fb pixel fb conversion Free Speech & Press in the Modern Age | Pepperdine School of Law

Free Speech & Press in the Modern Age


Can 20th Century Theory Bear the Weight of 21st Century Demands?

Friday, April 4, 2008
8:45 a.m. - 5:30 p.m.

Schedule | Speakers

During the 20th century, the Supreme Court articulated at least three major theories that undergird the freedoms of speech and press—the maintenance of a marketplace of ideas to elicit truth, the promotion of intelligent self-governance, and the facilitation of individual self-realization. These theoretical models have driven the Court's development and application of specific doctrine in various areas of free speech law.

This conference will examine whether these theoretical models remain valid and compelling bases for the continued development of free speech law in the 21st century in areas presenting major challenges of our modern age. In particular, this symposium will focus on the following important questions:

  1. Does a liberal tolerance of extremist speech such as terrorist recruiting propaganda or incitement to religious hatred, particularly via mass distribution platforms like the Internet, continue to be warranted? The United Kingdom and other European countries outlaw much of this type of speech, particularly as part of their counterterrorism efforts. Should we follow?
  2. In light of the mushrooming costs of running a political campaign and other dynamics of the modern election process, should free speech theory continue to disfavor campaign spending limits and strict contribution caps imposed by Congress or state legislatures?
  3. In the age of mass digital communication technologies, are the 'marketplace' and democratic deliberation models obsolete? Will democratic culture be preserved? Will the traditional press continue to be the public's information gathering and distribution agent, and does free speech law and theory have anything to say about that? What free speech model should drive the structure of mass media regulation in the digital age?

Our panels of distinguished public intellectuals will offer a wide range of answers to these questions.

Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor at the University of Chicago Law School, will open the conference with an address entitled, "Free Speech in the 21st Century: What We Learned in the 20th Century."

The Honorable Alex Kozinski , chief judge of the U.S. Court of Appeals for the Ninth Circuit, and the Honorable Kevin J. Martin, chair of the Federal Communications Commission, will also deliver symposium addresses.

Symposium Schedule

Friday, April 4, 2008
8:15 a.m. Continental Breakfast
8:45-9:00 Introductory Remarks:
  • Dean Kenneth W. Starr, Pepperdine U. School of Law
  • Prof. Barry P. McDonald, Pepperdine U. School of Law
9:00-9:45 Opening Address: Prof. Geoffrey R. Stone, The University of Chicago Law School: Free Speech in the Twenty-First Century: What We Learned in the Twentieth Century
9:45-11:00 Panel One: The Regulation of Extremist Speech in the Terrorist Era
  • Prof. Frederick Schauer, Kennedy School of Gov't, Harvard University
  • Dean Rodney A. Smolla, Washington and Lee U. School of Law
  • Prof. Nadine Strossen, President, American Civil Liberties Union
11:00-11:15 Break
11:15-12:30 Panel Two: Regulating Campaign Finances in Light of Modern Political Campaign Dynamics
  • Prof. Lillian R. BeVier, University of Virginia School of Law
  • Prof. Samuel Issacharoff, New York University School of Law
  • Prof. Barry P. McDonald, Pepperdine U. School of Law
12:30-2:00 Lunch and Luncheon Address: Honorable Alex Kozinski, Chief Judge of the U.S. Court of Appeals for the Ninth Circuit
2:15-2:45 Afternoon Address: Honorable Kevin J. Martin, Chairman, Federal Communications Commission
2:45-3:00 Break
3:00-4:15 Panel Three:Freedom of Speech and Press in the Digital Age
Panelists and Specific Topics:
  • Prof. Jack M. Balkin, Yale Law School: Democratic culture and free expression.
  • David D. Hiller, Esq., Publisher and CEO, Los Angeles Times: Transitioning from the paper to digital press and the relevance (or irrelevance) of First Amendment theory.
  • Prof. Lucas A. Powe, Jr., U. of Texas School of Law: First Amendment theory and the structure of mass media regulation in the 21st century.
4:15-4:45 Concluding Reflections:Implications for First Amendment theory of the 21st century.
  • Prof. William Van Alstyne, William & Mary School of Law
  • Prof. Eugene Volokh, UCLA School of Law
4:45-5:00 Closing Remarks:
Dean Kenneth W. Starr, Pepperdine U. School of Law
5:00-6:15 General Reception for Speakers and Audience
6:30-8:30 Wine-tasting and Dinner for Speakers and Invited Guests

Distinguished Speakers


Jack M. Balkin is the Knight Professor of Constitutional Law and the First Amendment at Yale Law School. Balkin received his Ph.D. in philosophy from Cambridge University, and his A.B. and JD degrees from Harvard University. He served as a clerk for Judge Carolyn Dineen King of the U.S. Court of Appeals for the Fifth Circuit. Balkin is a member of the American Academy of Arts and Sciences, and he writes political and legal commentary at the Weblog Balkinization. He is also the founder and director of the Information Society Project at Yale Law School, an interdisciplinary center that studies law and the new information technologies. His most recent book is Cybercrime: Digital Cops in a Networked Environment.


