Digital speech and democratic culture: A theory of freedom of expression for the information society

New York University Law Review

Volumn 79, Issue 1, 2004, Pages 1-58

  Balkin, Jack M ^a  

^a YALE UNIVERSITY   (United States)

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EID: 2442473073     PISSN: 00287881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (197)

1. See, e.g., Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U. CHI. LEGAL F. 207, 216 (arguing that clear rules, property rights, and facilitating bargains will resolve regulatory problems in cyberspace much as they do in real space); Joseph H. Sommer, Against Cyberlaw, 15 BERKELEY TECH. L.J. 1145, 1148 (2000) ("[F]ew of the legal issues posed by the new informatics technologies are novel.").
2. See, e.g., Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U. CHI. LEGAL F. 207, 216 (arguing that clear rules, property rights, and facilitating bargains will resolve regulatory problems in cyberspace much as they do in real space); Joseph H. Sommer, Against Cyberlaw, 15 BERKELEY TECH. L.J. 1145, 1148 (2000) ("[F]ew of the legal issues posed by the new informatics technologies are novel.").
3. See J.M. Balkin, Populism and Progressivism as Constitutional Categories, 104 YALE L.J. 1935, 1948-49 (1995) (reviewing CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH (1993), and defining democratic culture as popular participation in culture). See J.M. Balkin, Populism and Progressivism as Constitutional Categories, 104 YALE L.J. 1935, 1948-49 (1995) (reviewing CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH (1993), and defining democratic culture as popular participation in culture). Media and popular culture theorist John Fiske has coined the term "semiotic democracy" to describe popular participation in the creation of meanings, often by turning existing forms of mass culture to different uses. JOHN FISKE, TELEVISION CULTURE 236-39 (1987); see also Michael Madow, Private Ownership of Public Image: Popular Culture and Publicity Rights, 81 CAL. L. REV. 125, 146 (1993) (defining semiotic democracy as "a society in which all persons are free and able to participate actively, if not equally, in the generation and circulation of meanings and values"). Fiske's idea has become particularly important in the intellectual property literature. See infra note 56.
4. See J.M. Balkin, Populism and Progressivism as Constitutional Categories, 104 YALE L.J. 1935, 1948-49 (1995) (reviewing CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH (1993), and defining democratic culture as popular participation in culture). See J.M. Balkin, Populism and Progressivism as Constitutional Categories, 104 YALE L.J. 1935, 1948-49 (1995) (reviewing CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH (1993), and defining democratic culture as popular participation in culture). Media and popular culture theorist John Fiske has coined the term "semiotic democracy" to describe popular participation in the creation of meanings, often by turning existing forms of mass culture to different uses. JOHN FISKE, TELEVISION CULTURE 236-39 (1987); see also Michael Madow, Private Ownership of Public Image: Popular Culture and Publicity Rights, 81 CAL. L. REV. 125, 146 (1993) (defining semiotic democracy as "a society in which all persons are free and able to participate actively, if not equally, in the generation and circulation of meanings and values"). Fiske's idea has become particularly important in the intellectual property literature. See infra note 56.
5. See J.M. Balkin, Populism and Progressivism as Constitutional Categories, 104 YALE L.J. 1935, 1948-49 (1995) (reviewing CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH (1993), and defining democratic culture as popular participation in culture). See J.M. Balkin, Populism and Progressivism as Constitutional Categories, 104 YALE L.J. 1935, 1948-49 (1995) (reviewing CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH (1993), and defining democratic culture as popular participation in culture). Media and popular culture theorist John Fiske has coined the term "semiotic democracy" to describe popular participation in the creation of meanings, often by turning existing forms of mass culture to different uses. JOHN FISKE, TELEVISION CULTURE 236-39 (1987); see also Michael Madow, Private Ownership of Public Image: Popular Culture and Publicity Rights, 81 CAL. L. REV. 125, 146 (1993) (defining semiotic democracy as "a society in which all persons are free and able to participate actively, if not equally, in the generation and circulation of meanings and values"). Fiske's idea has become particularly important in the intellectual property literature. See infra note 56.
6. See J.M. Balkin, Populism and Progressivism as Constitutional Categories, 104 YALE L.J. 1935, 1948-49 (1995) (reviewing CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH (1993), and defining democratic culture as popular participation in culture). See J.M. Balkin, Populism and Progressivism as Constitutional Categories, 104 YALE L.J. 1935, 1948-49 (1995) (reviewing CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH (1993), and defining democratic culture as popular participation in culture). Media and popular culture theorist John Fiske has coined the term "semiotic democracy" to describe popular participation in the creation of meanings, often by turning existing forms of mass culture to different uses. JOHN FISKE, TELEVISION CULTURE 236-39 (1987); see also Michael Madow, Private Ownership of Public Image: Popular Culture and Publicity Rights, 81 CAL. L. REV. 125, 146 (1993) (defining semiotic democracy as "a society in which all persons are free and able to participate actively, if not equally, in the generation and circulation of meanings and values"). Fiske's idea has become particularly important in the intellectual property literature. See infra note 56.
7. See J.M. Balkin, Populism and Progressivism as Constitutional Categories, 104 YALE L.J. 1935, 1948-49 (1995) (reviewing CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH (1993), and defining democratic culture as popular participation in culture). See J.M. Balkin, Populism and Progressivism as Constitutional Categories, 104 YALE L.J. 1935, 1948-49 (1995) (reviewing CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH (1993), and defining democratic culture as popular participation in culture). Media and popular culture theorist John Fiske has coined the term "semiotic democracy" to describe popular participation in the creation of meanings, often by turning existing forms of mass culture to different uses. JOHN FISKE, TELEVISION CULTURE 236-39 (1987); see also Michael Madow, Private Ownership of Public Image: Popular Culture and Publicity Rights, 81 CAL. L. REV. 125, 146 (1993) (defining semiotic democracy as "a society in which all persons are free and able to participate actively, if not equally, in the generation and circulation of meanings and values"). Fiske's idea has become particularly important in the intellectual property literature. See infra note 56.
8. Balkin, supra note 2, at 1948-49.
9. THOMAS I. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 3 (1970).
10. Cf. Jacques Derrida, Limited Inc a b c ..., in 2 GLYPH 162, 200 (1977) ("Iterability alters[.]"). Jed Rubenfeld expresses a similar idea through the metaphor of imagination. He argues that freedom of speech protects the rights of both authors and readers because acts of imagination are inevitably transformative, both for producers and receivers of cultural objects. Jed Rubenfeld, The Freedom of Imagination: Copyright's Constitutionality, 112 YALE L.J. 1, 37-38 (2002). Rebecca Tushnet points out that repetition of ideas or social scripts can be a way of expressing solidarity with others, support for a favored cause, or one's own sense of propriety as a member of a religious, political, or social group. Rebecca Tushnet, Copyright as a Model for Free Speech Law: What Copyright Has in Common with Anti-Pornography Laws, Campaign Finance Reform, and Telecommunications Regulation, 42 B.C. L. REV. 1, 16-17 (2001).
11. Cf. Jacques Derrida, Limited Inc a b c ..., in 2 GLYPH 162, 200 (1977) ("Iterability alters[.]"). Jed Rubenfeld expresses a similar idea through the metaphor of imagination. He argues that freedom of speech protects the rights of both authors and readers because acts of imagination are inevitably transformative, both for producers and receivers of cultural objects. Jed Rubenfeld, The Freedom of Imagination: Copyright's Constitutionality, 112 YALE L.J. 1, 37-38 (2002). Rebecca Tushnet points out that repetition of ideas or social scripts can be a way of expressing solidarity with others, support for a favored cause, or one's own sense of propriety as a member of a religious, political, or social group. Rebecca Tushnet, Copyright as a Model for Free Speech Law: What Copyright Has in Common with Anti-Pornography Laws, Campaign Finance Reform, and Telecommunications Regulation, 42 B.C. L. REV. 1, 16-17 (2001).
12. Cf. Jacques Derrida, Limited Inc a b c ..., in 2 GLYPH 162, 200 (1977) ("Iterability alters[.]"). Jed Rubenfeld expresses a similar idea through the metaphor of imagination. He argues that freedom of speech protects the rights of both authors and readers because acts of imagination are inevitably transformative, both for producers and receivers of cultural objects. Jed Rubenfeld, The Freedom of Imagination: Copyright's Constitutionality, 112 YALE L.J. 1, 37-38 (2002). Rebecca Tushnet points out that repetition of ideas or social scripts can be a way of expressing solidarity with others, support for a favored cause, or one's own sense of propriety as a member of a religious, political, or social group. Rebecca Tushnet, Copyright as a Model for Free Speech Law: What Copyright Has in Common with Anti-Pornography Laws, Campaign Finance Reform, and Telecommunications Regulation, 42 B.C. L. REV. 1, 16-17 (2001).
13. See Jack M. Balkin, Free Speech From a Meme's Point of View 8, 13 (Apr. 4, 2003) (unpublished manuscript, on file with New York University Law Review) (explaining rapid growth of expression on Internet in terms of lowered costs of production and distribution of information).
14. See J.M. Balkin, Media Filters, the V-Chip, and the Foundations of Broadcast Regulation, 45 DUKE L.J. 1131, 1145 (1996) ("In the Information Age, the informational filter, not information itself, is king."); James Boyle, Foucault in Cyberspace: Surveillance, Sovereignty, and Hardwired Censors, 66 U. CIN. L. REV. 177, 194 (1997) (noting that filtering technologies supply state with "a different arsenal of methods with which to regulate content").
15. See J.M. Balkin, Media Filters, the V-Chip, and the Foundations of Broadcast Regulation, 45 DUKE L.J. 1131, 1145 (1996) ("In the Information Age, the informational filter, not information itself, is king."); James Boyle, Foucault in Cyberspace: Surveillance, Sovereignty, and Hardwired Censors, 66 U. CIN. L. REV. 177, 194 (1997) (noting that filtering technologies supply state with "a different arsenal of methods with which to regulate content").
16. Lowering the costs of distribution also allows more speakers to reach across existing cultural, geographical, and disciplinary boundaries. It allows information to get past previously closed communities, it enables new communities to form based on existing interests, and it helps create new interests around which communities can form.
17. I borrow this term from C. EDWIN BAKER, MEDIA, MARKETS, AND DEMOCRACY 7-14 (2002) (noting important differences between media products and typical noninformation goods).
18. On The Phantom Edit, see Richard Fausset, A Phantom Menace?, L.A. TIMES, June 1, 2002, at F1.
19. On The Phantom Edit, see Richard Fausset, A Phantom Menace?, L.A. TIMES, June 1, 2002, at F1.
20. Asked about the phenomenon by an interviewer, Lucas explained, [E]verybody wants to be a filmmaker. Part of what I was hoping for with making movies in the first place was to inspire people to be creative. The Phantom Edit was fine as long as they didn't start selling it. Once they started selling it, it became a piracy issue. I'm on the Artist Rights Foundation board, and the issue of non-creators of a movie going in and changing things and then selling it as something else is wrong. Gavin Smith, The Genius of the System: George Lucas Talks to Gavin Smith About Painting by Numbers, Mind-Numbing Minutiae, and Final Cuts, FILM COMMENT, July-Aug. 2002, at 31, 32.
21. James Boyle argues that a characteristic feature of the information society is that an increasing proportion of product cost goes to content creation rather than to distribution, and to message rather than medium. James Boyle, A Politics of Intellectual Property: Environmentalism for the Net?, 47 DUKE L.J. 87, 93-94 (1997). That is not necessarily inconsistent with my argument that digital technologies lower costs of innovation: Both content creation and distribution costs are lowered, but distribution costs decline much more rapidly. In the meantime, digital technologies spur new forms of content creation that would have been prohibitively expensive (or impossible) in the past.
22. For a list of some of the most popular blogs, see The Truth Laid Bear's Blogosphere Ecosystem, at http://www.truthlaidbear.com/ecosystem.php (last visited Nov. 17, 2003).
23. See http://www.televisionwithoutpity.com (last visited Oct. 27, 2003).
24. Marshall Sella, The Remote Controllers, N.Y. TIMES, Oct. 20, 2002, (Magazine), at 70 (noting that "[i]t is now standard Hollywood practice for executive producers ... to scurry into Web groups moments after an episode is shown on the East Coast," hoping to discover what core viewers like and dislike).
25. For examples of fan fiction, see generally http://www.fanfiction.net (last visited July 10, 2003). On the clash between fan fiction and copyright law, see Rebecca Tushnet, Legal Fictions: Copyright, Fan Fiction, and a New Common Law, 17 LOY. L.A. ENT. L.J. 651 (1997); Ariana Eunjung Cha, Harry Potter and the Copyright Lawyer, WASH. POST, June 18, 2003, at A1; Tracy Mayor, Taking Liberties with Harry Potter, BOSTON GLOBE, June 29, 2003, (Magazine), at 14. The practice predates the Internet, see HENRY JENKINS, TEXTUAL POACHERS: TELEVISION FANS & PARTICIPATORY CULTURE 152-62 (1992), but the Internet has helped spur the formation of new communities of fan fiction writers, whose collective efforts have drawn the attention (and occasionally the ire) of television producers.
26. For examples of fan fiction, see generally http://www.fanfiction.net (last visited July 10, 2003). On the clash between fan fiction and copyright law, see Rebecca Tushnet, Legal Fictions: Copyright, Fan Fiction, and a New Common Law, 17 LOY. L.A. ENT. L.J. 651 (1997); Ariana Eunjung Cha, Harry Potter and the Copyright Lawyer, WASH. POST, June 18, 2003, at A1; Tracy Mayor, Taking Liberties with Harry Potter, BOSTON GLOBE, June 29, 2003, (Magazine), at 14. The practice predates the Internet, see HENRY JENKINS, TEXTUAL POACHERS: TELEVISION FANS & PARTICIPATORY CULTURE 152-62 (1992), but the Internet has helped spur the formation of new communities of fan fiction writers, whose collective efforts have drawn the attention (and occasionally the ire) of television producers.
27. For examples of fan fiction, see generally http://www.fanfiction.net (last visited July 10, 2003). On the clash between fan fiction and copyright law, see Rebecca Tushnet, Legal Fictions: Copyright, Fan Fiction, and a New Common Law, 17 LOY. L.A. ENT. L.J. 651 (1997); Ariana Eunjung Cha, Harry Potter and the Copyright Lawyer, WASH. POST, June 18, 2003, at A1; Tracy Mayor, Taking Liberties with Harry Potter, BOSTON GLOBE, June 29, 2003, (Magazine), at 14. The practice predates the Internet, see HENRY JENKINS, TEXTUAL POACHERS: TELEVISION FANS & PARTICIPATORY CULTURE 152-62 (1992), but the Internet has helped spur the formation of new communities of fan fiction writers, whose collective efforts have drawn the attention (and occasionally the ire) of television producers.
28. For examples of fan fiction, see generally http://www.fanfiction.net (last visited July 10, 2003). On the clash between fan fiction and copyright law, see Rebecca Tushnet, Legal Fictions: Copyright, Fan Fiction, and a New Common Law, 17 LOY. L.A. ENT. L.J. 651 (1997); Ariana Eunjung Cha, Harry Potter and the Copyright Lawyer, WASH. POST, June 18, 2003, at A1; Tracy Mayor, Taking Liberties with Harry Potter, BOSTON GLOBE, June 29, 2003, (Magazine), at 14. The practice predates the Internet, see HENRY JENKINS, TEXTUAL POACHERS: TELEVISION FANS & PARTICIPATORY CULTURE 152-62 (1992), but the Internet has helped spur the formation of new communities of fan fiction writers, whose collective efforts have drawn the attention (and occasionally the ire) of television producers.
29. For examples of fan fiction, see generally http://www.fanfiction.net (last visited July 10, 2003). On the clash between fan fiction and copyright law, see Rebecca Tushnet, Legal Fictions: Copyright, Fan Fiction, and a New Common Law, 17 LOY. L.A. ENT. L.J. 651 (1997); Ariana Eunjung Cha, Harry Potter and the Copyright Lawyer, WASH. POST, June 18, 2003, at A1; Tracy Mayor, Taking Liberties with Harry Potter, BOSTON GLOBE, June 29, 2003, (Magazine), at 14. The practice predates the Internet, see HENRY JENKINS, TEXTUAL POACHERS: TELEVISION FANS & PARTICIPATORY CULTURE 152-62 (1992), but the Internet has helped spur the formation of new communities of fan fiction writers, whose collective efforts have drawn the attention (and occasionally the ire) of television producers.
30. This is the major concern of LAWRENCE LESSIG, CODE AND OTHER LAWS OF CYBERSPACE (1999) [hereinafter LESSIG, CODE AND OTHER LAWS OF CYBERSPACE], and LAWRENCE LESSIG, THE FUTURE OF IDEAS: THE FATE OF THE COMMONS IN A CONNECTED WORLD (2001) [hereinafter LESSIG, THE FUTURE OF IDEAS].
31. This is the major concern of LAWRENCE LESSIG, CODE AND OTHER LAWS OF CYBERSPACE (1999) [hereinafter LESSIG, CODE AND OTHER LAWS OF CYBERSPACE], and LAWRENCE LESSIG, THE FUTURE OF IDEAS: THE FATE OF THE COMMONS IN A CONNECTED WORLD (2001) [hereinafter LESSIG, THE FUTURE OF IDEAS].
32. This is the major concern of LAWRENCE LESSIG, CODE AND OTHER LAWS OF CYBERSPACE (1999) [hereinafter LESSIG, CODE AND OTHER LAWS OF CYBERSPACE], and LAWRENCE LESSIG, THE FUTURE OF IDEAS: THE FATE OF THE COMMONS IN A CONNECTED WORLD (2001) [hereinafter LESSIG, THE FUTURE OF IDEAS].
33. This is the major concern of LAWRENCE LESSIG, CODE AND OTHER LAWS OF CYBERSPACE (1999) [hereinafter LESSIG, CODE AND OTHER LAWS OF CYBERSPACE], and LAWRENCE LESSIG, THE FUTURE OF IDEAS: THE FATE OF THE COMMONS IN A CONNECTED WORLD (2001) [hereinafter LESSIG, THE FUTURE OF IDEAS].
34. The basic conflict between centralized control of information production and distribution and routing around and glomming on that I have identified here has many different aspects. Yochai Benkler views the conflict in terms of contrasting methods of information production-a conflict between, on the one hand, an industrial model of protection that produces mass culture prepackaged for consumption, and, on the other, various models of nonproprietary and peer production. Yochai Benkler, Through the Looking Glass: Alice and the Constitutional Foundations of the Public Domain, 66 LAW AND CONTEMP. PROBS. 173, 181 (2003) [hereinafter Benkler, The Public Domain]; see also Yochai Benkler, From Consumers to Users: Shifting the Deeper Structures of Regulation Toward Sustainable Commons and User Access, 52 FED. COMM. L.J. 561, 562 (2000). The same technologies that allow the industrialization of the goods of the mind also make possible new forms of peer production and collaboration. See J.M. Balkin, What Is a Postmodern Constitutionalism, 90 MICH. L. REV. 1966, 1974, 1983 (1992) (defining postmodern era as era of industrialization of products of mind); see also Yochai Benkler, Coase's Penguin, or, Linux and The Nature of the Firm, 112 YALE L.J. 369, 375-90 (2002) (describing rise of collaborative methods for commons-based peer production). The struggle between these models of production, which is waged both in politics and in law, will determine the "institutional ecology" of information production in the next century. Benkler, The Public Domain, supra, at 181.
35. The basic conflict between centralized control of information production and distribution and routing around and glomming on that I have identified here has many different aspects. Yochai Benkler views the conflict in terms of contrasting methods of information production-a conflict between, on the one hand, an industrial model of protection that produces mass culture prepackaged for consumption, and, on the other, various models of nonproprietary and peer production. Yochai Benkler, Through the Looking Glass: Alice and the Constitutional Foundations of the Public Domain, 66 LAW AND CONTEMP. PROBS. 173, 181 (2003) [hereinafter Benkler, The Public Domain]; see also Yochai Benkler, From Consumers to Users: Shifting the Deeper Structures of Regulation Toward Sustainable Commons and User Access, 52 FED. COMM. L.J. 561, 562 (2000). The same technologies that allow the industrialization of the goods of the mind also make possible new forms of peer production and collaboration. See J.M. Balkin, What Is a Postmodern Constitutionalism, 90 MICH. L. REV. 1966, 1974, 1983 (1992) (defining postmodern era as era of industrialization of products of mind); see also Yochai Benkler, Coase's Penguin, or, Linux and The Nature of the Firm, 112 YALE L.J. 369, 375-90 (2002) (describing rise of collaborative methods for commons-based peer production). The struggle between these models of production, which is waged both in politics and in law, will determine the "institutional ecology" of information production in the next century. Benkler, The Public Domain, supra, at 181.
36. The basic conflict between centralized control of information production and distribution and routing around and glomming on that I have identified here has many different aspects. Yochai Benkler views the conflict in terms of contrasting methods of information production-a conflict between, on the one hand, an industrial model of protection that produces mass culture prepackaged for consumption, and, on the other, various models of nonproprietary and peer production. Yochai Benkler, Through the Looking Glass: Alice and the Constitutional Foundations of the Public Domain, 66 LAW AND CONTEMP. PROBS. 173, 181 (2003) [hereinafter Benkler, The Public Domain]; see also Yochai Benkler, From Consumers to Users: Shifting the Deeper Structures of Regulation Toward Sustainable Commons and User Access, 52 FED. COMM. L.J. 561, 562 (2000). The same technologies that allow the industrialization of the goods of the mind also make possible new forms of peer production and collaboration. See J.M. Balkin, What Is a Postmodern Constitutionalism, 90 MICH. L. REV. 1966, 1974, 1983 (1992) (defining postmodern era as era of industrialization of products of mind); see also Yochai Benkler, Coase's Penguin, or, Linux and The Nature of the Firm, 112 YALE L.J. 369, 375-90 (2002) (describing rise of collaborative methods for commons-based peer production). The struggle between these models of production, which is waged both in politics and in law, will determine the "institutional ecology" of information production in the next century. Benkler, The Public Domain, supra, at 181.
37. The basic conflict between centralized control of information production and distribution and routing around and glomming on that I have identified here has many different aspects. Yochai Benkler views the conflict in terms of contrasting methods of information production-a conflict between, on the one hand, an industrial model of protection that produces mass culture prepackaged for consumption, and, on the other, various models of nonproprietary and peer production. Yochai Benkler, Through the Looking Glass: Alice and the Constitutional Foundations of the Public Domain, 66 LAW AND CONTEMP. PROBS. 173, 181 (2003) [hereinafter Benkler, The Public Domain]; see also Yochai Benkler, From Consumers to Users: Shifting the Deeper Structures of Regulation Toward Sustainable Commons and User Access, 52 FED. COMM. L.J. 561, 562 (2000). The same technologies that allow the industrialization of the goods of the mind also make possible new forms of peer production and collaboration. See J.M. Balkin, What Is a Postmodern Constitutionalism, 90 MICH. L. REV. 1966, 1974, 1983 (1992) (defining postmodern era as era of industrialization of products of mind); see also Yochai Benkler, Coase's Penguin, or, Linux and The Nature of the Firm, 112 YALE L.J. 369, 375-90 (2002) (describing rise of collaborative methods for commons-based peer production). The struggle between these models of production, which is waged both in politics and in law, will determine the "institutional ecology" of information production in the next century. Benkler, The Public Domain, supra, at 181.
