Law and Policy 2011 Abstracts
Opting-in to Privacy: A Comparison of Proposed Online Privacy Protections • Courtney Barclay, Syracuse University • In 2010, The Wall Street Journal launched an investigative series on “one of the fastest-growing businesses on the Internet — spying on consumers.” The use of online tracking methods, particularly for commercial purposes, has raised significant privacy concerns for consumers. Advertisers using behavioral targeting technologies are able to analyze a person’s web viewing habits “to predict user preferences or interests — based on the preferences or interests inferred from such Web viewing behaviors.” The industry has promoted self-regulatory principles and implementation tools to respond to these concerns. However, in December 2010, the Federal Trade Commission reported that these efforts “have been too slow and up to now have failed to provide adequate and meaningful protection.” The Obama administration has supported broader legislation that would offer more comprehensive protection of individuals’ private data. The leading model for data privacy protection is the 1980 Organization for Economic Cooperation and Development (OECD) Guidelines on the Protection of Privacy and Transborder Flows of Personal Data, to which the United States is a signatory. This article examines two leading privacy law proposals — the Privacy Bill of Rights draft proposal and the BEST PRACTICES Act — in the context of the OECD principles. This examination concludes that the legislative proposals fill significant gaps in the protection offered by self-regulatory schemes and current privacy laws.
Libel Capital No More? Reforming British Defamation Law • Stephen Bates, University of Nevada, Las Vegas • London has repeatedly been called the libel capital of the world, but after years of criticism, it appears that change may finally be under way. In August 2010, President Obama signed into law the SPEECH Act, which addresses the problem of libel tourism as it affects Americans. Further, a January 2011 ruling of the European Court of Human Rights in Strasbourg is likely to reduce the costs facing unsuccessful defendants in some British defamation cases. In addition, and most significantly, the British government released proposals for far-reaching reform of defamation law in March 2011. This article analyzes the potential reforms of British defamation law. First, it summarizes provisions of the current law, the major criticisms and defenses of them, and the government’s proposals for change. Second, it examines issues related to the costs of litigating defamation cases in Britain, which are not addressed in the government’s proposed bill. Third, the article summarizes and evaluates the American SPEECH Act. Fourth, the article considers the extent to which the completed and the proposed reforms may ameliorate the perceived shortcomings of British defamation law, and discusses problems that are likely to endure. The conclusion notes that major reform of long-criticized defamation law in Britain may finally be at hand, though much remains to be done.
Revisiting the Right to Offend Forty Years After Cohen v. California • Clay Calvert, University of Florida • This paper examines the lasting legacy of the United States Supreme Court’s ruling in Cohen v. California upon its fortieth anniversary. After providing a primer on the case that draws from briefs filed by both Melville Nimmer (for Robert Paul Cohen) and Michael T. Sauer (for California), as well as newspaper articles from the era about the case, the paper examines how subsequent rulings by the nation’s high court have been influenced by the logic and reasoning of Justice Harlan’s majority opinion in Cohen. The legacy, the paper illustrates, is about far more than just protecting offensive expression. The paper then illustrates how lower courts, at the state and federal levels, have used Cohen to articulate a laundry list of principles regarding First Amendment jurisprudence. The paper concludes by considering how new technologies and the digital age may affect Cohen’s future influence, as well as how President Barack Obama’s call in January 2011 for a more civil public discourse about political issues stands counterposed to the First Amendment rights provided by Cohen. Finally, the U.S. Supreme Court’s eight-justice majority opinion in March 2011 in Snyder v. Phelps demonstrates that, at least for today, the right-to-offend principle is alive and well.
The Texting and E-mailing of Fighting Words • Clay Calvert, University of Florida • This paper examines the viability of the aging fighting words doctrine in the digital era. In particular, the paper explores whether the doctrine, which was designed to address face-to-face confrontations and responsive violence, can be narrowly modified and adapted to apply to new modes of real-time, electronic communication, including texts, instant messages and e-mails. This issue is timely and ripe for review because the doctrine, if modified, might serve as one legal vehicle for censoring and/or punishing so-called cyber bullies who use these forms of digital communication to convey personally abusive expression in targeted, one-on-one fashion. In the process of analyzing this issue, the paper addresses the U.S. Supreme Court’s apparent unwillingness in its 2010 opinion in United States v. Stevens for creating new categories of unprotected expression and queries whether this would translate to an equal unwillingness to modify extant categories of unprotected expression. Significantly, the paper examines the transcript of the October 2010 oral argument in Snyder v. Phelps to search for indications of how current members of the high court interpret the meaning of the fighting words doctrine.
