Law and Policy Division
2021 Abstracts
Research Paper • Debut Faculty Paper Competition • J. Patrick McGrail, Jacksonville State University; Ewa McGrail, Georgia State University • The ReDigi Case and the Digital Challenge to the First Sale Doctrine • We describe the First Sale Doctrine, its decline in recent years, and the company ReDigi’s novel protocol for its preservation in the current Digital Age. We describe how and why the courts have frowned on ReDigi’s protocol, and why our culture of virtual digital transmission has led to a decline of the First Sale Doctrine. We recount the history of infringement of digital musical works and afterward, why an essential difference between digital and analog copyrightable works is the little-seen reason for this decline. We propose a rationale for why the two types of works cannot be equitably treated the same at law. To do this, we introduce a taxonomy for digital works – how all creative works today actually need to be thought of with respect to their analog, digital or mixed state, (states which can and do change with time due to medium decay), how these changing states are distinct yet interrelated, and why federal legislators need to consider a wholesale revision of copyright law to reflect these distinctions. We conclude with proposals for how the law might be changed to restore the First Sale Doctrine.
Research Paper • Open Competition • Morgan Band, University of Florida • A Meta-Analytic Review of the Effects of Pretrial Publicity on Jury Perception • This investigation analyzed the conflicting values between the impact pretrial publicity has on defendants’ rights to a fair trial and the importance of upholding the media’s freedom of the press. The meta-analytic review aimed to answer ‘how does pretrial publicity impact jury perception’ and ‘what solution would be effective at reducing this impact?’ Several studies were examined to explore psychological explanations about how pretrial publicity creates bias and why current remedies fail to diminish it.
Extended Abstract • Open Competition • Courtney Barclay, Jacksonville University; Kearston Wesner • [EXTENDED ABSTRACT] Feeling the Bern: Commercial Speech Protections for Memes • The Bernie meme raced around the internet on Inauguration Day. Bernie found his way into Star Trek, Dungeons and Dragons, and The Last Supper, as well as retailers and restaurants. Brands’ use of the meme raised questions about the extent of protection for meme discourse in a commercial context. This article reviews commercial speech doctrine and right of publicity. Concluding that memes, even when used by corporate speakers, are inherently protected under the First Amendment.
Research Paper • Open Competition • Stephen Bates, University of Nevada, Las Vegas • The Positive First Amendment in Constitutional History, Law, and Theory • The positive interpretation of the First Amendment holds that the First Amendment permits or even requires the government to foster the system of public deliberation. In essence, “Congress shall make no law” can mean “Congress shall make law.” This paper evaluates the theory, first in the context of the Framers’ understanding of the First Amendment. It finds that Madison, Jefferson, and several others directly addressed the issue. They insisted that Congress has no power over speech and the press. Arguing the other side were backers of the Alien and Sedition Acts, who maintained that the First Amendment forbids abridgment of free expression but not enhancement of it—just as positive First Amendment theorists now contend. The paper next examines case law for support of the positive interpretation. It finds that Associated Press v. United States and Red Lion Broadcasting v. FCC, the cases most frequently cited as supporting the positive interpretation, contain soaring rhetoric, but their holdings, in the light of subsequent cases, are narrow. A few other cases provide oblique support. The paper concludes that the positive interpretation of the First Amendment is a provocative, innovative constitutional theory, but it bears little resemblance to original intent or judicial doctrine.
Extended Abstract • Open Competition • Genelle Belmas, University of Kansas; Tori Ekstrand; Daxton Stewart, Texas Christian University; Kyla Wagner • Extended Abstract: Too Many Cases, Too Little Time: What Instructors Choose to (Not) Teach in Media Law Courses • “What cases do you teach?” Few questions this simple lead to heated debate, but among media law instructors, little consensus exists as to which topics and cases they should teach. Further, the research that has explored this debate is either outdated or non-comprehensive. This research, then, offers an updated, empirical examination of media law instructors on the topics and cases they cover and do not to, ideally, move the topic from debate to (general) agreement.
Research Paper • Open Competition • Benjamin W. Cramer, Pennsylvania State University • Nearly Extinct in the Wild: The Vulnerable Transparency of the Endangered Species List • This article reconstructs the Endangered Species Act as a government information statute. That Act makes use of an official list of vulnerable creatures that is used for agency action to save them from extinction. This article argues that the official list of species is not sufficiently accurate or transparent to citizens, so the compilation of that list does not satisfy the public interest goals of American environmental law or government transparency policy.
Research Paper • Open Competition • Anthony Fargo, Indiana University-Bloomington • Perilous in Seattle: The Dangers of Covering Protests and Implications for the Journalist’s Privilege • Five Seattle news organizations fighting a police subpoena for unpublished images from a 2020 protest made the novel argument that complying could endanger journalists covering future protests, who might be seen as police agents. A similar argument has been raised successfully by war correspondents asked to appear before international criminal tribunals. Given widespread mistrust of the media, this paper argues that it could be a viable argument in U.S. courts despite strong counter-arguments.
Research Paper • Open Competition • Roy Gutterman, Syracuse University • Liable, Naaaht: The Mockumentary: Litigation, Liability and the First Amendment in the works of Sacha Baron Cohen • The mockumentary, the primary genre of actor and provocateur Sacha Baron Cohen has generated a number of high profile lawsuits. Because the mockumentary genre is a hybrid of both documentary, fiction and comedy, legal questions continue to percolate. With Baron Cohen’s cable series Who is America still in litigation and the release of the Borat sequel within the statute of limitations, future litigation is not unexpected. The mockumentary raises questions of tort and contract law as well as how far protections extend under the First Amendment.
