Law & Policy Division 2010 Abstracts
The Associated Press as Common Carrier? • Stephen Bates, University of Nevada, Las Vegas • From the late 1860s until Associated Press v. United States (1945), critics contended that the AP ought to be regulated as a common carrier or public utility. This paper analyzes the common-carrier concept as advocates (and sometimes legislators and judges) have applied it to the AP and other media, including Jerome Barron’s arguments for a right of access. It also discusses the doctrine that the government can sometimes regulate the press in order to advance First Amendment interests.
Disciplining the British Tabloids: Mosley v. News Group Newspapers • Stephen Bates, University of Nevada, Las Vegas • In 2008, Max Mosley, the head of Formula One racing, won an invasion-of-privacy suit against News of the World. The tabloid had published articles, including hidden-camera photos, charging that Mosley had participated in a Nazi-themed S&M orgy with five prostitutes. This paper criticizes the Mosley ruling. Among other flaws, the ruling reflects a crabbed and elitist view of the press, and it diminishes the role of the media in articulating and enforcing public morality.
Conceptualizing the Right to Environmental Information in Human Rights Law • Cheryl Ann Bishop, Quinnipiac University • During the last two decades, there has been increasing understanding that access to environmental information is a key to sustainable development and effective public participation in environmental governance. This research identifies and explicates the human right to environmental information by analyzing documents and legal rulings from the Inter-American, European, African and UN human rights regimes. It finds that the right to environmental information has broad support; nonetheless, the articulations of this right are not always consistent.
The Constitutional Right-to-information on the Individual Level • Kathryn Blevins, The Pennsylvania State University • The constitutional right to government-held information is a muddled legal right, especially in light of government abuses of the Freedom of Information Act in the past decade. This paper provides an overview of the First Amendment jurisprudence regarding an individual’s right to government-held information before ultimately arguing that perhaps the right to information should be conceptualized as a constitutional rather than statutory right in light of strong Supreme Court support.
Every Picture Tells A Story, Don’t It? Wrestling With The Complex Relationship Among Photographs, Words & Newsworthiness In Journalistic Storytelling • Clay Calvert, University of Florida • Using the 2009 opinion by the U.S. Court of Appeals for the Eleventh Circuit in Toffoloni v. LFP Publishing Group (and the Supreme Court’s March 2010 denial of a petition for a writ of certiorari) as an analytical springboard, this paper focuses on the complex relationship in journalistic storytelling among images, text and newsworthiness and the implications of it for press freedom. The paper pivots on a key research question: If pictures are crucial to journalistic storytelling, from news to entertainment, then why should judges be able to usurp from the press the First Amendment-protected role of editor and place themselves in the position of arbiter of what counts more in storytelling – words or images – when ruling on a story’s newsworthiness?
Free Speech, Fleeting Expletives & the Causation Quagmire: Was Justice Scalia Wrong In Fox Television Stations? • Clay Calvert, University of Florida; Matthew Bunker, University of Alabama • This paper analyzes the U.S. Supreme Court’s approach in 2009 in FCC v. Fox Television Stations to the issue of harm to minors allegedly caused by fleeting expletives. Dissecting Justice Antonin Scalia’s language in the case on causation of harm, the paper examines the quantum of evidentiary proof needed by a federal agency to demonstrate causation sufficient to justify restricting the speech in question. The paper suggests how Scalia’s analysis begs the law for an infusion of research from social science fields, including communication. It also contextualizes the causation issue within a broader framework, illustrating how Scalia’s remarks demonstrate doctrinal inconsistency and judicial incoherence on speech-related questions of both causation and redress of harm in areas of law other than indecency, namely with laws targeting video games, commercial speech and trademark.
One Click to Suicide: First Amendment Case Law and its Applicability to Cyberspace • Christina Cerutti, Boston College • Websites counseling dangerous activity such as suicide represent uncharted legal territory. To date, most legal scholarship regarding these sites considers whether they incite imminent lawless action. As an alternative to incitement, this paper argues that these websites are more productively characterized as instruction manuals that aid and abet unlawful activity. In support of this approach, this paper proposes a three-tiered legal test for distinguishing between protected and unprotected instruction manuals under the First Amendment.
