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Abstract

This Article explores a normative proposal for statutory interpretation in light of this media-saturated age. The proposal, referred to in this Article as the Rostrum Principle, encourages the Court to interpret ambiguous terms in legislation with a presumption toward the way the legislation was “sold” to the public. This Article further explores the shifting public forum—away from the Congressional Record and formal legal frameworks to include cable news television, newspaper op-eds, and even Twitter. The explosion of popular and social media and politicians’ increasingly sophisticated use of these forms of communication goes far toward setting the debate regarding pending legislation. At the same time, the saturation and accessibility of these forms of communication may dissuade engaged voters from researching legislative text or the Congressional Record and instead become swept into the debate through popular and social media. This can create more opportunity for private interests to shape a public message while cloaking a private benefit, and legislators may not always be aware of the spin.

This Article proceeds as follows: Part I situates the Rostrum Principle within an increasingly vibrant scholarly debate regarding how the Court should handle ambiguous legislative language. Part II discusses the changing nature of the public forum and the role of media (both traditional and social) in selling legislation. This Part also examines how the aggressive marketing of legislation in popular media by the elected officials themselves reflects upon the institutional balance between the legislative and judicial branches. Part III defines the Rostrum Principle by explaining what it is, when it would be most useful, and how it would work by applying it to a case study. Part IV addresses anticipated criticism and other limiting principles for the Rostrum Principle.

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