Law and Policy 2008 Abstracts
Law and Policy Division
Broadcast Fairness as a Public Interest Principle: Finding Intent in the 1927 and 1934 Acts • Mark R. Arbuckle, Pittsburg State University • For four decades the Fairness Doctrine required broadcasters to air important controversial public issues and provide opportunity for opposing views. In 1987 the FCC cited technological advances and increased media voices as its chief justification for eliminating the doctrine.
Crowdslapping the Government: First Amendment Protections for the Crowd in Government Crowdsourcing Ventures • Daren Brabham, University of Utah • Crowdsourcing is an online, distributed problem solving and production model already in use by Web-based businesses such as Threadless, iStockphoto, and InnoCentive. Part of the so-called Web 2.0 era, the crowdsourcing model harnesses the collective intelligence of an online community to solve problems and supply creative labor for an organization.
Freedom of Speech & the High Price of College Textbooks: Do New Laws Affecting Disclosure of Textbook Information Go Too Far and Violate the First Amendment? • Clay Calvert, Pennsylvania State University • This paper examines the First Amendment freedom of expression issues raised by a wave of new state laws designed to make college textbooks more affordable for students by mandating that publishers and their representatives disclose certain price and content-based information to professors and others. After describing the evolution, purpose and terms of these compelled-speech laws, the paper then analyzes their constitutionality under the commercial speech doctrine, exposing multiple problems that likely render them unconstitutional.
What is News?: The FCC and the New Battle Over the Regulation of Video News Releases • Clay Calvert, Pennsylvania State University • This paper analyzes and critiques the Federal Communication Commission’s troubling recent efforts to regulate news and, in particular, its new foray in 2007 into policing and punishing the use of materials gleaned from video news releases (VNRs) for which absolutely no money or other form of consideration has changed hands between the VNR producers and the television stations that incorporate them into newscasts. The paper examines the First Amendment issues raised by the FCC’s efforts.
The Human Right to Information, the Environment, and Information About the Environment: From the Universal Declaration to the Aarhus Convention • Benjamin W. Cramer, Pennsylvania State University • Access to government-held information and the amelioration of environmental problems are considered statutory matters in the United States, but at the international level these are seen as human rights to be enjoyed by all the world’s peoples. In recent years two relatively new categories of human rights demanded by activists, the right to government information and the right to environmental protection, have converged into a new human right – the right to government information about the environment.
Packing Heat: A Gun Battle Between Privacy and Access • Aimee Edmondson, University of Missouri • After the Virginia Tech massacre, university students across the country strapped on empty gun holsters and wore them to class for a week to protest school policies prohibiting students from carrying concealed weapons on campus. If a gunman bursts into one of their classrooms, they said, they want to be able to shoot back. The carrying of concealed weapons has become a major public issue.
Shades of Truth, Harm, and Malice: The Emergence of the Subsidiary Meaning Doctrine • Carolyn Edy, University of North Carolina-Chapel Hill • First described and applied in 1986 by the U.S. Court of Appeals for the Second Circuit in Herbert v. Lando, the subsidiary meaning doctrine holds that a defamatory statement is not actionable if it is subsidiary in meaning to other, nonactionable statements included in the same publication.
Advertising Parody, Intellectual Property and Defamation in the United States and France • Leo Eko, University of Iowa • International politico-cultural controversies involving mass mediated cartoons, caricatures and parodies provided an opportunity to compare and contrast how courts in the United States and France manage the tensions between advertising parody, defamation, freedom of speech and respect for religion.
Equal Protection Challenges to Legal Protections for Newsgathering: Would Bloggers Have a Claim? • Laura J. Hendrickson, Texas House Research Organization • As the proliferation of blog journalism calls into question who is a journalist, who should benefit from legal press protections, and whether unique press protections are constitutionally sustainable, one area of law that could potentially be called on to address these questions is Equal Protection doctrine. This paper examines fundamental interest analysis under the Equal Protection Clause and whether it might apply to bloggers or other non-institutional journalists seeking legal protection for newsgathering.
No Two States Alike: A Statutory Analysis of Survivor Privacy Rights • Ana-Klara Hering, University of Florida • This article explores the concept of post-mortem relational privacy − the idea that family members have a right of privacy in information about deceased relatives. The researcher presents the first-ever conceptual model of post-mortem relational privacy theory, explaining in four phases how access to government-held information about the dead is dependent on the status of the record at issue in relation to the person’s death.
A Question of Where in Cyberspace: Background and Conflicts of Jurisdiction Online • Lynette Holman, University of North Carolina-Chapel Hill • In discovering what factors that courts have considered in determining whether there are sufficient minimum contacts for purposes of establishing personal jurisdiction over the defendant in civil lawsuits arising from online defamation, this analysis of relevant cases will focus on the development of law over the past ten years.
