Law and Policy 2007 Abstracts
Law and Policy Division
The Rise of the Proles: Regulation of Internet Leaves Masses Free to Influence Elections • Courtney Barclay, University of Florida • Recognizing the capacity of the Internet as a unique outlet for political speech, the Federal Elections Commission originally left the medium out of the realm of campaign finance regulation. However, when the U.S. District Court for the District of Columbia found this to be unlawful and out of sync with congressional intent, the FEC began the process of balancing which Internet communications could and should be regulated.
An Equal Access Provision of the Internet: Applying First Amendment Jurisprudence to the Network Neutrality Debate • Sarah Barrow and Jeffrey Blevins, Iowa State University • The network neutrality debate has been dominated by technological and economic arguments, while comparatively little attention has been given to First Amendment concerns. We expand upon this important line of inquiry by examining the legal issues and relevant case law. Because the medium of communication has determined the allocation of speech rights between media outlets and users, we posit that an equal access provision of the Internet would be in accordance with First Amendment jurisprudence.
Uniform Defamation Laws in Australia: Have They Struck a Better Balance • Rhonda Breit, University of Queensland • This paper canvasses the Uniform Defamation Laws focusing on the defence of qualified privilege and its capacity to protect mass media publications in the public interest. Whilst the uniform approach expands the circumstances when a fair report of public proceedings will be protected, the statutory qualified privilege appears to borrow from two different approaches: the UK approach articulated in Reynolds v Times Newspapers Limited and Others and the approach outlined in Section 22 of Defamation Act 1974 (NSW).
Free Speech Meets the Publicity Tort: Transformative Use Analysis in Right of Publicity Law • Matthew Bunker, University of Alabama • The intersection of intellectual property law and First Amendment concerns has become an increasingly contested one. The right of publicity has proven particularly difficult to reconcile with free speech values. Recently, some courts have begun importing a “transformative use” approach from copyright law to reconcile tensions between publicity rights and free expression. This paper analyzes the problems with the transformative use doctrine and suggests the outlines of an alternative approach.
The 2006-2007 FCC Ownership Hearings and the Rhetoric of the FCC Commissioners • Clay Calvert, Pennsylvania State University • This paper examines the official opening statements of the FCC commissioners at the first three public hearings now being conducted nationwide on the subject of the review and revision of the FCC’s ownership rules. The paper analyzes how the Democrats and Republicans on the Commission present starkly contrasting viewpoints, divided along party lines, to the public about the alleged influence and effect of corporate media ownership on the public interest and the marketplace of ideas.
Overlooking the Presumption of Openness for State Freedom of Information Laws: State Court Applications of the Central Purpose Doctrine • Erin Coyle, University of North Carolina at Chapel Hill • Freedom of Information Act experts contend that federal courts inappropriately favored privacy interests over disclosure interests by applying the central purpose doctrine since Congress arguably nullified the doctrine in 1996. Case and statutory analysis revealed that state courts have continued applying the doctrine, which contradicts the statutory purposes for numerous state freedom of information laws.
The Power of Secrecy and the Secrecy of Power: FACA and the National Energy Policy Development Group • Benjamin Cramer, Pennsylvania State University • This paper analyzes the Federal Advisory Committee Act (FACA), and its effectiveness in allowing access to government information. This paper considers Dick Cheney’s energy task force (NEPDG), and whether or not the media and citizens can successfully utilize FACA to obtain more information about the group. A case study of Judicial Watch v. NEPDG examines the effectiveness of FACA as a public interest statute, and whether the act has been adequately enforced.
Access Attitudes: The Importance of Community Engagement in Support for Press Access to Government Records • David Cuillier, University of Arizona • Freedom of information laws often are strengthened or weakened in response to the public mood regarding personal privacy, national security, and other factors, yet little is known about how people think about access to public information. This study, based on a national phone survey, examines public attitudes toward press access to government records, identifying factors related to support and deriving a political model predicting support.
Internet 3.0: Identifying Problems and Solutions to the Network Neutrality Debate • Rob Frieden, Pennsylvania State University • This paper will examine the network neutrality debate with an eye toward refuting and dismissing the many false and misleading claims and concentrating on the real problems occasioned by the Internet’s third evolution. The paper accepts as necessary and proper many types of price and quality of service discrimination. However the paper identifies other types of discrimination, which operators can obscure, that constitute unlawful and anticompetitive trade practices.