SLAPPing e-Publius: Protecting Anonymous Expression and Reputation in a Digital Age • Brian Carroll, Berry College • This paper examines the difficulty in balancing an individual’s right to reputation against another’s right to anonymous expression online, and in so doing it argues against a takedown notice for online defamation similar to that legislated as part of the Digital Millennium Copyright Act and against any effort to criminalize online defamation as antithetical to the First Amendment. In fighting off these problematic responses to the admittedly growing problem of anonymous defamation online, this paper examines imbalances created by, among other things, ISP immunity granted by the Communications Decency Act, public figure-private citizen distinctions, and the lack of uniformity among state-level anti-SLAPP statutes.
Donaldson v. Beckett and the Common Law of Literary Property: A Century of American Scholarly Perceptions and Misperceptions • Edward Carter, Brigham Young University; Jessica Danowski; Jena Green, Brigham Young University; Karina Shamaileh-Marcella, Brigham Young University • This article attempts to address more than a century of American misperceptions about the 1774 House of Lords copyright case Donaldson v. Beckett by, first, undertaking a detailed examination of the case itself using not just the five reported versions of the House of Lords opinion but also contemporary newspaper accounts. Although other scholars have referred to a small number of the news accounts, this article undertakes a lengthy and comprehensive review of the news reports, in conjunction with the official versions of the case. The newspaper accounts reveal significant previously unrecognized, or at least underappreciated, facts about the case. Next, the article documents the extent of American legal scholars’ misperceptions of and confusion about Donaldson. Finally, the article discusses the import of these misperceptions.
New Technology, Old Obstacles: FOI Advocates Share Their Struggles for Access in the Digital Age • Sandra Chance, University of Florida; Christina Locke, University of Florida • While closed-door meetings, secret files and surreptitious telephone calls were once the primary means that government officials circumvented public scrutiny, new technology poses new challenges. Modern technology provides government employees and elected officials with a whole new arsenal of ways to avoid transparency, if they choose to do so. This paper explores the ways state freedom of information (FOI) advocates are coping with the challenges presented by technology. A survey distributed to FOI advocates nationwide revealed that while technology is influencing the amount of access (for better or worse), most concerns still revolve around the government employees and elected officials upon whom the public depends upon to carry out the function of government and be the guardian of public resources and information. Most respondents also felt new laws would help ensure access in the digital age. Nationwide collaboration among FOI advocates may be the best way to achieve effective changes in the law.
“Blurring” and “Tarnishment”: How Federal Courts Have Applied the 2006 Trademark Dilution Revision Act Standards. • Roxane Coche, University of North Carolina at Chapel Hill • A trademark is a word or a symbol used by the owner to brand a product or service, and communicate to consumers the source of that product or service. The unauthorized use of a trademark, or something similar, to brand product or service can lead to consumer confusion and allow the trademark owner to sue the offending party for trademark infringement under federal law. However, federal law offers another cause of action for trademark owners when the circumstances of an unauthorized commercial use do not create consumer confusion but instead lessen the trademark’s uniqueness to brand a product or service — the dilution claim. To protect famous trademarks from dilution, Congress enacted, in 1995, the first comprehensive federal law, the Federal Trademark Dilution Act (FTDA). After a case — Moseley v. V. Secret Catalogue, Inc. — made its way to the Supreme Court, Congress amended the FTDA in the Trademark Dilution Revision Act (TDRA) in 2006. Included in the modifications brought by the TDRA, a new definition of dilution introduced the concepts of “blurring” and “tarnishment.” This study examines the extent to which federal courts have allowed dilution claims under the “blurring” and the “tarnishing” standards set out in the TDRA. It demonstrates that although both constitute dilution, the factors and evidence that come into play, in each of them, are far from being similar.
