Some Recent Readings: Blitz, Kauffman, Lessig

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

In the spirit of karma, I figured I’d note some of my own favorite recent readings. I had some time to read over Spring Break. These include new readings on free speech and innovation, as well as an Internet law classic.

First, regarding free speech and privacy, Marc Blitz has an interesting paper called “Stanley in Cyberspace: Why the Privacy Protection of the First Amendment Should Be More Like that of the Fourth.” Stanley v. Georgia, decided in 1969, held that a state cannot prosecute someone for possessing obscenity at home–even though obscenity could be regulated elsewhere. The case’s key language states:

Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one’s own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.

Stanley‘s principle always struck me as important for ensuring the individual liberty on which our collective democracy must rest. But, as Blitz notes, today, we might have far less protection for the books we read at home and the films we watch simply because of technology. We are no longer reading paper books and watching reels; we are reading digital books on Kindles and iPads, watching movies through Netflix, Amazon, and iTunes. These materials exist in the Internet cloud, not in our homes. That difference should not necessarily be legally significant, at least considering the principles underlying the court’s logic in Stanley. Blitz explores how we can reinvigorate Stanley in the digital age.

Second, outside the realm of freedom of speech, I’ve been reading on economic innovation policy–not only because the White House is betting heavily on innovation for our economic recovery, but also because I’ve been interested in these issues through my work on Internet policy. The Kauffman Foundation just published a collection of essays whose title says it all: Rules for Growth: Promoting Innovation and Growth Through Legal Reform.  The essays’ authors includes legal luminaries like Yochai Benkler, Robert Cooter, Ronald Gilson, Mark Lemley, Peter Schuck, and others. If you begin with best pizza sauce, you end up with the best pizza, and the essays are interesting, informative, and (best of all) concise.

Third, I’ve been reading some “oldies.” In my cyberlaw class, I have assigned some of the (now-) classic cyberlaw books (list here fyi). While rereading these books during class, three facts jump out. One: many of these books feel outdated already, in terms of their examples. One of my favorite books, Larry Lessig’s Future of Ideas (2001) predates not just Facebook, but also Myspace (2003) and even Friendster (2002). Two: in terms of their concepts, however, very little has changed. Ten years after Future of Ideas, the policy battles over Internet openness, spectrum policy, copyright, and patent remain with us. Despite many changes, legal proceedings, and elections, both sides’ arguments and analysis have remained rooted to the same core ideas spelled out by Lessig in 2001. And three: No wonder Lessig’s Code was so acclaimed.  I read it in law school, and, years later, this now-ancient book’s brilliance is even more apparent. It has probably been the students’ favorite so far, even for a reading list including some excellent, readable books (from Digital Person to Master Switch).

I’m wondering what others are reading.

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