Charting The Right to Publish and the Right to Privacy: Reconciling Conflicts Between Freedom of
Expression and the Disclosure of Private Facts • Erin Coyle, Louisiana State University • Legal scholars have suggested the Supreme Court’s narrow, fact-tied rulings have favored free expression and provided little clarity on privacy rights. Little is known, however, about whether lower courts have discussed any free expression values or privacy values when ruling on disclosure of private facts claims since 1989. This paper examines if and how state high court and federal appellate court decisions filed after the U.S. Supreme Court’s Florida Star v. B.J.F. ruling have analyzed clashes between free expression and privacy arising in disclosure of private facts cases. During the past twenty years, four states’ high courts have clarified for the first time that the common law of their respective states does recognize invasion of privacy by the disclosure of private facts in the past twenty years. On the other hand, during the 1990s, two states’ high courts suggested their states’ common law did not recognize the disclosure branch of invasion of privacy. The courts in those six states reached different conclusions about the constitutionality of the tort. Most state supreme and federal appellate courts that have considered disclosure cases since 1989, however, have not discussed the constitutionality of the tort. Almost half the relevant rulings focused on the failure of disclosure of private facts plaintiffs to demonstrate that defendants gave widespread publicity to matters not of legitimate public concern. Few courts suggested that they attempted to reconcile conflicts between freedom of expression and privacy, or even acknowledged the tension between First Amendment interests and privacy interests that Justice Marshall mentioned in Florida Star. In one sense, courts followed the U.S. Supreme Court’s practice of relying on principles that sweep no more broadly than the appropriate context of the case. Most state high courts and federal courts of appeals did not balance free expression and privacy interests. Several rulings referred to at least one individual value undergirding privacy law—most commonly the liberty value— and the marketplace of ideas, self-governance, and checking values for freedom of expression. Some suggested the free expression interests outweighed the privacy interests at issue, but only gave lip service to the traditional concept of balancing competing interests. Most of those rulings engaged in definitional balancing, suggesting that publishing information on a matter of public interest automatically outweighed any privacy interests at stake.
Avoiding the Prisoners’ Dilemma: Economic Development and State Sunshine Laws • Aimee Edmondson, Ohio University; Charles Davis, University of Missouri • This paper looks at the nexus of freedom of information and local and state governments’ economic development negotiations with private business, reviewing all 50 state codes to determine whether officials are free to negotiate and woo private business behind closed doors in the name of job growth for their communities. There has been a push to bring unprecedented secrecy to the process in a state-eat-state battle for jobs with private business insisting upon millions in tax breaks and other incentives. A tire factory or even a private prison could pop up next door and community members may not know about it until after the deal is signed. At least 15 states exempt such negotiations in their sunshine laws. Even more troubling, at least 11 states are hiding those exemptions outside the sunshine law, in the codes that govern economic development agencies themselves. Courts have responded to such secrecy in a mixed manner, ruling that quasi-governmental, nonprofit and private economic development agencies working on behalf of the government are often subject to state sunshine laws. However, in some states, courts have deferred to state statues mandating closure. This paper also offers recommendations for legislative and other types of public policy change to insure transparency in such negotiations.
Motivations for Anonymous Speech: A Legal Realist Perspective • Victoria Ekstrand, Bowling Green State University • This paper is interested in the role courts are playing in assisting plaintiffs who want to sue anonymous online speakers. Specifically, it is interested in how courts are interpreting and defining the cultural value of anonymous speech, particularly in online environments. Using a legal realist approach and an interdisciplinary study of the literature in literature studies, communication, history and political science, this paper looks to address why we seek the mask of anonymity in our speech and identify the beneficial and/or harmful motivations for speaking anonymously. It then looks at two recent U.S. Supreme Court decisions on anonymous speech to address whether the law reflects those cultures and traditions of anonymous speech. It concludes that while some motivations for anonymity have been addressed by the U.S Supreme Court, some of the key motivations for anonymous speech online – such as fun and spontaneity – are not central to the Court’s discussions.