An Extinction of Transparency: The Opaque Endangered Species List • Benjamin W. Cramer, Pennsylvania State University • This paper reconstructs the Endangered Species Act as a government information statute. That Act makes use of an official list of threatened plants and animals, which is used for agency action and the enforcement of regulations. However, this paper argues that the official list of threatened species is not sufficiently accurate or transparent to citizens, making the list a violation of not just environmental law but also government transparency policy.
Unknown Knowns: Judicial Review and Mosaic Theory in the years of the George W. Bush Administration • Kelly Davis, University of North Carolina at Chapel Hill • The purpose of this paper is to look for trends in post-9/11 judicial deference to mosaic theory claims concerning national security, including both FOIA national security exemption claims, law enforcement exemption claims involving terrorism investigations, and the state secrets privilege. Findings indicate that the level of deference given to executive claims of national security is moderate overall, but precedence of judicial review has been set to strong and weak standards by appellate courts composed of democratic and republican appointees, respectively.
Corporate Underwriting on PBS and the Funding of Children’s Educational Television • Joelle Gilmore, University of Pennsylvania • The Public Broadcasting Act of 1967 prohibits PBS from airing advertisements, but changes to underwriting polices in 2008 allow child-friendly production techniques common to commercial networks. Using samples from 2006/2010, we analyze underwriting spots during children’s programming before and after the changes. Spots from 2006 included fewer child-friendly techniques and were more likely to represent adult-focused industries. A new business model is needed if PBS is to remain a provider of high-quality, non-commercial children’s programming.
Snyder v. Phelps and the Death of Intentional Infliction of Emotional Distress as a Speech-based Tort • Wat Hopkins, Virginia Tech • The U.S. Supreme Court ruled in March that the Westboro Baptist Church was not liable for damages in Albert Snyder’s lawsuit for intentional infliction of emotional distress because the church’s protests at the funeral of Snyder’s son involved matters of public concern. The Court’s focus on a subject-matter based protection for Westboro’s speech makes it virtually impossible for private persons who are brutalized by verbal attacks to achieve recourse through the courts.
Tweeting the Police Scanner: The Rediscovered Liabilities • Bill Hornaday, Indiana University • This article examines First Amendment issues that might arise when professional or citizen journalists use Twitter to spread information obtained from “police scanner” transmissions. It addresses confusion concerning the practice’s legality and illustrates potential risks. It concludes by arguing that “scanner tweeting” should be done sparingly and under guidelines that minimize the spread of flawed information, reduce the risk of a potential defamation lawsuit, and promote the safety of emergency personnel, the public, and media.
Poker and Prostitution: Craig v. Henry and the Dilemma of Hypothetical Online Prostitution • Jack Karlis, University of South Carolina • Craigslist is a free online forum for users to exchange goods, information and services. Under its “services” heading, content once listed an “erotic” heading, containing user generated ads for “legal escort services, massage workers, exotic dancers, erotic phone lines and other services for ads that often contain adult content” to deter the aforementioned adult-themed content out of other postings on the site. South Carolina Attorney General Henry McMaster and the South Carolina law enforcement officials involved in craigslist, Inc. v. Henry D. McMaster, et al. aimed to stop the illegal activity of prostitution in their own state’s confines, but the actions taken by both parties in the cases have raised greater concerns in the realm of commercial speech in the United States. The U.S. District Court’s ruling and logic for dismissing craigslist’s appeal in its entirety raises more questions than it answers. Why was craigslist not considered a third-party provider in regards to its content? Why was craigslist singled out when various other online outlets offered the same type of content in some way, shape or form? Weren’t craiglist’s numerous restrictions and revisions to the content considered enough? Were McMaster and his party’s threats of criminal prosecution “credible” enough? Was prior restraint involved when craigslist decided to completely eliminate its adult/erotic section? Was the decision of this case incorrectly resolved using current commercial speech guidelines in place? This paper will aim to answer these questions and examine the possible restrictive effect this case may have on future online commercial speech.
