The Supreme Court\u27s opinion in Near v. Minnesota was both a major step on the road to free exp... more The Supreme Court\u27s opinion in Near v. Minnesota was both a major step on the road to free expression and a missed opportunity. It represented the first time a law was struck down as violating the First Amendment\u27s guarantee of free expression. Moreover, it placed the concept of prior restraint at the forefront of the theory of free expression. As one scholar noted: Since the 1931 release of the Supreme Court\u27s opinion in Near v. Minnesota, the doctrine of prior restraint has been an essential element of first amendment jurisprudence. Unfortunately, the Court neither defined prior restraint, nor explained precisely why injunctions fit within a definition of prior restraint. Equally regrettable, the Court listed, without explanation, four exceptions to the prior restraint doctrine, a list that was both over- and under-inclusive. ... In this Article, I will attempt to complete the unfinished task of Near-the creation of a comprehensive definition of prior restraint and a reas...
America’s wars in Iraq and Afghanistan are not the first time in our history we have had to negot... more America’s wars in Iraq and Afghanistan are not the first time in our history we have had to negotiate the treacherous crossroads of religious intolerance and military success. President George W. Bush would do well to learn the lessons provided by George Washington, our first commander in chief, who handled similar difficulties with sensitivity and courage
The debate over the framers’ concept of freedom of religion has become heated and divisive. This ... more The debate over the framers’ concept of freedom of religion has become heated and divisive. This scrupulously researched book sets aside the half-truths, omissions, and partisan arguments, and instead focuses on the actual writings and actions of Washington, Adams, Jefferson, Madison, and others. Legal scholar Michael I. Meyerson investigates how the framers of the Constitution envisioned religious freedom and how they intended it to operate in the new republic. Endowed by Our Creator shows that the framers understood that the American government should not acknowledge religion in a way that favors any particular creed or denomination. Nevertheless, the framers believed that religion could instill virtue and help to unify a diverse nation. They created a spiritual public vocabulary, one that could communicate to all—including agnostics and atheists—that they were valued members of the political community. Through their writings and their decisions, the framers affirmed that respect for religious differences is a fundamental American value. Now it is for us, Meyerson concludes, to determine whether religion will be used to alienate and divide or to inspire and unify our religiously diverse nation.https://scholarworks.law.ubalt.edu/fac_books/1050/thumbnail.jp
Electronic mass communications, which have become increasingly influential over the past quarter ... more Electronic mass communications, which have become increasingly influential over the past quarter century, have also undergone rapid and profound technological change. Constitutional governments around the world have struggled to apply their fundamental legal principals to the electronic media through sensible and balanced regulation. Perhaps the central problem in such regulation is to protect truth in the media, mainly by encouraging diversity, without allowing the regulators themselves to exert undue influence over what is disseminated over the airwaves and cables of a country's communications infrastructure. The following article traces the history of France's attempts to solve this problem in its electronic media law, analyzes the most recent reform of French law and suggests some possibilities for applying the lessons of the French experience to U.S. regulation of electronic media.
Rationality is prized by lawyers. The 'rational review' test provides the constitutional ... more Rationality is prized by lawyers. The 'rational review' test provides the constitutional minimum for due process and equal protection analysis. Unfortunately, even in an idealized world populated by perfectly rational people not all causes of irrational decision-making can be avoided. The basic nature of group decision-making inevitably creates the possibility of certain kinds of irrationality. The core of the problem is that, while deciding which party prevails is a binary decision [either one side or the other wins], there are often multiple issues that need to be decided in any particular case. The task of creating a system for selecting among multiple options presents an intractable problem for any group, including the Supreme Court. Kenneth S. Arrow has proven that no reasonable group-voting system for resolving multiple issues can avoid all inconsistency. Specifically, Arrow showed that under certain conditions, there always exists the potential for what is known as a ...
University of Michigan Journal of Law Reform, 1987
The advent of cable television presented a new opportunity to consider the competing interests on... more The advent of cable television presented a new opportunity to consider the competing interests on each side of the free speech/pornography debate. This Article attempts to construct an analysis that will be consistent with Supreme Court teaching on how government, under the first amendment, may constitutionally regulate legal obscenity, particularly in the name of protecting those who wish to avoid exposure to such material. The Article shows how, unlike earlier battles over technology and pornography, cable television presented the novel opportunity to have a technological rather than a censorial solution to this difficult problem.
The decision in Near v. Minnesota, while establishing the prior restraint doctrine as a critical ... more The decision in Near v. Minnesota, while establishing the prior restraint doctrine as a critical element for First Amendment analysis, failed to give a definition of prior restraint. The result has been inconsistent and unpredictable application of the doctrine as well as diminished protection of free expression. This article takes the next critical step in the journey begun by Near v. Minnesota; it attempts to create a comprehensive definition of prior restraint using the principles of separation of powers. Because all three branches can create 'prior restraints,' the prevention of unconstitutional restraints will necessitate different safeguards depending on which branch of government is attempting to exercise the prior restraint. Fundamentally, the only governmental activity relating to speech permitted "prior" to communication is that of the legislature creating a general rule, that does not focus on the particular speaker or individual message. There is no rol...