38. The basic conflict between centralized control of information production and distribution and routing around and glomming on that I have identified here has many different aspects. Yochai Benkler views the conflict in terms of contrasting methods of information production-a conflict between, on the one hand, an industrial model of protection that produces mass culture prepackaged for consumption, and, on the other, various models of nonproprietary and peer production. Yochai Benkler, Through the Looking Glass: Alice and the Constitutional Foundations of the Public Domain, 66 LAW AND CONTEMP. PROBS. 173, 181 (2003) [hereinafter Benkler, The Public Domain]; see also Yochai Benkler, From Consumers to Users: Shifting the Deeper Structures of Regulation Toward Sustainable Commons and User Access, 52 FED. COMM. L.J. 561, 562 (2000). The same technologies that allow the industrialization of the goods of the mind also make possible new forms of peer production and collaboration. See J.M. Balkin, What Is a Postmodern Constitutionalism, 90 MICH. L. REV. 1966, 1974, 1983 (1992) (defining postmodern era as era of industrialization of products of mind); see also Yochai Benkler, Coase's Penguin, or, Linux and The Nature of the Firm, 112 YALE L.J. 369, 375-90 (2002) (describing rise of collaborative methods for commons-based peer production). The struggle between these models of production, which is waged both in politics and in law, will determine the "institutional ecology" of information production in the next century. Benkler, The Public Domain, supra, at 181.
39. The basic conflict between centralized control of information production and distribution and routing around and glomming on that I have identified here has many different aspects. Yochai Benkler views the conflict in terms of contrasting methods of information production-a conflict between, on the one hand, an industrial model of protection that produces mass culture prepackaged for consumption, and, on the other, various models of nonproprietary and peer production. Yochai Benkler, Through the Looking Glass: Alice and the Constitutional Foundations of the Public Domain, 66 LAW AND CONTEMP. PROBS. 173, 181 (2003) [hereinafter Benkler, The Public Domain]; see also Yochai Benkler, From Consumers to Users: Shifting the Deeper Structures of Regulation Toward Sustainable Commons and User Access, 52 FED. COMM. L.J. 561, 562 (2000). The same technologies that allow the industrialization of the goods of the mind also make possible new forms of peer production and collaboration. See J.M. Balkin, What Is a Postmodern Constitutionalism, 90 MICH. L. REV. 1966, 1974, 1983 (1992) (defining postmodern era as era of industrialization of products of mind); see also Yochai Benkler, Coase's Penguin, or, Linux and The Nature of the Firm, 112 YALE L.J. 369, 375-90 (2002) (describing rise of collaborative methods for commons-based peer production). The struggle between these models of production, which is waged both in politics and in law, will determine the "institutional ecology" of information production in the next century. Benkler, The Public Domain, supra, at 181.
40. Karl Marx, A Contribution to the Critique of Political Economy, in THE MARX-ENGELS READER 4, 4-5 (Robert C. Tucker ed., 1978).
41. On the emerging conflict between freedom of speech and intellectual property, see Yochai Benkler, Constitutional Bounds of Database Protection: The Role of Judicial Review in the Creation and Definition of Private Rights in Information, 15 BERKELEY TECH. L.J. 535, 587-600 (2000) (suggesting conflict between free speech rights and database protection); Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 N.Y.U. L. REV. 354, 393-401, 412-14 (1999) (arguing that given emerging methods of production of digital information, copyright promotes neither diversity of information nor free expression).
42. On the emerging conflict between freedom of speech and intellectual property, see Yochai Benkler, Constitutional Bounds of Database Protection: The Role of Judicial Review in the Creation and Definition of Private Rights in Information, 15 BERKELEY TECH. L.J. 535, 587-600 (2000) (suggesting conflict between free speech rights and database protection); Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 N.Y.U. L. REV. 354, 393-401, 412-14 (1999) (arguing that given emerging methods of production of digital information, copyright promotes neither diversity of information nor free expression).
43. See generally Mark Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 DUKE L.J. 147 (1998).
44. For a summary of the expansion in copyright law, particularly since 1970, see Neil Netanel, Locating Copyright in the First Amendment Skein, 54 STAN. L. REV. 1, 18-26 (2001).
45. Pub. L. No. 105-298, 112 Stat. 2827 (1998) (codified at 17 U.S.C. § 302 (2000)).
46. Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified at 17 U.S.C. §1201 (2000)).
47. See generally LESSIG, THE FUTURE OF IDEAS, supra note 17, at 180-217; Niva Elkin-Koren, It's All About Control: Rethinking Copyright in the New Information Landscape, in THE COMMODIFICATION OF INFORMATION 79 (Niva Elkin-Koren & Neil W. Netanel eds., 2002).
48. See generally LESSIG, THE FUTURE OF IDEAS, supra note 17, at 180-217; Niva Elkin-Koren, It's All About Control: Rethinking Copyright in the New Information Landscape, in THE COMMODIFICATION OF INFORMATION 79 (Niva Elkin-Koren & Neil W. Netanel eds., 2002).
49. Cf. Turner Broad. v. FCC (Turner I), 512 U.S. 622, 656 (1994) (arguing that monopoly power and cable architecture create bottlenecks and exclude others from speaking); Red Lion Broad. Co. v. FCC, 395 U.S. 367, 388-392, 392 (1969) ("There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all.").
50. Cf. Turner Broad. v. FCC (Turner I), 512 U.S. 622, 656 (1994) (arguing that monopoly power and cable architecture create bottlenecks and exclude others from speaking); Red Lion Broad. Co. v. FCC, 395 U.S. 367, 388-392, 392 (1969) ("There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all.").
51. See 47 U.S.C. § 312(a)(7) (2000) (requiring broadcasters to "allow reasonable access to or ... permit purchase of reasonable amounts of time" to "legally qualified candidate[s] for Federal elective office"); 47 U.S.C. § 315(a) (2000) (establishing "equal opportunities" rule requiring broadcasters who permit one candidate to "use" station to permit candidate's opponents to "use" station as well); 47 U.S.C. § 315(b) (2000) (requiring broadcasters to sell time at lowest unit charge to political candidates); 47 U.S.C. § 531(b) (2000) (authorizing franchise authorities to require cable companies to set aside space for public access, educational and government channels); 47 U.S.C. § 532(b)(1) (2000) (establishing "leased access" provisions which require cable operators to set aside channel capacity for use by commercial programmers unaffiliated with cable franchise operator); 47 U.S.C. § 541(a)(3) (2000) (requiring assurances in awarding cable franchises that cable access "is not denied to any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides"); 47 U.S.C. § 335(b)(1) (2000) (requiring direct broadcast satellite operators to set aside portion of "channel capacity, equal to not less than 4 percent nor more than 7 percent, exclusively for noncommercial programming of an educational or informational nature"); Red Lion, 395 U.S. at 373-75 (describing fairness doctrine).
52. See 47 U.S.C. § 312(a)(7) (2000) (requiring broadcasters to "allow reasonable access to or ... permit purchase of reasonable amounts of time" to "legally qualified candidate[s] for Federal elective office"); 47 U.S.C. § 315(a) (2000) (establishing "equal opportunities" rule requiring broadcasters who permit one candidate to "use" station to permit candidate's opponents to "use" station as well); 47 U.S.C. § 315(b) (2000) (requiring broadcasters to sell time at lowest unit charge to political candidates); 47 U.S.C. § 531(b) (2000) (authorizing franchise authorities to require cable companies to set aside space for public access, educational and government channels); 47 U.S.C. § 532(b)(1) (2000) (establishing "leased access" provisions which require cable operators to set aside channel capacity for use by commercial programmers unaffiliated with cable franchise operator); 47 U.S.C. § 541(a)(3) (2000) (requiring assurances in awarding cable franchises that cable access "is not denied to any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides"); 47 U.S.C. § 335(b)(1) (2000) (requiring direct broadcast satellite operators to set aside portion of "channel capacity, equal to not less than 4 percent nor more than 7 percent, exclusively for noncommercial programming of an educational or informational nature"); Red Lion, 395 U.S. at 373-75 (describing fairness doctrine).
53. See 47 U.S.C. § 312(a)(7) (2000) (requiring broadcasters to "allow reasonable access to or ... permit purchase of reasonable amounts of time" to "legally qualified candidate[s] for Federal elective office"); 47 U.S.C. § 315(a) (2000) (establishing "equal opportunities" rule requiring broadcasters who permit one candidate to "use" station to permit candidate's opponents to "use" station as well); 47 U.S.C. § 315(b) (2000) (requiring broadcasters to sell time at lowest unit charge to political candidates); 47 U.S.C. § 531(b) (2000) (authorizing franchise authorities to require cable companies to set aside space for public access, educational and government channels); 47 U.S.C. § 532(b)(1) (2000) (establishing "leased access" provisions which require cable operators to set aside channel capacity for use by commercial programmers unaffiliated with cable franchise operator); 47 U.S.C. § 541(a)(3) (2000) (requiring assurances in awarding cable franchises that cable access "is not denied to any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides"); 47 U.S.C. § 335(b)(1) (2000) (requiring direct broadcast satellite operators to set aside portion of "channel capacity, equal to not less than 4 percent nor more than 7 percent, exclusively for noncommercial programming of an educational or informational nature"); Red Lion, 395 U.S. at 373-75 (describing fairness doctrine).
54. See 47 U.S.C. § 312(a)(7) (2000) (requiring broadcasters to "allow reasonable access to or ... permit purchase of reasonable amounts of time" to "legally qualified candidate[s] for Federal elective office"); 47 U.S.C. § 315(a) (2000) (establishing "equal opportunities" rule requiring broadcasters who permit one candidate to "use" station to permit candidate's opponents to "use" station as well); 47 U.S.C. § 315(b) (2000) (requiring broadcasters to sell time at lowest unit charge to political candidates); 47 U.S.C. § 531(b) (2000) (authorizing franchise authorities to require cable companies to set aside space for public access, educational and government channels); 47 U.S.C. § 532(b)(1) (2000) (establishing "leased access" provisions which require cable operators to set aside channel capacity for use by commercial programmers unaffiliated with cable franchise operator); 47 U.S.C. § 541(a)(3) (2000) (requiring assurances in awarding cable franchises that cable access "is not denied to any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides"); 47 U.S.C. § 335(b)(1) (2000) (requiring direct broadcast satellite operators to set aside portion of "channel capacity, equal to not less than 4 percent nor more than 7 percent, exclusively for noncommercial programming of an educational or informational nature"); Red Lion, 395 U.S. at 373-75 (describing fairness doctrine).
55. See 47 U.S.C. § 312(a)(7) (2000) (requiring broadcasters to "allow reasonable access to or ... permit purchase of reasonable amounts of time" to "legally qualified candidate[s] for Federal elective office"); 47 U.S.C. § 315(a) (2000) (establishing "equal opportunities" rule requiring broadcasters who permit one candidate to "use" station to permit candidate's opponents to "use" station as well); 47 U.S.C. § 315(b) (2000) (requiring broadcasters to sell time at lowest unit charge to political candidates); 47 U.S.C. § 531(b) (2000) (authorizing franchise authorities to require cable companies to set aside space for public access, educational and government channels); 47 U.S.C. § 532(b)(1) (2000) (establishing "leased access" provisions which require cable operators to set aside channel capacity for use by commercial programmers unaffiliated with cable franchise operator); 47 U.S.C. § 541(a)(3) (2000) (requiring assurances in awarding cable franchises that cable access "is not denied to any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides"); 47 U.S.C. § 335(b)(1) (2000) (requiring direct broadcast satellite operators to set aside portion of "channel capacity, equal to not less than 4 percent nor more than 7 percent, exclusively for noncommercial programming of an educational or informational nature"); Red Lion, 395 U.S. at 373-75 (describing fairness doctrine).
56. See 47 U.S.C. § 312(a)(7) (2000) (requiring broadcasters to "allow reasonable access to or ... permit purchase of reasonable amounts of time" to "legally qualified candidate[s] for Federal elective office"); 47 U.S.C. § 315(a) (2000) (establishing "equal opportunities" rule requiring broadcasters who permit one candidate to "use" station to permit candidate's opponents to "use" station as well); 47 U.S.C. § 315(b) (2000) (requiring broadcasters to sell time at lowest unit charge to political candidates); 47 U.S.C. § 531(b) (2000) (authorizing franchise authorities to require cable companies to set aside space for public access, educational and government channels); 47 U.S.C. § 532(b)(1) (2000) (establishing "leased access" provisions which require cable operators to set aside channel capacity for use by commercial programmers unaffiliated with cable franchise operator); 47 U.S.C. § 541(a)(3) (2000) (requiring assurances in awarding cable franchises that cable access "is not denied to any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides"); 47 U.S.C. § 335(b)(1) (2000) (requiring direct broadcast satellite operators to set aside portion of "channel capacity, equal to not less than 4 percent nor more than 7 percent, exclusively for noncommercial programming of an educational or informational nature"); Red Lion, 395 U.S. at 373-75 (describing fairness doctrine).
57. See 47 U.S.C. § 312(a)(7) (2000) (requiring broadcasters to "allow reasonable access to or ... permit purchase of reasonable amounts of time" to "legally qualified candidate[s] for Federal elective office"); 47 U.S.C. § 315(a) (2000) (establishing "equal opportunities" rule requiring broadcasters who permit one candidate to "use" station to permit candidate's opponents to "use" station as well); 47 U.S.C. § 315(b) (2000) (requiring broadcasters to sell time at lowest unit charge to political candidates); 47 U.S.C. § 531(b) (2000) (authorizing franchise authorities to require cable companies to set aside space for public access, educational and government channels); 47 U.S.C. § 532(b)(1) (2000) (establishing "leased access" provisions which require cable operators to set aside channel capacity for use by commercial programmers unaffiliated with cable franchise operator); 47 U.S.C. § 541(a)(3) (2000) (requiring assurances in awarding cable franchises that cable access "is not denied to any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides"); 47 U.S.C. § 335(b)(1) (2000) (requiring direct broadcast satellite operators to set aside portion of "channel capacity, equal to not less than 4 percent nor more than 7 percent, exclusively for noncommercial programming of an educational or informational nature"); Red Lion, 395 U.S. at 373-75 (describing fairness doctrine).
58. See 47 U.S.C. § 312(a)(7) (2000) (requiring broadcasters to "allow reasonable access to or ... permit purchase of reasonable amounts of time" to "legally qualified candidate[s] for Federal elective office"); 47 U.S.C. § 315(a) (2000) (establishing "equal opportunities" rule requiring broadcasters who permit one candidate to "use" station to permit candidate's opponents to "use" station as well); 47 U.S.C. § 315(b) (2000) (requiring broadcasters to sell time at lowest unit charge to political candidates); 47 U.S.C. § 531(b) (2000) (authorizing franchise authorities to require cable companies to set aside space for public access, educational and government channels); 47 U.S.C. § 532(b)(1) (2000) (establishing "leased access" provisions which require cable operators to set aside channel capacity for use by commercial programmers unaffiliated with cable franchise operator); 47 U.S.C. § 541(a)(3) (2000) (requiring assurances in awarding cable franchises that cable access "is not denied to any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides"); 47 U.S.C. § 335(b)(1) (2000) (requiring direct broadcast satellite operators to set aside portion of "channel capacity, equal to not less than 4 percent nor more than 7 percent, exclusively for noncommercial programming of an educational or informational nature"); Red Lion, 395 U.S. at 373-75 (describing fairness doctrine).
59. See, e.g., Time Warner Entm't Co. v. FCC, 240 F.3d 1126, 1136, 1139 (D.C. Cir. 2001) (invalidating FCC's limits on vertical and horizontal integration of cable carriers); Comcast Cablevision, Inc. v. Broward County, 124 F. Supp. 2d 685, 694 (S.D. Fla. 2000) (holding that open access requirements for broadband cable violate First Amendment rights of cable system owners); see also U.S. West, Inc. v. United States, 48 F.3d 1092, 1095 (9th Cir. 1994) (striking down ban on telephone companies also selling video content to the public), vacated as moot, 516 U.S. 1155 (1996); Chesapeake & Potomac Tel. Co. v. United States, 42 F.3d 181, 202 (4th Cir. 1994) (same), vacated as moot, 516 U.S. 415 (1996). The last two cases were held moot by the Supreme Court in light of the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (codified in scattered sections of 42 U.S.C. (2000)), which repealed the statutory ban on cross-ownership.
60. See, e.g., Time Warner Entm't Co. v. FCC, 240 F.3d 1126, 1136, 1139 (D.C. Cir. 2001) (invalidating FCC's limits on vertical and horizontal integration of cable carriers); Comcast Cablevision, Inc. v. Broward County, 124 F. Supp. 2d 685, 694 (S.D. Fla. 2000) (holding that open access requirements for broadband cable violate First Amendment rights of cable system owners); see also U.S. West, Inc. v. United States, 48 F.3d 1092, 1095 (9th Cir. 1994) (striking down ban on telephone companies also selling video content to the public), vacated as moot, 516 U.S. 1155 (1996); Chesapeake & Potomac Tel. Co. v. United States, 42 F.3d 181, 202 (4th Cir. 1994) (same), vacated as moot, 516 U.S. 415 (1996). The last two cases were held moot by the Supreme Court in light of the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (codified in scattered sections of 42 U.S.C. (2000)), which repealed the statutory ban on cross-ownership.
61. See, e.g., Time Warner Entm't Co. v. FCC, 240 F.3d 1126, 1136, 1139 (D.C. Cir. 2001) (invalidating FCC's limits on vertical and horizontal integration of cable carriers); Comcast Cablevision, Inc. v. Broward County, 124 F. Supp. 2d 685, 694 (S.D. Fla. 2000) (holding that open access requirements for broadband cable violate First Amendment rights of cable system owners); see also U.S. West, Inc. v. United States, 48 F.3d 1092, 1095 (9th Cir. 1994) (striking down ban on telephone companies also selling video content to the public), vacated as moot, 516 U.S. 1155 (1996); Chesapeake & Potomac Tel. Co. v. United States, 42 F.3d 181, 202 (4th Cir. 1994) (same), vacated as moot, 516 U.S. 415 (1996). The last two cases were held moot by the Supreme Court in light of the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (codified in scattered sections of 42 U.S.C. (2000)), which repealed the statutory ban on cross-ownership.
62. See, e.g., Time Warner Entm't Co. v. FCC, 240 F.3d 1126, 1136, 1139 (D.C. Cir. 2001) (invalidating FCC's limits on vertical and horizontal integration of cable carriers); Comcast Cablevision, Inc. v. Broward County, 124 F. Supp. 2d 685, 694 (S.D. Fla. 2000) (holding that open access requirements for broadband cable violate First Amendment rights of cable system owners); see also U.S. West, Inc. v. United States, 48 F.3d 1092, 1095 (9th Cir. 1994) (striking down ban on telephone companies also selling video content to the public), vacated as moot, 516 U.S. 1155 (1996); Chesapeake & Potomac Tel. Co. v. United States, 42 F.3d 181, 202 (4th Cir. 1994) (same), vacated as moot, 516 U.S. 415 (1996). The last two cases were held moot by the Supreme Court in light of the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (codified in scattered sections of 42 U.S.C. (2000)), which repealed the statutory ban on cross-ownership.
63. See, e.g., Time Warner Entm't Co. v. FCC, 240 F.3d 1126, 1136, 1139 (D.C. Cir. 2001) (invalidating FCC's limits on vertical and horizontal integration of cable carriers); Comcast Cablevision, Inc. v. Broward County, 124 F. Supp. 2d 685, 694 (S.D. Fla. 2000) (holding that open access requirements for broadband cable violate First Amendment rights of cable system owners); see also U.S. West, Inc. v. United States, 48 F.3d 1092, 1095 (9th Cir. 1994) (striking down ban on telephone companies also selling video content to the public), vacated as moot, 516 U.S. 1155 (1996); Chesapeake & Potomac Tel. Co. v. United States, 42 F.3d 181, 202 (4th Cir. 1994) (same), vacated as moot, 516 U.S. 415 (1996). The last two cases were held moot by the Supreme Court in light of the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (codified in scattered sections of 42 U.S.C. (2000)), which repealed the statutory ban on cross-ownership.
64. See, e.g., Time Warner Entm't Co. v. FCC, 240 F.3d 1126, 1136, 1139 (D.C. Cir. 2001) (invalidating FCC's limits on vertical and horizontal integration of cable carriers); Comcast Cablevision, Inc. v. Broward County, 124 F. Supp. 2d 685, 694 (S.D. Fla. 2000) (holding that open access requirements for broadband cable violate First Amendment rights of cable system owners); see also U.S. West, Inc. v. United States, 48 F.3d 1092, 1095 (9th Cir. 1994) (striking down ban on telephone companies also selling video content to the public), vacated as moot, 516 U.S. 1155 (1996); Chesapeake & Potomac Tel. Co. v. United States, 42 F.3d 181, 202 (4th Cir. 1994) (same), vacated as moot, 516 U.S. 415 (1996). The last two cases were held moot by the Supreme Court in light of the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (codified in scattered sections of 42 U.S.C. (2000)), which repealed the statutory ban on cross-ownership.
65. See, e.g., Time Warner Entm't Co. v. FCC, 240 F.3d 1126, 1136, 1139 (D.C. Cir. 2001) (invalidating FCC's limits on vertical and horizontal integration of cable carriers); Comcast Cablevision, Inc. v. Broward County, 124 F. Supp. 2d 685, 694 (S.D. Fla. 2000) (holding that open access requirements for broadband cable violate First Amendment rights of cable system owners); see also U.S. West, Inc. v. United States, 48 F.3d 1092, 1095 (9th Cir. 1994) (striking down ban on telephone companies also selling video content to the public), vacated as moot, 516 U.S. 1155 (1996); Chesapeake & Potomac Tel. Co. v. United States, 42 F.3d 181, 202 (4th Cir. 1994) (same), vacated as moot, 516 U.S. 415 (1996). The last two cases were held moot by the Supreme Court in light of the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (codified in scattered sections of 42 U.S.C. (2000)), which repealed the statutory ban on cross-ownership.
66. See LESSIG, THE FUTURE OF IDEAS, supra note 17, at 156-58 (quoting Jerome Saltzer, "Open Access" is Just the Tip of the Iceberg (Oct. 22, 1999), at http://web.mit.edu/Saltzer/www/publications/openaccess.html (last visited Oct. 20, 2003) (offering examples of gatekeeping by cable networks)).
67. See LESSIG, THE FUTURE OF IDEAS, supra note 17, at 156-58 (quoting Jerome Saltzer, "Open Access" is Just the Tip of the Iceberg (Oct. 22, 1999), at http://web.mit.edu/Saltzer/www/publications/openaccess.html (last visited Oct. 20, 2003) (offering examples of gatekeeping by cable networks)).
68. See Hernan Galperin & Francois Bar, The Regulation of Interactive Television in the United States and the European Union, 55 FED. COMM. L.J. 61, 62-64, 69-72 (2002) (discussing strategy of walled gardens in interactive television services); Daniel L. Rubinfeld & Hal J. Singer, Open Access to Broadband Networks: A Case Study of the AOL/Time Warner Merger, 16 BERKELEY TECH. L.J. 631, 656 (2001) (noting dangers of conduit discrimination as well as content discrimination).
69. See Hernan Galperin & Francois Bar, The Regulation of Interactive Television in the United States and the European Union, 55 FED. COMM. L.J. 61, 62-64, 69-72 (2002) (discussing strategy of walled gardens in interactive television services); Daniel L. Rubinfeld & Hal J. Singer, Open Access to Broadband Networks: A Case Study of the AOL/Time Warner Merger, 16 BERKELEY TECH. L.J. 631, 656 (2001) (noting dangers of conduit discrimination as well as content discrimination).
70. Data Sheet, Cisco 6400 Service Selection Gateway, at http://www.cisco.com/warp/public/cc/pd/as/6400/prodlit/c6510_ds.htm (last visited Oct. 20, 2003); see also Jeffrey A. Chester, Web Behind Walls, TECH. REV., June 2001, at 94, 94, available at http://www.democraticmedia.org/resources/articles/webbehindwalls.html (last visited Oct. 20, 2003).
71. Data Sheet, Cisco 6400 Service Selection Gateway, at http://www.cisco.com/warp/public/cc/pd/as/6400/prodlit/c6510_ds.htm (last visited Oct. 20, 2003); see also Jeffrey A. Chester, Web Behind Walls, TECH. REV., June 2001, at 94, 94, available at http://www.democraticmedia.org/resources/articles/webbehindwalls.html (last visited Oct. 20, 2003).