Assessing the Need for More Incentives to Stimulate Next Generation Network Investment • Rob Frieden, Penn State University • Incumbent carriers often vilify the regulatory process as a drain on efficiency and an unnecessary burden in light of robust marketplace competition. Some claim that regulation creates disincentives for investing in expensive next generation networks (NGNs), and even accepting subsidies for broadband development if the carrier must provide access to competitors. In the worst case scenario, incumbent carriers secure unwarranted and premature deregulation, despite an ongoing need for governments to guard against anticompetitive practices and to promote sustainable competition. Once a subsidy mechanism is in place, government may not easily wean carriers off such artificial compensation. In rare instances government may find some key carriers unwilling to accept subsidies and in turn disinclined to pursue expedited NGN development, as is currently occurring in the U.S., because incumbent carriers do not want to provide interconnection and access to competitors.This paper will examine how incumbent carriers in the United States have gamed the incentive creation process for maximum market distortion and competitive advantage. The paper suggests that the U.S. government has rewarded incumbents with artificially lower risk, insulation from competition, and partial underwriting of technology projects that these carriers would have to undertake unilaterally. The paper also examines the FCC’s recently released National Broadband Plan with an eye toward assessing whether the Commission has properly balanced incentive creation with competitive necessity. The paper provides recommendations on how governments can calibrate the incentive creation process for maximum consumer benefit instead of individual carrier gain.
Network Neutrality and Over the Top Content Providers • Rob Frieden, Penn State University This paper considers whether the Federal Communications Commission has legal authority to impose so-called network neutrality rules on producers of content, applications and software delivered to users via the Internet. The paper asserts that the FCC lacks jurisdiction and cannot generate compelling policy justifications to expand its regulatory wingspan to include content providers whose products ride on top of a bitstream offered by Internet Service Providers. The paper provides insights on the line between lawful and reasonable Internet nondiscrimination and transparency requirements and unlawful intrusion of content providers’ First Amendment rights. The paper also provides an assessment of whether governments must regulate or adjudicate network neutrality conflicts related to content as opposed to access via the Internet to content.
Fairey v. AP: Is the Obama Hope Poster a Fair Use or a Copyright Infringement? • Laura Hlavach, Southern Illinois University Carbondale • About Jan. 30, 2009, The Associated Press learned that a 2006 Barack Obama photo taken by an AP photographer was the visual reference artist Shepard Fairey used to develop his iconic Obama Hope posters. Fairey found the photo on Google and did not seek any license to use the image. Fairey considered his use fair under U.S. copyright law; The AP did not. Their legal battle continues. What would U.S. Supreme Court precedent hold?
When Does F*** Not Mean F***?: FCC v. Fox Television Stations and Protecting Emotive Speech W. Wat Hopkins, Virginia Tech • The Supreme Court of the United States demonstrated in its current term that it doesn’t always deal cogently with non-traditional language. In FCC v. Fox Television Stations, the justices became sidetracked into attempting to define the f-word and then to determine whether, when used as a fleeting expletive rather than repeatedly, the word is indecent for broadcast purposes. The Court would do well to avoid definitions and heed Justice John Marshall Harlan’s advice in Cohen v. California to provide protection for the emotive, as well as the cognitive, element of speech.
The Attack Memorandum and the First Amendment: Adjudicating an Activist Role for Business in the Marketplace of Ideas • Robert Kerr, University of Oklahoma • Decades after leaving the Supreme Court, Justice Lewis F. Powell, Jr., remains as well known for a once secret memorandum as for many influential opinions. This analysis of his jurisprudence in relation to his memorandum on advancing business interests in the marketplace of ideas suggests that although he indisputably did so in First Amendment law, he also strove more than popularly believed to maintain limits on those protections in order to preserve other societal interests.
The impact of competition on universal service in Korea: A case study • Sung Wook Kim, Seoul Women’s University; Krishna Jayakar, Penn State University • A substantial body of theoretical and case study literature exists about the relationship between competition and universal service in developing countries. On the one hand, many scholars have argued that state-owned monopolies in developing countries are not able to mobilize the capital needed for network expansion: the resulting unmet demand for services becomes a motivator for liberalization. On the other hand, the introduction of competition jeopardizes the internal and external subsidies through which the state-owned monopoly kept subscription rates low: the heightened concern about loss of subscribership incentivizes the creation of explicit universal service statutes and funding mechanisms concurrently with or soon after competition is introduced. We show in this case study that universal service in Korea had a unique evolutionary path, which did not conform to either of these expectations. We argue that the outcomes predicted by theory and observed in the case study literature are not intrinsic to the monopoly condition per se, but derive from the strategic choices made by telecommunications managers, regulators and lawmakers in developing countries.
