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As Judith Miller Sat in a Virginia Jail Cell After Her Failed Attempts to Keep JOURNAL OF MEDIA LAW & ETHICS Editor ERIC B. EASTON, PROFESSOR OF LAW University of Baltimore School of Law EDITORIAL BOARD MEMBERS BENJAMIN BENNETT-CARPENTER, Special Lecturer, Oakland University (Michigan) WALTER M. BRASCH, Professor of Mass Comm., Bloomsburg University of Pennsylvania L. SUSAN CARTER, Professor, Michigan State University LOUIS A. DAY, Alumni Professor, Louisiana State University ANTHONY FARGO, Associate Professor, Indiana University AMY GAJDA, Assistant Professor, University of Illinois STEVEN MICHAEL HALLOCK, Assistant Professor, Point Park University MARTIN E. HALSTUK, Associate Professor, Pennsylvania State University CHRISTOPHER HANSON, Associate Professor, University of Maryland ELLIOT KING, Professor, Loyola University Maryland JANE KIRTLEY, Silha Professor of Media Ethics & Law, University of Minnesota NORMAN P. LEWIS, Assistant Professor, University of Florida PAUL S. LIEBER, Assistant Professor, University of South Carolina KAREN M. MARKIN, Director of Research Development, University of Rhode Island KIRSTEN MOGENSEN, Associate Professor, Roskilde University (Denmark) KATHLEEN K. OLSON, Associate Professor, Lehigh University RICHARD J. PELTZ, Professor of Law, University of Arkansas-Little Rock School of Law KEVIN WALL SAUNDERS, Professor of Law, Michigan State University College of Law JAMES LYNN STEWART, Associate Professor, Nicholls State University DOREEN WEISENHAUS, Associate Professor, University of Hong Kong KYU HO YOUM, Jonathan Marshall First Amendment Chair Professor, Univ. of Oregon Copyright © 2010. The authors of each of the articles published in this issue own the copyrights to their works. For permission to reprint, please contact them (see title page for contact information). Journal of Media Law & Ethics (ISSN 1940-9370 print; 1940-9389 online) is a peer-reviewed scientific journal that seeks theoretical and empirical manuscripts and book reviews that advance an understanding of media law and ethics and diversity in society. Submissions may have a legal, historical, psychological, social or cultural orientation but must focus on media and law, ethics or diversity. All theoretical perspectives are welcomed. All manuscripts undergo blind peer review. JMLEis published online and in hard copy form. The online version is open access, which means it is available at no charge to the public. Visit www.MarquetteJournals.org to view the contents of this journal and others. Softcover and hardcover versions are published once a year. Visit the MarquetteJournals.org Web site for additional information. MANUSCRIPTS SUBMISSION GUIDELINES Exclusivity: All manuscripts should be original and published elsewhere. Authors of works that are should not be under consideration at other journals or selected for publication shall retain the copyright to other publications. Peer Review: All manuscripts will their works. As such, they control the future undergo masked peer review. The normal review distribution and reprinting of their works. However, period is three months or less. Submissions: The ideal authors shall give Marquette Books LLC a length for submitted papers is 20-30 double-spaced nonexclusive right to publish the work in its journals pages (6,000 to 8,000 words using 12-point Times or in other publications or books that it may produce at Roman or equivalent), including references, tables and the same time or in the future. Authors shall be given figures. Longer manuscripts will be considered when credit in such works and will continue to control the space is available. The submission and review process copyright to their works. After a manuscript is will be electronic. All manuscripts should be prepared accepted for publication, the author or authors are using Microsoft Word or converted to that format. One expected to provide a computer file of the manuscript electronic copy should be e-mailed to the appropriate and to copyedit the page proofs when they are journal listed below. completed. Permissions: Authors are responsible for obtaining permission from copyright owners to use Manuscript Preparation: Manuscripts should be lengthy quotations (450 words or more) or to reprint or prepared according to the guidelines of Bluebook. adapt a table or figure that has been published Please double-space all material except tables and elsewhere. Authors should write to the original figures, which should be “camera-ready.” Microsoft copyright holder requesting nonexclusive permission Word is the required software program for formatting to reproduce the material in this journal and in future manuscripts. The title page should include the title of publications generated by Marquette Books. All the manuscript; names and affiliations of all authors, as requests are for nonexclusive rights. Email an well as their addresses, phone numbers and e-mail electronic copy of manuscripts to: Eric Easton, addresses; and five key words for referencing the editor, <[email protected]>. document in electronic database systems. Only the title page should contain identifying information. The second page should include the manuscript title and an abstract of 150 to 250 words. All figures and tables Journal of Media Law & Ethics is published by must be formatted to 5.5 inches in width and no more Marquette Books LLC than 7.5 inches in height and must be camera-ready. 