72. See Eldred v. Reno, 239 F.3d 372, 380 (D.C. Cir. 2000), aff'd sub nom. Eldred v. Ashcroft, 537 U.S. 186, 222 (2003) (holding that First Amendment poses no obstacle to Congressional extension of copyright terms that shrink scope of public domain, even when extension is retroactive); Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294 (S.D.N.Y. 2000) (upholding constitutionality of application of Digital Millenium Copyright Act to DeCSS and enjoining linking to websites from which DeCSS might be obtained), aff'd sub nom. Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2001); supra note 26 (citing additional cases).
73. See Eldred v. Reno, 239 F.3d 372, 380 (D.C. Cir. 2000), aff'd sub nom. Eldred v. Ashcroft, 537 U.S. 186, 222 (2003) (holding that First Amendment poses no obstacle to Congressional extension of copyright terms that shrink scope of public domain, even when extension is retroactive); Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294 (S.D.N.Y. 2000) (upholding constitutionality of application of Digital Millenium Copyright Act to DeCSS and enjoining linking to websites from which DeCSS might be obtained), aff'd sub nom. Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2001); supra note 26 (citing additional cases).
74. See Eldred v. Reno, 239 F.3d 372, 380 (D.C. Cir. 2000), aff'd sub nom. Eldred v. Ashcroft, 537 U.S. 186, 222 (2003) (holding that First Amendment poses no obstacle to Congressional extension of copyright terms that shrink scope of public domain, even when extension is retroactive); Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294 (S.D.N.Y. 2000) (upholding constitutionality of application of Digital Millenium Copyright Act to DeCSS and enjoining linking to websites from which DeCSS might be obtained), aff'd sub nom. Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2001); supra note 26 (citing additional cases).
75. See Eldred v. Reno, 239 F.3d 372, 380 (D.C. Cir. 2000), aff'd sub nom. Eldred v. Ashcroft, 537 U.S. 186, 222 (2003) (holding that First Amendment poses no obstacle to Congressional extension of copyright terms that shrink scope of public domain, even when extension is retroactive); Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294 (S.D.N.Y. 2000) (upholding constitutionality of application of Digital Millenium Copyright Act to DeCSS and enjoining linking to websites from which DeCSS might be obtained), aff'd sub nom. Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2001); supra note 26 (citing additional cases).
76. See J.M. Balkin, Some Realism About Pluralism: Legal Realist Approaches to the First Amendment, 1990 DUKE L.J. 375, 375-87 (noting "ideological drift" of free speech principle to protect propertied and corporate interests).
77. See, e.g., U.S. West, Inc. v. FCC, 182 F.3d 1224, 1235, 1239 (10th Cir. 1999) (invalidating, on First Amendment grounds, FCC regulations protecting privacy and sale of telephone customers' personal information). On some of the problems faced in squaring consumer privacy with a libertarian conception of freedom of speech, see Eugene Volokh, Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People from Speaking About You,
78. See, e.g., U.S. West, Inc. v. FCC, 182 F.3d 1224, 1235, 1239 (10th Cir. 1999) (invalidating, on First Amendment grounds, FCC regulations protecting privacy and sale of telephone customers' personal information). On some of the problems faced in squaring consumer privacy with a libertarian conception of freedom of speech, see Eugene Volokh, Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People from Speaking About You, 52 STAN. L. REV. 1049 (2000).
79. Balkin, supra note 33, at 384; Mark Tushnet, Corporations and Free Speech, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 253 (David Kairys ed., 1982); Mark Tushnet, An Essay on Rights, 62 TEX. L. REV. 1363, 1386-92 (1984).
80. Balkin, supra note 33, at 384; Mark Tushnet, Corporations and Free Speech, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 253 (David Kairys ed., 1982); Mark Tushnet, An Essay on Rights, 62 TEX. L. REV. 1363, 1386-92 (1984).
81. Balkin, supra note 33, at 384; Mark Tushnet, Corporations and Free Speech, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 253 (David Kairys ed., 1982); Mark Tushnet, An Essay on Rights, 62 TEX. L. REV. 1363, 1386-92 (1984).
82. LESSIG, THE FUTURE OF IDEAS, supra note 17, at 196-202; Elkin-Koren, supra note 25, at 84-85, 88-98.
83. LESSIG, THE FUTURE OF IDEAS, supra note 17, at 196-202; Elkin-Koren, supra note 25, at 84-85, 88-98.
84. Cf. Truax v. Corrigan, 257 U.S. 312, 328 (1921) (holding that attempt to ban labor injunctions violated property rights of business owner).
85. A substantial literature has developed explaining how Gilded Age ideas of freedom of contract were created out of Jacksonian and free labor ideals. See, e.g., Michael Les Benedict, Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism, 3 LAW & HIST. REV. 293 (1985); William E. Forbath, The Ambiguities of Free Labor: Labor and the Law in the Gilded Age, 1985 WIS. L. REV. 767, 798-99 (1985); Charles W. McCurdy, The Roots of "Liberty of Contract" Reconsidered: Major Premises in the Law of Employment, 1867-1937, 1984 YEARBOOK OF THE SUPREME COURT HISTORICAL SOCIETY 20. Revisions of this view have suggested that other influences were also at work, see Stephen A. Siegel, The Revision Thickens, 20 LAW & HIST. REV. 631 (2002), but have not undermined the basic point that corporate interests made ample use of these rhetorical resources.
86. A substantial literature has developed explaining how Gilded Age ideas of freedom of contract were created out of Jacksonian and free labor ideals. See, e.g., Michael Les Benedict, Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism, 3 LAW & HIST. REV. 293 (1985); William E. Forbath, The Ambiguities of Free Labor: Labor and the Law in the Gilded Age, 1985 WIS. L. REV. 767, 798-99 (1985); Charles W. McCurdy, The Roots of "Liberty of Contract" Reconsidered: Major Premises in the Law of Employment, 1867-1937, 1984 YEARBOOK OF THE SUPREME COURT HISTORICAL SOCIETY 20. Revisions of this view have suggested that other influences were also at work, see Stephen A. Siegel, The Revision Thickens, 20 LAW & HIST. REV. 631 (2002), but have not undermined the basic point that corporate interests made ample use of these rhetorical resources.
87. A substantial literature has developed explaining how Gilded Age ideas of freedom of contract were created out of Jacksonian and free labor ideals. See, e.g., Michael Les Benedict, Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism, 3 LAW & HIST. REV. 293 (1985); William E. Forbath, The Ambiguities of Free Labor: Labor and the Law in the Gilded Age, 1985 WIS. L. REV. 767, 798-99 (1985); Charles W. McCurdy, The Roots of "Liberty of Contract" Reconsidered: Major Premises in the Law of Employment, 1867-1937, 1984 YEARBOOK OF THE SUPREME COURT HISTORICAL SOCIETY 20. Revisions of this view have suggested that other influences were also at work, see Stephen A. Siegel, The Revision Thickens, 20 LAW & HIST. REV. 631 (2002), but have not undermined the basic point that corporate interests made ample use of these rhetorical resources.
88. A substantial literature has developed explaining how Gilded Age ideas of freedom of contract were created out of Jacksonian and free labor ideals. See, e.g., Michael Les Benedict, Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism, 3 LAW & HIST. REV. 293 (1985); William E. Forbath, The Ambiguities of Free Labor: Labor and the Law in the Gilded Age, 1985 WIS. L. REV. 767, 798-99 (1985); Charles W. McCurdy, The Roots of "Liberty of Contract" Reconsidered: Major Premises in the Law of Employment, 1867-1937, 1984 YEARBOOK OF THE SUPREME COURT HISTORICAL SOCIETY 20. Revisions of this view have suggested that other influences were also at work, see Stephen A. Siegel, The Revision Thickens, 20 LAW & HIST. REV. 631 (2002), but have not undermined the basic point that corporate interests made ample use of these rhetorical resources.
89. CLINTON ROSSITER, CONSERVATISM IN AMERICA 128 (2d ed. rev. 1962).
90. Id. at 128-62; see Balkin, supra note 33, at 383-87.
91. Id. at 128-62; see Balkin, supra note 33, at 383-87.
92. See generally ARNOLD M. PAUL, CONSERVATIVE CRISIS AND THE RULE OF LAW: ATTITUDES OF BAR AND BENCH, 1887-1895 (1960); BENJAMIN R. TWISS, LAWYERS AND THE CONSTITUTION: HOW LAISSEZ FAIRE CAME TO THE SUPREME COURT (1942).
93. See generally ARNOLD M. PAUL, CONSERVATIVE CRISIS AND THE RULE OF LAW: ATTITUDES OF BAR AND BENCH, 1887-1895 (1960); BENJAMIN R. TWISS, LAWYERS AND THE CONSTITUTION: HOW LAISSEZ FAIRE CAME TO THE SUPREME COURT (1942).
94. The comparison between the ideological drift of the principles of freedom of contract and freedom of speech is explored in Balkin, supra note 33, at 375-87, and J.M. Balkin, Ideological Drift and the Struggle over Meaning, 25 CONN. L. REV. 869 (1993).
95. The comparison between the ideological drift of the principles of freedom of contract and freedom of speech is explored in Balkin, supra note 33, at 375-87, and J.M. Balkin, Ideological Drift and the Struggle over Meaning, 25 CONN. L. REV. 869 (1993).
96. Council Directive 96/9, 1996 O.J. (L 77/20) (providing for legal protection of databases which, "by reason of the selection or arrangements of their contents, constitute[] the author's own intellectual creation").
97. For a discussion of recent attempts, see Dov S. Greenbaum, The Database Debate: In Support of an Inequitable Solution, 13 ALB. L.J. Sci. & TECH. 431, 468-78 (2003).
98. Cf. Randal C. Picker, From Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and the Propertization of Copyright, 70 U. CHI. L. REV. 281, 293-96 (2003) (noting that digital rights management permits perfection of continuing control over use of intellectual property in digital content even after media product has been purchased).
99. Or, in Julie Cohen's memorable phrase, we are entering the era of "Lochner in Cyberspace." Julie Cohen, Lochner in Cyberspace: The New Economic Orthodoxy of "Rights Management," 97 MICH. L. REV. 462 (1998). Paul Schwartz and William Treanor argue, by contrast, that calls for constitutional limitations on the expansion of intellectual property are the best analogy to the laissezfaire constitutional conservatism of the Gilded Age; they compare arguments for constitutional protection of the public domain to Lochner v. New York, 198 U.S. 45 (1905). Paul M. Schwartz & William Michael Treanor, Eldred and Lochner: Copyright Term Extension and Intellectual Property as Constitutional Property, 112 YALE L.J. 2331, 2334-35, 2394-95, 2411 (2003). They fail to consider the social and economic context in which the debate over laissez-faire conservatism occurred. In effect, Schwartz and Treanor argue that small-scale artists, software programmers, Internet end users, and consumers who seek a robust public domain are the functional equivalent of the Robber Barons and concentrated economic interests of the Gilded Age, while today's media corporations like Microsoft, Disney and Viacom are the functional equivalent of immigrant laborers in sweatshops at the turn of the century. Because they focus exclusively on arguments about the scope of the Copyright Clause, and pay no attention to telecommunications law, Schwartz and Treanor do not recognize that the free speech principle is the key battleground for the legal protection of capital in the information economy. Opposition to the Copyright Term Extension Act turned precisely on the fact that the political economy of the information age blurs distinctions between regulations of speech and regulations of business practices in media corporations, and that ever-expanding property rights in patent, trademark, and copyright adversely affect freedom of expression. See Brief of Jack M. Balkin et al. as Amici Curiae in Support of the Petition at 15-21, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01-618), available at 2002 WL 1041899. Much more troubling than the Court's conclusions about the Copyright Clause in Eldred is its cavalier dismissal of the important free speech interests in limited copyright terms. See Eldred, 537 U.S. at 218-22. From this perspective, Eldred most closely resembles not Lochner v. New York, but the early twentieth-century cases Schenck v. United States, 249 U.S. 47 (1919), Abrams v. United States, 250 U.S. 616 (1919), and Gitlow v. New York, 268 U.S. 652 (1925), in which the Court rejected free speech claims and exercised judicial restraint. The danger is that an unrestrained legislature beholden to media interests will continually ramp up intellectual property protections at the expense of the free speech interests of others. Schwartz and Treanor note the argument that the expansion of intellectual property arises from rent-seeking by media corporations that have corrupted the political process. Schwartz & Treanor, supra, at 2406. However, failing to recognize the First Amendment interests involved, they assume that the only issue is the adjustment of property rights between competing stakeholders. They argue that the defects of political process, even if serious, cannot justify heightened judicial review, see United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938), because the theory of process protection should not apply to ordinary economic and social legislation but only to "the representation of minorities." Schwartz & Treanor, supra, at 2407. Perhaps tellingly, they omit the Carolene Products Court's argument that the theory of process protection is equally concerned with securing freedom of speech.
100. Or, in Julie Cohen's memorable phrase, we are entering the era of "Lochner in Cyberspace." Julie Cohen, Lochner in Cyberspace: The New Economic Orthodoxy of "Rights Management," 97 MICH. L. REV. 462 (1998). Paul Schwartz and William Treanor argue, by contrast, that calls for constitutional limitations on the expansion of intellectual property are the best analogy to the laissezfaire constitutional conservatism of the Gilded Age; they compare arguments for constitutional protection of the public domain to Lochner v. New York, 198 U.S. 45 (1905). Paul M. Schwartz & William Michael Treanor, Eldred and Lochner: Copyright Term Extension and Intellectual Property as Constitutional Property, 112 YALE L.J. 2331, 2334-35, 2394-95, 2411 (2003). They fail to consider the social and economic context in which the debate over laissez-faire conservatism occurred. In effect, Schwartz and Treanor argue that small-scale artists, software programmers, Internet end users, and consumers who seek a robust public domain are the functional equivalent of the Robber Barons and concentrated economic interests of the Gilded Age, while today's media corporations like Microsoft, Disney and Viacom are the functional equivalent of immigrant laborers in sweatshops at the turn of the century. Because they focus exclusively on arguments about the scope of the Copyright Clause, and pay no attention to telecommunications law, Schwartz and Treanor do not recognize that the free speech principle is the key battleground for the legal protection of capital in the information economy. Opposition to the Copyright Term Extension Act turned precisely on the fact that the political economy of the information age blurs distinctions between regulations of speech and regulations of business practices in media corporations, and that ever-expanding property rights in patent, trademark, and copyright adversely affect freedom of expression. See Brief of Jack M. Balkin et al. as Amici Curiae in Support of the Petition at 15-21, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01-618), available at 2002 WL 1041899. Much more troubling than the Court's conclusions about the Copyright Clause in Eldred is its cavalier dismissal of the important free speech interests in limited copyright terms. See Eldred, 537 U.S. at 218-22. From this perspective, Eldred most closely resembles not Lochner v. New York, but the early twentieth-century cases Schenck v. United States, 249 U.S. 47 (1919), Abrams v. United States, 250 U.S. 616 (1919), and Gitlow v. New York, 268 U.S. 652 (1925), in which the Court rejected free speech claims and exercised judicial restraint. The danger is that an unrestrained legislature beholden to media interests will continually ramp up intellectual property protections at the expense of the free speech interests of others. Schwartz and Treanor note the argument that the expansion of intellectual property arises from rent-seeking by media corporations that have corrupted the political process. Schwartz & Treanor, supra, at 2406. However, failing to recognize the First Amendment interests involved, they assume that the only issue is the adjustment of property rights between competing stakeholders. They argue that the defects of political process, even if serious, cannot justify heightened judicial review, see United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938), because the theory of process protection should not apply to ordinary economic and social legislation but only to "the representation of minorities." Schwartz & Treanor, supra, at 2407. Perhaps tellingly, they omit the Carolene Products Court's argument that the theory of process protection is equally concerned with securing freedom of speech.
101. Or, in Julie Cohen's memorable phrase, we are entering the era of "Lochner in Cyberspace." Julie Cohen, Lochner in Cyberspace: The New Economic Orthodoxy of "Rights Management," 97 MICH. L. REV. 462 (1998). Paul Schwartz and William Treanor argue, by contrast, that calls for constitutional limitations on the expansion of intellectual property are the best analogy to the laissezfaire constitutional conservatism of the Gilded Age; they compare arguments for constitutional protection of the public domain to Lochner v. New York, 198 U.S. 45 (1905). Paul M. Schwartz & William Michael Treanor, Eldred and Lochner: Copyright Term Extension and Intellectual Property as Constitutional Property, 112 YALE L.J. 2331, 2334-35, 2394-95, 2411 (2003). They fail to consider the social and economic context in which the debate over laissez-faire conservatism occurred. In effect, Schwartz and Treanor argue that small-scale artists, software programmers, Internet end users, and consumers who seek a robust public domain are the functional equivalent of the Robber Barons and concentrated economic interests of the Gilded Age, while today's media corporations like Microsoft, Disney and Viacom are the functional equivalent of immigrant laborers in sweatshops at the turn of the century. Because they focus exclusively on arguments about the scope of the Copyright Clause, and pay no attention to telecommunications law, Schwartz and Treanor do not recognize that the free speech principle is the key battleground for the legal protection of capital in the information economy. Opposition to the Copyright Term Extension Act turned precisely on the fact that the political economy of the information age blurs distinctions between regulations of speech and regulations of business practices in media corporations, and that ever-expanding property rights in patent, trademark, and copyright adversely affect freedom of expression. See Brief of Jack M. Balkin et al. as Amici Curiae in Support of the Petition at 15-21, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01-618), available at 2002 WL 1041899. Much more troubling than the Court's conclusions about the Copyright Clause in Eldred is its cavalier dismissal of the important free speech interests in limited copyright terms. See Eldred, 537 U.S. at 218-22. From this perspective, Eldred most closely resembles not Lochner v. New York, but the early twentieth-century cases Schenck v. United States, 249 U.S. 47 (1919), Abrams v. United States, 250 U.S. 616 (1919), and Gitlow v. New York, 268 U.S. 652 (1925), in which the Court rejected free speech claims and exercised judicial restraint. The danger is that an unrestrained legislature beholden to media interests will continually ramp up intellectual property protections at the expense of the free speech interests of others. Schwartz and Treanor note the argument that the expansion of intellectual property arises from rent-seeking by media corporations that have corrupted the political process. Schwartz & Treanor, supra, at 2406. However, failing to recognize the First Amendment interests involved, they assume that the only issue is the adjustment of property rights between competing stakeholders. They argue that the defects of political process, even if serious, cannot justify heightened judicial review, see United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938), because the theory of process protection should not apply to ordinary economic and social legislation but only to "the representation of minorities." Schwartz & Treanor, supra, at 2407. Perhaps tellingly, they omit the Carolene Products Court's argument that the theory of process protection is equally concerned with securing freedom of speech.
102. Or, in Julie Cohen's memorable phrase, we are entering the era of "Lochner in Cyberspace." Julie Cohen, Lochner in Cyberspace: The New Economic Orthodoxy of "Rights Management," 97 MICH. L. REV. 462 (1998). Paul Schwartz and William Treanor argue, by contrast, that calls for constitutional limitations on the expansion of intellectual property are the best analogy to the laissezfaire constitutional conservatism of the Gilded Age; they compare arguments for constitutional protection of the public domain to Lochner v. New York, 198 U.S. 45 (1905). Paul M. Schwartz & William Michael Treanor, Eldred and Lochner: Copyright Term Extension and Intellectual Property as Constitutional Property, 112 YALE L.J. 2331, 2334-35, 2394-95, 2411 (2003). They fail to consider the social and economic context in which the debate over laissez-faire conservatism occurred. In effect, Schwartz and Treanor argue that small-scale artists, software programmers, Internet end users, and consumers who seek a robust public domain are the functional equivalent of the Robber Barons and concentrated economic interests of the Gilded Age, while today's media corporations like Microsoft, Disney and Viacom are the functional equivalent of immigrant laborers in sweatshops at the turn of the century. Because they focus exclusively on arguments about the scope of the Copyright Clause, and pay no attention to telecommunications law, Schwartz and Treanor do not recognize that the free speech principle is the key battleground for the legal protection of capital in the information economy. Opposition to the Copyright Term Extension Act turned precisely on the fact that the political economy of the information age blurs distinctions between regulations of speech and regulations of business practices in media corporations, and that ever-expanding property rights in patent, trademark, and copyright adversely affect freedom of expression. See Brief of Jack M. Balkin et al. as Amici Curiae in Support of the Petition at 15-21, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01-618), available at 2002 WL 1041899. Much more troubling than the Court's conclusions about the Copyright Clause in Eldred is its cavalier dismissal of the important free speech interests in limited copyright terms. See Eldred, 537 U.S. at 218-22. From this perspective, Eldred most closely resembles not Lochner v. New York, but the early twentieth-century cases Schenck v. United States, 249 U.S. 47 (1919), Abrams v. United States, 250 U.S. 616 (1919), and Gitlow v. New York, 268 U.S. 652 (1925), in which the Court rejected free speech claims and exercised judicial restraint. The danger is that an unrestrained legislature beholden to media interests will continually ramp up intellectual property protections at the expense of the free speech interests of others. Schwartz and Treanor note the argument that the expansion of intellectual property arises from rent-seeking by media corporations that have corrupted the political process. Schwartz & Treanor, supra, at 2406. However, failing to recognize the First Amendment interests involved, they assume that the only issue is the adjustment of property rights between competing stakeholders. They argue that the defects of political process, even if serious, cannot justify heightened judicial review, see United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938), because the theory of process protection should not apply to ordinary economic and social legislation but only to "the representation of minorities." Schwartz & Treanor, supra, at 2407. Perhaps tellingly, they omit the Carolene Products Court's argument that the theory of process protection is equally concerned with securing freedom of speech.
103. Or, in Julie Cohen's memorable phrase, we are entering the era of "Lochner in Cyberspace." Julie Cohen, Lochner in Cyberspace: The New Economic Orthodoxy of "Rights Management," 97 MICH. L. REV. 462 (1998). Paul Schwartz and William Treanor argue, by contrast, that calls for constitutional limitations on the expansion of intellectual property are the best analogy to the laissezfaire constitutional conservatism of the Gilded Age; they compare arguments for constitutional protection of the public domain to Lochner v. New York, 198 U.S. 45 (1905). Paul M. Schwartz & William Michael Treanor, Eldred and Lochner: Copyright Term Extension and Intellectual Property as Constitutional Property, 112 YALE L.J. 2331, 2334-35, 2394-95, 2411 (2003). They fail to consider the social and economic context in which the debate over laissez-faire conservatism occurred. In effect, Schwartz and Treanor argue that small-scale artists, software programmers, Internet end users, and consumers who seek a robust public domain are the functional equivalent of the Robber Barons and concentrated economic interests of the Gilded Age, while today's media corporations like Microsoft, Disney and Viacom are the functional equivalent of immigrant laborers in sweatshops at the turn of the century. Because they focus exclusively on arguments about the scope of the Copyright Clause, and pay no attention to telecommunications law, Schwartz and Treanor do not recognize that the free speech principle is the key battleground for the legal protection of capital in the information economy. Opposition to the Copyright Term Extension Act turned precisely on the fact that the political economy of the information age blurs distinctions between regulations of speech and regulations of business practices in media corporations, and that ever-expanding property rights in patent, trademark, and copyright adversely affect freedom of expression. See Brief of Jack M. Balkin et al. as Amici Curiae in Support of the Petition at 15-21, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01-618), available at 2002 WL 1041899. Much more troubling than the Court's conclusions about the Copyright Clause in Eldred is its cavalier dismissal of the important free speech interests in limited copyright terms. See Eldred, 537 U.S. at 218-22. From this perspective, Eldred most closely resembles not Lochner v. New York, but the early twentieth-century cases Schenck v. United States, 249 U.S. 47 (1919), Abrams v. United States, 250 U.S. 616 (1919), and Gitlow v. New York, 268 U.S. 652 (1925), in which the Court rejected free speech claims and exercised judicial restraint. The danger is that an unrestrained legislature beholden to media interests will continually ramp up intellectual property protections at the expense of the free speech interests of others. Schwartz and Treanor note the argument that the expansion of intellectual property arises from rent-seeking by media corporations that have corrupted the political process. Schwartz & Treanor, supra, at 2406. However, failing to recognize the First Amendment interests involved, they assume that the only issue is the adjustment of property rights between competing stakeholders. They argue that the defects of political process, even if serious, cannot justify heightened judicial review, see United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938), because the theory of process protection should not apply to ordinary economic and social legislation but only to "the representation of minorities." Schwartz & Treanor, supra, at 2407. Perhaps tellingly, they omit the Carolene Products Court's argument that the theory of process protection is equally concerned with securing freedom of speech.
