Academic Legal Writing - Eugene Volokh [34]
This Comment, in Part I, explains what speech harassment law restricts, and how it restricts it. Part II confronts the arguments, made by some courts and some commentators, that harassment law can already be justified under some of the existing First Amendment doctrines—for example, as a time, place, or manner restriction, or a legitimate attempt to protect a captive audience—but finds that none of the arguments has merit. Finally, Part III introduces the directed speech/undirected speech distinction, and argues that it is the most practical place to draw the line between harassing workplace speech that must be protected and harassing workplace speech that may be restricted.
Some sort of roadmap is good: Readers do find it useful to get a sense of how the article will flow, and of where to look for particular sections of the analysis. You as the writer may also find it helpful to lay out the roadmap at the outset, just to give yourself a better idea of how you want to write the article.
But roadmaps written as separate paragraphs tend to seem forced, boring, and hard to read. Instead, try organizing the Introduction itself as a roadmap. The Introduction is supposed to be a summary of the rest of the article; so summarize the article in a persuasive, well-flowing way, and note where your summary goes from Part to Part. That way the roadmap may take up many paragraphs, but it won't require any extra paragraphs, and it will seem more organically connected to the rest of the Introduction. Here's an entire introduction illustrating this (the Introduction is to a co-written article, which explains the “we”):
Say we think a new book is going to libel us, and we ask a court for a preliminary injunction against the book's publication. We argue that we're likely to succeed on the merits of our libel claim, and that failure to enjoin the speech would cause us irreparable harm.
Too bad, the court will certainly say; a content-based preliminary injunction of speech would be a blatantly unconstitutional prior restraint. Maybe after a trial on the merits and a judicial finding that the speech is in fact constitutionally unprotected libel, we could get a permanent injunction, though even that's not clear. But we definitely could not get a preliminary injunction, based on mere likelihood of success. Likewise for preliminary injunctions against obscenity and other kinds of speech, despite the fact that such speech, if ultimately found to be unprotected at trial, could be criminally or civilly punished.
In copyright cases, though, preliminary injunctions are granted pretty much as a matter of course, even when the defendant has engaged in creative adaptation, not just literal copying. How can this be?
True, the Supreme Court has held that copyright law is a constitutionally permissible speech restriction; though copyright law restricts what we can write or record or perform, the First Amendment doesn't protect copyright-infringing speech against such a restraint. But libel law and obscenity law are likewise constitutionally valid restrictions on speech, and yet courts refuse to allow preliminary injunctions there. The “First Amendment due process” rule against prior restraints applies even to speech that's alleged to be constitutionally unprotected. Why, then, not to allegedly infringing speech?
We explore this question below. In Part I, we discuss the history of preliminary injunctions in copyright cases and the current law relating to such injunctions. In Part II, we develop our central thesis by explaining why copyright law is a speech restriction; why preliminary injunctions of speech are generally unconstitutional; and why, at least as a doctrinal and conceptual matter, it's hard to see how copyright law could be treated differently for First Amendment purposes. What's more, we argue, giving copyright law a free ride from the normal First Amendment due process rules risks discrediting those rules in other contexts.
In Part III, we step back and