Show Me the Money: The Economics of Copyright in Online News • Minjeong Kim, Colorado State University This paper examines copyright in online news through an economic perspective of copyright law. The paper asks: To what extent are news publishers entitled to reap any economic benefits from the online distribution of news? In its analysis, this paper distinguishes between different types of news uses and relies upon the following three branches of law: (1) the fair use doctrine, (2) the hot news doctrine, and (3) laws related to the retransmission of copyrighted programs by cable television.
When Even the Truth Isn’t Good Enough: Confusion by the Courts Over the Controversial False Light Tort Threatens Free Speech • Sandra Chance, University of Florida; Christina Locke, University of Florida • Journalists are taught that truthful reporting is the best defense to a lawsuit. However, Florida journalists who reported the truth lost an $18-million false light lawsuit. The verdict was ultimately overturned by the Florida Supreme Court, but within two months, a Missouri court specifically recognized the tort in a case involving the Internet. Using recent appellate cases, this paper examines the potential for false light to stifle the media, especially when truthful news is targeted.
Balancing Statutory Privacy and the Public interest: A Review of State Wiretap Laws as Applied to the Press • Jasmine McNealy, Louisiana State University • Press organizations have been accused of violating state wiretapping and eavesdropping laws most often in situations involving hidden cameras or microphones. In these investigations, the news media have turned up truthful information regarding illegal or unethical activities that the press finds newsworthy and the public finds interesting. Ethics aside, the courts have not always granted First Amendment protection to hidden camera and other surreptitious surveillance investigations by the press. This article reviews state wiretap laws as they have been applied to the press. Specifically, this article examines the application of state wiretap laws to the press in light of the Supreme Court’s decision in Bartnicki v. Vopper in which the Court found that the First Amendment guarantee of freedom of speech outweighed the privacy interests of those whose private conversation was intercepted without permission.
Plaintiff’s Status as a Consideration in Misrepresentation and Promissory Estoppel Cases against the Media • Jasmine McNealy, Louisiana State University • Both fraudulent misrepresentation and promissory estoppel require that the plaintiff have reasonably relied upon statements made by the defendant. But what of an additional inquiry into the status of the plaintiff in relation to the journalist in these cases, as a consideration for whether the plaintiff could have reasonably relied upon statements made by the journalist? Such a consideration could significantly change the jurisprudence surrounding cases involving false statements made by journalists. This paper examines the influence that the status of the plaintiff in misrepresentation and promissory estoppel cases against journalist could have.
Obscenity is in the Eye of the Beholder: Use of Demonstrative Evidence to Delineate Community Standards in Obscenity Cases • Rebecca Ortiz, University of North Carolina at Chapel Hill Courts have long struggled with the requirement that materials in obscenity cases must be measured against contemporary community standards from the perspective of an average person as determined in Miller v. California. The U.S. Supreme Court failed to provide a specific definition or geographic dimensions of community standards for fact finders to consider. Determining whether something is obscene based upon such a requirement is particularly difficult at the federal level where the community may be defined as the entire nation. Pornographers may, therefore, be uninformed about whether their materials are obscene, namely because the specific community in which a court may find their materials exist and relevant standards are left undefined. Use of demonstrative evidence in obscenity cases may be a crucial tactic for counsel to demonstrate the standards of a particular community, but courts are typically tentative about admitting such evidence. The purpose of this paper is to evaluate the use of demonstrative evidence in recent obscenity cases for establishing contemporary community standards and examine court rationales for admission or exclusion of evidence. The paper reveals that courts’ acceptance or rejection of demonstrative evidence was unpredictable. Courts were more likely to exclude evidence than admit it for wavering rationales. Findings reveal that by disallowing admission of evidence, the courts may be shifting the burden of proof onto the defense and creating a chilling effect on sexual expression.
Public Access to Criminal Discovery Records: A Look Behind the Curtain of the Criminal Justice System • Brian Pafundi, University of Florida Levin College of Law • This research provides a survey of federal and state law regarding access to criminal discovery records. The public availability of criminal discovery records implicates three important pillars of American jurisprudence: public access to the judiciary, a defendant’s right to a fair trial and the protection of individual privacy. Florida’s public records law opens discovery records to public inspection once exchanged between the opposing parties. This paper determines whether any other jurisdiction grants similar access.