Living With Republican Party of Minnesota v. White • Jessica Gall, Indiana University • This paper examines the dangers facing judicial impartiality and independence after Republican Party of Minnesota v. White struck down judicial speech restrictions. Within a framework of history, First Amendment theory and case law, this paper explores merit-based judicial selection, campaign finance reform, strict recusal standards, and a better informed public as constitutional alternatives to speech-restricting canons. Action is necessary to avoid bias and the appearance of impartiality in a judiciary facing increasing campaign costs and interest group involvement.
From Published to Public: A Typology for Online Free Expression • Seeta Peña Gangadharan and Mike Ananny, Stanford University • This paper proposes a Habermasian framework for evaluating the publicness of online expressive activity. We ask whether the ease of online publishing fosters free expression and develop a typology of blogging technologies and practices in terms of Habermas’s principles of public speech: equality of speakers, inclusion, sincerity, and broadmindedness.
The Debate Over Section 230: Balancing Responsibility and Free Speech on the Internet • Jonathan Groves, University of Missouri-Columbia • Since its passage in 1996, Section 230 of the Communication Decency Act has provided immunity from liability to Internet service providers offering third-party content. As the Internet has exploded with growth, conflicts have arisen that demand more responsibility from those providers.
State Government Speech in a Federal System • Laura J. Hendrickson • This paper explores the status of government speech in a federal system, using a Texas bill that called for creation of a website later deemed to violate federal regulations. The paper concludes that the website, which was intended to inform consumers about Canadian pharmacies, may have qualified as government speech. The constitutional status of government speech is discussed, including whether and when the speech of one governmental entity can or should be restrained by another.
Rwandan Genocide: Showing the Need to Encourage Freedom of the Press and Discourage Ethnic Violence • Kevin Kemper, University of Arizona • In the now infamous “Media Case,” the International Criminal Tribunal for Rwanda convicted Jean Bosco Barayagwiza, Ferdinand Nahimana, and Hassan Ngeze for direct and public incitement to genocide, among other charges, in relation to mass media they produced during the 1994 genocide in Rwanda, which killed perhaps up to 1 million people. Belgian Georges Ruggiu also pleaded guilty to related charges.
New Technology, New Market, and Old Fair Use: An Extended Examination of Perfect 10 v. Google, Inc. • Minjeong Kim, Hawaii Pacific University • This study closely examines the recent case of Perfect 10 v. Google, Inc. and addresses how the court employed the fair use doctrine in the dynamic context produced by the interplay between new technology and new market. Exploring the case in the light of the U.S. Supreme Court’s applications of the fair use doctrine along with Professor Wendy Gordon’s market failure test reveals flaws in the Perfect 10 decision.
The Intent Behind the Cryptic Concurrence That Provided a Reporter’s Privilege • Michele Kimball • Justice Lewis Powell wrote a concurrence in Branzburg v. Hayes that, against the majority opinion, provided room for journalists to claim a privilege against testifying in grand jury proceedings. Although he sided with the majority, he seemed to disagree with the majority opinion. By delving into Justice Powell’s personal papers and case files, this research explores his intent when he wrote his concurrence. This research shows that Justice Powell supported a qualified reporter’s privilege.
All Bark, No Bite: State Government Claims to Copyright in Official Codes of Law • Carmen Maye, University of South Carolina • A 2002 judicial opinion prompted a flurry of commentary on copyright protection for privately-drafted “model codes” that ultimately become governing law. That case concerned the copyrights by private authors of public laws. Few commentators, however, have directly addressed attempts by the states to claim copyright protection for their general statutes. This paper explores states’ ability to monopolize general statutes and suggests that state statutes, like federal statutes, should be ineligible for copyright protection.
Liberty of the Press: The Emergence of the Constitutional Doctrine in Colonial Virginia • Roger Mellen, George Mason University • This research explores the origins of liberty of the press in Virginia, following how it emerges within the newspapers and from the struggles with the royal governors. Prevalent legal histories see political philosophers, English legal precedents, and the writings of the American founding fathers as the source of this Constitutional right. This paper explores how the idea of freedom of the press evolved, uncovers more popular sources, and raises questions about prior interpretations.