104. Or, in Julie Cohen's memorable phrase, we are entering the era of "Lochner in Cyberspace." Julie Cohen, Lochner in Cyberspace: The New Economic Orthodoxy of "Rights Management," 97 MICH. L. REV. 462 (1998). Paul Schwartz and William Treanor argue, by contrast, that calls for constitutional limitations on the expansion of intellectual property are the best analogy to the laissezfaire constitutional conservatism of the Gilded Age; they compare arguments for constitutional protection of the public domain to Lochner v. New York, 198 U.S. 45 (1905). Paul M. Schwartz & William Michael Treanor, Eldred and Lochner: Copyright Term Extension and Intellectual Property as Constitutional Property, 112 YALE L.J. 2331, 2334-35, 2394-95, 2411 (2003). They fail to consider the social and economic context in which the debate over laissez-faire conservatism occurred. In effect, Schwartz and Treanor argue that small-scale artists, software programmers, Internet end users, and consumers who seek a robust public domain are the functional equivalent of the Robber Barons and concentrated economic interests of the Gilded Age, while today's media corporations like Microsoft, Disney and Viacom are the functional equivalent of immigrant laborers in sweatshops at the turn of the century. Because they focus exclusively on arguments about the scope of the Copyright Clause, and pay no attention to telecommunications law, Schwartz and Treanor do not recognize that the free speech principle is the key battleground for the legal protection of capital in the information economy. Opposition to the Copyright Term Extension Act turned precisely on the fact that the political economy of the information age blurs distinctions between regulations of speech and regulations of business practices in media corporations, and that ever-expanding property rights in patent, trademark, and copyright adversely affect freedom of expression. See Brief of Jack M. Balkin et al. as Amici Curiae in Support of the Petition at 15-21, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01-618), available at 2002 WL 1041899. Much more troubling than the Court's conclusions about the Copyright Clause in Eldred is its cavalier dismissal of the important free speech interests in limited copyright terms. See Eldred, 537 U.S. at 218-22. From this perspective, Eldred most closely resembles not Lochner v. New York, but the early twentieth-century cases Schenck v. United States, 249 U.S. 47 (1919), Abrams v. United States, 250 U.S. 616 (1919), and Gitlow v. New York, 268 U.S. 652 (1925), in which the Court rejected free speech claims and exercised judicial restraint. The danger is that an unrestrained legislature beholden to media interests will continually ramp up intellectual property protections at the expense of the free speech interests of others. Schwartz and Treanor note the argument that the expansion of intellectual property arises from rent-seeking by media corporations that have corrupted the political process. Schwartz & Treanor, supra, at 2406. However, failing to recognize the First Amendment interests involved, they assume that the only issue is the adjustment of property rights between competing stakeholders. They argue that the defects of political process, even if serious, cannot justify heightened judicial review, see United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938), because the theory of process protection should not apply to ordinary economic and social legislation but only to "the representation of minorities." Schwartz & Treanor, supra, at 2407. Perhaps tellingly, they omit the Carolene Products Court's argument that the theory of process protection is equally concerned with securing freedom of speech.
105. Or, in Julie Cohen's memorable phrase, we are entering the era of "Lochner in Cyberspace." Julie Cohen, Lochner in Cyberspace: The New Economic Orthodoxy of "Rights Management," 97 MICH. L. REV. 462 (1998). Paul Schwartz and William Treanor argue, by contrast, that calls for constitutional limitations on the expansion of intellectual property are the best analogy to the laissezfaire constitutional conservatism of the Gilded Age; they compare arguments for constitutional protection of the public domain to Lochner v. New York, 198 U.S. 45 (1905). Paul M. Schwartz & William Michael Treanor, Eldred and Lochner: Copyright Term Extension and Intellectual Property as Constitutional Property, 112 YALE L.J. 2331, 2334-35, 2394-95, 2411 (2003). They fail to consider the social and economic context in which the debate over laissez-faire conservatism occurred. In effect, Schwartz and Treanor argue that small-scale artists, software programmers, Internet end users, and consumers who seek a robust public domain are the functional equivalent of the Robber Barons and concentrated economic interests of the Gilded Age, while today's media corporations like Microsoft, Disney and Viacom are the functional equivalent of immigrant laborers in sweatshops at the turn of the century. Because they focus exclusively on arguments about the scope of the Copyright Clause, and pay no attention to telecommunications law, Schwartz and Treanor do not recognize that the free speech principle is the key battleground for the legal protection of capital in the information economy. Opposition to the Copyright Term Extension Act turned precisely on the fact that the political economy of the information age blurs distinctions between regulations of speech and regulations of business practices in media corporations, and that ever-expanding property rights in patent, trademark, and copyright adversely affect freedom of expression. See Brief of Jack M. Balkin et al. as Amici Curiae in Support of the Petition at 15-21, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01-618), available at 2002 WL 1041899. Much more troubling than the Court's conclusions about the Copyright Clause in Eldred is its cavalier dismissal of the important free speech interests in limited copyright terms. See Eldred, 537 U.S. at 218-22. From this perspective, Eldred most closely resembles not Lochner v. New York, but the early twentieth-century cases Schenck v. United States, 249 U.S. 47 (1919), Abrams v. United States, 250 U.S. 616 (1919), and Gitlow v. New York, 268 U.S. 652 (1925), in which the Court rejected free speech claims and exercised judicial restraint. The danger is that an unrestrained legislature beholden to media interests will continually ramp up intellectual property protections at the expense of the free speech interests of others. Schwartz and Treanor note the argument that the expansion of intellectual property arises from rent-seeking by media corporations that have corrupted the political process. Schwartz & Treanor, supra, at 2406. However, failing to recognize the First Amendment interests involved, they assume that the only issue is the adjustment of property rights between competing stakeholders. They argue that the defects of political process, even if serious, cannot justify heightened judicial review, see United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938), because the theory of process protection should not apply to ordinary economic and social legislation but only to "the representation of minorities." Schwartz & Treanor, supra, at 2407. Perhaps tellingly, they omit the Carolene Products Court's argument that the theory of process protection is equally concerned with securing freedom of speech.
106. Or, in Julie Cohen's memorable phrase, we are entering the era of "Lochner in Cyberspace." Julie Cohen, Lochner in Cyberspace: The New Economic Orthodoxy of "Rights Management," 97 MICH. L. REV. 462 (1998). Paul Schwartz and William Treanor argue, by contrast, that calls for constitutional limitations on the expansion of intellectual property are the best analogy to the laissezfaire constitutional conservatism of the Gilded Age; they compare arguments for constitutional protection of the public domain to Lochner v. New York, 198 U.S. 45 (1905). Paul M. Schwartz & William Michael Treanor, Eldred and Lochner: Copyright Term Extension and Intellectual Property as Constitutional Property, 112 YALE L.J. 2331, 2334-35, 2394-95, 2411 (2003). They fail to consider the social and economic context in which the debate over laissez-faire conservatism occurred. In effect, Schwartz and Treanor argue that small-scale artists, software programmers, Internet end users, and consumers who seek a robust public domain are the functional equivalent of the Robber Barons and concentrated economic interests of the Gilded Age, while today's media corporations like Microsoft, Disney and Viacom are the functional equivalent of immigrant laborers in sweatshops at the turn of the century. Because they focus exclusively on arguments about the scope of the Copyright Clause, and pay no attention to telecommunications law, Schwartz and Treanor do not recognize that the free speech principle is the key battleground for the legal protection of capital in the information economy. Opposition to the Copyright Term Extension Act turned precisely on the fact that the political economy of the information age blurs distinctions between regulations of speech and regulations of business practices in media corporations, and that ever-expanding property rights in patent, trademark, and copyright adversely affect freedom of expression. See Brief of Jack M. Balkin et al. as Amici Curiae in Support of the Petition at 15-21, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01-618), available at 2002 WL 1041899. Much more troubling than the Court's conclusions about the Copyright Clause in Eldred is its cavalier dismissal of the important free speech interests in limited copyright terms. See Eldred, 537 U.S. at 218-22. From this perspective, Eldred most closely resembles not Lochner v. New York, but the early twentieth-century cases Schenck v. United States, 249 U.S. 47 (1919), Abrams v. United States, 250 U.S. 616 (1919), and Gitlow v. New York, 268 U.S. 652 (1925), in which the Court rejected free speech claims and exercised judicial restraint. The danger is that an unrestrained legislature beholden to media interests will continually ramp up intellectual property protections at the expense of the free speech interests of others. Schwartz and Treanor note the argument that the expansion of intellectual property arises from rent-seeking by media corporations that have corrupted the political process. Schwartz & Treanor, supra, at 2406. However, failing to recognize the First Amendment interests involved, they assume that the only issue is the adjustment of property rights between competing stakeholders. They argue that the defects of political process, even if serious, cannot justify heightened judicial review, see United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938), because the theory of process protection should not apply to ordinary economic and social legislation but only to "the representation of minorities." Schwartz & Treanor, supra, at 2407. Perhaps tellingly, they omit the Carolene Products Court's argument that the theory of process protection is equally concerned with securing freedom of speech.
107. Or, in Julie Cohen's memorable phrase, we are entering the era of "Lochner in Cyberspace." Julie Cohen, Lochner in Cyberspace: The New Economic Orthodoxy of "Rights Management," 97 MICH. L. REV. 462 (1998). Paul Schwartz and William Treanor argue, by contrast, that calls for constitutional limitations on the expansion of intellectual property are the best analogy to the laissezfaire constitutional conservatism of the Gilded Age; they compare arguments for constitutional protection of the public domain to Lochner v. New York, 198 U.S. 45 (1905). Paul M. Schwartz & William Michael Treanor, Eldred and Lochner: Copyright Term Extension and Intellectual Property as Constitutional Property, 112 YALE L.J. 2331, 2334-35, 2394-95, 2411 (2003). They fail to consider the social and economic context in which the debate over laissez-faire conservatism occurred. In effect, Schwartz and Treanor argue that small-scale artists, software programmers, Internet end users, and consumers who seek a robust public domain are the functional equivalent of the Robber Barons and concentrated economic interests of the Gilded Age, while today's media corporations like Microsoft, Disney and Viacom are the functional equivalent of immigrant laborers in sweatshops at the turn of the century. Because they focus exclusively on arguments about the scope of the Copyright Clause, and pay no attention to telecommunications law, Schwartz and Treanor do not recognize that the free speech principle is the key battleground for the legal protection of capital in the information economy. Opposition to the Copyright Term Extension Act turned precisely on the fact that the political economy of the information age blurs distinctions between regulations of speech and regulations of business practices in media corporations, and that ever-expanding property rights in patent, trademark, and copyright adversely affect freedom of expression. See Brief of Jack M. Balkin et al. as Amici Curiae in Support of the Petition at 15-21, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01-618), available at 2002 WL 1041899. Much more troubling than the Court's conclusions about the Copyright Clause in Eldred is its cavalier dismissal of the important free speech interests in limited copyright terms. See Eldred, 537 U.S. at 218-22. From this perspective, Eldred most closely resembles not Lochner v. New York, but the early twentieth-century cases Schenck v. United States, 249 U.S. 47 (1919), Abrams v. United States, 250 U.S. 616 (1919), and Gitlow v. New York, 268 U.S. 652 (1925), in which the Court rejected free speech claims and exercised judicial restraint. The danger is that an unrestrained legislature beholden to media interests will continually ramp up intellectual property protections at the expense of the free speech interests of others. Schwartz and Treanor note the argument that the expansion of intellectual property arises from rent-seeking by media corporations that have corrupted the political process. Schwartz & Treanor, supra, at 2406. However, failing to recognize the First Amendment interests involved, they assume that the only issue is the adjustment of property rights between competing stakeholders. They argue that the defects of political process, even if serious, cannot justify heightened judicial review, see United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938), because the theory of process protection should not apply to ordinary economic and social legislation but only to "the representation of minorities." Schwartz & Treanor, supra, at 2407. Perhaps tellingly, they omit the Carolene Products Court's argument that the theory of process protection is equally concerned with securing freedom of speech.
108. Or, in Julie Cohen's memorable phrase, we are entering the era of "Lochner in Cyberspace." Julie Cohen, Lochner in Cyberspace: The New Economic Orthodoxy of "Rights Management," 97 MICH. L. REV. 462 (1998). Paul Schwartz and William Treanor argue, by contrast, that calls for constitutional limitations on the expansion of intellectual property are the best analogy to the laissezfaire constitutional conservatism of the Gilded Age; they compare arguments for constitutional protection of the public domain to Lochner v. New York, 198 U.S. 45 (1905). Paul M. Schwartz & William Michael Treanor, Eldred and Lochner: Copyright Term Extension and Intellectual Property as Constitutional Property, 112 YALE L.J. 2331, 2334-35, 2394-95, 2411 (2003). They fail to consider the social and economic context in which the debate over laissez-faire conservatism occurred. In effect, Schwartz and Treanor argue that small-scale artists, software programmers, Internet end users, and consumers who seek a robust public domain are the functional equivalent of the Robber Barons and concentrated economic interests of the Gilded Age, while today's media corporations like Microsoft, Disney and Viacom are the functional equivalent of immigrant laborers in sweatshops at the turn of the century. Because they focus exclusively on arguments about the scope of the Copyright Clause, and pay no attention to telecommunications law, Schwartz and Treanor do not recognize that the free speech principle is the key battleground for the legal protection of capital in the information economy. Opposition to the Copyright Term Extension Act turned precisely on the fact that the political economy of the information age blurs distinctions between regulations of speech and regulations of business practices in media corporations, and that ever-expanding property rights in patent, trademark, and copyright adversely affect freedom of expression. See Brief of Jack M. Balkin et al. as Amici Curiae in Support of the Petition at 15-21, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01-618), available at 2002 WL 1041899. Much more troubling than the Court's conclusions about the Copyright Clause in Eldred is its cavalier dismissal of the important free speech interests in limited copyright terms. See Eldred, 537 U.S. at 218-22. From this perspective, Eldred most closely resembles not Lochner v. New York, but the early twentieth-century cases Schenck v. United States, 249 U.S. 47 (1919), Abrams v. United States, 250 U.S. 616 (1919), and Gitlow v. New York, 268 U.S. 652 (1925), in which the Court rejected free speech claims and exercised judicial restraint. The danger is that an unrestrained legislature beholden to media interests will continually ramp up intellectual property protections at the expense of the free speech interests of others. Schwartz and Treanor note the argument that the expansion of intellectual property arises from rent-seeking by media corporations that have corrupted the political process. Schwartz & Treanor, supra, at 2406. However, failing to recognize the First Amendment interests involved, they assume that the only issue is the adjustment of property rights between competing stakeholders. They argue that the defects of political process, even if serious, cannot justify heightened judicial review, see United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938), because the theory of process protection should not apply to ordinary economic and social legislation but only to "the representation of minorities." Schwartz & Treanor, supra, at 2407. Perhaps tellingly, they omit the Carolene Products Court's argument that the theory of process protection is equally concerned with securing freedom of speech.
109. Or, in Julie Cohen's memorable phrase, we are entering the era of "Lochner in Cyberspace." Julie Cohen, Lochner in Cyberspace: The New Economic Orthodoxy of "Rights Management," 97 MICH. L. REV. 462 (1998). Paul Schwartz and William Treanor argue, by contrast, that calls for constitutional limitations on the expansion of intellectual property are the best analogy to the laissezfaire constitutional conservatism of the Gilded Age; they compare arguments for constitutional protection of the public domain to Lochner v. New York, 198 U.S. 45 (1905). Paul M. Schwartz & William Michael Treanor, Eldred and Lochner: Copyright Term Extension and Intellectual Property as Constitutional Property, 112 YALE L.J. 2331, 2334-35, 2394-95, 2411 (2003). They fail to consider the social and economic context in which the debate over laissez-faire conservatism occurred. In effect, Schwartz and Treanor argue that small-scale artists, software programmers, Internet end users, and consumers who seek a robust public domain are the functional equivalent of the Robber Barons and concentrated economic interests of the Gilded Age, while today's media corporations like Microsoft, Disney and Viacom are the functional equivalent of immigrant laborers in sweatshops at the turn of the century. Because they focus exclusively on arguments about the scope of the Copyright Clause, and pay no attention to telecommunications law, Schwartz and Treanor do not recognize that the free speech principle is the key battleground for the legal protection of capital in the information economy. Opposition to the Copyright Term Extension Act turned precisely on the fact that the political economy of the information age blurs distinctions between regulations of speech and regulations of business practices in media corporations, and that ever-expanding property rights in patent, trademark, and copyright adversely affect freedom of expression. See Brief of Jack M. Balkin et al. as Amici Curiae in Support of the Petition at 15-21, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01-618), available at 2002 WL 1041899. Much more troubling than the Court's conclusions about the Copyright Clause in Eldred is its cavalier dismissal of the important free speech interests in limited copyright terms. See Eldred, 537 U.S. at 218-22. From this perspective, Eldred most closely resembles not Lochner v. New York, but the early twentieth-century cases Schenck v. United States, 249 U.S. 47 (1919), Abrams v. United States, 250 U.S. 616 (1919), and Gitlow v. New York, 268 U.S. 652 (1925), in which the Court rejected free speech claims and exercised judicial restraint. The danger is that an unrestrained legislature beholden to media interests will continually ramp up intellectual property protections at the expense of the free speech interests of others. Schwartz and Treanor note the argument that the expansion of intellectual property arises from rent-seeking by media corporations that have corrupted the political process. Schwartz & Treanor, supra, at 2406. However, failing to recognize the First Amendment interests involved, they assume that the only issue is the adjustment of property rights between competing stakeholders. They argue that the defects of political process, even if serious, cannot justify heightened judicial review, see United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938), because the theory of process protection should not apply to ordinary economic and social legislation but only to "the representation of minorities." Schwartz & Treanor, supra, at 2407. Perhaps tellingly, they omit the Carolene Products Court's argument that the theory of process protection is equally concerned with securing freedom of speech.
110. Or, in Julie Cohen's memorable phrase, we are entering the era of "Lochner in Cyberspace." Julie Cohen, Lochner in Cyberspace: The New Economic Orthodoxy of "Rights Management," 97 MICH. L. REV. 462 (1998). Paul Schwartz and William Treanor argue, by contrast, that calls for constitutional limitations on the expansion of intellectual property are the best analogy to the laissezfaire constitutional conservatism of the Gilded Age; they compare arguments for constitutional protection of the public domain to Lochner v. New York, 198 U.S. 45 (1905). Paul M. Schwartz & William Michael Treanor, Eldred and Lochner: Copyright Term Extension and Intellectual Property as Constitutional Property, 112 YALE L.J. 2331, 2334-35, 2394-95, 2411 (2003). They fail to consider the social and economic context in which the debate over laissez-faire conservatism occurred. In effect, Schwartz and Treanor argue that small-scale artists, software programmers, Internet end users, and consumers who seek a robust public domain are the functional equivalent of the Robber Barons and concentrated economic interests of the Gilded Age, while today's media corporations like Microsoft, Disney and Viacom are the functional equivalent of immigrant laborers in sweatshops at the turn of the century. Because they focus exclusively on arguments about the scope of the Copyright Clause, and pay no attention to telecommunications law, Schwartz and Treanor do not recognize that the free speech principle is the key battleground for the legal protection of capital in the information economy. Opposition to the Copyright Term Extension Act turned precisely on the fact that the political economy of the information age blurs distinctions between regulations of speech and regulations of business practices in media corporations, and that ever-expanding property rights in patent, trademark, and copyright adversely affect freedom of expression. See Brief of Jack M. Balkin et al. as Amici Curiae in Support of the Petition at 15-21, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01-618), available at 2002 WL 1041899. Much more troubling than the Court's conclusions about the Copyright Clause in Eldred is its cavalier dismissal of the important free speech interests in limited copyright terms. See Eldred, 537 U.S. at 218-22. From this perspective, Eldred most closely resembles not Lochner v. New York, but the early twentieth-century cases Schenck v. United States, 249 U.S. 47 (1919), Abrams v. United States, 250 U.S. 616 (1919), and Gitlow v. New York, 268 U.S. 652 (1925), in which the Court rejected free speech claims and exercised judicial restraint. The danger is that an unrestrained legislature beholden to media interests will continually ramp up intellectual property protections at the expense of the free speech interests of others. Schwartz and Treanor note the argument that the expansion of intellectual property arises from rent-seeking by media corporations that have corrupted the political process. Schwartz & Treanor, supra, at 2406. However, failing to recognize the First Amendment interests involved, they assume that the only issue is the adjustment of property rights between competing stakeholders. They argue that the defects of political process, even if serious, cannot justify heightened judicial review, see United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938), because the theory of process protection should not apply to ordinary economic and social legislation but only to "the representation of minorities." Schwartz & Treanor, supra, at 2407. Perhaps tellingly, they omit the Carolene Products Court's argument that the theory of process protection is equally concerned with securing freedom of speech.
111. See MARK A. GRABER, TRANSFORMING FREE SPEECH: THE AMBIGUOUS LEGACY OF CIVIL LIBERTARIANISM 92-93, 122-26 (1991) (noting rise of democratic conception in Progressive period and discussing democratic elements in Zechariah Chafee, Jr.'s theory of free expression); David M. Rabban, Free Speech in Progressive Social Thought, 74 TEX. L. REV. 951, 954-88 (1996) (discussing free speech theories of early twentieth-century progressive thinkers, including John Dewey and Herbert Croly).
112. See MARK A. GRABER, TRANSFORMING FREE SPEECH: THE AMBIGUOUS LEGACY OF CIVIL LIBERTARIANISM 92-93, 122-26 (1991) (noting rise of democratic conception in Progressive period and discussing democratic elements in Zechariah Chafee, Jr.'s theory of free expression); David M. Rabban, Free Speech in Progressive Social Thought, 74 TEX. L. REV. 951, 954-88 (1996) (discussing free speech theories of early twentieth-century progressive thinkers, including John Dewey and Herbert Croly).
113. See generally ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM: THE CONSTITUTIONAL POWERS OF THE PEOPLE (1960) [hereinafter MEIKLEJOHN, POLITICAL FREEDOM]; Alexander Meiklejohn, The First Amendment is an Absolute, 1961 SUP. CT. REV. 245 [hereinafter Meiklejohn, First Amendment].
114. See generally ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM: THE CONSTITUTIONAL POWERS OF THE PEOPLE (1960) [hereinafter MEIKLEJOHN, POLITICAL FREEDOM]; Alexander Meiklejohn, The First Amendment is an Absolute, 1961 SUP. CT. REV. 245 [hereinafter Meiklejohn, First Amendment].
115. See, e.g., OWEN M. FISS, THE IRONY OF FREE SPEECH (1996) [hereinafter Fiss, THE IRONY OF FREE SPEECH]; CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH (1993); Owen M. Fiss, Free Speech and Social Structure, 71 IOWA L. REV. 1405 (1986) [hereinafter Fiss, Free Speech and Social Structure]; Owen M. Fiss, Why the State?, 100 HARV. L. REV. 781 (1987) [hereinafter Fiss, Why the State?]; Harry Kalven, The New York Times Case: A Note on "The Central Meaning of the First Amendment," 1964 SUP. CT. REV. 191. Fiss well describes the centrality of this theory in twentieth-century legal thought: The theory that animates this protection [of the speaker's autonomy], and that inspired Kalven, and before him Meiklejohn, and that now dominates the field, casts the underlying purpose of the first amendment in social or political terms: The purpose of free speech is not individual self-actualization, but rather the preservation of democracy, and the right of a people, as a people, to decide what kind of life it wishes to live. Autonomy is protected not because of its intrinsic value, as a Kantian might insist, but rather as a means or instrument of collective self-determination. We allow people to speak so others can vote. Speech allows people to vote intelligently and freely, aware of all the options and in possession of all the relevant information. Fiss, Free Speech and Social Structure, supra, at 1409-10.