3107 East 62nd Avenue Spokane, Washington 99223 Copyright and Production Notes: All works 509-443-7047 voice / 509-448-2191 fax submitted must be original and must not have been www.MarquetteJournals.org • [email protected] JOURNAL OF MEDIA LAW & ETHICS Volume 2, Number 3/4 Summer/Fall 2010 Articles 102 ROBERT L. KERR The “Attack” Memorandum and the First Amendment 139 STEPHEN BATES Disciplining the British Tabloids: Mosley v. News Group Newspapers 192 CHRISTOPHER SEAMAN AND DANIEL LINZ The Secondary Effects Doctrine Since Alameda 215 JASMINE MCNEALY Plaintiff’s Status as a Consideration in Misrepresentation and Promissory Estoppel Cases Journal of Media Law & Ethics, Volume 2, Numbers 3/4 (Summer/Fall 2010) 101 THE “ATTACK” MEMORANDUM AND THE FIRST AMENDMENT: ADJUDICATING A STRONGER VOICE FOR BUSINESS IN THE MARKETPLACE OF IDEAS ROBERT L. KERR This article considers the development of First Amendment doctrine pertaining to corporate political spending and commercial speech in the context of Justice Lewis F. Powell’s interest in strengthening the voice of business in the marketplace of ideas. An examination of Justice Powell’s pre-appointment memorandum, “Attack on American Free Enterprise System” and other relevant memoranda, correspondence, and documents in Justice Powell’s private Court papers not previously assessed in this regard suggests that, although Justice Powell’s jurisprudence indisputably advanced First Amendment protection for business interests, he also strove to maintain limits on such protection in order to preserve other societal interests. Keywords: Lewis Powell, commercial speech, corporate speech, advertising I. INTRODUCTION Justice Lewis F. Powell, Jr., is remembered more than two decades after he left the Supreme Court for the many opinions he authored during his time there. His time on the bench was characterized by managing precarious balances in contentious cases, such as University of California v. Bakke, in which his opinion announcing the judgment of the Court both struck down a minority-admissions system and established an enduring rationale for race-conscious admissions.1 Justice Powell also established such a reputation for his practice of synergizing swing votes with influential concurring opinions that the technique has since been dubbed “Powelling.”2 He wrote more concurring opinions than any other justice during his time on the Court, and they frequently had the Robert L. Kerr is an Associate Professor in the Gaylord College of Journalism and Mass Communication, University of Oklahoma ([email protected]). 1 438 U.S. 265 (1978). 2 Tristan Pelham-Webb, Powelling for Precedent: ‘Binding’ Concurrences, 64 N.Y.U. ANN. SURV. AM. L. 693 (2009). Pelham-Webb credits the term “Powelling” to David O. Stewart, A Chorus of Voices, A.B.A. J., April 1991, p. 50, 52. Journal of Media Law & Ethics, Volume 2, Numbers 3/4 (Summer/Fall 2010) 102 The “Attack” Memorandum and the First Amendment Robert L. Kerr effect of altering majority opinions.3 Particularly well known in journalism and media- law circles is his remarkable concurring opinion in Branzburg v. Hayes,4 which has been called “the concurrence that spoke louder than the majority” because many courts have relied upon it to preserve a reporter’s privilege to protect anonymous sources that the case’s majority had rejected.5 Yet Justice Powell also continues to receive a great deal of attention for a document he completed while still in practice as a successful corporate attorney in Richmond, Virginia. Its original form was a confidential memorandum he wrote in response to conversations he had with a neighbor, Eugene B. Sydnor, Jr., who chaired the Education Committee of the U.S. Chamber of Commerce. As The New York Times reported it in September 1972, “Lewis F. Powell, Jr., in a confidential memorandum written two months before his nomination to the Supreme Court, urged the United States Chamber of Commerce to mount a campaign to counter criticism of the free enterprise system in the schools and the news media.”6 The Chamber later distributed the memorandum to its national membership in a 1971 newsletter under the headline “Attack on American Free Enterprise System.” Its recommendations
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