Discussion of civil liberties during wartime often omit the fact that there can be no meaningful ... more Discussion of civil liberties during wartime often omit the fact that there can be no meaningful liberty at all if our homes and offices are bombed or our loved ones are killed or injured by acts of terror. The Government must be given the tools necessary to accomplish its vital mission. The first priority must be to win the war against terrorism. There are, however, other priorities. The United States, in its just battle for freedom, must ensure that freedom is preserved during that battle as well. Moreover, care must be taken so that an exaggerated cry of “emergency” is not accepted uncritically as an excuse for eliminating the protections of a free society. The role of citizens in general, and lawyers in specific, is to maintain the difficult balance between patriotism and skepticism.
This article, a response to a review by Prof. Paul Edelman of Prof. Meyerson's book "Pol... more This article, a response to a review by Prof. Paul Edelman of Prof. Meyerson's book "Political Numeracy: Mathematical Perspectives on Our Chaotic Constitution," explains how the study of mathematics can spur creative legal thinking.
The Telecommunications Act of 1996 represented an enormous experimental step towards deregulating... more The Telecommunications Act of 1996 represented an enormous experimental step towards deregulating the telecommunications marketplace while opening it up to competition. With an eye towards breaking up the telecommunications monopolies held by local telephone service providers, the Act created regulations that forced local carriers to share their market and their resources with other telecommunications providers. The Telecommunications Act of 1996 itself is extremely complex. This article is a "guided tour" through the major provisions of the Act. The first step in understanding the Telecommunications Act of 1996 is to understand how the telecommunications industry operates. Part two of this article explains the telecommunications landscape for telephone companies, from the role of Local Exchange Carriers to Bell Operating Companies. Part two of this article also explains how the Act affects the players in the telecommunications world and encourages competition in their sph...
This article discusses the legal issues involving the owners of private computer networks. These ... more This article discusses the legal issues involving the owners of private computer networks. These issues include public/private network distinctions, First Amendment free speech issues, liability for computer network owners for improper speech posted on their networks, and anti-trust questions. The article analyzes the complexities that result from different forms of network ownership and the relationship of such networks to governmental entities.
Despite the ubiquitousness of standard form contracts in the world of consumer transactions, ther... more Despite the ubiquitousness of standard form contracts in the world of consumer transactions, there is no consensus as to how these contracts ought to be constructed. Some courts continue to treat form contracts as if they were classically negotiated contracts. Others attempt in a variety of ways to factor in the reality that consumers entering into these contracts are not able to negotiate the terms and almost always sign these documents, which are presented on a take-it-or-leave-it basis, without reading them. This article posits that the cause of this continued confusion over form contracts is due to a basic failure of courts to adhere to fundamental principle of contract law, that a contract is interpreted according to the objective understanding of the parties. If courts would acknowledge that the reasonable drafters of form contracts do not expect the consumer to have read the multiple pages of a form contract, then courts would conclude a reasonable drafter would not understan...
After three decades of what Chief Justice Burger termed ‘the almost explosive development’ of cab... more After three decades of what Chief Justice Burger termed ‘the almost explosive development’ of cable television, Congress updated the Communications Act of 1934 with the Cable Communications Policy Act of 1984. The Act represents the culmination of a ‘decade long effort to update the Communications Act of 1934 . . . and bring our outdated communications laws into the information age.’ The 1984 Cable Act was a complicated piece of legislation, the result of countless compromises and political deals. This Article explains how Congress attempted to balance the competing, and sometimes mutually exclusive, interests of the cable operators, cities, video programmers, and the viewing public.
The prior restraint doctrine, once so fundamental to Constitutional Jurisprudence, has lost much ... more The prior restraint doctrine, once so fundamental to Constitutional Jurisprudence, has lost much of its effectiveness over the years. Nevertheless, prior restraint doctrine is crucial to preserving the line between protected and unprotected speech. One of the fundamental problems that contribute to the current ineffectiveness of prior restraint doctrine is that there exists no comprehensive definition of "prior restraint". This article chronicles the historical roots of prior restraint in order to arrive at a generally accepted legal definition. Through the course of this historical journey, the article yields a heretofore unexplored aspect of prior restraint doctrine, namely that prior restraint embodies principles of both free speech and separation of powers. The history of prior restraint begins in the Fifteenth Century, not coincidentally around the time of invention of the Gutenberg printing press. This article traces censorship laws in England from their inception. I...