116. See, e.g., OWEN M. FISS, THE IRONY OF FREE SPEECH (1996) [hereinafter Fiss, THE IRONY OF FREE SPEECH]; CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH (1993); Owen M. Fiss, Free Speech and Social Structure, 71 IOWA L. REV. 1405 (1986) [hereinafter Fiss, Free Speech and Social Structure]; Owen M. Fiss, Why the State?, 100 HARV. L. REV. 781 (1987) [hereinafter Fiss, Why the State?]; Harry Kalven, The New York Times Case: A Note on "The Central Meaning of the First Amendment," 1964 SUP. CT. REV. 191. Fiss well describes the centrality of this theory in twentieth-century legal thought: The theory that animates this protection [of the speaker's autonomy], and that inspired Kalven, and before him Meiklejohn, and that now dominates the field, casts the underlying purpose of the first amendment in social or political terms: The purpose of free speech is not individual self-actualization, but rather the preservation of democracy, and the right of a people, as a people, to decide what kind of life it wishes to live. Autonomy is protected not because of its intrinsic value, as a Kantian might insist, but rather as a means or instrument of collective self-determination. We allow people to speak so others can vote. Speech allows people to vote intelligently and freely, aware of all the options and in possession of all the relevant information. Fiss, Free Speech and Social Structure, supra, at 1409-10.
117. See, e.g., OWEN M. FISS, THE IRONY OF FREE SPEECH (1996) [hereinafter Fiss, THE IRONY OF FREE SPEECH]; CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH (1993); Owen M. Fiss, Free Speech and Social Structure, 71 IOWA L. REV. 1405 (1986) [hereinafter Fiss, Free Speech and Social Structure]; Owen M. Fiss, Why the State?, 100 HARV. L. REV. 781 (1987) [hereinafter Fiss, Why the State?]; Harry Kalven, The New York Times Case: A Note on "The Central Meaning of the First Amendment," 1964 SUP. CT. REV. 191. Fiss well describes the centrality of this theory in twentieth-century legal thought: The theory that animates this protection [of the speaker's autonomy], and that inspired Kalven, and before him Meiklejohn, and that now dominates the field, casts the underlying purpose of the first amendment in social or political terms: The purpose of free speech is not individual self-actualization, but rather the preservation of democracy, and the right of a people, as a people, to decide what kind of life it wishes to live. Autonomy is protected not because of its intrinsic value, as a Kantian might insist, but rather as a means or instrument of collective self-determination. We allow people to speak so others can vote. Speech allows people to vote intelligently and freely, aware of all the options and in possession of all the relevant information. Fiss, Free Speech and Social Structure, supra, at 1409-10.
118. See, e.g., OWEN M. FISS, THE IRONY OF FREE SPEECH (1996) [hereinafter Fiss, THE IRONY OF FREE SPEECH]; CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH (1993); Owen M. Fiss, Free Speech and Social Structure, 71 IOWA L. REV. 1405 (1986) [hereinafter Fiss, Free Speech and Social Structure]; Owen M. Fiss, Why the State?, 100 HARV. L. REV. 781 (1987) [hereinafter Fiss, Why the State?]; Harry Kalven, The New York Times Case: A Note on "The Central Meaning of the First Amendment," 1964 SUP. CT. REV. 191. Fiss well describes the centrality of this theory in twentieth-century legal thought: The theory that animates this protection [of the speaker's autonomy], and that inspired Kalven, and before him Meiklejohn, and that now dominates the field, casts the underlying purpose of the first amendment in social or political terms: The purpose of free speech is not individual self-actualization, but rather the preservation of democracy, and the right of a people, as a people, to decide what kind of life it wishes to live. Autonomy is protected not because of its intrinsic value, as a Kantian might insist, but rather as a means or instrument of collective self-determination. We allow people to speak so others can vote. Speech allows people to vote intelligently and freely, aware of all the options and in possession of all the relevant information. Fiss, Free Speech and Social Structure, supra, at 1409-10.
119. See, e.g., OWEN M. FISS, THE IRONY OF FREE SPEECH (1996) [hereinafter Fiss, THE IRONY OF FREE SPEECH]; CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH (1993); Owen M. Fiss, Free Speech and Social Structure, 71 IOWA L. REV. 1405 (1986) [hereinafter Fiss, Free Speech and Social Structure]; Owen M. Fiss, Why the State?, 100 HARV. L. REV. 781 (1987) [hereinafter Fiss, Why the State?]; Harry Kalven, The New York Times Case: A Note on "The Central Meaning of the First Amendment," 1964 SUP. CT. REV. 191. Fiss well describes the centrality of this theory in twentieth-century legal thought: The theory that animates this protection [of the speaker's autonomy], and that inspired Kalven, and before him Meiklejohn, and that now dominates the field, casts the underlying purpose of the first amendment in social or political terms: The purpose of free speech is not individual self-actualization, but rather the preservation of democracy, and the right of a people, as a people, to decide what kind of life it wishes to live. Autonomy is protected not because of its intrinsic value, as a Kantian might insist, but rather as a means or instrument of collective self-determination. We allow people to speak so others can vote. Speech allows people to vote intelligently and freely, aware of all the options and in possession of all the relevant information. Fiss, Free Speech and Social Structure, supra, at 1409-10.
120. See, e.g., OWEN M. FISS, THE IRONY OF FREE SPEECH (1996) [hereinafter Fiss, THE IRONY OF FREE SPEECH]; CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH (1993); Owen M. Fiss, Free Speech and Social Structure, 71 IOWA L. REV. 1405 (1986) [hereinafter Fiss, Free Speech and Social Structure]; Owen M. Fiss, Why the State?, 100 HARV. L. REV. 781 (1987) [hereinafter Fiss, Why the State?]; Harry Kalven, The New York Times Case: A Note on "The Central
121. On the connections between democratic free speech theory and republicanism, see BAKER, supra note 9, at 126-27, 138-43, 152-53, 170-76. On the connection to the thought of the Progressive Era, see GRABER, supra note 47, at 75-121; Balkin, supra note 2, at 1947-48, 1956-58; Rabban, supra note 47.
122. On the connections between democratic free speech theory and republicanism, see BAKER, supra note 9, at 126-27, 138-43, 152-53, 170-76. On the connection to the thought of the Progressive Era, see GRABER, supra note 47, at 75-121; Balkin, supra note 2, at 1947-48, 1956-58; Rabban, supra note 47.
123. On the connections between democratic free speech theory and republicanism, see BAKER, supra note 9, at 126-27, 138-43, 152-53, 170-76. On the connection to the thought of the Progressive Era, see GRABER, supra note 47, at 75-121; Balkin, supra note 2, at 1947-48, 1956-58; Rabban, supra note 47.
124. On the connections between democratic free speech theory and republicanism, see BAKER, supra note 9, at 126-27, 138-43, 152-53, 170-76. On the connection to the thought of the Progressive Era, see GRABER, supra note 47, at 75-121; Balkin, supra note 2, at 1947-48, 1956-58; Rabban, supra note 47.
125. Balkin, supra note 2, at 1947-48, 1956-58.
126. See, e.g., Mark S. Fowler & David L. Brenner, A Marketplace Approach to Broadcast Regulation, 60 TEX. L. REV. 207 (1982) (arguing for repeal of most forms of broadcast regulation).
127. Meiklejohn was perhaps most overt about this, arguing that the First Amendment "has no concern about the 'needs of many men to express their opinions'" but rather is concerned with "the common needs of all the members of the body politic." MEIKLEJOHN, POLITICAL FREEDOM, supra note 48, at 55; see also id. at 56-57, 61 (criticizing Zechariah Chafee, Jr. for being "misled by his inclusion of an individual interest within the scope of the First Amendment," and Justice Oliver Wendell Holmes for his "excessive individualism"). Owen Fiss, likewise, has emphasized that the First Amendment's concern with autonomy is primarily instrumental: "Autonomy may be protected, but only when it enriches public debate." Fiss, Why the State?, supra note 49, at 786.
128. Meiklejohn was perhaps most overt about this, arguing that the First Amendment "has no concern about the 'needs of many men to express their opinions'" but rather is concerned with "the common needs of all the members of the body politic." MEIKLEJOHN, POLITICAL FREEDOM, supra note 48, at 55; see also id. at 56-57, 61 (criticizing Zechariah Chafee, Jr. for being "misled by his inclusion of an individual interest within the scope of the First Amendment," and Justice Oliver Wendell Holmes for his "excessive individualism"). Owen Fiss, likewise, has emphasized that the First Amendment's concern with autonomy is primarily instrumental: "Autonomy may be protected, but only when it enriches public debate." Fiss, Why the State?, supra note 49, at 786.
129. Meiklejohn was perhaps most overt about this, arguing that the First Amendment "has no concern about the 'needs of many men to express their opinions'" but rather is concerned with "the common needs of all the members of the body politic." MEIKLEJOHN, POLITICAL FREEDOM, supra note 48, at 55; see also id. at 56-57, 61 (criticizing Zechariah Chafee, Jr. for being "misled by his inclusion of an individual interest within the scope of the First Amendment," and Justice Oliver Wendell Holmes for his "excessive individualism"). Owen Fiss, likewise, has emphasized that the First Amendment's concern with autonomy is primarily instrumental: "Autonomy may be protected, but only when it enriches public debate." Fiss, Why the State?, supra note 49, at 786.
130. MEIKLEJOHN, POLITICAL FREEDOM, supra note 48, at 26.
131. On the social features of democracy implicit in the idea of a democratic culture, see J.M. Balkin, The Constitution of Status, 106 YALE L.J. 2313, 2314 (1997); J.M. Balkin, The Declaration and the Promise of a Democratic Culture, 4 WIDENER L. Symp. J. 167 (1999).
132. On the social features of democracy implicit in the idea of a democratic culture, see J.M. Balkin, The Constitution of Status, 106 YALE L.J. 2313, 2314 (1997); J.M. Balkin, The Declaration and the Promise of a Democratic Culture, 4 WIDENER L. Symp. J. 167 (1999).
133. Legal scholars influenced by John Fiske have argued that intellectual property law should also serve the goals of promoting popular participation in culture, or what Fiske called "semiotic democracy." See, e.g., William W. Fisher III, Property and Contract on the Internet, 73 CHI.-KENT L. REV. 1203, 1217 (1998) ("In an attractive society, all persons would be able to participate in the process of meaning-making. Instead of being merely passive consumers of cultural artifacts produced by others, they would be producers, helping to shape the world of ideas and symbols in which they live."); see also Kenneth Karst, Local Discourse and the Social Issues, 12 CARDOZO STUD. L. & LIT. 1, 27 (2000) (defining cultural democracy as "the broadest possible participation in the cultural processes that define and redefine the sort of society we shall be"). Larry Lessig's recent call for "free culture," see LESSIG, THE FUTURE OF IDEAS, supra note 17, at 9-10, also has important connections to the principles of semiotic democracy and democratic culture, as does David Lange's notion of free appropriation as a right of citizenship exercised in the public domain, see David Lange, Reimagining the Public Domain, 66 LAW & CONTEMP. PROBS. 463, 475-83 (2003). Important examples of this trend in intellectual property scholarship include Rosemary J. Coombe, Author/izing the Celebrity: Publicity Rights, Postmodern Politics, and Unauthorized Genders, 10 CARDOZO ARTS & ENT. L.J. 365 (1992); Rosemary J. Coombe, Objects of Property and Subjects of Politics: Intellectual Property Laws and Democratic Dialogue, 69 TEX. L. REV. 1853 (1991); Rosemary J. Coombe, Publicity Rights and Political Aspiration: Mass Culture, Gender Identity, and Democracy, 26 NEW ENG. L. REV. 1221 (1992); Rochelle Cooper Dreyfuss, Expressive Genericity: Trademarks as Language in the Pepsi Generation, 65 NOTRE DAME L. REV. 397 (1990); Niva Elkin-Koren, Cyberlaw and Social Change: A Democratic Approach to Copyright Law in Cyberspace, 14 CARDOZO ARTS & ENT. L.J. 215, 272-73 (1996); David Lange, At Play in the Fields of the Word: Copyright and the Construction of Authorship in the Post-Literate Millennium, 55 LAW & CONTEMP. PROBS. 139 (1992); Jessica Litman, The Public Domain, 39 EMORY L.J. 965 (1990); Madow, supra note 2; William Fisher, Theories of Intellectual Property, at http://www.law.harvard.edu/Academic_Affairs/coursepages/tfisher/iptheory.html (last visited Dec. 3, 2003). Other scholars have sought to connect the proper scope of copyright, fair use and the public domain to the promotion of democracy in the sense of public discussion of public issues. See Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 347-65 (1996) [hereinafter Netanel, Copyright and a Democratic Civil Society] (arguing that copyright promotes democracy by funding independent sectors of creativity); Neil Weinstock Netanel, Market Hierarchy and Copyright in Our System of Free Expression, 53 VAND. L. REV. 1879 (2000). This strand of intellectual property scholarship is somewhat closer to the republican or progressivist model; it emphasizes the importance of democratic public discourse and views popular culture as valuable to the extent that it contributes to a democratic civil society. See Netanel, Copyright and a Democratic Civil Society, supra, at 351 n.310.
134. Legal scholars influenced by John Fiske have argued that intellectual property law should also serve the goals of promoting popular participation in culture, or what Fiske called "semiotic democracy." See, e.g., William W. Fisher III, Property and Contract on the Internet, 73 CHI.-KENT L. REV. 1203, 1217 (1998) ("In an attractive society, all persons would be able to participate in the process of meaning-making. Instead of being merely passive consumers of cultural artifacts produced by others, they would be producers, helping to shape the world of ideas and symbols in which they live."); see also Kenneth Karst, Local Discourse and the Social Issues, 12 CARDOZO STUD. L. & LIT. 1, 27 (2000) (defining cultural democracy as "the broadest possible participation in the cultural processes that define and redefine the sort of society we shall be"). Larry Lessig's recent call for "free culture," see LESSIG, THE FUTURE OF IDEAS, supra note 17, at 9-10, also has important connections to the principles of semiotic democracy and democratic culture, as does David Lange's notion of free appropriation as a right of citizenship exercised in the public domain, see David Lange, Reimagining the Public Domain, 66 LAW & CONTEMP. PROBS. 463, 475-83 (2003). Important examples of this trend in intellectual property scholarship include Rosemary J. Coombe, Author/izing the Celebrity: Publicity Rights, Postmodern Politics, and Unauthorized Genders, 10 CARDOZO ARTS & ENT. L.J. 365 (1992); Rosemary J. Coombe, Objects of Property and Subjects of Politics: Intellectual Property Laws and Democratic Dialogue, 69 TEX. L. REV. 1853 (1991); Rosemary J. Coombe, Publicity Rights and Political Aspiration: Mass Culture, Gender Identity, and Democracy, 26 NEW ENG. L. REV. 1221 (1992); Rochelle Cooper Dreyfuss, Expressive Genericity: Trademarks as Language in the Pepsi Generation, 65 NOTRE DAME L. REV. 397 (1990); Niva Elkin-Koren, Cyberlaw and Social Change: A Democratic Approach to Copyright Law in Cyberspace, 14 CARDOZO ARTS & ENT. L.J. 215, 272-73 (1996); David Lange, At Play in the Fields of the Word: Copyright and the Construction of Authorship in the Post-Literate Millennium, 55 LAW & CONTEMP. PROBS. 139 (1992); Jessica Litman, The Public Domain, 39 EMORY L.J. 965 (1990); Madow, supra note 2; William Fisher, Theories of Intellectual Property, at http://www.law.harvard.edu/Academic_Affairs/coursepages/tfisher/iptheory.html (last visited Dec. 3, 2003). Other scholars have sought to connect the proper scope of copyright, fair use and the public domain to the promotion of democracy in the sense of public discussion of public issues. See Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 347-65 (1996) [hereinafter Netanel, Copyright and a Democratic Civil Society] (arguing that copyright promotes democracy by funding independent sectors of creativity); Neil Weinstock Netanel, Market Hierarchy and Copyright in Our System of Free Expression, 53 VAND. L. REV. 1879 (2000). This strand of intellectual property scholarship is somewhat closer to the republican or progressivist model; it emphasizes the importance of democratic public discourse and views popular culture as valuable to the extent that it contributes to a democratic civil society. See Netanel, Copyright and a Democratic Civil Society, supra, at 351 n.310.
135. Legal scholars influenced by John Fiske have argued that intellectual property law should also serve the goals of promoting popular participation in culture, or what Fiske called "semiotic democracy." See, e.g., William W. Fisher III, Property and Contract on the Internet, 73 CHI.-KENT L. REV. 1203, 1217 (1998) ("In an attractive society, all persons would be able to participate in the process of meaning-making. Instead of being merely passive consumers of cultural artifacts produced by others, they would be producers, helping to shape the world of ideas and symbols in which they live."); see also Kenneth Karst, Local Discourse and the Social Issues, 12 CARDOZO STUD. L. & LIT. 1, 27 (2000) (defining cultural democracy as "the broadest possible participation in the cultural processes that define and redefine the sort of society we shall be"). Larry Lessig's recent call for "free culture," see LESSIG, THE FUTURE OF IDEAS, supra note 17, at 9-10, also has important connections to the principles of semiotic democracy and democratic culture, as does David Lange's notion of free appropriation as a right of citizenship exercised in the public domain, see David Lange, Reimagining the Public Domain, 66 LAW & CONTEMP. PROBS. 463, 475-83 (2003). Important examples of this trend in intellectual property scholarship include Rosemary J. Coombe, Author/izing the Celebrity: Publicity Rights, Postmodern Politics, and Unauthorized Genders, 10 CARDOZO ARTS & ENT. L.J. 365 (1992); Rosemary J. Coombe, Objects of Property and Subjects of Politics: Intellectual Property Laws and Democratic Dialogue, 69 TEX. L. REV. 1853 (1991); Rosemary J. Coombe, Publicity Rights and Political Aspiration: Mass Culture, Gender Identity, and Democracy, 26 NEW ENG. L. REV. 1221 (1992); Rochelle Cooper Dreyfuss, Expressive Genericity: Trademarks as Language in the Pepsi Generation, 65 NOTRE DAME L. REV. 397 (1990); Niva Elkin-Koren, Cyberlaw and Social Change: A Democratic Approach to Copyright Law in Cyberspace, 14 CARDOZO ARTS & ENT. L.J. 215, 272-73 (1996); David Lange, At Play in the Fields of the Word: Copyright and the Construction of Authorship in the Post-Literate Millennium, 55 LAW & CONTEMP. PROBS. 139 (1992); Jessica Litman, The Public Domain, 39 EMORY L.J. 965 (1990); Madow, supra note 2; William Fisher, Theories of Intellectual Property, at http://www.law.harvard.edu/Academic_Affairs/coursepages/tfisher/iptheory.html (last visited Dec. 3, 2003). Other scholars have sought to connect the proper scope of copyright, fair use and the public domain to the promotion of democracy in the sense of public discussion of public issues. See Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 347-65 (1996) [hereinafter Netanel, Copyright and a Democratic Civil Society] (arguing that copyright promotes democracy by funding independent sectors of creativity); Neil Weinstock Netanel, Market Hierarchy and Copyright in Our System of Free Expression, 53 VAND. L. REV. 1879 (2000). This strand of intellectual property scholarship is somewhat closer to the republican or progressivist model; it emphasizes the importance of democratic public discourse and views popular culture as valuable to the extent that it contributes to a democratic civil society. See Netanel, Copyright and a Democratic Civil Society, supra, at 351 n.310.
136. Legal scholars influenced by John Fiske have argued that intellectual property law should also serve the goals of promoting popular participation in culture, or what Fiske called "semiotic democracy." See, e.g., William W. Fisher III, Property and Contract on the Internet, 73 CHI.-KENT L. REV. 1203, 1217 (1998) ("In an attractive society, all persons would be able to participate in the process of meaning-making. Instead of being merely passive consumers of cultural artifacts produced by others, they would be producers, helping to shape the world of ideas and symbols in which they live."); see also Kenneth Karst, Local Discourse and the Social Issues, 12 CARDOZO STUD. L. & LIT. 1, 27 (2000) (defining cultural democracy as "the broadest possible participation in the cultural processes that define and redefine the sort of society we shall be"). Larry Lessig's recent call for "free culture," see LESSIG, THE FUTURE OF IDEAS, supra note 17, at 9-10, also has important connections to the principles of semiotic democracy and democratic culture, as does David Lange's notion of free appropriation as a right of citizenship exercised in the public domain, see David Lange, Reimagining the Public Domain, 66 LAW & CONTEMP. PROBS. 463, 475-83 (2003). Important examples of this trend in intellectual property scholarship include Rosemary J. Coombe, Author/izing the Celebrity: Publicity Rights, Postmodern Politics, and Unauthorized Genders, 10 CARDOZO ARTS & ENT. L.J. 365 (1992); Rosemary J. Coombe, Objects of Property and Subjects of Politics: Intellectual Property Laws and Democratic Dialogue, 69 TEX. L. REV. 1853 (1991); Rosemary J. Coombe, Publicity Rights and Political Aspiration: Mass Culture, Gender Identity, and Democracy, 26 NEW ENG. L. REV. 1221 (1992); Rochelle Cooper Dreyfuss, Expressive Genericity: Trademarks as Language in the Pepsi Generation, 65 NOTRE DAME L. REV. 397 (1990); Niva Elkin-Koren, Cyberlaw and Social Change: A Democratic Approach to Copyright Law in Cyberspace, 14 CARDOZO ARTS & ENT. L.J. 215, 272-73 (1996); David Lange, At Play in the Fields of the Word: Copyright and the Construction of Authorship in the Post-Literate Millennium, 55 LAW & CONTEMP. PROBS. 139 (1992); Jessica Litman, The Public Domain, 39 EMORY L.J. 965 (1990); Madow, supra note 2; William Fisher, Theories of Intellectual Property, at http://www.law.harvard.edu/Academic_Affairs/coursepages/tfisher/iptheory.html (last visited Dec. 3, 2003). Other scholars have sought to connect the proper scope of copyright, fair use and the public domain to the promotion of democracy in the sense of public discussion of public issues. See Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 347-65 (1996) [hereinafter Netanel, Copyright and a Democratic Civil Society] (arguing that copyright promotes democracy by funding independent sectors of creativity); Neil Weinstock Netanel, Market Hierarchy and Copyright in Our System of Free Expression, 53 VAND. L. REV. 1879 (2000). This strand of intellectual property scholarship is somewhat closer to the republican or progressivist model; it emphasizes the importance of democratic public discourse and views popular culture as valuable to the extent that it contributes to a democratic civil society. See Netanel, Copyright and a Democratic Civil Society, supra, at 351 n.310.
