Law and Policy Division
Debut Faculty Paper Competition
Clinical Journalism Education: Legal and Ethical Implications of Faculty-Led Reporting Laboratories • Kathleen Culver, University of Wisconsin-Madison; Frank LoMonte • More U.S. journalism schools are launching, or becoming partners in, sophisticated news-gathering operations. Operating a news outlet within the confines of an educational institution presents unique challenges and unanswered questions. This research explores how journalism educators who lead courses that publish publicly conceptualize their roles with regard to legal and ethical issues. It covers the issues that most commonly confront these instructors and highlights concerns that educators may be overlooking.
A Public Good: Can Government Really Save the Press? • Patrick Walters, Kutztown University of Pennsylvania • This paper examines calls over the past decade for increased public investment in the floundering U.S. news industry (for example, McChesney & Nichols, 2010; Pickard, 2020). The paper uses both a First Amendment theoretical perspective and a political economy lens to examine the feasibility of such public solutions. It argues that, while the need for such investment is even more dire today, current political and economic realities make such a solution little more than fantasy.
Open Competition
Right to Know About the Right to Stay: Access to Information About American Immigration Courts • Jonathan Anderson, University of Minnesota • This paper reports the results of an analysis of FOIA logs from immigration courts in the United States. Two primary questions were asked: What are the characteristics of FOIA requests for immigration court records? To what extent do journalists use FOIA to gather information about immigration courts and cases? The study estimates that lawyers were the most active requesters, followed by journalists. The findings also shed light on how journalists use FOIA.
Policy Liberalism and Access to Information in the American States • Jonathan Anderson, University of Minnesota; David Pritchard, University of Wisconsin-Milwaukee • In theory, access to information is neither liberal nor conservative. This study empirically tests that assumption and finds that in practice legal rights of access to public records tend to be greater in states with higher levels of policy liberalism. The findings are the latest evidence in a growing body of research that suggests more attention should be paid to understanding policy liberalism’s role in protecting the free flow of information.
A Prophet Without Honor: William Ernest Hocking and Freedom of the Press • Stephen Bates, University of Nevada, Las Vegas • Freedom of the Press: A Framework of Principle (1947), by Harvard philosopher William Ernest Hocking, is one of the books sponsored by the Commission on Freedom of the Press, also known as the Hutchins Commission. In First Amendment literature and case law, it has gotten scarcely any attention. The neglect is unsurprising in some respects. The book is abstract and theoretical, with little mention of case law. It is also meandering, discursive, repetitive, and self-contradictory. Hocking himself called it “long, schematic, and frequently tedious.” Yet for those who make the effort, the book is remarkably prescient. It prefigures Alexander Meiklejohn’s self-government theory and his town-meeting model of public deliberation, Amitai Etzioni’s communitarian political philosophy, Isaiah Berlin’s dual theories of liberty, Owen M. Fiss’s application of the positive First Amendment to regulate the news media, and the works of many media scholars. For all its flaws, Hocking’s Freedom of the Press is a classic.
When Is a First Amendment Case Not a First Amendment Case? • Clay Calvert, University of Florida • This paper analyzes the United States Supreme Court’s 2019 decision in Manhattan Community Access Corp. v. Halleck. Specifically, it concentrates on how the justices divided five-to-four along lines of perceived political ideologies in both: 1) selecting different rules to analyze the issues before them, and 2) reaching opposite conclusions about the outcome of the case. In brief, choosing different rules regarding the state-action doctrine issue led the conservative and liberal blocs to reach counterposed conclusions on the First Amendment speech question. The paper suggests, in turn, that the outcomes reached by both sides comport with broad-brush stereotypes about the intersection between free expression and the danger that big government purportedly poses to individual liberties.
The End of the Affair: Can the Relationship Between Journalists and Sources Survive? • Anthony Fargo, indiana University • Prosecutions for leaking classified information to the press have increased dramatically since the start of the Obama administration. Journalists are rarely subpoenaed to identify their sources now because investigators identify leakers through phone, e-mail, and messaging app records. Common sense and anecdotal evidence suggest sources will be less willing to come forward under current conditions. News organizations should adopt ethical and limited legal obligations to help accused leakers or face the loss of important sources.