What the Numbers Tell Us: FOIA Implementation under the Obama Administration • Minjeong Kim, Colorado State University • The Obama administration’s FOIA policy clearly contrasts with that of the Bush administration. To examine if the Obama administration’s policy change has resulted in differences in the actual processing of FOIA requests, this study compares FOIA implementation between the two administrations. The study analyzes quantitative data collected from twenty-five federal agencies’ annual FOIA reports. The study findings suggest that overall the twenty-five agencies have granted more access under the Obama administration than the Bush administration.
State Action, Public Forum and the NCAA: First Amendment Rights of the Credentialed Media • Michael Martinez, University of Tennessee Knoxville • In 2007, the NCAA revoked the press credentials of a newspaper reporter for blogging during a tournament baseball game. The association was concerned that it would infringe on broadcast rights granted to ESPN and violate their copyright. This paper will make the case that the revocation was an infringement on the newspaper’s First Amendment right of a free press to disseminate the news and will examine it through copyright law, state action and forum analysis.
A Textual Analysis of the Influence of McIntyre v. Ohio Elections Commission in Cases Involving Anonymous Online Commenters • Jasmine McNealy, Syracuse University • In McIntyre v. Ohio Elections Commission, the U.S. Supreme Court struck down an Ohio law that prohibited the distribution of anonymous campaign material. According to the court, speakers may want to remain anonymous for fear of physical, social, and economic reprisal, “Anonymity is a shield from the tyranny of the majority.” But the McIntyre decision concerned offline communications. A question remains as to whether the courts have or are willing to apply McIntyre to anonymous Internet communications, and if so, is that application limited only to political speech. This study examines these questions in an attempt understand what impact McIntyre has had on the protection of online anonymity by presenting an textual analysis of cases in which subpoenas have been issued to identify anonymous online commenters.
Might This “Legal Attack Dog” Have Much Bite? Righthaven, Fair Use and the Unauthorized Reproduction of News Content Online • Scott Parrott, University of North Carolina at Chapel Hill • While the Internet allows newspapers and other news producers a chance to reach larger audiences than ever before and to generate revenue through online advertising and subscriptions, the World Wide Web also creates challenges regarding the unauthorized duplication of original news content. Computers and the Internet allow users an easy, quick, and inexpensive method for disseminating exact copies of articles, video footage, photographs and other news content to wide audiences without asking for the copyright owner’s permission. A host of recent copyright infringement lawsuits against bloggers and other Web site operators for republishing news content without permission highlights the growing prominence of a clash between original news content producers and secondary publishers online. The present paper examines federal court decisions since 1985 to determine how courts have treated fair use in copyright infringement cases in which news content was the material in controversy. The analysis found that federal courts have more often than not denied the fair use defense in copyright infringement lawsuits involving news content. While its factual nature favors fair use, news content still enjoys copyright protection especially when a secondary use is for commercial purposes and hinders the market for the original work.
A SLAPP in the Facebook: Assessing the Impact of Strategic Lawsuits against Public Participation on Social Networks • Robert Richards, Pennsylvania State University • In fall 2010, Sony Pictures released The Social Network, a movie about the birth and rapid growth of Facebook. In the first five weeks of its release, the film grossed $79.7 million as well as critical acclaim. The film also explores the legal wrangling among the site’s innovators in the technology’s early stages. Today, larger legal concerns are looming from outside the social networks’ inner circle — specifically, third parties who are suing users directly in an effort to shut them up, close them down or teach them a costly lesson. The weapon — Strategic Lawsuit Against Public Participation (SLAPP) — has been a tactic for decades, but the proliferation of online targets, such as Facebook pages, blogs and consumer gripe sites have breathed new life into this nefarious litigation practice. Additionally, SLAPPs aimed at online discussion pose a particularized threat not only to the technology-driven marketplace of ideas but also the centuries-old notion of anonymous speech. For various motives, online users often post anonymously or under pseudonyms. SLAPP filers in search of targets are issuing subpoenas designed to unmask the identities of these posters. Anti-SLAPP statutes provide some protection to online speakers, but they are of varying availability and utility. This paper explores the legal issues and challenges faced by social network users, bloggers and consumers who gripe online. It argues that a national, rather than state-by-state, solution to the problem of online SLAPPs is needed and explores whether legislation pending in Congress addresses the pressing issues.