137. Legal scholars influenced by John Fiske have argued that intellectual property law should also serve the goals of promoting popular participation in culture, or what Fiske called "semiotic democracy." See, e.g., William W. Fisher III, Property and Contract on the Internet, 73 CHI.-KENT L. REV. 1203, 1217 (1998) ("In an attractive society, all persons would be able to participate in the process of meaning-making. Instead of being merely passive consumers of cultural artifacts produced by others, they would be producers, helping to shape the world of ideas and symbols in which they live."); see also Kenneth Karst, Local Discourse and the Social Issues, 12 CARDOZO STUD. L. & LIT. 1, 27 (2000) (defining cultural democracy as "the broadest possible participation in the cultural processes that define and redefine the sort of society we shall be"). Larry Lessig's recent call for "free culture," see LESSIG, THE FUTURE OF IDEAS, supra note 17, at 9-10, also has important connections to the principles of semiotic democracy and democratic culture, as does David Lange's notion of free appropriation as a right of citizenship exercised in the public domain, see David Lange, Reimagining the Public Domain, 66 LAW & CONTEMP. PROBS. 463, 475-83 (2003). Important examples of this trend in intellectual property scholarship include Rosemary J. Coombe, Author/izing the Celebrity: Publicity Rights, Postmodern Politics, and Unauthorized Genders, 10 CARDOZO ARTS & ENT. L.J. 365 (1992); Rosemary J. Coombe, Objects of Property and Subjects of Politics: Intellectual Property Laws and Democratic Dialogue, 69 TEX. L. REV. 1853 (1991); Rosemary J. Coombe, Publicity Rights and Political Aspiration: Mass Culture, Gender Identity, and Democracy, 26 NEW ENG. L. REV. 1221 (1992); Rochelle Cooper Dreyfuss, Expressive Genericity: Trademarks as Language in the Pepsi Generation, 65 NOTRE DAME L. REV. 397 (1990); Niva Elkin-Koren, Cyberlaw and Social Change: A Democratic Approach to Copyright Law in Cyberspace, 14 CARDOZO ARTS & ENT. L.J. 215, 272-73 (1996); David Lange, At Play in the Fields of the Word: Copyright and the Construction of Authorship in the Post-Literate Millennium, 55 LAW & CONTEMP. PROBS. 139 (1992); Jessica Litman, The Public Domain, 39 EMORY L.J. 965 (1990); Madow, supra note 2; William Fisher, Theories of Intellectual Property, at http://www.law.harvard.edu/Academic_Affairs/coursepages/tfisher/iptheory.html (last visited Dec. 3, 2003). Other scholars have sought to connect the proper scope of copyright, fair use and the public domain to the promotion of democracy in the sense of public discussion of public issues. See Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 347-65 (1996) [hereinafter Netanel, Copyright and a Democratic Civil Society] (arguing that copyright promotes democracy by funding independent sectors of creativity); Neil Weinstock Netanel, Market Hierarchy and Copyright in Our System of Free Expression, 53 VAND. L. REV. 1879 (2000). This strand of intellectual property scholarship is somewhat closer to the republican or progressivist model; it emphasizes the importance of democratic public discourse and views popular culture as valuable to the extent that it contributes to a democratic civil society. See Netanel, Copyright and a Democratic Civil Society, supra, at 351 n.310.
138. Legal scholars influenced by John Fiske have argued that intellectual property law should also serve the goals of promoting popular participation in culture, or what Fiske called "semiotic democracy." See, e.g., William W. Fisher III, Property and Contract on the Internet, 73 CHI.-KENT L. REV. 1203, 1217 (1998) ("In an attractive society, all persons would be able to participate in the process of meaning-making. Instead of being merely passive consumers of cultural artifacts produced by others, they would be producers, helping to shape the world of ideas and symbols in which they live."); see also Kenneth Karst, Local Discourse and the Social Issues, 12 CARDOZO STUD. L. & LIT. 1, 27 (2000) (defining cultural democracy as "the broadest possible participation in the cultural processes that define and redefine the sort of society we shall be"). Larry Lessig's recent call for "free culture," see LESSIG, THE FUTURE OF IDEAS, supra note 17, at 9-10, also has important connections to the principles of semiotic democracy and democratic culture, as does David Lange's notion of free appropriation as a right of citizenship exercised in the public domain, see David Lange, Reimagining the Public Domain, 66 LAW & CONTEMP. PROBS. 463, 475-83 (2003). Important examples of this trend in intellectual property scholarship include Rosemary J. Coombe, Author/izing the Celebrity: Publicity Rights, Postmodern Politics, and Unauthorized Genders, 10 CARDOZO ARTS & ENT. L.J. 365 (1992); Rosemary J. Coombe, Objects of Property and Subjects of Politics: Intellectual Property Laws and Democratic Dialogue, 69 TEX. L. REV. 1853 (1991); Rosemary J. Coombe, Publicity Rights and Political Aspiration: Mass Culture, Gender Identity, and Democracy, 26 NEW ENG. L. REV. 1221 (1992); Rochelle Cooper Dreyfuss, Expressive Genericity: Trademarks as Language in the Pepsi Generation, 65 NOTRE DAME L. REV. 397 (1990); Niva Elkin-Koren, Cyberlaw and Social Change: A Democratic Approach to Copyright Law in Cyberspace, 14 CARDOZO ARTS & ENT. L.J. 215, 272-73 (1996); David Lange, At Play in the Fields of the Word: Copyright and the Construction of Authorship in the Post-Literate Millennium, 55 LAW & CONTEMP. PROBS. 139 (1992); Jessica Litman, The Public Domain, 39 EMORY L.J. 965 (1990); Madow, supra note 2; William Fisher, Theories of Intellectual Property, at http://www.law.harvard.edu/Academic_Affairs/coursepages/tfisher/iptheory.html (last visited Dec. 3, 2003). Other scholars have sought to connect the proper scope of copyright, fair use and the public domain to the promotion of democracy in the sense of public discussion of public issues. See Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 347-65 (1996) [hereinafter Netanel, Copyright and a Democratic Civil Society] (arguing that copyright promotes democracy by funding independent sectors of creativity); Neil Weinstock Netanel, Market Hierarchy and Copyright in Our System of Free Expression, 53 VAND. L. REV. 1879 (2000). This strand of intellectual property scholarship is somewhat closer to the republican or progressivist model; it emphasizes the importance of democratic public discourse and views popular culture as valuable to the extent that it contributes to a democratic civil society. See Netanel, Copyright and a Democratic Civil Society, supra, at 351 n.310.
139. Legal scholars influenced by John Fiske have argued that intellectual property law should also serve the goals of promoting popular participation in culture, or what Fiske called "semiotic democracy." See, e.g., William W. Fisher III, Property and Contract on the Internet, 73 CHI.-KENT L. REV. 1203, 1217 (1998) ("In an attractive society, all persons would be able to participate in the process of meaning-making. Instead of being merely passive consumers of cultural artifacts produced by others, they would be producers, helping to shape the world of ideas and symbols in which they live."); see also Kenneth Karst, Local Discourse and the Social Issues, 12 CARDOZO STUD. L. & LIT. 1, 27 (2000) (defining cultural democracy as "the broadest possible participation in the cultural processes that define and redefine the sort of society we shall be"). Larry Lessig's recent call for "free culture," see LESSIG, THE FUTURE OF IDEAS, supra note 17, at 9-10, also has important connections to the principles of semiotic democracy and democratic culture, as does David Lange's notion of free appropriation as a right of citizenship exercised in the public domain, see David Lange, Reimagining the Public Domain, 66 LAW & CONTEMP. PROBS. 463, 475-83 (2003). Important examples of this trend in intellectual property scholarship include Rosemary J. Coombe, Author/izing the Celebrity: Publicity Rights, Postmodern Politics, and Unauthorized Genders, 10 CARDOZO ARTS & ENT. L.J. 365 (1992); Rosemary J. Coombe, Objects of Property and Subjects of Politics: Intellectual Property Laws and Democratic Dialogue, 69 TEX. L. REV. 1853 (1991); Rosemary J. Coombe, Publicity Rights and Political Aspiration: Mass Culture, Gender Identity, and Democracy, 26 NEW ENG. L. REV. 1221 (1992); Rochelle Cooper Dreyfuss, Expressive Genericity: Trademarks as Language in the Pepsi Generation, 65 NOTRE DAME L. REV. 397 (1990); Niva Elkin-Koren, Cyberlaw and Social Change: A Democratic Approach to Copyright Law in Cyberspace, 14 CARDOZO ARTS & ENT. L.J. 215, 272-73 (1996); David Lange, At Play in the Fields of the Word: Copyright and the Construction of Authorship in the Post-Literate Millennium, 55 LAW & CONTEMP. PROBS. 139 (1992); Jessica Litman, The Public Domain, 39 EMORY L.J. 965 (1990); Madow, supra note 2; William Fisher, Theories of Intellectual Property, at http://www.law.harvard.edu/Academic_Affairs/coursepages/tfisher/iptheory.html (last visited Dec. 3, 2003). Other scholars have sought to connect the proper scope of copyright, fair use and the public domain to the promotion of democracy in the sense of public discussion of public issues. See Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 347-65 (1996) [hereinafter Netanel, Copyright and a Democratic Civil Society] (arguing that copyright promotes democracy by funding independent sectors of creativity); Neil Weinstock Netanel, Market Hierarchy and Copyright in Our System of Free Expression, 53 VAND. L. REV. 1879 (2000). This strand of intellectual property scholarship is somewhat closer to the republican or progressivist model; it emphasizes the importance of democratic public discourse and views popular culture as valuable to the extent that it contributes to a democratic civil society. See Netanel, Copyright and a Democratic Civil Society, supra, at 351 n.310.
140. Legal scholars influenced by John Fiske have argued that intellectual property law should also serve the goals of promoting popular participation in culture, or what Fiske called "semiotic democracy." See, e.g., William W. Fisher III, Property and Contract on the Internet, 73 CHI.-KENT L. REV. 1203, 1217 (1998) ("In an attractive society, all persons would be able to participate in the process of meaning-making. Instead of being merely passive consumers of cultural artifacts produced by others, they would be producers, helping to shape the world of ideas and symbols in which they live."); see also Kenneth Karst, Local Discourse and the Social Issues, 12 CARDOZO STUD. L. & LIT. 1, 27 (2000) (defining cultural democracy as "the broadest possible participation in the cultural processes that define and redefine the sort of society we shall be"). Larry Lessig's recent call for "free culture," see LESSIG, THE FUTURE OF IDEAS, supra note 17, at 9-10, also has important connections to the principles of semiotic democracy and democratic culture, as does David Lange's notion of free appropriation as a right of citizenship exercised in the public domain, see David Lange, Reimagining the Public Domain, 66 LAW & CONTEMP. PROBS. 463, 475-83 (2003). Important examples of this trend in intellectual property scholarship include Rosemary J. Coombe, Author/izing the Celebrity: Publicity Rights, Postmodern Politics, and Unauthorized Genders, 10 CARDOZO ARTS & ENT. L.J. 365 (1992); Rosemary J. Coombe, Objects of Property and Subjects of Politics: Intellectual Property Laws and Democratic Dialogue, 69 TEX. L. REV. 1853 (1991); Rosemary J. Coombe, Publicity Rights and Political Aspiration: Mass Culture, Gender Identity, and Democracy, 26 NEW ENG. L. REV. 1221 (1992); Rochelle Cooper Dreyfuss, Expressive Genericity: Trademarks as Language in the Pepsi Generation, 65 NOTRE DAME L. REV. 397 (1990); Niva Elkin-Koren, Cyberlaw and Social Change: A Democratic Approach to Copyright Law in Cyberspace, 14 CARDOZO ARTS & ENT. L.J. 215, 272-73 (1996); David Lange, At Play in the Fields of the Word: Copyright and the Construction of Authorship in the Post-Literate Millennium, 55 LAW & CONTEMP. PROBS. 139 (1992); Jessica Litman, The Public Domain, 39 EMORY L.J. 965 (1990); Madow, supra note 2; William Fisher, Theories of Intellectual Property, at http://www.law.harvard.edu/Academic_Affairs/coursepages/tfisher/iptheory.html (last visited Dec. 3, 2003). Other scholars have sought to connect the proper scope of copyright, fair use and the public domain to the promotion of democracy in the sense of public discussion of public issues. See Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 347-65 (1996) [hereinafter Netanel, Copyright and a Democratic Civil Society] (arguing that copyright promotes democracy by funding independent sectors of creativity); Neil Weinstock Netanel, Market Hierarchy and Copyright in Our System of Free Expression, 53 VAND. L. REV. 1879 (2000). This strand of intellectual property scholarship is somewhat closer to the republican or progressivist model; it emphasizes the importance of democratic public discourse and views popular culture as valuable to the extent that it contributes to a democratic civil society. See Netanel, Copyright and a Democratic Civil Society, supra, at 351 n.310.
141. Legal scholars influenced by John Fiske have argued that intellectual property law should also serve the goals of promoting popular participation in culture, or what Fiske called "semiotic democracy." See, e.g., William W. Fisher III, Property and Contract on the Internet, 73 CHI.-KENT L. REV. 1203, 1217 (1998) ("In an attractive society, all persons would be able to participate in the process of meaning-making. Instead of being merely passive consumers of cultural artifacts produced by others, they would be producers, helping to shape the world of ideas and symbols in which they live."); see also Kenneth Karst, Local Discourse and the Social Issues, 12 CARDOZO STUD. L. & LIT. 1, 27 (2000) (defining cultural democracy as "the broadest possible participation in the cultural processes that define and redefine the sort of society we shall be"). Larry Lessig's recent call for "free culture," see LESSIG, THE FUTURE OF IDEAS, supra note 17, at 9-10, also has important connections to the principles of semiotic democracy and democratic culture, as does David Lange's notion of free appropriation as a right of citizenship exercised in the public domain, see David Lange, Reimagining the Public Domain, 66 LAW & CONTEMP. PROBS. 463, 475-83 (2003). Important examples of this trend in intellectual property scholarship include Rosemary J. Coombe, Author/izing the Celebrity: Publicity Rights, Postmodern Politics, and Unauthorized Genders, 10 CARDOZO ARTS & ENT. L.J. 365 (1992); Rosemary J. Coombe, Objects of Property and Subjects of Politics: Intellectual Property Laws and Democratic Dialogue, 69 TEX. L. REV. 1853 (1991); Rosemary J. Coombe, Publicity Rights and Political Aspiration: Mass Culture, Gender Identity, and Democracy, 26 NEW ENG. L. REV. 1221 (1992); Rochelle Cooper Dreyfuss, Expressive Genericity: Trademarks as Language in the Pepsi Generation, 65 NOTRE DAME L. REV. 397 (1990); Niva Elkin-Koren, Cyberlaw and Social Change: A Democratic Approach to Copyright Law in Cyberspace, 14 CARDOZO ARTS & ENT. L.J. 215, 272-73 (1996); David Lange, At Play in the Fields of the Word: Copyright and the Construction of Authorship in the Post-Literate Millennium, 55 LAW & CONTEMP. PROBS. 139 (1992); Jessica Litman, The Public Domain, 39 EMORY L.J. 965 (1990); Madow, supra note 2; William Fisher, Theories of Intellectual Property, at http://www.law.harvard.edu/Academic_Affairs/coursepages/tfisher/iptheory.html (last visited Dec. 3, 2003). Other scholars have sought to connect the proper scope of copyright, fair use and the public domain to the promotion of democracy in the sense of public discussion of public issues. See Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 347-65 (1996) [hereinafter Netanel, Copyright and a Democratic Civil Society] (arguing that copyright promotes democracy by funding independent sectors of creativity); Neil Weinstock Netanel, Market Hierarchy and Copyright in Our System of Free Expression, 53 VAND. L. REV. 1879 (2000). This strand of intellectual property scholarship is somewhat closer to the republican or progressivist model; it emphasizes the importance of democratic public discourse and views popular culture as valuable to the extent that it contributes to a democratic civil society. See Netanel, Copyright and a Democratic Civil Society, supra, at 351 n.310.
142. Legal scholars influenced by John Fiske have argued that intellectual property law should also serve the goals of promoting popular participation in culture, or what Fiske called "semiotic democracy." See, e.g., William W. Fisher III, Property and Contract on the Internet, 73 CHI.-KENT L. REV. 1203, 1217 (1998) ("In an attractive society, all persons would be able to participate in the process of meaning-making. Instead of being merely passive consumers of cultural artifacts produced by others, they would be producers, helping to shape the world of ideas and symbols in which they live."); see also Kenneth Karst, Local Discourse and the Social Issues, 12 CARDOZO STUD. L. & LIT. 1, 27 (2000) (defining cultural democracy as "the broadest possible participation in the cultural processes that define and redefine the sort of society we shall be"). Larry Lessig's recent call for "free culture," see LESSIG, THE FUTURE OF IDEAS, supra note 17, at 9-10, also has important connections to the principles of semiotic democracy and democratic culture, as does David Lange's notion of free appropriation as a right of citizenship exercised in the public domain, see David Lange, Reimagining the Public Domain, 66 LAW & CONTEMP. PROBS. 463, 475-83 (2003). Important examples of this trend in intellectual property scholarship include Rosemary J. Coombe, Author/izing the Celebrity: Publicity Rights, Postmodern Politics, and Unauthorized Genders, 10 CARDOZO ARTS & ENT. L.J. 365 (1992); Rosemary J. Coombe, Objects of Property and Subjects of Politics: Intellectual Property Laws and Democratic Dialogue, 69 TEX. L. REV. 1853 (1991); Rosemary J. Coombe, Publicity Rights and Political Aspiration: Mass Culture, Gender Identity, and Democracy, 26 NEW ENG. L. REV. 1221 (1992); Rochelle Cooper Dreyfuss, Expressive Genericity: Trademarks as Language in the Pepsi Generation, 65 NOTRE DAME L. REV. 397 (1990); Niva Elkin-Koren, Cyberlaw and Social Change: A Democratic Approach to Copyright Law in Cyberspace, 14 CARDOZO ARTS & ENT. L.J. 215, 272-73 (1996); David Lange, At Play in the Fields of the Word: Copyright and the Construction of Authorship in the Post-Literate Millennium, 55 LAW & CONTEMP. PROBS. 139 (1992); Jessica Litman, The Public Domain, 39 EMORY L.J. 965 (1990); Madow, supra note 2; William Fisher, Theories of Intellectual Property, at http://www.law.harvard.edu/Academic_Affairs/coursepages/tfisher/iptheory.html (last visited Dec. 3, 2003). Other scholars have sought to connect the proper scope of copyright, fair use and the public domain to the promotion of democracy in the sense of public discussion of public issues. See Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 347-65 (1996) [hereinafter Netanel, Copyright and a Democratic Civil Society] (arguing that copyright promotes democracy by funding independent sectors of creativity); Neil Weinstock Netanel, Market Hierarchy and Copyright in Our System of Free Expression, 53 VAND. L. REV. 1879 (2000). This strand of intellectual property scholarship is somewhat closer to the republican or progressivist model; it emphasizes the importance of democratic public discourse and views popular culture as valuable to the extent that it contributes to a democratic civil society. See Netanel, Copyright and a Democratic Civil Society, supra, at 351 n.310.
143. Legal scholars influenced by John Fiske have argued that intellectual property law should also serve the goals of promoting popular participation in culture, or what Fiske called "semiotic democracy." See, e.g., William W. Fisher III, Property and Contract on the Internet, 73 CHI.-KENT L. REV. 1203, 1217 (1998) ("In an attractive society, all persons would be able to participate in the process of meaning-making. Instead of being merely passive consumers of cultural artifacts produced by others, they would be producers, helping to shape the world of ideas and symbols in which they live."); see also Kenneth Karst, Local Discourse and the Social Issues, 12 CARDOZO STUD. L. & LIT. 1, 27 (2000) (defining cultural democracy as "the broadest possible participation in the cultural processes that define and redefine the sort of society we shall be"). Larry Lessig's recent call for "free culture," see LESSIG, THE FUTURE OF IDEAS, supra note 17, at 9-10, also has important connections to the principles of semiotic democracy and democratic culture, as does David Lange's notion of free appropriation as a right of citizenship exercised in the public domain, see David Lange, Reimagining the Public Domain, 66 LAW & CONTEMP. PROBS. 463, 475-83 (2003). Important examples of this trend in intellectual property scholarship include Rosemary J. Coombe, Author/izing the Celebrity: Publicity Rights, Postmodern Politics, and Unauthorized Genders, 10 CARDOZO ARTS & ENT. L.J. 365 (1992); Rosemary J. Coombe, Objects of Property and Subjects of Politics: Intellectual Property Laws and Democratic Dialogue, 69 TEX. L. REV. 1853 (1991); Rosemary J. Coombe, Publicity Rights and Political Aspiration: Mass Culture, Gender Identity, and Democracy, 26 NEW ENG. L. REV. 1221 (1992); Rochelle Cooper Dreyfuss, Expressive Genericity: Trademarks as Language in the Pepsi Generation, 65 NOTRE DAME L. REV. 397 (1990); Niva Elkin-Koren, Cyberlaw and Social Change: A Democratic Approach to Copyright Law in Cyberspace, 14 CARDOZO ARTS & ENT. L.J. 215, 272-73 (1996); David Lange, At Play in the Fields of the Word: Copyright and the Construction of Authorship in the Post-Literate Millennium, 55 LAW & CONTEMP. PROBS. 139 (1992); Jessica Litman, The Public Domain, 39 EMORY L.J. 965 (1990); Madow, supra note 2; William Fisher, Theories of Intellectual Property, at http://www.law.harvard.edu/Academic_Affairs/coursepages/tfisher/iptheory.html (last visited Dec. 3, 2003). Other scholars have sought to connect the proper scope of copyright, fair use and the public domain to the promotion of democracy in the sense of public discussion of public issues. See Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 347-65 (1996) [hereinafter Netanel, Copyright and a Democratic Civil Society] (arguing that copyright promotes democracy by funding independent sectors of creativity); Neil Weinstock Netanel, Market Hierarchy and Copyright in Our System of Free Expression, 53 VAND. L. REV. 1879 (2000). This strand of intellectual property scholarship is somewhat closer to the republican or progressivist model; it emphasizes the importance of democratic public discourse and views popular culture as valuable to the extent that it contributes to a democratic civil society. See Netanel, Copyright and a Democratic Civil Society, supra, at 351 n.310.
144. Legal scholars influenced by John Fiske have argued that intellectual property law should also serve the goals of promoting popular participation in culture, or what Fiske called "semiotic democracy." See, e.g., William W. Fisher III, Property and Contract on the Internet, 73 CHI.-KENT L. REV. 1203, 1217 (1998) ("In an attractive society, all persons would be able to participate in the process of meaning-making. Instead of being merely passive consumers of cultural artifacts produced by others, they would be producers, helping to shape the world of ideas and symbols in which they live."); see also Kenneth Karst, Local Discourse and the Social Issues, 12 CARDOZO STUD. L. & LIT. 1, 27 (2000) (defining cultural democracy as "the broadest possible participation in the cultural processes that define and redefine the sort of society we shall be"). Larry Lessig's recent call for "free culture," see LESSIG, THE FUTURE OF IDEAS, supra note 17, at 9-10, also has important connections to the principles of semiotic democracy and democratic culture, as does David Lange's notion of free appropriation as a right of citizenship exercised in the public domain, see David Lange, Reimagining the Public Domain, 66 LAW & CONTEMP. PROBS. 463, 475-83 (2003). Important examples of this trend in intellectual property scholarship include Rosemary J. Coombe, Author/izing the Celebrity: Publicity Rights, Postmodern Politics, and Unauthorized Genders, 10 CARDOZO ARTS & ENT. L.J. 365 (1992); Rosemary J. Coombe, Objects of Property and Subjects of Politics: Intellectual Property Laws and Democratic Dialogue, 69 TEX. L. REV. 1853 (1991); Rosemary J. Coombe, Publicity Rights and Political Aspiration: Mass Culture, Gender Identity, and Democracy, 26 NEW ENG. L. REV. 1221 (1992); Rochelle Cooper Dreyfuss, Expressive Genericity: Trademarks as Language in the Pepsi Generation, 65 NOTRE DAME L. REV. 397 (1990); Niva Elkin-Koren, Cyberlaw and Social Change: A Democratic Approach to Copyright Law in Cyberspace, 14 CARDOZO ARTS & ENT. L.J. 215, 272-73 (1996); David Lange, At Play in the Fields of the Word: Copyright and the Construction of Authorship in the Post-Literate Millennium, 55 LAW & CONTEMP. PROBS. 139 (1992); Jessica Litman, The Public Domain, 39 EMORY L.J. 965 (1990); Madow, supra note 2; William Fisher, Theories of Intellectual Property, at http://www.law.harvard.edu/Academic_Affairs/coursepages/tfisher/iptheory.html (last visited Dec. 3, 2003). Other scholars have sought to connect the proper scope of copyright, fair use and the public domain to the promotion of democracy in the sense of public discussion of public issues. See Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 347-65 (1996) [hereinafter Netanel, Copyright and a Democratic Civil Society] (arguing that copyright promotes democracy by funding independent sectors of creativity); Neil Weinstock Netanel, Market Hierarchy and Copyright in Our System of Free Expression, 53 VAND. L. REV. 1879 (2000). This strand of intellectual property scholarship is somewhat closer to the republican or progressivist model; it emphasizes the importance of democratic public discourse and views popular culture as valuable to the extent that it contributes to a democratic civil society. See Netanel, Copyright and a Democratic Civil Society, supra, at 351 n.310.