The Supreme Court\u27s opinion in Near v. Minnesota was both a major step on the road to free exp... more The Supreme Court\u27s opinion in Near v. Minnesota was both a major step on the road to free expression and a missed opportunity. It represented the first time a law was struck down as violating the First Amendment\u27s guarantee of free expression. Moreover, it placed the concept of prior restraint at the forefront of the theory of free expression. As one scholar noted: Since the 1931 release of the Supreme Court\u27s opinion in Near v. Minnesota, the doctrine of prior restraint has been an essential element of first amendment jurisprudence. Unfortunately, the Court neither defined prior restraint, nor explained precisely why injunctions fit within a definition of prior restraint. Equally regrettable, the Court listed, without explanation, four exceptions to the prior restraint doctrine, a list that was both over- and under-inclusive. ... In this Article, I will attempt to complete the unfinished task of Near-the creation of a comprehensive definition of prior restraint and a reas...
America’s wars in Iraq and Afghanistan are not the first time in our history we have had to negot... more America’s wars in Iraq and Afghanistan are not the first time in our history we have had to negotiate the treacherous crossroads of religious intolerance and military success. President George W. Bush would do well to learn the lessons provided by George Washington, our first commander in chief, who handled similar difficulties with sensitivity and courage
The debate over the framers’ concept of freedom of religion has become heated and divisive. This ... more The debate over the framers’ concept of freedom of religion has become heated and divisive. This scrupulously researched book sets aside the half-truths, omissions, and partisan arguments, and instead focuses on the actual writings and actions of Washington, Adams, Jefferson, Madison, and others. Legal scholar Michael I. Meyerson investigates how the framers of the Constitution envisioned religious freedom and how they intended it to operate in the new republic. Endowed by Our Creator shows that the framers understood that the American government should not acknowledge religion in a way that favors any particular creed or denomination. Nevertheless, the framers believed that religion could instill virtue and help to unify a diverse nation. They created a spiritual public vocabulary, one that could communicate to all—including agnostics and atheists—that they were valued members of the political community. Through their writings and their decisions, the framers affirmed that respect for religious differences is a fundamental American value. Now it is for us, Meyerson concludes, to determine whether religion will be used to alienate and divide or to inspire and unify our religiously diverse nation.https://scholarworks.law.ubalt.edu/fac_books/1050/thumbnail.jp
Electronic mass communications, which have become increasingly influential over the past quarter ... more Electronic mass communications, which have become increasingly influential over the past quarter century, have also undergone rapid and profound technological change. Constitutional governments around the world have struggled to apply their fundamental legal principals to the electronic media through sensible and balanced regulation. Perhaps the central problem in such regulation is to protect truth in the media, mainly by encouraging diversity, without allowing the regulators themselves to exert undue influence over what is disseminated over the airwaves and cables of a country's communications infrastructure. The following article traces the history of France's attempts to solve this problem in its electronic media law, analyzes the most recent reform of French law and suggests some possibilities for applying the lessons of the French experience to U.S. regulation of electronic media.
Rationality is prized by lawyers. The 'rational review' test provides the constitutional ... more Rationality is prized by lawyers. The 'rational review' test provides the constitutional minimum for due process and equal protection analysis. Unfortunately, even in an idealized world populated by perfectly rational people not all causes of irrational decision-making can be avoided. The basic nature of group decision-making inevitably creates the possibility of certain kinds of irrationality. The core of the problem is that, while deciding which party prevails is a binary decision [either one side or the other wins], there are often multiple issues that need to be decided in any particular case. The task of creating a system for selecting among multiple options presents an intractable problem for any group, including the Supreme Court. Kenneth S. Arrow has proven that no reasonable group-voting system for resolving multiple issues can avoid all inconsistency. Specifically, Arrow showed that under certain conditions, there always exists the potential for what is known as a ...
University of Michigan Journal of Law Reform, 1987
The advent of cable television presented a new opportunity to consider the competing interests on... more The advent of cable television presented a new opportunity to consider the competing interests on each side of the free speech/pornography debate. This Article attempts to construct an analysis that will be consistent with Supreme Court teaching on how government, under the first amendment, may constitutionally regulate legal obscenity, particularly in the name of protecting those who wish to avoid exposure to such material. The Article shows how, unlike earlier battles over technology and pornography, cable television presented the novel opportunity to have a technological rather than a censorial solution to this difficult problem.
The decision in Near v. Minnesota, while establishing the prior restraint doctrine as a critical ... more The decision in Near v. Minnesota, while establishing the prior restraint doctrine as a critical element for First Amendment analysis, failed to give a definition of prior restraint. The result has been inconsistent and unpredictable application of the doctrine as well as diminished protection of free expression. This article takes the next critical step in the journey begun by Near v. Minnesota; it attempts to create a comprehensive definition of prior restraint using the principles of separation of powers. Because all three branches can create 'prior restraints,' the prevention of unconstitutional restraints will necessitate different safeguards depending on which branch of government is attempting to exercise the prior restraint. Fundamentally, the only governmental activity relating to speech permitted "prior" to communication is that of the legislature creating a general rule, that does not focus on the particular speaker or individual message. There is no rol...