Tobacco Advertising Regulations, Counter-marketing Campaigns and the Compelling Interest in Protecting Children’s Health • Derigan Silver, University of Denver; Kelly Fenson-Hood, University of Denver • The U.S. Supreme Court’s decision in Lorillard Tobacco Co. v. Reilly that even a compelling interest in protecting children’s health would not allow the government to overly burden the flow of communication to adults about tobacco products has left public health officials with little room to craft tobacco advertising restrictions that are both demonstrably effective and constitutional. Focusing on social scientific research in the field of health communication and the legal doctrines of counterspeech and government speech, this paper posits that a national counter-marketing tobacco prevention campaign targeting youth and paid for with compulsory fees or a tax paid by tobacco companies would advance the government’s interest in preventing youth smoking, better uphold First Amendment ideals and allow adults to continue to receive information about legal products. However, the paper also concludes that not all counter-marketing campaigns are created equal and campaigns should focus on using techniques proven to be effective.
Two Dominant Industries, One Regulatory Agency: Lobbying Strategies to Attain Regulatory Capture • Amy Sindik, University of Georgia • What happens when two dominant industries are regulated by the same agency? The majority of strategic regulatory research operates under the assumption that the agency is captured by a single, dominant industry. Having two dominant industries regulated by the same agency impacts the lobbying strategies of organizations in both industries. This article uses lobbying contributions from the broadcast and telecommunications industries, two dominant industries competing for regulatory capture by the FCC, to examine if competing for capture alters isomorphic lobbying strategies. The findings suggests that isomorphic lobbying strategies still occur frequently between the telecommunications and broadcast industries, but some efforts are made to begin distinguishing lobbying efforts in the areas of policy focus and the amount of internal versus external lobbying conducted by the organizations.
Journalist Privilege in 1929: The Quest for a Federal Shield Law Begins • Dean Smith, University of North Carolina at Chapel Hill • “The difficulty with much constitutional scholarship, “ Professor Michael Gerhardt has said, “is that it fails to account for, much less examine, the interplay between judicial and non-judicial precedents.” Gerhardt’s theory of “non-judicial precedents” asserts that rules made outside courts — norms, regulations, statutes — shape constitutional issues long before courts intervene. The question of whether the First Amendment should provide a testimonial privilege to journalists is a case in point: No federal court addressed that issue until 1958, but journalists had framed it as a constitutional issue for decades — even as they lobbied for statutory shield laws. The primary goal of this paper is to apply Gerhardt’s theory to an early turning point in journalist-privilege history: the first attempts, in 1929, to persuade Congress to adopt a federal shield law. On Gerhardt’s view, it represented a valuable opportunity for non-judicial actors to lead a national dialogue about constitutional meaning and help define freedom of the press, largely undefined by courts at the time. A second goal is to use original historical research to correct the record about these events and illuminate their significance. This history will emphasize the role non-judicial actors — including William Randolph Hearst and Fiorello La Guardia — played in leading a national debate about journalism, and, as Gerhardt’s theory would predict, the meaning of the First Amendment. It also will tie these events to a raft of shield laws adopted in the 1930s and 1940s, a link that never has been shown.
Vox Hawkeye: A Study in the Intellectual Call for Open Government (and How One State Heeded It) • Steve Stepanek, Georgia Southern University • Open government is the linchpin of a representative republic, for it powerfully promotes citizens’ claims for access to the seats of institutional power whereby they are able to both keep themselves informed and make their collective voices heard. This paper provides a background of the historical/scholarly lineage of the open government movement and offers insight (based upon the legislative and journalistic records extant during the period in question) into the political and philosophical forces that developed as one state sought to implement its regime of “sunshine” laws.
Can I Use This Photo I Found on Facebook? Fair Use and Social Media Images • Daxton Stewart, Texas Christian University • When news breaks about unknown people, news media turn to social networking sites such as Facebook to find photographs of the subject. However, these uses may be infringing on copyrights of photographers. Applying the fair use analysis to photographs found online and republished for news reporting purposes, the authors conclude that courts are unlikely to approve of this defense except in situations when photographs are independently newsworthy and news publishers act in good faith.