In the Zone: Forum Analysis and Free Speech Zones on College Campuses • Michele Jones, University of North Carolina-Chapel Hill • This research examines the legal issue of “free speech zones” on public college and university campuses. Speech zones are physically defined, outdoor areas where members of the college or university community or the public may speak, hand out literature or leaflet, demonstrate, or display signs or banners. Policies that create these zones place varying limitations on their use including requiring permits or restricting their use to members of the college community at the exclusion of others.
The Functional Equivalent of Ultimate Victory for the Corporate Free-Speech Movement: The Watershed Significance of FEC v. WRTL • Robert Kerr, University of Oklahoma • This paper examines the new test for determining the “functional equivalency of express advocacy” established by Chief Justice John Roberts in a 2007 principal opinion. That test could very well represent the ultimate victory at the Supreme Court for what can reasonably be characterized as the corporate free-speech movement — efforts to develop First Amendment protection for corporate political media spending since the mid 1970s.
Friends of the First Amendment? Amicus Curiae Briefs in Free Speech/Press Cases During the Warren and Burger Courts • Minjeong Kim, Colorado State University; Lenae Vinson, Hawai’i Pacific University • This study, relying upon a pre-existing data set complied by other researchers, quantitatively examines the trends and effect of amicus curiae brief filing in free speech/press cases decided by the U.S. Supreme Court in the years between 1953 and 1986. Out of 4,441 cases analyzed in this study, 231 cases were in the free speech/press topic area, and 150 of them had at least one amicus brief filed.
Perfect 10 v. Visa, MasterCard, et al: A Full Frontal Assault on Copyright Enforcement in Digital Media or a Slippery Slope Diverted? • Pamela Laucella, Indiana University; Ryan Rodenberg, Indiana University • This case comment analyzes the Ninth Circuit’s Perfect 10 v. Visa, MasterCard, et al opinion, a case of first impression that tested the limits of contributory and secondary copyright infringement in a digital world. Instead of suing direct infringers, adult content publisher Perfect 10 sued credit card companies that facilitated payments on behalf of websites purportedly featuring stolen photographs. This case comment also discusses the implications of the decision on digital media.
The Cherokee Nation Freedom of Information Act: Context and Analysis for an Open-Records Law in Indian Country • Dan Lewerenz, University of Wisconsin-Madison • Last year, the Better Government Association and the National Freedom of Information Coalition released their second report card evaluating each of the 50 states’ open-records laws. Left out of the analysis, however, was any discussion of what might be the only open-records law in Indian Country.
COPA’s Last Stand? Revisiting the Child Online Protection Act Following the 2007 ACLU v. Gonzales Ruling • Christina Malik, University of North Carolina-Chapel Hill • This research examines the legislative history of the Communication Decency Act (CDA) and the Child Online Protection Act (COPA). Both the CDA and COPA, which were created with the intent of protecting children from harmful Internet content, have been challenged in the courts and, to date, found unconstitutional. This paper explores how the federal courts have decided the constitutionality of these statutes at all court levels, with an emphasis on the 2007 ruling regarding COPA.
A Model Law to Prosecute Information Society Libels • Nikhil Moro, Central Michigan University • One of the problems facing libel litigants in Internet cases is multiple personal jurisdictions. This paper proposes a model law by which a suggested transnational agency would execute a normative, libertarian, Theory of Freedom of Expression in the Information Society. The author presented such a theory at an earlier conference; the current paper attempts to operationalize that theory.
Inclusion or Illusion? An Analysis of the FCC’s Public Hearings on Media Ownership 2006-2007 • Jonathan Obar, Pennsylvania State University • Amit Schejter, Pennsylvania State University • In 2006-2007 the FCC held six public hearings across the country in an attempt to fully involve the public in a re-evaluation of the rules governing media ownership in the United States. This study addresses whether the FCC did indeed fully involve the public in their deliberations, what was said at the hearings, and whether public input contributed to the design of the policy.
Transforming Productive Use: The Ninth Circuit’s Fair Use Analysis of Visual Search Engines in Kelly and Perfect 10 • Kathy Olson, Lehigh University • This paper examines the Ninth Circuit’s fair use analysis of visual search engines in Kelly v. Arriba Soft Corp. and Perfect 10 v. Amazon.com, Inc. and concludes that the court departed significantly from the Supreme Court’s conception of “transformative use” set forth in the Campbell case in 1994.
The Politics of Power: A Social Architecture Analysis of the 2005-2007 Federal Shield Law Debate in Congress • Cathy Packer, University of North Carolina-Chapel Hill • The Congressional debate over a proposed federal shield law has centered primarily on disagreements over the proper distribution of power among the three branches of the federal government and on the powers of the U.S. Department of Justice and the media. This is revealed through a social architecture analysis of the Congressional hearings and debate.
