An Interview with Jennifer Petersen

June 18, 2015

IATH's new Fellow, Jennifer Petersen, talked to IATH about her plans for her research on tracking the changing understandings of what constitutes “speech” in the U.S. legal system. She is working with IATH to build an Archaeology of Legal Definitions of Speech, while also working on a book covering similar territory.

So, what will you be covering in the book?

The book is looking at the history of free speech in the 20th century. Most people are really interested in the “free” element of free speech, the changes in the rights that we have to speak. They look at politics and law as the context of this history. I’m really interested in “speech” and how it changes over that time, because it’s not the same thing at different historical moments – what is speech, what counts as speech to be considered or to be protected. So there are two levels to the first amendment: does it count as speech? Is it covered by the first amendment? And then, is it protected? Is it the type of speech we think is important to protect, for the purposes of the first amendment, which are about democracy, self-fulfillment, etc. There is some debate about that.

So first off, does it count as speech and second is it the kind of speech we protect. The first one seems pretty easy, but new communication technologies aren’t so easy to fit into that. Like silent film: is that speech?

No one is speaking…

Right. What about art? Music? Money? And computer code and algorithms? It’s actually really hard to answer that first question, much less the second question. So, I’m looking at how this concept varies across time, and my argument is that it varies with different communication technologies and different ideas about communication that are operative in the public sphere.

I’m looking at it through the history of technology, specifically media technologies and knowledge about communication, that then proliferates out into the popular press. It looks a lot at social scientific knowledge production, history of communication, and research.

Are you starting with photography as communication?

No, but that’s an interesting question. Photography raised questions about copyright. Film was the first to raise questions about speech. It took a while before they saw photography as like painting, as having an author. Initially, in legal debates about using photography as evidence, photos were considered more like scientific documents. There are a really interesting set of debates in legal journals in the late 19th century about whether photographs can be evidence, which is a way of saying, “do they speak? Who is the speaker?”

The First Amendment wouldn’t have been an issue in the 19th century or the early 20th century, because the First Amendment wasn’t understood as applying to the states until 1925. There’s a big case that says, because of the Fourteenth Amendment, the First Amendment does apply to state laws. The states already had rules protecting free speech, but the First Amendment can be used to invalidate state laws: state laws are subject to Constitutional review. Each state has a guarantee of free speech, but they are in different terms and often they include restrictions as well as freedoms.

I start with film for a couple of reasons. One is that film uses pictures to tell a story. We think of that as being something discursive and message-y. And it was also a mass medium, and it was the beginning of economic production of ideas and content for everybody. It’s the beginning of the culture industries, of mass production of culture in the 20th century.

The other reason is that it’s the first case where a free speech claim is brought to the Supreme Court, and that had to do with the legal culture of the day. The First Amendment was beginning to be used more, and in fact all of the amendments were beginning to be used more by businesses seeking to expand their power. The Fourteenth Amendment, protecting due process of law and freeing the slaves, arguably ends up doing more for business in the late 19th/early 20th century than for minority populations, because businesses start using the Fourteenth Amendment to craft constitutional arguments for expanding their powers. And actually, the Mutual v. Ohio case in 1915 is an attempt to do that, and the court shuts it down. It’s an unusual move by the court to refuse this type of argument. There’s an upsurge in First Amendment cases in a bunch of different crazy contexts, and there’s also an upsurge in cases where businesses are trying to use constitutional arguments to expand their powers. It becomes thinkable to argue that films are speech and deserve First Amendment protection.

What about the idea of artificial intelligence?

I would love to talk about that. I think that we’re a bit away from meaningful court cases. But at the end I’m hoping to gesture towards that.

So it starts with film as an unusual type of speech—not visual, not aural, not printed or verbal—and then moves on to radio as an unusual type of speaker, in that it’s not one person, but a corporation. So the first couple of chapters go from film to symbolic expression, and ties early thinking about film to later legal understandings of saluting the flag and other gestures of speech. I’m going to be saying, essentially, that this is the same kind of communication and also tracing the history of how it became legible as speech.

So, the book is focused on the legal framework, but it is also looking at the larger picture.

It’s a cultural history. Its saying that what influences the law includes cultural context that doesn’t usually get talked about in relationship to the law. Usually we talk more about politics and social movements, not “how are people thinking about communication?” “what were people watching?” “what was the media of the day?”

Both the project and the book were spurred by my interest in the First Amendment, which came from my interest in hate speech and other issues. I started having questions about what counted as speech and what didn’t, as I was trying to understand the corporate speech discussions, as a lay person. I started reading a little bit, and it turns out that there really isn’t a definition of speech in the law. These are ad hoc definitions being made in the moment, in the cultural context, so of course they are really interested in speech like this. Sometimes the justices talk it out and talk about their reasoning. I decided to look at new communication technologies because I thought that was one place where they might explicitly think about this. What is communication? Does this count? Is it covered? Should we be thinking about this in terms of the First Amendment? The project is looking at that: it’s trying to track lexical structures used to talk about speech across time, looking at changes in the terms associated with speech and how they shift. This is huge, looking at a lot of court cases.

For your IATH project, you have talked about creating an archaeology of legal definitions of speech. That would be an archaeology in the sense that you’re digging into the past and looking at how things have changed and how things have been defined at various points, to show a sort of evolution?

It might be better to think of continuities & discontinuities, sediment, more in terms of physical structures & sediments that you might look at if you were an archaeologist. It wouldn’t necessarily be progression but different layers. The structure is this at this point and the structure is different at this point.

And you’re working with a corpus of texts. In this case, Supreme Court analyses, on the federal level?

Yes, U.S. Supreme Court decisions dealing with free speech. For example, in the Mutual case, they actually made a First Amendment argument. The court ignored that argument and decided it in terms of the free speech guarantee in Ohio’s state constitution. This is a case that was about free speech but the free speech law was Ohio’s constitution, not the U.S. So, we’re looking at free speech cases whether they’re state constitutions or the federal constitution.

You’re looking at the actual vocabulary and syntax that was used in the written decisions that were handed down by the Court, both dissenting and deciding. So how long are these documents?

This is interesting. They start out quite short, at the beginning of the century, and get quite a bit longer as they go on. The justices and their clerks get more verbose and there is more dissent. The court gets more divided over time and the decisions get longer. I’ve heard various explanations for why this. I’ve been told that it gets more political: the clerks are trying to make careers for themselves. There’s also a change that the Court is more unanimous more often earlier on in the 20th century and gets more divided, because there’s a shift as time goes on.

But that’s stuff that legal scholars cover pretty well. What I have to add to the conversation is placing it in a cultural and media context. It’s my argument that it’s really important what other people have done, what they’re doing and talking about, in terms of the social movements, shifts in the Court, the way the Court makes decisions, shifts in legal theory, intellectual trends within the law: all of that of course is incredibly important to this history. But, you won’t fully understand it unless you also understand the shifts in how people are thinking about communication, unless you understand the technology and the intellectual history of the idea of communication.