Discussion of civil liberties during wartime often omit the fact that there can be no meaningful ... more Discussion of civil liberties during wartime often omit the fact that there can be no meaningful liberty at all if our homes and offices are bombed or our loved ones are killed or injured by acts of terror. The Government must be given the tools necessary to accomplish its vital mission. The first priority must be to win the war against terrorism. There are, however, other priorities. The United States, in its just battle for freedom, must ensure that freedom is preserved during that battle as well. Moreover, care must be taken so that an exaggerated cry of “emergency” is not accepted uncritically as an excuse for eliminating the protections of a free society. The role of citizens in general, and lawyers in specific, is to maintain the difficult balance between patriotism and skepticism.
This article, a response to a review by Prof. Paul Edelman of Prof. Meyerson's book "Pol... more This article, a response to a review by Prof. Paul Edelman of Prof. Meyerson's book "Political Numeracy: Mathematical Perspectives on Our Chaotic Constitution," explains how the study of mathematics can spur creative legal thinking.
The Telecommunications Act of 1996 represented an enormous experimental step towards deregulating... more The Telecommunications Act of 1996 represented an enormous experimental step towards deregulating the telecommunications marketplace while opening it up to competition. With an eye towards breaking up the telecommunications monopolies held by local telephone service providers, the Act created regulations that forced local carriers to share their market and their resources with other telecommunications providers. The Telecommunications Act of 1996 itself is extremely complex. This article is a "guided tour" through the major provisions of the Act. The first step in understanding the Telecommunications Act of 1996 is to understand how the telecommunications industry operates. Part two of this article explains the telecommunications landscape for telephone companies, from the role of Local Exchange Carriers to Bell Operating Companies. Part two of this article also explains how the Act affects the players in the telecommunications world and encourages competition in their sph...
This article discusses the legal issues involving the owners of private computer networks. These ... more This article discusses the legal issues involving the owners of private computer networks. These issues include public/private network distinctions, First Amendment free speech issues, liability for computer network owners for improper speech posted on their networks, and anti-trust questions. The article analyzes the complexities that result from different forms of network ownership and the relationship of such networks to governmental entities.
Despite the ubiquitousness of standard form contracts in the world of consumer transactions, ther... more Despite the ubiquitousness of standard form contracts in the world of consumer transactions, there is no consensus as to how these contracts ought to be constructed. Some courts continue to treat form contracts as if they were classically negotiated contracts. Others attempt in a variety of ways to factor in the reality that consumers entering into these contracts are not able to negotiate the terms and almost always sign these documents, which are presented on a take-it-or-leave-it basis, without reading them. This article posits that the cause of this continued confusion over form contracts is due to a basic failure of courts to adhere to fundamental principle of contract law, that a contract is interpreted according to the objective understanding of the parties. If courts would acknowledge that the reasonable drafters of form contracts do not expect the consumer to have read the multiple pages of a form contract, then courts would conclude a reasonable drafter would not understan...
After three decades of what Chief Justice Burger termed ‘the almost explosive development’ of cab... more After three decades of what Chief Justice Burger termed ‘the almost explosive development’ of cable television, Congress updated the Communications Act of 1934 with the Cable Communications Policy Act of 1984. The Act represents the culmination of a ‘decade long effort to update the Communications Act of 1934 . . . and bring our outdated communications laws into the information age.’ The 1984 Cable Act was a complicated piece of legislation, the result of countless compromises and political deals. This Article explains how Congress attempted to balance the competing, and sometimes mutually exclusive, interests of the cable operators, cities, video programmers, and the viewing public.
The prior restraint doctrine, once so fundamental to Constitutional Jurisprudence, has lost much ... more The prior restraint doctrine, once so fundamental to Constitutional Jurisprudence, has lost much of its effectiveness over the years. Nevertheless, prior restraint doctrine is crucial to preserving the line between protected and unprotected speech. One of the fundamental problems that contribute to the current ineffectiveness of prior restraint doctrine is that there exists no comprehensive definition of "prior restraint". This article chronicles the historical roots of prior restraint in order to arrive at a generally accepted legal definition. Through the course of this historical journey, the article yields a heretofore unexplored aspect of prior restraint doctrine, namely that prior restraint embodies principles of both free speech and separation of powers. The history of prior restraint begins in the Fifteenth Century, not coincidentally around the time of invention of the Gutenberg printing press. This article traces censorship laws in England from their inception. I...
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