145. Legal scholars influenced by John Fiske have argued that intellectual property law should also serve the goals of promoting popular participation in culture, or what Fiske called "semiotic democracy." See, e.g., William W. Fisher III, Property and Contract on the Internet, 73 CHI.-KENT L. REV. 1203, 1217 (1998) ("In an attractive society, all persons would be able to participate in the process of meaning-making. Instead of being merely passive consumers of cultural artifacts produced by others, they would be producers, helping to shape the world of ideas and symbols in which they live."); see also Kenneth Karst, Local Discourse and the Social Issues, 12 CARDOZO STUD. L. & LIT. 1, 27 (2000) (defining cultural democracy as "the broadest possible participation in the cultural processes that define and redefine the sort of society we shall be"). Larry Lessig's recent call for "free culture," see LESSIG, THE FUTURE OF IDEAS, supra note 17, at 9-10, also has important connections to the principles of semiotic democracy and democratic culture, as does David Lange's notion of free appropriation as a right of citizenship exercised in the public domain, see David Lange, Reimagining the Public Domain, 66 LAW & CONTEMP. PROBS. 463, 475-83 (2003). Important examples of this trend in intellectual property scholarship include Rosemary J. Coombe, Author/izing the Celebrity: Publicity Rights, Postmodern Politics, and Unauthorized Genders, 10 CARDOZO ARTS & ENT. L.J. 365 (1992); Rosemary J. Coombe, Objects of Property and Subjects of Politics: Intellectual Property Laws and Democratic Dialogue, 69 TEX. L. REV. 1853 (1991); Rosemary J. Coombe, Publicity Rights and Political Aspiration: Mass Culture, Gender Identity, and Democracy, 26 NEW ENG. L. REV. 1221 (1992); Rochelle Cooper Dreyfuss, Expressive Genericity: Trademarks as Language in the Pepsi Generation, 65 NOTRE DAME L. REV. 397 (1990); Niva Elkin-Koren, Cyberlaw and Social Change: A Democratic Approach to Copyright Law in Cyberspace, 14 CARDOZO ARTS & ENT. L.J. 215, 272-73 (1996); David Lange, At Play in the Fields of the Word: Copyright and the Construction of Authorship in the Post-Literate Millennium, 55 LAW & CONTEMP. PROBS. 139 (1992); Jessica Litman, The Public Domain, 39 EMORY L.J. 965 (1990); Madow, supra note 2; William Fisher, Theories of Intellectual Property, at http://www.law.harvard.edu/Academic_Affairs/coursepages/tfisher/iptheory.html (last visited Dec. 3, 2003). Other scholars have sought to connect the proper scope of copyright, fair use and the public domain to the promotion of democracy in the sense of public discussion of public issues. See Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 347-65 (1996) [hereinafter Netanel, Copyright and a Democratic Civil Society] (arguing that copyright promotes democracy by funding independent sectors of creativity); Neil Weinstock Netanel, Market Hierarchy and Copyright in Our System of Free Expression, 53 VAND. L. REV. 1879 (2000). This strand of intellectual property scholarship is somewhat closer to the republican or progressivist model; it emphasizes the importance of democratic public discourse and views popular culture as valuable to the extent that it contributes to a democratic civil society. See Netanel, Copyright and a Democratic Civil Society, supra, at 351 n.310.
146. Legal scholars influenced by John Fiske have argued that intellectual property law should also serve the goals of promoting popular participation in culture, or what Fiske called "semiotic democracy." See, e.g., William W. Fisher III, Property and Contract on the Internet, 73 CHI.-KENT L. REV. 1203, 1217 (1998) ("In an attractive society, all persons would be able to participate in the process of meaning-making. Instead of being merely passive consumers of cultural artifacts produced by others, they would be producers, helping to shape the world of ideas and symbols in which they live."); see also Kenneth Karst, Local Discourse and the Social Issues, 12 CARDOZO STUD. L. & LIT. 1, 27 (2000) (defining cultural democracy as "the broadest possible participation in the cultural processes that define and redefine the sort of society we shall be"). Larry Lessig's recent call for "free culture," see LESSIG, THE FUTURE OF IDEAS, supra note 17, at 9-10, also has important connections to the principles of semiotic democracy and democratic culture, as does David Lange's notion of free appropriation as a right of citizenship exercised in the public domain, see David Lange, Reimagining the Public Domain, 66 LAW & CONTEMP. PROBS. 463, 475-83 (2003). Important examples of this trend in intellectual property scholarship include Rosemary J. Coombe, Author/izing the Celebrity: Publicity Rights, Postmodern Politics, and Unauthorized Genders, 10 CARDOZO ARTS & ENT. L.J. 365 (1992); Rosemary J. Coombe, Objects of Property and Subjects of Politics: Intellectual Property Laws and Democratic Dialogue, 69 TEX. L. REV. 1853 (1991); Rosemary J. Coombe, Publicity Rights and Political Aspiration: Mass Culture, Gender Identity, and Democracy, 26 NEW ENG. L. REV. 1221 (1992); Rochelle Cooper Dreyfuss, Expressive Genericity: Trademarks as Language in the Pepsi Generation, 65 NOTRE DAME L. REV. 397 (1990); Niva Elkin-Koren, Cyberlaw and Social Change: A Democratic Approach to Copyright Law in Cyberspace, 14 CARDOZO ARTS & ENT. L.J. 215, 272-73 (1996); David Lange, At Play in the Fields of the Word: Copyright and the Construction of Authorship in the Post-Literate Millennium, 55 LAW & CONTEMP. PROBS. 139 (1992); Jessica Litman, The Public Domain, 39 EMORY L.J. 965 (1990); Madow, supra note 2; William Fisher, Theories of Intellectual Property, at http://www.law.harvard.edu/Academic_Affairs/coursepages/tfisher/iptheory.html (last visited Dec. 3, 2003). Other scholars have sought to connect the proper scope of copyright, fair use and the public domain to the promotion of democracy in the sense of public discussion of public issues. See Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 347-65 (1996) [hereinafter Netanel, Copyright and a Democratic Civil Society] (arguing that copyright promotes democracy by funding independent sectors of creativity); Neil Weinstock Netanel, Market Hierarchy and Copyright in Our System of Free Expression, 53 VAND. L. REV. 1879 (2000). This strand of intellectual property scholarship is somewhat closer to the republican or progressivist model; it emphasizes the importance of democratic public discourse and views popular culture as valuable to the extent that it contributes to a democratic civil society. See Netanel, Copyright and a Democratic Civil Society, supra, at 351 n.310.
147. Legal scholars influenced by John Fiske have argued that intellectual property law should also serve the goals of promoting popular participation in culture, or what Fiske called "semiotic democracy." See, e.g., William W. Fisher III, Property and Contract on the Internet, 73 CHI.-KENT L. REV. 1203, 1217 (1998) ("In an attractive society, all persons would be able to participate in the process of meaning-making. Instead of being merely passive consumers of cultural artifacts produced by others, they would be producers, helping to shape the world of ideas and symbols in which they live."); see also Kenneth Karst, Local Discourse and the Social Issues, 12 CARDOZO STUD. L. & LIT. 1, 27 (2000) (defining cultural democracy as "the broadest possible participation in the cultural processes that define and redefine the sort of society we shall be"). Larry Lessig's recent call for "free culture," see LESSIG, THE FUTURE OF IDEAS, supra note 17, at 9-10, also has important connections to the principles of semiotic democracy and democratic culture, as does David Lange's notion of free appropriation as a right of citizenship exercised in the public domain, see David Lange, Reimagining the Public Domain, 66 LAW & CONTEMP. PROBS. 463, 475-83 (2003). Important examples of this trend in intellectual property scholarship include Rosemary J. Coombe, Author/izing the Celebrity: Publicity Rights, Postmodern Politics, and Unauthorized Genders, 10 CARDOZO ARTS & ENT. L.J. 365 (1992); Rosemary J. Coombe, Objects of Property and Subjects of Politics: Intellectual Property Laws and Democratic Dialogue, 69 TEX. L. REV. 1853 (1991); Rosemary J. Coombe, Publicity Rights and Political Aspiration: Mass Culture, Gender Identity, and Democracy, 26 NEW ENG. L. REV. 1221 (1992); Rochelle Cooper Dreyfuss, Expressive Genericity: Trademarks as Language in the Pepsi Generation, 65 NOTRE DAME L. REV. 397 (1990); Niva Elkin-Koren, Cyberlaw and Social Change: A Democratic Approach to Copyright Law in Cyberspace, 14 CARDOZO ARTS & ENT. L.J. 215, 272-73 (1996); David Lange, At Play in the Fields of the Word: Copyright and the Construction of Authorship in the Post-Literate Millennium, 55 LAW & CONTEMP. PROBS. 139 (1992); Jessica Litman, The Public Domain, 39 EMORY L.J. 965 (1990); Madow, supra note 2; William Fisher, Theories of Intellectual Property, at http://www.law.harvard.edu/Academic_Affairs/coursepages/tfisher/iptheory.html (last visited Dec. 3, 2003). Other scholars have sought to connect the proper scope of copyright, fair use and the public domain to the promotion of democracy in the sense of public discussion of public issues. See Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 347-65 (1996) [hereinafter Netanel, Copyright and a Democratic Civil Society] (arguing that copyright promotes democracy by funding independent sectors of creativity); Neil Weinstock Netanel, Market Hierarchy and Copyright in Our System of Free Expression, 53 VAND. L. REV. 1879 (2000). This strand of intellectual property scholarship is somewhat closer to the republican or progressivist model; it emphasizes the importance of democratic public discourse and views popular culture as valuable to the extent that it contributes to a democratic civil society. See Netanel, Copyright and a Democratic Civil Society, supra, at 351 n.310.
148. Legal scholars influenced by John Fiske have argued that intellectual property law should also serve the goals of promoting popular participation in culture, or what Fiske called "semiotic democracy." See, e.g., William W. Fisher III, Property and Contract on the Internet, 73 CHI.-KENT L. REV. 1203, 1217 (1998) ("In an attractive society, all persons would be able to participate in the process of meaning-making. Instead of being merely passive consumers of cultural artifacts produced by others, they would be producers, helping to shape the world of ideas and symbols in which they live."); see also Kenneth Karst, Local Discourse and the Social Issues, 12 CARDOZO STUD. L. & LIT. 1, 27 (2000) (defining cultural democracy as "the broadest possible participation in the cultural processes that define and redefine the sort of society we shall be"). Larry Lessig's recent call for "free culture," see LESSIG, THE FUTURE OF IDEAS, supra note 17, at 9-10, also has important connections to the principles of semiotic democracy and democratic culture, as does David Lange's notion of free appropriation as a right of citizenship exercised in the public domain, see David Lange, Reimagining the Public Domain, 66 LAW & CONTEMP. PROBS. 463, 475-83 (2003). Important examples of this trend in intellectual property scholarship include Rosemary J. Coombe, Author/izing the Celebrity: Publicity Rights, Postmodern Politics, and Unauthorized Genders, 10 CARDOZO ARTS & ENT. L.J. 365 (1992); Rosemary J. Coombe, Objects of Property and Subjects of Politics: Intellectual Property Laws and Democratic Dialogue, 69 TEX. L. REV. 1853 (1991); Rosemary J. Coombe, Publicity Rights and Political Aspiration: Mass Culture, Gender Identity, and Democracy, 26 NEW ENG. L. REV. 1221 (1992); Rochelle Cooper Dreyfuss, Expressive Genericity: Trademarks as Language in the Pepsi Generation, 65 NOTRE DAME L. REV. 397 (1990); Niva Elkin-Koren, Cyberlaw and Social Change: A Democratic Approach to Copyright Law in Cyberspace, 14 CARDOZO ARTS & ENT. L.J. 215, 272-73 (1996); David Lange, At Play in the Fields of the Word: Copyright and the Construction of Authorship in the Post-Literate Millennium, 55 LAW & CONTEMP. PROBS. 139 (1992); Jessica Litman, The Public Domain, 39 EMORY L.J. 965 (1990); Madow, supra note 2; William Fisher, Theories of Intellectual Property, at http://www.law.harvard.edu/Academic_Affairs/coursepages/tfisher/iptheory.html (last visited Dec. 3, 2003). Other scholars have sought to connect the proper scope of copyright, fair use and the public domain to the promotion of democracy in the sense of public discussion of public issues. See Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 347-65 (1996) [hereinafter Netanel, Copyright and a Democratic Civil Society] (arguing that copyright promotes democracy by funding independent sectors of creativity); Neil Weinstock Netanel, Market Hierarchy and Copyright in Our System of Free Expression, 53 VAND. L. REV. 1879 (2000). This strand of intellectual property scholarship is somewhat closer to the republican or progressivist model; it emphasizes the importance of democratic public discourse and views popular culture as valuable to the extent that it contributes to a democratic civil society. See Netanel, Copyright and a Democratic Civil Society, supra, at 351 n.310.
149. For a helpful discussion, see Robert Post, Recuperating First Amendment Doctrine, 47 STAN. L. REV. 1249, 1253-55 (1995). Post argues that social practices and media for the communication of ideas are central to the formation of public opinion. Robert Post, Reconciling Theory and Doctrine in First Amendment Jurisprudence, 88 CAL. L. REV. 2353, 2367-69 (2000); Post, Recuperating First Amendment Doctrine, supra, at 1275-77.
150. For a helpful discussion, see Robert Post, Recuperating First Amendment Doctrine, 47 STAN. L. REV. 1249, 1253-55 (1995). Post argues that social practices and media for the communication of ideas are central to the formation of public opinion. Robert Post, Reconciling Theory and Doctrine in First Amendment Jurisprudence, 88 CAL. L. REV. 2353, 2367-69 (2000); Post, Recuperating First Amendment Doctrine, supra, at 1275-77.
151. For a helpful discussion, see Robert Post, Recuperating First Amendment Doctrine, 47 STAN. L. REV. 1249, 1253-55 (1995). Post argues that social practices and media for the communication of ideas are central to the formation of public opinion. Robert Post, Reconciling Theory and Doctrine in First Amendment Jurisprudence, 88 CAL. L. REV. 2353, 2367-69 (2000); Post, Recuperating First Amendment Doctrine, supra, at 1275-77.
152. It was not always thus. See Post, Recuperating First Amendment Doctrine, supra note 57, at 1252-53 (discussing Mutual Film Corp. v. Industrial Comm., 236 U.S. 230, 243-45 (1915), in which Supreme Court originally held that motion pictures were not "organs of public opinion"). By 1952, the Supreme Court had come around, stating that "it cannot be doubted that motion pictures are a significant medium for the communication of ideas." Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501 (1952). The difference between the Court's statements in 1915 and 1952 reflects important changes in American society to which the Court's First Amendment doctrines eventually responded. The scope of the free speech principle always grows out of a normatively inflected recognition of sociological realities.
153. It was not always thus. See Post, Recuperating First Amendment Doctrine, supra note 57, at 1252-53 (discussing Mutual Film Corp. v. Industrial Comm., 236 U.S. 230, 243-45 (1915), in which Supreme Court originally held that motion pictures were not "organs of public opinion"). By 1952, the Supreme Court had come around, stating that "it cannot be doubted that motion pictures are a significant medium for the communication of ideas." Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501 (1952). The difference between the Court's statements in 1915 and 1952 reflects important changes in American society to which the Court's First Amendment doctrines eventually responded. The scope of the free speech principle always grows out of a normatively inflected recognition of sociological realities.
154. The free speech principle also applies to regulations of conduct that do not involve a generally recognized medium for the communication of ideas when the government regulates conduct because it disagrees with or desires to suppress the ideas it believes the conduct expresses. See United States v. O'Brien, 391 U.S. 367, 377-78 (1968) (holding that reasons for regulation of conduct must be unrelated to suppression of free expression). Thus, when government effectively treats conduct as a medium for the communication of ideas and punishes it on that basis, the free speech principle is also implicated.
155. See, e.g., Reno v. ACLU, 521 U.S. 844, 850 (1997) ("The Internet is 'a unique and wholly new medium of worldwide human communication.'" (quoting ACLU v. Reno, 929 F. Supp. 824, 844 (E.D. Pa. 1996))).
156. See, e.g., Reno v. ACLU, 521 U.S. 844, 850 (1997) ("The Internet is 'a unique and wholly new medium of worldwide human communication.'" (quoting ACLU v. Reno, 929 F. Supp. 824, 844 (E.D. Pa. 1996))).
157. Meiklejohn himself argued that works of art were protected speech because they promoted knowledge, sharpened intelligence, and developed sensitivity to human values, thus helping people to make political decisions. Meiklejohn, First Amendment, supra note 48, at 255-57. Other scholars have recognized that not all artistic expression equally promotes democratic self-government. See, e.g., SUNSTEIN, supra note 49, at 153-59 (1993) (suggesting that nonpolitical art should be relegated to lower tier of First Amendment protection). And of course Robert Bork, who also had a democracy-based theory of the First Amendment, famously argued that art should receive no First Amendment protection if it was not political speech. Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 26-28 (1971). Owen Fiss believes, to the contrary, that art, particularly unorthodox art and art underappreciated by market forces, furthers the goals of collective self-determination and democratic deliberation. He argues that government programs like the National Endowment for the Arts (NEA) that subsidize art should look to art that is concerned with issues on the public agenda or that should be on the public agenda of discussion and comment. Thus, government subsidy of art should be designed to promote discussion of important public issues. Fiss, THE IRONY OF FREE SPEECH, supra note 49, at 40-45.
158. Meiklejohn himself argued that works of art were protected speech because they promoted knowledge, sharpened intelligence, and developed sensitivity to human values, thus helping people to make political decisions. Meiklejohn, First Amendment, supra note 48, at 255-57. Other scholars have recognized that not all artistic expression equally promotes democratic self-government. See, e.g., SUNSTEIN, supra note 49, at 153-59 (1993) (suggesting that nonpolitical art should be relegated to lower tier of First Amendment protection). And of course Robert Bork, who also had a democracy-based theory of the First Amendment, famously argued that art should receive no First Amendment protection if it was not political speech. Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 26-28 (1971). Owen Fiss believes, to the contrary, that art, particularly unorthodox art and art underappreciated by market forces, furthers the goals of collective self-determination and democratic deliberation. He argues that government programs like the National Endowment for the Arts (NEA) that subsidize art should look to art that is concerned with issues on the public agenda or that should be on the public agenda of discussion and comment. Thus, government subsidy of art should be designed to promote discussion of important public issues. Fiss, THE IRONY OF FREE SPEECH, supra note 49, at 40-45.
159. Meiklejohn himself argued that works of art were protected speech because they promoted knowledge, sharpened intelligence, and developed sensitivity to human values, thus helping people to make political decisions. Meiklejohn, First Amendment, supra note 48, at 255-57. Other scholars have recognized that not all artistic expression equally promotes democratic self-government. See, e.g., SUNSTEIN, supra note 49, at 153-59 (1993) (suggesting that nonpolitical art should be relegated to lower tier of First Amendment protection). And of course Robert Bork, who also had a democracy-based theory of the First Amendment, famously argued that art should receive no First Amendment protection if it was not political speech. Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 26-28 (1971). Owen Fiss believes, to the contrary, that art, particularly unorthodox art and art underappreciated by market forces, furthers the goals of collective self-determination and democratic deliberation. He argues that government programs like the National Endowment for the Arts (NEA) that subsidize art should look to art that is concerned with issues on the public agenda or that should be on the public agenda of discussion and comment. Thus, government subsidy of art should be designed to promote discussion of important public issues. Fiss, THE IRONY OF FREE SPEECH, supra note 49, at 40-45.
160. Meiklejohn himself argued that works of art were protected speech because they promoted knowledge, sharpened intelligence, and developed sensitivity to human values, thus helping people to make political decisions. Meiklejohn, First Amendment, supra note 48, at 255-57. Other scholars have recognized that not all artistic expression equally promotes democratic self-government. See, e.g., SUNSTEIN, supra note 49, at 153-59 (1993) (suggesting that nonpolitical art should be relegated to lower tier of First Amendment protection). And of course Robert Bork, who also had a democracy-based theory of the First Amendment, famously argued that art should receive no First Amendment protection if it was not political speech. Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 26-28 (1971). Owen Fiss believes, to the contrary, that art, particularly unorthodox art and art underappreciated by market forces, furthers the goals of collective self-determination and democratic deliberation. He argues that government programs like the National Endowment for the Arts (NEA) that subsidize art should look to art that is concerned with issues on the public agenda or that should be on the public agenda of discussion and comment. Thus, government subsidy of art should be designed to promote discussion of important public issues. Fiss, THE IRONY OF FREE SPEECH, supra note 49, at 40-45.
161. Cf. Owen M. Fiss, The Unruly Character of Politics, 29 MCGEORGE L. REV. 1, 2-7 (1997) (noting limitations of Meiklejohnian metaphor of town meeting as applied to confrontational politics).
162. On the formation of self through cultural transmission, see JACK M. BALKIN, CULTURAL SOFTWARE: A THEORY OF IDEOLOGY 269-85 (1998).
163. As Julie Cohen reminds us, digital technologies tend to blur the boundaries between production and reception, speaking and reading, or even between viewing and copying. See Julie E. Cohen, A Right to Read Anonymously: A Closer Look at "Copyright Management" in Cyberspace, 28 CONN. L. REV. 981, 1004-09 (1996); see also Rubenfeld, supra note 5, at 34-36 (arguing that theories of freedom of expression based in autonomy and self expression do not sufficiently account for First Amendment right to read as well as to express one's self).
164. As Julie Cohen reminds us, digital technologies tend to blur the boundaries between production and reception, speaking and reading, or even between viewing and copying. See Julie E. Cohen, A Right to Read Anonymously: A Closer Look at "Copyright Management" in Cyberspace, 28 CONN. L. REV. 981, 1004-09 (1996); see also Rubenfeld, supra note 5, at 34-36 (arguing that theories of freedom of expression based in autonomy and self expression do not sufficiently account for First Amendment right to read as well as to express one's self).
165. Memetics is an evolutionary theory that attempts to explain the development of culture through the transmission of bits of culture, or memes, which replicate themselves in human minds. The term "meme" was coined by the zoologist Richard Dawkins. See RICHARD DAWKINS, THE SELFISH GENE 189-94 (1977). Memetic theory often tends to undermine agency and selfhood, see, e.g., SUSAN BLACKMORE, THE MEME MACHINE (1999), and thus would seem an odd choice for a theory of self expression. But memetics can also be employed to explain concepts central to agency and selfhood like freedom, see DANIEL C. DENNETT, FREEDOM EVOLVES 175-92, 266 (2003), or the growth of human belief systems and human innovation, see BALKIN, supra note 63, at 42-97, 173-75. The idea of memetic democracy emphasizes the deep connections between self and agency on the one hand, and cultural evolution and the shaping of the self through cultural exchange on the other. Memetic democracy means that everyone gets to participate in the distribution and dissemination of memes, which are the building blocks of the cultural software that constitutes individuals as individuals.