Internet Service Provider’s Liability for Defamation: South Korea’s Balancing of Free Speech with Reputation • Ahran Park, university of Oregon • ISPs in the United States have been totally immunized from publishers’ liability for online defamation under the Communications Decency Act § 230. But as the recent Google lawsuit in Italy illustrates, American ISPs are confronting the threat of defamation lawsuits abroad. Therefore, more understanding of ISP policy in foreign countries is necessary, and South Korea provides a noteworthy example of ISP jurisprudence exactly contrary to the U.S. immunity. Statutory laws and courts in South Korea have burdened ISPs with heavy liability for defamation by online users. For instance, the Communication Network Act in Korea punishes online defamation as a crime and compels ISPs to delete allegedly libelous postings promptly. The Korean Supreme Court also held that ISPs should be liable for defamation by third party even when ISPs did not receive any notification related to defamatory postings. This paper discusses ISP liability in the comparative law perspective and maintains that burdening ISPs with strict liability would chill freedom of speech in cyberspace.
Libelous Language Post-Lawrence: Accusations of Homosexuality as Defamation • Laurie Phillips, UNC • Just as imputations of race or political affiliation were once defamatory, judges – both within and between states – are returning competing rulings concerning imputations of homosexuality. Functioning as a post-Lawrence v. Texas update to Koehler’s (1999) The Variable Nature of Defamation, this paper examines cases between 2004 and 2009 involving imputations of homosexuality. Findings indicate that in 88% of the forty two cases analyzed, defamatory claims failed, yet most judges neglected to directly address the issue.
Gay Labeling and Defamation Law: Have Attitudes Toward Homosexuality Changed Enough to Modify Reputational Torts? • Robert Richards, Penn State University • This paper analyzes the issue of whether labeling someone gay should still be considered defamatory per se. It traces the history of, what one court called, this far more subtle and difficult question and examines societal attitudes towards homosexuality. The paper concludes that society has not yet reached the point where homosexuality is no longer viewed, by significant populations, with some level of scorn or ridicule, given such recent events as individuals being physically attacked merely because they are perceived to be homosexual, organizations whose sole purpose is to defeat the rights of same-sex couples to marry, public schools where gay and lesbians can sense the scorn of their fellow students by reading messages on t-shirts, and religions whose members would rather defect than accept homosexual congregants.
The convergence policymaking process in South Korea • Dong-Hee Shin, Sungkyunkwan University • In 2009, South Korean government reformed its communications sector through legislation that addresses convergence services. This study traces the policy-making process of the convergence in terms of politics and regulation, and it also examines how the stakeholders’ interests are aligned and coordinated in the policymaking process of convergence in Korea. This study investigates the socio-political construction of Korea’s strategy for convergence reform with two research questions: (1) what social and political factors influence strategy formulation and (2) how do different interests stabilize ideologies in which actors formulate their strategies based on their interests. Despite the dynamic interactions, the actor-network around convergence has yet not been effectively stabilized, as the politics of convergence is complex and marked by paradoxical features. This study provides a theoretical basis for understanding why the convergence debate in Korea has so far been problematic.
A Web of Stakeholders and Strategies in the Digital TV Transition: • Dong-Hee Shin, Sungkyunkwan University • This study investigates the development of Korean digital TV transition by tracing the interaction between social and technological entities from various perspectives at different developmental stages. A socio-technical analysis examines the dynamic interactions among the stakeholders in the switchover to digital broadcasting, showing how the various actions taken by leading stakeholders affect diverse groups of stakeholders. In addition to the qualitative analysis, a structural-equation model examines the perceptions and expectations of digital TV consumers in Korea. Consumers’ perspectives and expectations suggest the factors that will lead them to adopt DTV, as well as the barriers to adoption. The overall findings show that Korean digital TV transition is the outcome of a proactive strategy by industry players and the Korean government’s top-down policy of supporting such a transition. It is argued that the policy of a top-down transition, which overlooks coordination among stakeholders, harms consumers and hinders effective and sustainable development. The case of Korea has implications for other countries that are pursuing digital transition strategies.
