A “Hot” and “Cool” First Amendment: Analyzing Speech Effects in a Shifting Media Environment,
104 Cal. L. Rev. 1259
Available at: http://scholarship.law.berkeley.edu/californialawreview/vol104/iss5/5
The First Amendment’s usually strict protection of the right to free speech sometimes appears to give way when listeners would have difficulty evaluating a given communication. But it is far from clear when or why courts relax the dictates of the Speech and Press Clauses in light of the effects of speech on listeners. Courts’ failure to develop a clear method for assessing speech effects under the First Amendment is particularly troublesome in light of the novel speech- related issues that have come with rapid advances in modern communications technologies. Arriving at an approach for evaluating the impact of speech on listeners would clarify First Amendment jurisprudence, helping to resolve questions about how the Speech and Press Clauses should apply in a hyperconnected, hypercommunicative, high-technology world. This Note turns to communications theory, and in particular to the work of Marshall McLuhan, to develop such an approach.