights: freedom of association and freedom of speech and the press (both from the First Amendment) and rights to privacy (from the First, Fourth, Fifth, and Fourteenth Amendments). What is this conflict? Is it real? How can we (begin) to resolve it?
Privacy as secrecy and privacy as autonomy
The concept of “privacy” – as in “the right to privacy” – can be understood in a number of ways. This multitude of potential meanings and uses is partly why the concept is controversial, confusing, and perhaps even contradictory. Previously I have discussed the difference in perceptions of privacy in the 19th century, where the legal focus seemed to be more on “confidentiality” than what we have come to understand as “privacy” today. That is, the 19th century concern was with maintaining trust relationships between people rather than with protecting either secrecy or autonomy (although that is not to say that these were not valued).
Copyright and authorship: reading Thomas Streeter's Selling the Air
Copyright law is often approached in terms of debates over competing interpretations of the law: should copyright be used to protect the author’s freedom, or to encourage the public distribution of culture and information, or to turn intellectual products into marketplace commodities, or to serve the interests of corporate publishers and distributors?
Neil Richards on "Reconciling Data Privacy and the First Amendment"
In “Reconciling Data Privacy and the First Amendment,” argues that privacy regulation is not speech regulation at all, and, additionally, that in commercial contexts at least, “speech restrictions … have never triggered heightened First Amendment scrutiny.” In other words, either the data being protected isn’t “speech” in the legal sense, or “because they are legitimate speech regulations under existing doctrine.”
Robert Horwitz on the deregulation of American telecommunications
Robert Horwitz’s The Irony of Regulatory Reform: The Deregulation of American Telecommunications, published in 1989, explores in depth the issue of telecommunications regulation at a time when telecommunications was once again in transition.
Thinking about privacy and the First Amendment
This post is about Eugene Volokh’s article on free speech and privacy in relation to Samuel D. Warren and Louis D. Brandeis’s 1890 law review article, “The Right to Privacy.” This highly influential piece advocated for “the fundamental right to be let alone.” But is it impossible to reconcile such a right with an equally compelling right to free speech?
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