Law 1999 Abstracts
Law Division
Shielded by Privilege: A New Layer of Protection for Journalists in Florida • Laurence B. Alexander and Anthony L. Fargo, Florida • In 1998, Florida became the 30th state to enact a shield law to protect journalists from being subpoenaed unnecessarily to disclose information they have compiled in the course of newsgathering. Later in the same year, the state Supreme Court also gave its assistance to the press when it decided in favor of reporters in three separate cases involving the much-litigated issue of protection for nonconfidential information. This research paper reviews the history of the common-law journalist’s privilege in Florida and analyzes the shield law that was created to codify and strengthen the common-law privilege.
Radio Without Radios: Audio Broadcasting And Copyright On The Internet • Timothy E. Bajkiewicz, North Carolina at Chapel Hill • A new type of broadcasting exists online, called streaming or webcasting. FCC-licensed and Internet-only radio broadcasters can deliver music and information via the Web. The copyright issues surrounding streaming are examined as they relate to these stations. Case law in this area has yet to be established, however, two new statutes have redefined how music is considered over digital media and will greatly impact not only online radio, but also the future of digital audio.
News or Nuisance? Regulation of Home Delivery of Free Newspapers • Andy Bechtel • Louisiana State University • This paper examines legal cases involving restrictions on delivery of free newspapers to private residences. Municipalities have attempted to regulate newspaper delivery in a number of ways, such as requiring carriers to apply for licenses or to obtain a government-maintained list of residents who do not wish to receive free newspapers. These regulations, however, often fail the “time, place and manner” test because they are not narrowly drawn.
Actual Malice: When Journalists Behave Badly, Politicians Can Still Win Libel Suits • Ginny Carroll, North Carolina-Chapel Hill • In New York Times V. Sullivan, the U.S. Supreme Court stood traditional libel law on its head and established the doctrine of actual malice. Almost a decade has passed since the Court last visited the concept. Subsequently, although the Court specified that common law malice was not an element of actual malice, lower courts have continued to consider ill will or harmful intent as a key factor in actual malice determinations.
Ban Spam?: Exploring the Legal Issues and Constitutionality of Federal and State Statutes and Bills Regulating Junk Email • Hwi-Man, Chung, North Carolina at Chapel Hill • The purpose of this study is to examine the constitutionality of both federal and state bills and statutes regulating unsolicited commercial electronic mail via the Internet. This paper suggests that in genera! federal and state bills and statutes can pass the Central Hudson test if they aim to prevent the ‘cost-shifting’ from advertisers to Consumers. However, this paper also suggests that the privacy protection will not pass the Central Hudson test because the Supreme Court had different rulings about privacy protection.
Liable to be Liable: The News Media, Search Warrants, and the Fourth Amendment • Stacey Cone, North Carolina-Chapel Hill • This paper examines an issue currently before the Supreme Court: does the news media’s presence during the execution of search warrants violate the Fourth Amendment of the Constitution. The Court’s decision is expected in June, but a turbulent history of case law at the state and federal appellate levels indicates the problematic nature of the issues involved.
Navigating the Channels of Effective Communication: Courts Assess Media Access in Defamation Cases • Constance K. Davis, Iowa • In its 1974 Gertz V. Welch decision, the Supreme Court gave lower courts some vague guidelines to use in determining which plaintiffs were limited-purpose public figures. One way to distinguish between public and private plaintiffs, said Justice Powell, is that public plaintiffs usually have “significantly greater access to the channels of effective communications.” But do they really have that access? This paper explores recent cases and finds that courts have rendered access almost irrelevant.
I Know It When I See It: Should Internet Providers Recognize Copyright Violation When They See It? • Irina Dmitrieva, Florida • The Digital Millennium Copyright Act of 1998 created a new standard of knowledge for Internet service providers in copyright infringements suits. The paper argues that in light of the statute’s legislative history, courts should narrowly construe the new knowledge requirement. Otherwise, service providers would have an incentive to restrict more online speech than necessary for enforcing copyright law on the Internet.