Lillian R. BeVier is the David and Mary Harrison Distinguished Professor at the University of Virginia Law School. She graduated from Smith College and Stanford University Law School, where she was an editor of the law review and elected to the Order of the Coif. She presently teaches property, trademark, unfair competition, and constitutional law (freedom of speech and press). She has published widely on many legal issues, with particular emphasis on the First Amendment and campaign finance regulation. She was nominated by the president and confirmed by the Senate to serve on the board of directors of the Legal Services Corporation, and she is currently the corporation's vice chair. She also serves on the Board of Visitors of the Federalist Society.


David D. Hiller was named publisher, president, and chief executive officer of the Los Angeles Times in October 2006. Previously, he was president, publisher, and chief executive officer of the Chicago Tribune Company. Prior to serving as president, Hiller held numerous executive positions with various Tribune companies since joining them in 1988. He came to the Tribune from the Chicago law firm of Sidley & Austin. Prior to that, he served two years at the U.S. Department of Justice as special assistant to Attorney General William French Smith and as associate deputy attorney general. During 1979 and 1980, Hiller was a law clerk to U.S. Court of Appeals judge Malcolm Wilkey and Supreme Court justice Potter Stewart. He received a bachelor's degree from Harvard College and a law degree from Harvard Law School.


Samuel Issacharoff is the Bonnie and Richard Reiss Professor of Constitutional Law at New York University School of Law. His research deals with issues in civil procedure (especially complex litigation and class actions), law and economics, constitutional law (particularly with regard to voting rights and electoral systems), and employment law. He coauthored the seminal Law of Democracy casebook, and his work on procedure includes serving as the reporter for the Project on Aggregate Litigation of the American Law Institute. After graduating from Yale Law School in 1983, he worked as a voting rights lawyer. He taught at the University of Texas at Austin and Columbia Law School before joining the NYU faculty in 2005. He is the author of more than 100 books, articles, and other academic works.


Alex Kozinski was appointed U.S. circuit judge for the Ninth Circuit in November 1985, and became chief judge in November 2007. He graduated from UCLA, receiving an A.B. degree in 1972, and from UCLA Law School, receiving a JD degree in 1975. Prior to his appointment to the appellate bench, Judge Kozinski served as chief judge of the U.S. Claims Court, 1982-1985; special counsel, Merit Systems Protection Board, 1981-1982; assistant counsel, Office of Counsel to the President, 1981; deputy legal counsel, Office of President-Elect Reagan, 1980-1981; attorney, Covington and Burling, 1979-1981; attorney, Forry Golbert Singer & Gelles, 1977-1979; law clerk to Chief Justice Warren E. Burger, 1976-1977; and law clerk to circuit judge Anthony M. Kennedy, 1975-1976.


Kevin J. Martin is chair of the Federal Communications Commission, twice nominated and designated chair by President George W. Bush. Previously, Martin served as a special assistant to the president for economic policy in the White House and was on the staff of the National Economic Council. He also served as the official U.S. government representative to the G8's Digital Opportunity Task Force. Previously, he served as a principal technology and telecommunications advisor on the Bush-Cheney Transition team. He also served in the Office of the Independent Counsel following private practice at the firm of Wiley, Rein & Fielding. Martin was a law clerk for U.S. District Court judge William M. Hoeveler after receiving a B.A. from the University of North Carolina at Chapel Hill, a master's from Duke University, and a JD from Harvard Law School.


Barry P. McDonald is associate professor of law at Pepperdine University School of Law where he presently teaches First Amendment law, constitutional law, and intellectual property law. He has published various First Amendment articles in journals such as the Notre Dame Law Review and the Emory Law Journal. McDonald is a graduate of Northwestern University School of Law, where he was an associate editor of the Northwestern Law Review and elected to the Order of the Coif. Upon graduation he clerked for the Honorable James K. Logan of the U.S. Court of Appeals for the Tenth Circuit, and then served as a law clerk to Chief Justice of the United States William H. Rehnquist. Until joining the Pepperdine faculty in 2000, he held legal positions with the U.S. Department of State and the firm of Gibson, Dunn & Crutcher, and served as general counsel to various technology companies.