Privacy and Accountability: Reexamining Bartnicki v. Vopper • Rich Powell, Indiana University • In 2001, a fractured Supreme Court ruled in Bartnicki v. Vopper that a journalist could not be held responsible for disseminating illegally obtained information. The decision was met with heavy criticism from scholars who worried about its potentially chilling effect on private discourse.
University Foundations, Donors and Open Records: A 50-State Study of Access to Foundation Records • Adrianna C. Rodriguez, University of Florida • Access to public college and university foundation and donor records varies widely throughout the country. Central to the access debate is whether foundations, established as private, nonprofit corporations, should be subject to state public records laws because of their role as the fundraising arm of public institutions of higher education. The purpose of this paper is to create a national picture of the public records status of public college and university foundations and donor records.
Defining Defamation: Plaintiff Status in the Age of the Internet • Amy Kristin Sanders, University of Minnesota • This public person/private person dichotomy plays an important role in modern defamation litigation. Courts often use a plaintiff’s status to make several determinations critical to the litigation. First, the evaluation of the plaintiff’s status determines the level of fault he must prove to succeed in a defamation action. Second, courts may look to the plaintiff’s status to determine his or her proper community.
The Beginning of the End?: The Federal Reporter’s Privilege Five Years After McKevitt v. Pallasch • Jason Shepard, University of Wisconsin-Madison • Subpoenas issued to three Chicago journalists in the summer of 2003 set in motion a cascade of legal developments that five years later have significantly weakened the federal common law reporter’s privilege. This paper deconstructs the influence of Judge Richard’s Posner’s decision in McKevitt v. Pallasch on the federal reporter’s privilege and explores the limits of Posner’s decision as persuasive precedent.
First Amendment Reporter’s Privilege: Interpretation and Application of the Exhaustion Requirement • Kristin Simonetti, University of North Carolina-Chapel Hill • This research examines the exhaustion requirement, part of a three-part test derived from Justice Potter Stewart’s dissent in Branzburg v. Hayes. A version of this requirement is included in each of the multi-part tests adopted by the nine federal circuits that recognize a First Amendment reporter’s privilege, as well as the Free Flow of Information Act of 2007. This research seeks to determine how these nine federal circuits have interpreted and applied the exhaustion requirement.
Preventing the Next Price v. Time: Legal and Historical Arguments for Action • Dean C. Smith, University of North Carolina-Chapel Hill • This paper is not about blogging, the proposed federal shield law or even future state statutes, though those discussions play a role. This paper pinpoints existing problems in existing state shield laws and lays out arguments to bolster lobbying for legislative action to prevent the next, inevitable Price v. Time. …
Managing Conflict Over Access: A Typology of Sunshine Law Dispute Resolution Systems • Daxton Stewart, Texas Christian University • Freedom of information laws struggle to manage disputes over access to government records and meetings in an effective manner. This study applied principles of Conflict Theory and Dispute Systems Design to examine the dispute resolution systems in place in open government laws across the United States. Five models emerged from this study: Multiple Process, Administrative Facilitation, Administrative Adjudication, Advisory and Litigation. This typology may aid the design of dispute resolution systems in the future.
Newsgathering, Autonomy and the Special-Rights Apocrypha: Supreme Court and Media Litigant Conceptions of Press Freedom • Erik Ugland, Marquette University • This article addresses the validity of several long-standing assumptions about the Supreme Court’s free-press jurisprudence and about the arguments made by the media litigants in those cases. It analyzes more than three decades of court opinions and litigant briefs and finds no support, for example, for the abiding accusation that the press litigants have claimed an elite or preferred constitutional position, or that they have sought judicial recognition of a framework of special rights.
Deciphering Dun & Bradstreet: Does the First Amendment Matter in Private Figure-Private Concern Defamation Cases? • Ruth Walden, University of North Carolina-Chapel Hill • Derigan Silver, University of North Carolina-Chapel Hill • This research analyzes the extent to which lower federal courts and state appellate courts have been able to decipher the U.S. Supreme Court’s decision in Dun & Bradstreet v. Greenmoss Builders, Inc. to determine whether and how constitutional protections apply in private plaintiff-private issue defamation cases. It discusses the impact of the Supreme Court’s convoluted reasoning and offers a solution that would conform to the original opinion without compromising First Amendment values.
The “Neutral Reportage” Doctrine in English Law • Kyu Ho Youm, University of Oregon • In recent years, the neutral reportage doctrine has suffered a series of significant setbacks in the United States. It is hardly an exaggeration to state that neutral reportage is floundering in American libel law, if not necessarily foundering. By contrast, in England neutral reportage has quickly emerged as a new libel defense since 2001, when it was first accepted by English courts.
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