Flying Dragon Seeking Freedom of Information: A Critique of Chinese OGI Regulations • Yong Tang, Pennsylvania State University; Halstuk Martin, Pennsylvania State University • In 2008, four decades after U.S. Congress passed the Freedom of Information Act, People’s Republic of China embraced its own concept of freedom of information. This paper examined Chinese freedom of information law known as the Open Government Information Regulations (OGI Regulations) and found that the Chinese law is embracing international standards in many areas but also have something unique. The paper examined the major flaws of the law and also examined many court cases to see how the law has been implemented.
Space to Breathe Falsely: Reexamining the Balance between Commercial Speech and Defamation 20 Years after U.S. Healthcare v. Blue Cross • Matthew Telleen, University of South Carolina • This paper examines the case of U.S. Healthcare, Inc. v. Blue Cross of Greater Philadelphia 20 years after it was decided. The case involved a choice between applying the commercial speech doctrine or traditional defamation analysis. The court focused on the commercial nature of the speech and denied the heightened protection of actual malice. A better approach would have been to engage in a tradition defamation analysis, as explained in this paper.
Good Intentions, Bad Results: Learning from Failed Media Policies to Avoid Future Mistakes • Tom Vizcarrondo, Louisiana State University • Policymakers often approach potential new regulations with good intentions that the rules will positively address a particular problem, only to observe bad results once the new policy has been implemented. This paper studies two different media policies that produced bad results, ultimately leading to their repeal. The paper identifies factors contributing to the failure of these policies, and paper presents recommendations for future policymaking efforts that could alleviate the problem of “good intentions, bad results.”
Retransmission Consent: An Exploration of its Past, Present and Future • Gillian Wheat, University of North Carolina at Chapel Hill • High-profile disputes over retransmission consent, an ongoing issue in the telecommunications industry, have resulted in several television blackouts. Thus, the Federal Communications Commission recently issued a notice of proposed rulemaking seeking comments on potential changes to the guidelines governing retransmission consent negotiations. This paper examines the legislative and administrative history of retransmission consent, the current regulatory framework under which it is negotiated and the manner in which the Federal Communications Commission has responded to complaints.
Transparency as Talisman: The Shifting Rationales for Campaign Finance Regulation • Justin Wolfgang, University of Missouri-Columbia • This article will argue that recent developments in the Supreme Court’s view of the First Amendment as applied to corporations and the possible threat of corruption have led to an expedited dismantling of decades of precedent since the seminal campaign finance reform case of Buckley v. Valeo in 1976, which said preventing corruption or the appearance of corruption was a valid interest for regulating campaign financing. This article will further argue that the Court has ignored legislative intent and ultimately stripped campaign finance reform down to a simplified system of using mere disclosure as a method of detecting and preventing possible corruption. The Court’s recent decision in Doe v. Reed upholds the Buckley Court’s approval of disclosure requirements as a valid method of protecting against corruption or the appearance of corruption, because the government interest in informing the public was substantially related to the means of compelled disclosure. Finally, this article will argue that the Court’s dichotomous treatment of compelled disclosure in Reed as compared to their treatment of corporate contributions in Citizens United v. Federal Election Commission, contradicts its earlier decisions upholding the protection against corruption or the appearance of corruption in campaign finance reform. Whether transparency alone can serve to eliminate potential corruption is an untested assumption, and one that represents a signal change in campaign finance philosophy.
The Ellsberg Act of 2011: Proposing a Better Policy on the Free Flow of Information in the Era of WikiLeaks, Whistleblowers and War • Jason Zenor, SUNY Oswego • In response to the WikiLeaks issue, this article proposes a new policy on the free flow of information — the Ellsberg Act. This new policy will advance transparency by promoting whistleblowing, while also promoting government efficiency by encouraging proper channels of dissemination. It will also enhance the privileges that the traditional media has already earned. Finally, this policy seeks to distinguish between beneficial “journalism” and harmful “sabotage.”
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