Don’t Even Ask! A Two-Level Analysis of Government Lawsuits Against Citizen and Media Access Requestors • Cathy Packer, University of North Carolina-Chapel Hill • This article examines cases in which government entities sued citizen and media access requestors under state open meetings and public records statutes. These cases are analyzed on both the level of the individual complaint and the level of social architecture. Social architecture is the idea that law, in addition to settling individual complaints, defines power relationships between various groups in society. The conclusion calls for legislative and judicial change.
“Justice, and Only Justice, You Shall Pursue”: Network Neutrality, the First Amendment and John Rawls’ Theory of Justice • Amit Schejter, Pennsylvania State University, and Moran Yemini, New York University • This study offers a new framework for analyzing the “network neutrality” controversy that takes into account that the Internet is a new medium of “mass self communication,” which requires abandoning the utilitarianism that has characterized U.S. telecommunications regulation – the outcome of which has been promoting the interests of a fortunate few – and adopting an alternative theory, John Rawls’ “theory of justice.”
Terrorism Over the Airwaves? Satellite Television and the First Amendment in the War on Terror • Jason Shepard, University of Wisconsin-Madison • The Bush administration’s addition of Lebanon’s al-Manar television station to a list of terrorist groups is believed to be the first time a television network with an international news organization has been essentially banned from the United States. The prohibition and subsequent criminal prosecution of a satellite-television provider presents new challenges to the First Amendment and its proper role regarding access to international news during the war on terror.
National Security and the Role of the Press: The Government’s Ability to Prosecute Journalists for the Possession or Publication of National Security Information • Derigan Silver, University of North Carolina-Chapel Hill • This paper identifies existing laws under which the press could be criminally prosecuted for the unauthorized disclosure of classified information, describes how the courts have addressed those laws, and considers First Amendment issues that may arise if the Attorney General sought to apply current law to punish newspapers that publish leaked classified information.
Let the Sunshine In, Or Else: Examining the “Teeth” of Open Government Laws • Daxton Stewart, University of Missouri • Sunshine laws are at the heart of transparent democracy, in place to ensure that government meetings and records are open for public inspection. However, audits and surveys consistently show disturbingly low levels of compliance with sunshine laws. This can at least partially be attributed to the remedies available for violations of state and federal sunshine laws, the so-called “teeth” that should aid enforcement of these laws.
The Newspaper-Broadcast Cross-Ownership Rules and the Public Interest • Lorna Veraldi, Florida International University • More than three decades ago, the Federal Communications Commission adopted rules prohibiting future licensing of broadcast stations to newspaper owners in the same market. Currently those rules are under review pursuant to the Congressional mandate in the Telecommunications Act of 1996 that the FCC periodically review its ownership rules and eliminate those that no longer serve the public interest.
How Federal Appeals Courts Have Complied with Harper & Row, Publishers v. Nation Enterprises • Jie Wang and Thomas Schwartz, Ohio State University • This paper analyzes federal appeals court cases citing Harper & Row, Publishers, v. Nation Enterprises, the 1985 United States Supreme Court case that held a magazine’s “scoop” of the publication of President Ford’s memoirs was not exempt from copyright liability under theories of either freedom of the press or “fair use.” While the majority asserted that the decision would have no adverse impact on journalism, dissenting Justice Brennan disagreed.
Access to 911 Tapes in 50 States: Balancing Privacy Against the Public Interest in Disclosure • Janelle Weber, Thomas & LoCicero • This paper reviews state statutes, appellate court cases, and attorney general opinions governing public access to tapes of 911 emergency calls in the fifty states and District of Columbia. Additionally, it reviews and analyzes state appellate court decisions applying general privacy exemptions in the context of 911 tapes. This paper concludes that courts have overstated privacy interests and/or minimized the public interest in disclosure.
Liberalizing British Defamation Law in Jameel: Challenging U.S. “Exceptionalism” in Free Speech? • Kyu Ho Youm, University of Oregon • Against the backdrop of the often sweeping conclusions of American scholars and the widely held assumptions that the First Amendment is an exception to international law on freedom of expression, this paper aims to find out whether U.S. exceptionalism is truly valid as a “legal,” not “political,” notion. The framework of this paper on American exceptionalism emanates from the “actual malice” rule of the United States.
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