The Framers’ First Amendment: Originalist Citations in U.S. Supreme Court Freedom of Expression Opinions • Derigan Silver, University of Denver • As a mode of constitutional interpretation, originalism holds judges should construe the U.S. Constitution according to framers’ intent. Focusing on rational choice theory, this paper examines the strategic use of originalist citations by Supreme Court justices in First Amendment freedom of expression opinions. The paper quantitatively examines when justices use originalist citations to strategically advance their policy preferences, insulate their decisions from criticism or persuade other justices to join their opinions. In addition, it qualitatively explores the content of the justices’ originalist citations to determine how the justices are describing the original meaning of the First Amendment. Thus, the paper adds to the strategic citation literature, advances understanding of how the justices have interpreted the original meaning of the First Amendment and illuminates how originalist arguments have shaped current free expression jurisprudence.
Evaluating Public Access Ombuds Programs: An analysis of the experiences of Virginia, Iowa and Arizona • Daxton Stewart, Texas Christian University • The author conducted case studies of ombuds programs monitoring open government laws in Virginia, Iowa and Arizona. The offices largely comported with the major tenets of ombuds programs – independence, impartiality, and providing a credible review process – but weaknesses in perceptions of impartiality hurt the development of the Iowa and Arizona programs. The program with the most perceived success, Virginia’s FOI Advisory Council, appeared to embrace the tenets of Dispute Systems Design the most.
Mother knows best: Can lessons from the Ma Bell breakup apply to net neutrality policy? • Tom Vizcarrondo, Louisiana State University • The Federal Communications Commission (FCC) issued a Notice of Proposed Rulemaking on October 22, 2009 seeking input from the public regarding network management policy commonly known as net neutrality. The request is the latest step in an ongoing and protracted debate among lawmakers, regulators, Internet industry leaders, and consumers over whether additional regulation is required to ensure that the Internet remains free and open. The different views are almost always defended as being in the best interest of the consumer, although individual motives and benefits often belie such statements. This paper examines many of these arguments, but also focuses on the network management debate within the context of an existing legal framework of court opinions. This paper examines many of these arguments, but also focuses on the network management debate within the context of an existing legal framework of court opinions. In particular, the court-ordered divestiture of AT&T shares many of the issues which are being considered today as part of the net neutrality debate. This paper examines whether lessons learned from this divestiture can be applied to the current debate in order to reach the best possible outcome. This paper finds such lessons, and concludes that these lessons argue for an incremental approach to any new network management policy; further, policies that encourage competition and private sector solutions is desirable over sweeping government regulations.
Implications of Copyright in the Context of User-Generated Content and Social Media • Amber Westcott-Baker, University of California Santa Barbara; Rebekah Pure, University of California Santa Barbara • Business models for generating revenue from user-generated content (UGC) are still developing. In the meantime, many tensions exist between the business interests of companies providing the platforms for user-generated content and the interests of content producers (users). This paper will outline the conflicting interests—users want to create and share content in a way that they control, while companies want to make money and be protected from liability—and the resulting copyright and ownership issues that arise from these tensions.
Obama Administration Lifts the Dover Ban: Is the New Policy on Press Access Constitutional? Jason Zenor, University of South Dakota • A corollary of the right to publish must be a right to gather news. However, in times of war, one of the first rights to be abrogated is the freedom of the press. One of the wartime restrictions has been the Dover Ban, a policy which has restricted press access to arrival ceremonies for fallen soldiers of war. The Dover Ban has been criticized by the press and by veterans, and challenged in court-but was never overturned. In February 2009, the Obama Administration changed the policy so that the press could have access if they received permission from the family of the fallen soldier. Though this change is progress for the free flow of information and is clearly less violative of the Constitution than was the prior outright ban, this article argues that it is still unconstitutional. First, the Dover arrival ceremonies have been traditionally open to public and the press and the history of Dover Ban’s creation and enforcement illustrate that it is a content-based regulation. Therefore, the restriction must survive the strict scrutiny test. Accordingly, neither the government’s public relations interest nor the privacy interest of the family of a volunteer soldier, are compelling. Furthermore, the new policy is a de facto license where the family acting as a surrogate for the government decides the whether the press has access based upon whether the family perceives the content of the coverage will be acceptable. Finally, the policy is not permanent and an outright could be reinstated.
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