Challenges to the Conventional Wisdom About Mergers and Consumer Welfare in a Converging Internet Marketplace • Rob Frieden, Penn State University, Bellisario College of Communications • This paper identifies substantial flaws in how U.S. government agencies and courts assess the impact of proposed mergers by firms operating using broadband networks to reach consumers. Using current market definitions, consumer impact assessments and economic doctrine, antitrust enforcement agencies may fail to identify the risk of harm to consumers and competition, a so-called false negative. In recent years, the Department of Justice, Federal Communications Commission and Federal Trade Commission, individually and collectively, have assessed the competitive consequences of numerous multi-billion dollar acquisitions and have conditionally approved almost all of them. These agencies appear predisposed to favor deals that involve vertical integration between market segments, based on an assumption that short term consumer welfare gains would exceed any potential competitive harms. The paper determines that reviewing government agencies appear too willing to extend current assumptions about how “bricks and mortar” markets work to transactions occurring via broadband networks. By “fighting the last war,” these agencies fail to identify new risks to consumer welfare, particularly by ventures operating in multiple markets that do not readily fit into the conventional assessment of mutually exclusive vertical and horizontal “food chains.” The paper concludes that recent and future Internet acquisitions have a much greater likelihood of generating legitimate concerns about competitive and consumer harms, particularly as markets become ever more concentrated and often dominated by a single firm.
There’s Probably a Blackout in Your Television Future: Tracking New Carriage Negotiation Strategies Between Video Content Programmers and Distributors • Rob Frieden, Penn State University, Bellisario College of Communications; Krishna Jayakar, Penn State Bellisario College of Communications; Eun-A Park, Western Colorado University • This paper explains how changes in the video marketplace have triggered changes in strategies used by pay television operators seeking permission to deliver broadcast television and pay television content to cable and satellite subscribers. When video programmers and so-called Multichannel Video Programming Distributors (“MVPDs”) fail to reach closure on a new contract for carriage, MVPDs must “blackout” the content thereby triggering immediate consumer anger. This paper refutes conclusions made by reviewing courts, which approved AT&T’s acquisition of Time Warner, largely on grounds that AT&T would lack the ability and incentive to trigger blackouts even while controlling “must see” content such as HBO and CNN. MVPDs, do not operate as common carriers, such as public utilities, but nevertheless bear legal rights and responsibilities, predicated on marketplace conditions necessitating regulatory support for television broadcasters. Laws and regulations by the Federal Communications Commission (“FCC”) now appear to be based on contestable assumptions about the public interest value in promoting local programming by offering broadcasters the option of mandatory carriage by MVPDs (“must carry”) in exchange for relinquishing demands for financial compensation. The paper concludes that ventures, such as AT&T and Comcast, have enhanced negotiating power in light of their ability to trigger blackouts as both as content providers and MVPDs. Judicial assumptions that numerous and lengthy blackouts cannot occur do not appear viable when consumers can access video content from more suppliers, including new Over the Top sources like Netflix, and major MVPDs can offer wired and wireless broadband access options.
* Extended Abstract * Meiklejohn, Absolutism and Hate Speech • W. Wat Hopkins, Department of Communication, VIrginia Tech • Hate speech is generally thought to be protected by the First Amendment because it does not fall into one of the classic categories of unprotected speech identified by the Supreme Court. Alexander Meiklejohn advanced the proposition, however, that only speech of self-governing importance is worthy of such protection, and the Court has adopted that position. This paper examines the proposition that hate speech, by default, is not protected by the First Amendment.
Traditional but Open: Research Paradigms in Communications Law, 2010-2019 • Brett Johnson, University of Missouri; Leslie Klein; Jeremiah Fuzy, Missouri School of Journalism • Communications law scholarship is diverse, employing various theories and methods across distinct paradigms. This paper relies on multiple points of empirical data to examine trends in communications law research from 2010 to 2019. Findings suggest that communications law research remains very theoretically and methodologically traditional, with social scientific perspectives in the distinct minority. Nevertheless, communications law research remains open to perspectives from scholars “outside” of the field.
“What are anti-disinformation laws for? – Analyzing anti-disinformation laws from an “information disorder” perspective” • Wei-ping Li, University of Maryland • Over the past years, many countries have enacted laws to fight against disinformation. This paper examines the laws from the perspective of information production. By using the elements extracted from the “information disorder” framework developed by Claire Wardle and Hossein Derakhshan, this paper assesses recently enacted anti-disinformation regulations in Germany, France, and Singapore. It further discusses whether the laws could contribute to the battle against disinformation or would conversely suppress freedom of expression.
* Extended Abstract * Extended Abstract: Virtual assemblies: Exploring problems of private spaces and press protections • Jonathan Peters, University of Georgia • The U.N. Human Rights Committee is currently drafting an authoritative interpretation of a treaty provision guaranteeing the right of peaceful assembly. This paper explores how the provision might be interpreted to protect virtual assemblies, with a focus on two discrete issues raised by the Committee’s latest draft: (a) the nature of assembly and expressive rights in private spaces, and (b) the role of journalists in documenting and reporting on virtual assemblies.