Research Paper • Open Competition • Frank LoMonte, University of Florida • Copyright Versus the Right to Copy: The Civic Danger of Allowing Copyright to Override State Freedom-of-Information Law • Journalists, researchers and activists rely on freedom-of-information laws for access to the essential data and documents they need. But the ability to copy and republish public documents exists in the chilling shadow of copyright law. Because the bar for a document to qualify as copyright-protected is low, a hidebound government agency could manipulatively use copyright protection to conceal studies, reports and other documents of undeniable public interest, if copyright is understood to operate as a trump card overriding the public’s right of access. A reckoning in the not-distant future is likely, as government agencies become repositories for more and more data and documents of commercial value. Further complicating the question, a dispute that implicates both federal copyright law and state open-government law has no single judicial “home.” As long as copyright is understood as an impediment to fulfilling public records requests, multiple rounds of parallel litigation may be necessary to adjudicate the bundle of state and federal issues wrapped up in a request for copyright-eligible documents. Although courts occasionally have applied the “fair use” defense to allow requesters to inspect and copy records that qualify for copyright, fair use is too fact-specific and unpredictable to give publishers the assurance they need to pursue and distribute the news. This paper concludes that copyright should never be understood to impede inspecting and copying government documents, because narrower FOI exemptions exist to fully protect rightsholders’ legitimate interests.
Research Paper • Open Competition • Michael Martinez, University of Tennessee • Thirty Years After Chandler v. Florida: Chauvin Trial Shows Flaws in ‘Cameras in the Courts’ • Thirty years ago, the decision in Chandler v. Florida, found that states have the right to allow cameras in the courts, differing from a prior ruling, in Estes v. Texas, that banned electronic media. Through legal and historical analysis, this study found that even though cameras access is allowed in all 50 states, there is a mosaic of rules that make access to courts inconsistent and calls for parity of access with its print brethren.
Research Paper • Open Competition • Hayley Rousselle, Syracuse University College of Law • Social Media and the Economy of Hate • Section 230 grants social media companies immunity in making good faith efforts to regulate content on their platforms. However, this legal norm does nothing to encourage transparent, consistent, or effective regulation of harmful content like hate speech. Instead, section 230 has left social media companies in a position where they can go unchecked in profiting from the harmful content they often claim to prohibit. This article examines how Congress can amend section 230 to best incentivize social media companies to enforce their policies that prohibit hate speech.
Extended Abstract • Open Competition • Amy Kristin Sanders, University of Texas at Austin; William Kosinski • Extended Abstract: The Arab Winter: How Privacy Norms, Social Media and Dissent Spurred Increasing Government Repression of Free Expression in the Decade Following the Arab Spring • Ten years after the Arab Spring, few, if any, pro-democratic developments in freedom of expression have taken hold in the Middle East. In fact, the rise of social media, with its potential to fuel dissent, has spurred a significant crackdown on media freedom and critical online speech. Using legal research methodology, this study analyzes the connection between the region’s socio-religious norms around privacy, the rise of social media, and the governments’ attempts to crack down on media freedom. After analyzing news coverage, white papers, constitutions, statutes, and other formal and informal sources of law, the researchers discuss authoritarian leaders’ increasing use of cybercrime laws, billed as a means of protecting privacy. These draconian laws, mostly promulgated after 2010, are vaguely worded, designed to discourage “offensive” speech and carry harsh penalties.
Research Paper • Open Competition • Daxton Stewart, Texas Christian University • Rise of the Copyleft Trolls: When Photographers Sue After Creative Commons Licenses Go Awry • Creative Commons licenses typically signal that a photograph uploaded to the web may be used for limited purposes, such as noncommercial uses or with attribution. Some photographers are monetizing this, uploading photos with little commercial value, searching the web for uses with improper attribution, then demanding payment and engaging in high-volume litigation. This study examines more than 30 cases involving photographers suing after a Creative Commons license terminated, finding that courts are showing a willingness to accept users’ arguments of fair use based on transformative purposes and lack of economic harm, as well as general distaste for the arguments of photographers engaging in this kind of litigation.
Extended Abstract • Open Competition • Kirk von Kreisler, Primarily virtual at home, but may involve going into office (Host Company Location) occasionally. • EXTENDED ABSTRACT: Is Defamation Law Outdated? How Justice Powell Predicted the Current Criticism • Defamation law has seen no shortage of high-dollar verdicts in recent years, but attacks from influential public officials on foundational speech protections are much more concerning. Justice Lewis Powell’s personal papers show that this desire to shift the balance of protection away from free speech toward individual reputations is nothing new. Instead, today’s arguments in favor of abandoning New York Times actual malice likely draw their inspiration from Justice Powell’s desire to fundamentally alter defamation law by re-elevating the state’s interest in protecting individuals’ reputations.
Research Paper • Open Competition • Patrick Walters, Kutztown University • Beyond Positive & Negative: Developing a Complementary Framework for First Amendment Theory • Tracing back to the work of Isaiah Berlin and the debates of the Hutchins Commission, discussions of First Amendment theory have long been divided into opposing interpretations of “negative” rights protecting speakers from interference and “positive” rights ensuring that the public has the right to a quality information system. This paper explores whether these two contrasting approaches can be rectified, especially in an era where the lines between communicator and audience are no longer firm. The analysis explores these questions amid ongoing debates about regulating platforms, restricting hate speech and increased public intervention in the floundering news industry. The analysis, which builds on previous scholarship that has deemed First Amendment theory “inadequate,” finds that the two perspectives are indeed unique and cannot be rectified. But the paper argues that these perspectives need not be oppositional to each other. It issues a call for scholars and practitioners to support a complementary First Amendment approach that embraces both perspectives in the name of reaching a more complete understanding of our information ecosystem and all the factors involved in it.
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