Lucas A. Powe, Jr., is the Anne Green Regents Chair in Law and professor of government at the University of Texas at Austin. He has a B.A from Yale and a JD from the University of Washington. A leading historian of the Supreme Court, he clerked for Supreme Court Justice William O. Douglas before joining the Texas faculty in 1971. His next book will be a history of the Court to be published in the fall of 2008. Previously, reflecting a split career as a historian and a First Amendment scholar, he published three award-winning books: American Broadcasting and the First Amendment, The Fourth Estate and the Constitution, and The Warren Court and American Politics.


Frederick Schauer is the Frank Stanton Professor of the First Amendment and former academic dean of Harvard University. He focuses on constitutional law, freedom of speech and press, international legal development, and the philosophical dimensions of law and rules. Formerly professor of law at the University of Michigan, chair of the Section on Constitutional Law of the Association of American Law Schools, and vice president of the American Society for Political and Legal Philosophy, Schauer is a Fellow of the American Academy of Arts and Sciences and has been awarded a Guggenheim Fellowship. He has worked on legal and constitutional development throughout the world, and his scholarship has been the subject of a book and five special issues of law journals.


Rodney A. Smolla is dean of the Washington and Lee University School of Law. A graduate of Yale University and Duke Law School, Smolla is nationally recognized as a scholar, teacher, advocate, and writer. His wide-ranging scholarship includes two law school casebooks, four legal treatises, and scores of articles in leading law journals. He also writes widely for general audiences, including popular books such as Deliberate Intent, Free Speech in an Open Society. He has been a nationally prominent advocate in cases involving constitutional law, civil rights, and mass media. He has presented oral argument in state and federal courts throughout the nation, including the U.S. Supreme Court.


Kenneth W. Starr is the Duane and Kelly Roberts Dean and professor of law at Pepperdine University School of Law in Malibu, California. He is also of counsel to the law firm of Kirkland & Ellis, where he was a partner from 1993 to 2004 specializing in appellate work, antitrust, federal courts, federal jurisdiction, and constitutional law. He was formerly a partner with the law firm of Gibson, Dunn & Crutcher. Dean Starr wrote First Among Equals: The Supreme Court in American Life, published in 2002 to explain key decisions by the justices of the Supreme Court to the American people. Having received his B.A. from George Washington University in 1968 and his M.A. from Brown University in 1969, Dean Starr graduated from Duke Law School with a JD degree in 1973.


Geoffrey R. Stone is the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago. A member of the law faculty since 1973, Stone served as dean of the law school (1987-1994) and provost of the University of Chicago (1994-2002). After graduating from the University of Chicago Law School in 1971, he served as a law clerk to Judge J. Skelly Wright of the U. S. Court of Appeals for the D.C. Circuit and then to Justice William J. Brennan, Jr., of the U.S. Supreme Court. Stone has been an editor of the Supreme Court Review since 1991, and is the author or coauthor of many books on constitutional law, including most recently Top Secret: When Our Government Keeps Us in the Dark. He is currently chief editor of a 15-volume series, Inalienable Rights, which will be published by the Oxford University Press between 2006 and 2010.


Nadine Strossen has served as president of the American Civil Liberties Union since 1991. She is the first woman to head the nation's largest and oldest civil liberties organization. The National Law Journal has twice named Professor Strossen one of "The 100 Most Influential Lawyers in America." The author of over 50 law review articles, two books, and numerous book chapters, Professor Strossen has been awarded six honorary doctorate degrees and numerous other national and international awards. She has served as a professor at New York Law School since 1988, focusing on the fields of constitutional law, civil liberties, and international human rights. Professor Strossen comments frequently on legal issues in the national media, and has appeared on virtually every national news program.

Van Alstyne

William W. Van Alstyne, the Lee Professor of Law at the Marshall-Wythe Law School at the College of William and Mary, is a graduate of the University of Southern California and Stanford University Law School. Following his brief service as Deputy Attorney General of California, he joined the Civil Rights Division of the U. S. Department of Justice handling voting rights cases in the South. After active duty with the U.S. Air Force, he was appointed to the law faculty of Ohio State University and later the Duke law faculty as the William R. & Thomas S. Perkins Chair of Law. Van Alstyne's professional writings, which address nearly every major subject in constitutional law, have appeared during four decades in the principal law journals in the United States, with frequent republication in foreign journals.


Eugene Volokh is the Gary T. Schwartz Professor of Law at UCLA School of Law. He teaches free speech law, criminal law, copyright law, the law of government and religion, and a seminar on firearms regulation policy. Before coming to UCLA, he clerked for Justice Sandra Day O'Connor on the U.S. Supreme Court and for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit. He graduated from UCLA with a B.S. in mathcomputer science at age 15, and has written many articles on computer software. He is a member of the American Law Institute. He is also the founder and coauthor of The Volokh Conspiracy, a Weblog that gets over 20,000 unique visitors per weekday.