Free Papers and Free Speech: Home Delivered Free Newspapers as Litter • Eric Robinson, University of South Carolina • As newspapers attempt to survive as viable businesses, many are purchasing or creating free community papers. Such papers are often delivered door-to-door, leading to resident complaints that have led municipalities to enact ordinances limiting such distribution. Most courts have held these ordinances unconstitutional, but a recent decision by the Sixth Circuit Court of Appeals reached a contrary result. This paper explores this issue and recommends solutions to balance the First Amendment and residents’ concerns.
* Extended Abstract * Restoring Access to Information – Can the U.S. Learn From Other Countries? • Amy Kristin Sanders, University of Texas at Austin; William Kosinski • The Supreme Court’s Food Marketing Institute v. Argus Leader Media decision – as well as decisions permitting third-party intervention – has opened the door for increasing opposition to public records requests. This fundamental shift has global implications for transparency as other governments may follow our lead. But approaches taken by other countries to constrain third-party intervention and limit the definition of confidential information – as well as possible legislative reform – offer a glimmer of hope for transparency advocates.
Freedom of speech and press in Muslim-majority countries • Shugofa Dastgeer; Daxton Stewart, Texas Christian University • This paper examines freedom of speech and press in the constitutions of 48 Muslim majority countries in relation to actual existence of these freedoms in these countries, using a scale based on rankings of Reporters Without Borders and Freedom House. First, the findings suggest that the inclusion of Islam as a state religion in a country’s constitution does not necessarily lead to exclusion of freedom of speech and press in the constitutions of Muslim-majority countries. Second, inclusion of Islam as a state religion in the constitutions does make a significant difference when it comes to actual freedom in Muslim majority countries, based on the ranking scaled developed by the authors. Third, constitutional guarantees of freedom of speech and freedom of the press do not guarantee actual freedom for expression and press in Muslim-majority countries.
* Extended Abstract * Decisions & Justifications: Untangling the Supreme Court’s Low-Value Approach to Sexually Explicit Speech • Kyla Wagner, Syracuse University; P. Brooks Fuller • In First Amendment law, the notion that sexually explicit speech is less valuable than forms of expression like false political discourse is rarely disputed. This study revives that dispute with a focus on the Supreme Court’s justifications for axiomatically categorizing sexual expression as “low-value” in the first place. The analysis reveals that a shaky, sometimes, fallacious conceptual framework rooted in third-person perception guides the Supreme Court’s sexually explicit speech jurisprudence. The framework’s implications are discussed.
Pandering, Priority or Political Weapon: Presidencies, Political Parties & the Freedom of Information Act • A.Jay Wagner • The article explores the political nature of the FOIA by examining legislative history, party messaging, presidential actions and a quantitative analysis of FOIA administration from 1975 until present. The outcomes are both predictable—Reagan & Trump having deplorable records—and surprising—George W. Bush producing a relatively transparent record. The study’s findings suggest the failures of FOIA are likely less a consequence of presidencies and political parties than an indiscriminate symptom of contemporary U.S. governance.
Piercing the Veil: Examining the Demographics of State FOI Law Administration • A.Jay Wagner • Proactive disclosure is fashionable in the field of access to government transparency, yet FOI laws remain the keystone to government transparency. Statistical analysis of a 1,002-request FOI audit identifies demographic and political variables that significantly influence request outcomes, namely geography, race and Republican voting and representation. Pinpointing variables that affect FOI outcomes is necessary as the laws provide an individual, actionable right to government information that other mechanisms lack, making rehabilitating FOI invaluable.
Biometrics and Privacy: Regulating the Use of Facial Recognition Technology • Kearston Wesner, Quinnipiac University • Companies and government entities have increasingly used facial recognition technology (FRT) to protect the public from disease, apprehend criminals, ensure public safety, and provide seamless commercial experiences. However, FRT has been criticized for a variety of reasons. It is notoriously fallible, especially when called upon to identify women and people of color. And its use encourages significant privacy violations, with some scholars and advocates suggesting that it opens the door to a surveillance society. This paper analyzes FRT and argues against unrestrained deployment of this technology. It addresses four state statutes, as well as several local ordinances, that have been passed to regulate FRT. Drawing from these sources, particularly Illinois’ Biometric Privacy Act, as well as commentary from scholars and privacy advocates, the paper recommends a model federal biometric privacy statute. The statute incorporates notice, clarity, and testing elements. It also recommends provisions prohibiting employee retaliation and consumer discrimination.
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