166. Memetics is an evolutionary theory that attempts to explain the development of culture through the transmission of bits of culture, or memes, which replicate themselves in human minds. The term "meme" was coined by the zoologist Richard Dawkins. See RICHARD DAWKINS, THE SELFISH GENE 189-94 (1977). Memetic theory often tends to undermine agency and selfhood, see, e.g., SUSAN BLACKMORE, THE MEME MACHINE (1999), and thus would seem an odd choice for a theory of self expression. But memetics can also be employed to explain concepts central to agency and selfhood like freedom, see DANIEL C. DENNETT, FREEDOM EVOLVES 175-92, 266 (2003), or the growth of human belief systems and human innovation, see BALKIN, supra note 63, at 42-97, 173-75. The idea of memetic democracy emphasizes the deep connections between self and agency on the one hand, and cultural evolution and the shaping of the self through cultural exchange on the other. Memetic democracy means that everyone gets to participate in the distribution and dissemination of memes, which are the building blocks of the cultural software that constitutes individuals as individuals.
167. Memetics is an evolutionary theory that attempts to explain the development of culture through the transmission of bits of culture, or memes, which replicate themselves in human minds. The term "meme" was coined by the zoologist Richard Dawkins. See RICHARD DAWKINS, THE SELFISH GENE 189-94 (1977). Memetic theory often tends to undermine agency and selfhood, see, e.g., SUSAN BLACKMORE, THE MEME MACHINE (1999), and thus would seem an odd choice for a theory of self expression. But memetics can also be employed to explain concepts central to agency and selfhood like freedom, see DANIEL C. DENNETT, FREEDOM EVOLVES 175-92, 266 (2003), or the growth of human belief systems and human innovation, see BALKIN, supra note 63, at 42-97, 173-75. The idea of memetic democracy emphasizes the deep connections between self and agency on the one hand, and cultural evolution and the shaping of the self through cultural exchange on the other. Memetic democracy means that everyone gets to participate in the distribution and dissemination of memes, which are the building blocks of the cultural software that constitutes individuals as individuals.
168. Memetics is an evolutionary theory that attempts to explain the development of culture through the transmission of bits of culture, or memes, which replicate themselves in human minds. The term "meme" was coined by the zoologist Richard Dawkins. See RICHARD DAWKINS, THE SELFISH GENE 189-94 (1977). Memetic theory often tends to undermine agency and selfhood, see, e.g., SUSAN BLACKMORE, THE MEME MACHINE (1999), and thus would seem an odd choice for a theory of self expression. But memetics can also be employed to explain concepts central to agency and selfhood like freedom, see DANIEL C. DENNETT, FREEDOM EVOLVES 175-92, 266 (2003), or the growth of human belief systems and human innovation, see BALKIN, supra note 63, at 42-97, 173-75. The idea of memetic democracy emphasizes the deep connections between self and agency on the one hand, and cultural evolution and the shaping of the self through cultural exchange on the other. Memetic democracy means that everyone gets to participate in the distribution and dissemination of memes, which are the building blocks of the cultural software that constitutes individuals as individuals.
169. See, e.g., LEE C. BOLLINGER, IMAGES OF A FREE PRESS 138-41 (1991) (contrasting burdens of education for civic life with pleasantness of entertainment); SUNSTEIN, supra note 49, at 84-91 (decrying "low quality" programming that appeals to tastes of uneducated); Fiss, Free Speech and Social Structure, supra note 49, at 1413 ("From the perspective of a free and open debate, the choice between Love Boat and Fantasy Island is trivial."); Fiss, Why the State?, supra note 49, at 788 (contrasting reruns of "I Love Lucy" and MTV with "the information [members of the electorate] need to make free and intelligent choices about government policy, the structure of government, or the nature of society."). Once again, this familiar progressivist theme is already present in Meiklejohn. See MEIKLEJOHN, POLITICAL FREEDOM, supra note 48, at 87 (attacking commercial radio for "corrupt[ing] both our morals and our intelligence"). Even Justice Louis Brandeis fell prey to this sort of cultural elitism, which pervades his famous call for protecting the right of privacy from a particular form of speech. See Samuel Warren & Louis Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 196 (1890) (arguing that "personal gossip," "[e]asy of comprehension [and] appealing to that weak side of human nature," "crowds the space available for matters of real interest to the community," and "destroys at once robustness of thought and delicacy of feeling").
170. See, e.g., LEE C. BOLLINGER, IMAGES OF A FREE PRESS 138-41 (1991) (contrasting burdens of education for civic life with pleasantness of entertainment); SUNSTEIN, supra note 49, at 84-91 (decrying "low quality" programming that appeals to tastes of uneducated); Fiss, Free Speech and Social Structure, supra note 49, at 1413 ("From the perspective of a free and open debate, the choice between Love Boat and Fantasy Island is trivial."); Fiss, Why the State?, supra note 49, at 788 (contrasting reruns of "I Love Lucy" and MTV with "the information [members of the electorate] need to make free and intelligent choices about government policy, the structure of government, or the nature of society."). Once again, this familiar progressivist theme is already present in Meiklejohn. See MEIKLEJOHN, POLITICAL FREEDOM, supra note 48, at 87 (attacking commercial radio for "corrupt[ing] both our morals and our intelligence"). Even Justice Louis Brandeis fell prey to this sort of cultural elitism, which pervades his famous call for protecting the right of privacy from a particular form of speech. See Samuel Warren & Louis Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 196 (1890) (arguing that "personal gossip," "[e]asy of comprehension [and] appealing to that weak side of human nature," "crowds the space available for matters of real interest to the community," and "destroys at once robustness of thought and delicacy of feeling").
171. See, e.g., LEE C. BOLLINGER, IMAGES OF A FREE PRESS 138-41 (1991) (contrasting burdens of education for civic life with pleasantness of entertainment); SUNSTEIN, supra note 49, at 84-91 (decrying "low quality" programming that appeals to tastes of uneducated); Fiss, Free Speech and Social Structure, supra note 49, at 1413 ("From the perspective of a free and open debate, the choice between Love Boat and Fantasy Island is trivial."); Fiss, Why the State?, supra note 49, at 788 (contrasting reruns of "I Love Lucy" and MTV with "the information [members of the electorate] need to make free and intelligent choices about government policy, the structure of government, or the nature of society."). Once again, this familiar progressivist theme is already present in Meiklejohn. See MEIKLEJOHN, POLITICAL FREEDOM, supra note 48, at 87 (attacking commercial radio for "corrupt[ing] both our morals and our intelligence"). Even Justice Louis Brandeis fell prey to this sort of cultural elitism, which pervades his famous call for protecting the right of privacy from a particular form of speech. See Samuel Warren & Louis Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 196 (1890) (arguing that "personal gossip," "[e]asy of comprehension [and] appealing to that weak side of human nature," "crowds the space available for matters of real interest to the community," and "destroys at once robustness of thought and delicacy of feeling").
172. See, e.g., LEE C. BOLLINGER, IMAGES OF A FREE PRESS 138-41 (1991) (contrasting burdens of education for civic life with pleasantness of entertainment); SUNSTEIN, supra note 49, at 84-91 (decrying "low quality" programming that appeals to tastes of uneducated); Fiss, Free Speech and Social Structure, supra note 49, at 1413 ("From the perspective of a free and open debate, the choice between Love Boat and Fantasy Island is trivial."); Fiss, Why the State?, supra note 49, at 788 (contrasting reruns of "I Love Lucy" and MTV with "the information [members of the electorate] need to make free and intelligent choices about government policy, the structure of government, or the nature of society."). Once again, this familiar progressivist theme is already present in Meiklejohn. See MEIKLEJOHN, POLITICAL FREEDOM, supra note 48, at 87 (attacking commercial radio for "corrupt[ing] both our morals and our intelligence"). Even Justice Louis Brandeis fell prey to this sort of cultural elitism, which pervades his famous call for protecting the right of privacy from a particular form of speech. See Samuel Warren & Louis Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 196 (1890) (arguing that "personal gossip," "[e]asy of comprehension [and] appealing to that weak side of human nature," "crowds the space available for matters of real interest to the community," and "destroys at once robustness of thought and delicacy of feeling").
173. See, e.g., LEE C. BOLLINGER, IMAGES OF A FREE PRESS 138-41 (1991) (contrasting burdens of education for civic life with pleasantness of entertainment); SUNSTEIN, supra note 49, at 84-91 (decrying "low quality" programming that appeals to tastes of uneducated); Fiss, Free Speech and Social Structure, supra note 49, at 1413 ("From the perspective of a free and open debate, the choice between Love Boat and Fantasy Island is trivial."); Fiss, Why the State?, supra note 49, at 788 (contrasting reruns of "I Love Lucy" and MTV with "the information [members of the electorate] need to make free and intelligent choices about government policy, the structure of government, or the nature of society."). Once again, this familiar progressivist theme is already present in Meiklejohn. See MEIKLEJOHN, POLITICAL FREEDOM, supra note 48, at 87 (attacking commercial radio for "corrupt[ing] both our morals and our intelligence"). Even Justice Louis Brandeis fell prey to this sort of cultural elitism, which pervades his famous call for protecting the right of privacy from a particular form of speech. See Samuel Warren & Louis Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 196 (1890) (arguing that "personal gossip," "[e]asy of comprehension [and] appealing to that weak side of human nature," "crowds the space available for matters of real interest to the community," and "destroys at once robustness of thought and delicacy of feeling").
174. See, e.g., LEE C. BOLLINGER, IMAGES OF A FREE PRESS 138-41 (1991) (contrasting burdens of education for civic life with pleasantness of entertainment); SUNSTEIN, supra note 49, at 84-91 (decrying "low quality" programming that appeals to tastes of uneducated); Fiss, Free Speech and Social Structure, supra note 49, at 1413 ("From the perspective of a free and open debate, the choice between Love Boat and Fantasy Island is trivial."); Fiss, Why the State?, supra note 49, at 788 (contrasting reruns of "I Love Lucy" and MTV with "the information [members of the electorate] need to make free and intelligent choices about government policy, the structure of government, or the nature of society."). Once again, this familiar progressivist theme is already present in Meiklejohn. See MEIKLEJOHN, POLITICAL FREEDOM, supra note 48, at 87 (attacking commercial radio for "corrupt[ing] both our morals and our intelligence"). Even Justice Louis Brandeis fell prey to this sort of cultural elitism, which pervades his famous call for protecting the right of privacy from a particular form of speech. See Samuel Warren & Louis Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 196 (1890) (arguing that "personal gossip," "[e]asy of comprehension [and] appealing to that weak side of human nature," "crowds the space available for matters of real interest to the community," and "destroys at once robustness of thought and delicacy of feeling").
175. In this sense the Internet simply empowers the popular appropriation and transformation of mass culture that already existed: Much of mass culture involves programming, advertisements, architecture, and artwork produced by corporations and designed to sell products and make money. Many critiques of mass culture warn of the deleterious consequences of consumerism and mass consumption.... But a populist view [of democratic culture] also emphasizes that ordinary people are not mere passive receptors of the messages offered in advertising, television programming, and other elements of contemporary mass culture. Such assumptions are just another way of denigrating the intelligence and abilities of ordinary people. People do not uncritically absorb and assimilate the images they see on the television screen-they process, discuss, and appropriate them. People are active interpreters and rearrangers of what they find in mass culture. They use the raw materials of mass culture to articulate and express their values. Through this process, they produce and reproduce popular culture. Balkin, supra note 2, at 1948-49 (footnotes omitted).
176. The reference is to Apple's famous commercial instructing users of its iPod to "[R]ip, mix, and burn.... After all, it's your music." Larry Lessig uses the slogan as a metaphor for a free culture. LESSIG, THE FUTURE OF IDEAS, supra note 17, at 9-11.
177. See SUNSTEIN, supra note 49, at 87-91; see also Cass R. Sunstein, Television and the Public Interest, 88 CAL. L. REV. 499, 518 (2000) (arguing that goal of television regulation is to promote deliberative democracy).
178. See SUNSTEIN, supra note 49, at 87-91; see also Cass R. Sunstein, Television and the Public Interest, 88 CAL. L. REV. 499, 518 (2000) (arguing that goal of television regulation is to promote deliberative democracy).
179. See Balkin, supra note 2, at 1948 ("[P]opular culture is neither a debilitated version of democratic culture nor a mere diversion from the sober processes of deliberation imagined by progressivism. It is not a sideshow or distraction from democratic culture but the main event. Moreover, [a] populis[t] [approach to free expression] accepts, as progressivism does not, that popular culture-which is also democratic culture-is by nature unkempt and unruly, occasionally raucous and even vulgar. It is by turns both eloquent and mawkish, noble and embarrassing, wise and foolish, resistant to blandishments and gullible in the extreme. It is imperfect in precisely the same sense that democracy itself is imperfect.").
180. Robert Post has emphasized this limitation of the Meiklejohn model, arguing that the autonomy of public discourse, necessary for democratic self-government, is undermined by imposing managerial methods to cabin its scope and agendas. See generally Robert Post, Managing Deliberation: The Quandary of Democratic Dialogue, 103 ETHICS 654 (1993); Robert Post, Meiklejohn's Mistake: Individual Autonomy and the Reform of Public Discourse, 64 U. COLO. L. REV. 1109 (1993).
181. Robert Post has emphasized this limitation of the Meiklejohn model, arguing that the autonomy of public discourse, necessary for democratic self-government, is undermined by imposing managerial methods to cabin its scope and agendas. See generally Robert Post, Managing Deliberation: The Quandary of Democratic Dialogue, 103 ETHICS 654 (1993); Robert Post, Meiklejohn's Mistake: Individual Autonomy and the Reform of Public Discourse, 64 U. COLO. L. REV. 1109 (1993).
182. MEIKLEJOHN, POLITICAL FREEDOM, supra note 48, at 24-27.
183. Id. at 25.
184. Indeed, the standard progressivist/republican arguments for regulation of broadcast, cable, and satellite can and should be rearticulated in terms of the more populist perspective of promoting democratic culture. The key point is that the United States has adopted a hybrid system: Instead of separating the functions of editor and distributor, and treating all distribution networks as common carriers like telephone companies, it has allowed a small number of editors/speakers to own powerful distribution networks not open to all in return for accepting various public service obligations and regulations. Thus the hybrid system is based on the model of a contract or a quid pro quo. Although the hybrid system denies the vast majority of people free access to key distribution networks, it may nevertheless have been justified in the past by its economic advantages. Arguably it offers necessary incentives for broadcasters, cable companies, and owners of satellite systems to invest in, produce, and deliver a wide variety of diverse programming for viewers and listeners that will enrich public debate and public culture. Thus, it provides considerable grist for the mill of a democratic culture. Nevertheless, a hybrid system is hardly perfect. Heavy reliance on advertising tends to create a significant mismatch between what broadcasters deliver and what viewers want, in part because advertisers seek content that appeals to the common tastes of certain valued demographic groups (whose preferences may otherwise be quite heterogenous) rather than content that cross-cuts demographic groups or appeals to groups with comparatively little disposable income or comparatively unmanipulable consumption patterns. See BAKER, supra note 9, at 13, 24-26, 88-91, 182-90. Advertisers will also tend to push for content that helps induce greater consumption instead of content that appeals to and fulfils other values that viewers might have. For example, viewers may value many kinds of content that are not strongly tied to shopping, purchasing, and consumption. They may value content that educates them or inspires them to change their lives, rethink their values, or make use of their creative powers. Finally, market forces also will, almost by definition, underproduce content that has high positive externalities (like educational content, or balanced and informative coverage of news) because the value of that content to society cannot be captured by market forces, and, all other things being equal, the greater the positive externalities, the more underproduction there will be. Id. at 41-62, 114-18. The hybrid model of media regulation is not constitutionally required. Rather, it is a quid pro quo or contractual arrangement, and it is constitutional to the extent that it promotes the values of a democratic culture. To be sure, regulatory quid pro quos can violate free speech rights if they impose an unconstitutional condition on free speech. However, structural regulations of the mass media that seek to counteract the limitations of mass media markets should be constitutional if there is a clear nexus between the goals of the regulation and the purposes behind the choice of a hybrid system. To the extent that structural regulations and public interest obligations of mass media compensate for the limitations of a hybrid model, they are tied to the very justifications for issuing broadcast licenses and cable franchises in the first place: They help further the goal of promoting a rich public sphere and a vibrant, participatory, and democratic culture. If government can make a sufficiently good case that the regulations will have this effect, the regulations should not be regarded as unconstitutional conditions on a media company's First Amendment rights. Likewise, public broadcasting that supplements existing markets with content that government reasonably believes to be valuable (like children's programming) should also be constitutionally permissible.
185. Indeed, the standard progressivist/republican arguments for regulation of broadcast, cable, and satellite can and should be rearticulated in terms of the more populist perspective of promoting democratic culture. The key point is that the United States has adopted a hybrid system: Instead of separating the functions of editor and distributor, and treating all distribution networks as common carriers like telephone companies, it has allowed a small number of editors/speakers to own powerful distribution networks not open to all in return for accepting various public service obligations and regulations. Thus the hybrid system is based on the model of a contract or a quid pro quo. Although the hybrid system denies the vast majority of people free access to key distribution networks, it may nevertheless have been justified in the past by its economic advantages. Arguably it offers necessary incentives for broadcasters, cable companies, and owners of satellite systems to invest in, produce, and deliver a wide variety of diverse programming for viewers and listeners that will enrich public debate and public culture. Thus, it provides considerable grist for the mill of a democratic culture. Nevertheless, a hybrid system is hardly perfect. Heavy reliance on advertising tends to create a significant mismatch between what broadcasters deliver and what viewers want, in part because advertisers seek content that appeals to the common tastes of certain valued demographic groups (whose preferences may otherwise be quite heterogenous) rather than content that cross-cuts demographic groups or appeals to groups with comparatively little disposable income or comparatively unmanipulable consumption patterns. See BAKER, supra note 9, at 13, 24-26, 88-91, 182-90. Advertisers will also tend to push for content that helps induce greater consumption instead of content that appeals to and fulfils other values that viewers might have. For example, viewers may value many kinds of content that are not strongly tied to shopping, purchasing, and consumption. They may value content that educates them or inspires them to change their lives, rethink their values, or make use of their creative powers. Finally, market forces also will, almost by definition, underproduce content that has high positive externalities (like educational content, or balanced and informative coverage of news) because the value of that content to society cannot be captured by market forces, and, all other things being equal, the greater the positive externalities, the more underproduction there will be. Id. at 41-62, 114-18. The hybrid model of media regulation is not constitutionally required. Rather, it is a quid pro quo or contractual arrangement, and it is constitutional to the extent that it promotes the values of a democratic culture. To be sure, regulatory quid pro quos can violate free speech rights if they impose an unconstitutional condition on free speech. However, structural regulations of the mass media that seek to counteract the limitations of mass media markets should be constitutional if there is a clear nexus between the goals of the regulation and the purposes behind the choice of a hybrid system. To the extent that structural regulations and public interest obligations of mass media compensate for the limitations of a hybrid model, they are tied to the very justifications for issuing broadcast licenses and cable franchises in the first place: They help further the goal of promoting a rich public sphere and a vibrant, participatory, and democratic culture. If government can make a sufficiently good case that the regulations will have this effect, the regulations should not be regarded as unconstitutional conditions on a media company's First Amendment rights. Likewise, public broadcasting that supplements existing markets with content that government reasonably believes to be valuable (like children's programming) should also be constitutionally permissible.
186. See supra note 68.
187. See BALKIN, supra note 63, at 17-19.
188. See Madhavi Sunder, Cultural Dissent, 54 STAN. L. REV. 495, 498 (2001) (noting ubiquitous disputes within cultural groups about values of group and terms of membership).
189. See, e.g., JUDITH P. BUTLER, GENDER TROUBLE: FEMINISM AND THE SUBVERSION OF IDENTITY 141-49 (1990) (noting possibilities for subversion of existing sexual roles and creation of new ones through repetition and through performance); Amy M. Adler, What's Left?, 84 CAL. L. REV. 1499, 1529-31 (1996) (describing how pornography has been appropriated for feminist purposes); Judith P. Butler, The Force of Fantasy: Feminism, Mapplethorpe, and Discursive Excess, 2 DIFFERENCES 105, 119-20 (1990) (arguing that "discursive excess" offers opportunities for subversion and parody).
190. See, e.g., JUDITH P. BUTLER, GENDER TROUBLE: FEMINISM AND THE SUBVERSION OF IDENTITY 141-49 (1990) (noting possibilities for subversion of existing sexual roles and creation of new ones through repetition and through performance); Amy M. Adler, What's Left?, 84 CAL. L. REV. 1499, 1529-31 (1996) (describing how pornography has been appropriated for feminist purposes); Judith P. Butler, The Force of Fantasy: Feminism, Mapplethorpe, and Discursive Excess, 2 DIFFERENCES 105, 119-20 (1990) (arguing that "discursive excess" offers opportunities for subversion and parody).
191. See, e.g., JUDITH P. BUTLER, GENDER TROUBLE: FEMINISM AND THE SUBVERSION OF IDENTITY 141-49 (1990) (noting possibilities for subversion of existing sexual roles and creation of new ones through repetition and through performance); Amy M. Adler, What's Left?, 84 CAL. L. REV. 1499, 1529-31 (1996) (describing how pornography has been appropriated for feminist purposes); Judith P. Butler, The Force of Fantasy: Feminism, Mapplethorpe, and Discursive Excess, 2 DIFFERENCES 105, 119-20 (1990) (arguing that "discursive excess" offers opportunities for subversion and parody).
192. See BAKER, supra note 9, at 41-55.
193. Purchasing media products is a kind of liberty, because it involves choice. It is also a kind of creativity, because an agreement between a willing buyer and a willing seller creates wealth. But it does not exhaust the forms of choice and creativity with which freedom of speech is concerned.
194. See Beth Simone Noveck, Designing Deliberative Democracy in Cyberspace: The Role of the Cyber-Lawyer, 9 B.U.J. Sci. & TECH. L. 1, 5, 8-10 (2003).
195. See, e.g., LESSIG, CODE AND OTHER LAWS OF CYBERSPACE, supra note 17, at 3-8.
196. For a more general account of legal historicism, of which dynamism is a special case, see Jack M. Balkin & Sanford Levinson, Legal Historicism and Legal Academics: The Roles of Law Professors in the Wake of Bush v. Gore, 90 GEO. L.J. 173, 174-75 (2001) (defining legal historicism as claim that legal conventions and forms of legal argument gradually change in response to political and social struggles that are waged through them). See also PAUL BREST, SANFORD LEVINSON, J.M. BALKIN & AKHIL REED AMAR, PROCESSES OF CONSTITUTIONAL DECISIONMAKING, at xxxi-xxxii (4th ed. 2000) (articulating theory of constitutional historicism). I am using the term "dynamism" rather than historicism in order to emphasize two separate points: First, rights dynamism is internal to participants in the practice of rights discourse rather than a stance that merely studies the discourse from the outside with no particular stake in its outcome. Second, rights dynamism is forward-looking, concerned with the future of a practice whose full contours cannot be known in advance, rather than a backward-looking historicism that attempts to articulate and comprehend changes that occurred in the distant past.
197. For a more general account of legal historicism, of which dynamism is a special case, see Jack M. Balkin & Sanford Levinson, Legal Historicism and Legal Academics: The Roles of Law Professors in the Wake of Bush v. Gore, 90 GEO. L.J. 173, 174-75 (2001) (defining legal historicism as claim that legal conventions and forms of legal argument gradually change in response to political and social struggles that are waged through them). See also PAUL BREST, SANFORD LEVINSON, J.M. BALKIN & AKHIL REED AMAR, PROCESSES OF CONSTITUTIONAL DECISIONMAKING, at xxxi-xxxii (4th ed. 2000) (articulating theory of constitutional historicism). I am using the term "dynamism" rather than historicism in order to emphasize two separate points: First, rights dynamism is internal to participants in the practice of rights discourse rather than a stance that merely studies the discourse from the outside with no particular stake in its outcome. Second, rights dynamism is forward-looking, concerned with the future of a practice whose full contours cannot be known in advance, rather than a backward-looking historicism that attempts to articulate and comprehend changes that occurred in the distant past.