Author: Marvin Ammori


Free Speech Architecture – Baseline Spaces for Speech (#3)

In previous posts about a recent article, I argue that it’s both descriptively inaccurate and normatively problematic to think that the First Amendment embodies merely a negative liberty—a freedom from government interference in matters of speech, even if government is acting to open additional avenues of speech for all. I claimed that what many people now consider doctrinal “exceptions” to the negative liberty model govern much of our speech and reflect overlooked substantive principles regarding the First Amendment’s role in ensuring individuals’ access to spaces for speech.

This post is about the first of the five principles that work together to reveal the First Amendment’s concern with availability of speech spaces.

As a matter of judicial mandate, individuals must have access to some basic, minimal spaces for speech. These include private spaces for reflection and opinion-forming and public spaces for debate.

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First Amendment “Exceptions” and What the First Amendment Means (#2)

This is the second post laying out my argument in a recent article. I hope to post later on some of the great comments, or the excellent post by Brett Frischmann on the public domain as speech “infrastructure” and Timothy Zick’s insightful discussion of speech mediums and spatiality. I’m also going to hold off on posting about the current police crackdown on Occupy K Street in Washington, DC, a few blocks from my office, but here is a link to a live video feed of the eviction.

Today’s piece continues with the importance of what are conventionally perceived as “exceptions” to First Amendment doctrine. In yesterday’s post, I set out a common counter-argument to the claim that the First Amendment ought to be concerned with ensuring speech spaces for all. That counter-argument, in many guises, is that the First Amendment is only concerned with ensuring negative-liberty, or keeping government out of the speech market. While this argument has an is-ought fallacy at its core, it is pretty hard to argue with the perceived weight of what First Amendment precedent actually is.

But you are not persuaded yet by the counter-argument that the First Amendment is a negative liberty. You question the “is” underlying the entire argument. You do so the same way you would question any factual claim—you present counter-examples. If someone claims that all Smurfs are female, you might ask, “What about Hefty, Handy, and Papa?”

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Negative Liberty and What the First Amendment Ought to Be

Two days ago, I posted about a law review article I’m presenting next Friday at a symposium. The symposium is dedicated to “First Amendment Challenges in the Digital Age.” Danielle was generous enough to host a little blog-athon about the topic and invite me and some of our friends. (If I may speak for Marc, Tim, Brett, Greg, and Zephyr on one thing: thank you Danielle! And thank you Concurring Opinions.)

I planned to write a few “readable” posts about the article I’m presenting. This is the first.

I’ll begin with a few basics obvious to most CoOp readers but maybe not to everyone. Read More


Some Recent Readings: Blitz, Kauffman, Lessig

Last week, Tim Wu blogged about recent First Amendment scholarship that address issues beyond classical censorship, and he included a shout out to my recent draft article. Also, the last two CoOp posts are about interesting articles (by Lash and by Swedloff).

In the spirit of karma, I figured I’d note some of my own favorite recent readings. These include new readings on free speech and innovation, as well as an Internet law classic. Read More


Google Books Settlement: Copyright, Congress, and Information Monopolies

X-posted at Balkinization.

The Southern District of New York rejected the Google Books settlement. I provide a summary of the opinion here. Essentially, Google negotiated a settlement with the publishers and authors that sued it. Then, after the settlement, hundreds of publishers and authors objected. Competitors and the DOJ raised concerns. So, yesterday, the court rejected the settlement based mainly on those objections and concerns. It applied a nine factor test, relying mainly on one factor–the reaction of the class. It determined that the class had five important objections. (All of which I summarize here.)

Here I want to post some initial reactions about three themes that seem to animate the decision.

These themes are: (1) that Google shouldn’t benefit from its blatant copyright infringement, (2) that Congress, not a court, should determine many of the forward looking issues, and (3) that the settlement should be rejected because it would grant  Google a monopoly over out-of-print books still in copyright (e.g., many books published after 1923).

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Some Thoughts on DC Corruption

I’d like to thank the good folks at Concurring Opinions for inviting me to guest blog. The CoOp team has always been tremendously generous to me over the years–advising me on the teaching market (Dan, Frank), reading and commenting on draft  law review articles (Dan), and reposting some of my thoughts (Danielle).  And they’ve been kind enough to let me guest-blog for two months, as I was working through a law review article (grandly titled First Amendment Architecture–someone please publish it).

I tend to write about free speech and technology–like policies to ensure net neutrality, Internet access for all, or online innovation without permission. I am interested in media and the Internet because they are among our dominant means of speech, and speech is a basic input into all the decisions of our democracy. To the extent we design our speech systems more or less democratically, that affects all our policy decisions. I spent a few years in DC, working on media reform and network neutrality, among other issues.

I will write about technology soon. Today: corruption.

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