In the Wake of R.A.V. v. St. Paul Examining the Predictions and Implementation of a Controversial U.S. Supreme Court Decision in the U.S. Courts of Appeals • Joshua Hylton Godwin, North Carolina at Chapel Hill • In 1992, the United States Supreme Court ruled on the controversial case of R.A.V. v. St. Paul. Members of the Court had widely differing reasons for corning to the decision The decision was said to be certain to confuse the lower courts and to weaken First Amendment protections by both justices and legal scholars alike. This paper examines the decision, the predictions made about the implications of R.A.V., and if those predictions have become reality.
“Moral Rights” Versus Amoral Rights, “Fair Dealing” Versus “Fair Use”: A Comparison Of The Copyright Statutes Of Canada And The United States • Laura Hiavach, Indiana University • The Canadian “fair dealing” copyright provision is not as broad as the U.S. “fair use” doctrine, but Canadian “moral rights” provisions are broader. Why do these important distinctions exist? What is the potential impact on these neighbors’ shared intellectual property markets? This paper examines the historical development of the U.S. and Canadian copyright acts and the cultural bases for these differences. These distinctions subtly reflect an international split on how copyrights should be conceived.
Free Speech And The Rule Of Law: Jury Nullification Activists And The First Amendment • Kathleen K. Olson, North Carolina at Chapel Hill • Activists intent on informing jurors of their “right” to return a verdict contrary to the facts and/or law have increasingly sparred with judges and court administrators intent on protecting jurors from their message. This paper examines this clash of rights and the First Amendment implications of the restrictions that have been placed on jury nullification activists.
Hidden Cameras, Hidden Microphones: The State Of The Law In The 50 States • Kathleen K. Olson, North Carolina at Chapel Hill • This paper examines the various statutory approaches taken toward eavesdropping and the use of secret recording devices and cameras. Part I addresses the federal interception statute, which governs wiretapping and secret recording and which serves as a model for two thirds of the state statutes. Part II analyzes those statutes, examining both their common features and their unique provisions. Part III examines state laws that specifically address the use of hidden cameras, a common technique of investigative journalism.
Pirate Radio’s Challenge to the FCC: Direct Action and the Judiciary as Tools for Change • Andy Opel, North Carolina at Chapel Hill • This paper examines recent court decisions involving illegal micro radio broadcasting It explores the legal arguments made by the micro broadcasters and the Federal Communications Commission (FCC). Looking at U.S. v. Dunifer and four other cases, this paper outlines the challenges to current FCC policy and the response of the courts to these challenges. The FCC response to these challenges is explored through a recent notice of proposed rule making for low power FM.
Threats v. Theater: Does Planned Parenthood v. American Coalition Of Life Advocates Signify That Tests For True Threats” Need To Change? • Ashley Packard, Houston-Clear Lake • In a recent and controversial case, Planned Parenthood v. American Coalition of Life Advocates, a Portland, Ore., jury fined a group of abortion protesters $109 million for threatening abortion providers with a Web site and wanted-style posters. The Web site and posters contained no explicit threats, specified no time element and were not directed specifically to the plaintiffs. The case highlights a disparity between theories expressed in Supreme Court cases regarding threatening speech and those applied by the various federal circuits. U.S.
The Myth of Specialness: Why Broadcasting Is Entitled to Full First Amendment Protection • Paul Riismandel, Illinois at Urbana-Champaign • In this paper I demonstrate that the principal rationales justifying the curtailment of broadcasters’ First Amendment rights are suppositions, not fact. Scarcity exists only due to governmental allocation and is not an a priori condition of the broadcast spectrum, while the special power of broadcast is a controversial notion that is not proven. Therefore, the First Amendment is best served by increasing broadcast spectrum and protecting broadcasters’ spectrum rights, not regulation of content or access.
The Status of Copyright Law: The 1998 Digital Millennium Copyright Act • Johanna M. Roodenburg, Florida • Congress passed the Digital Millennium Copyright Act (DMCA) in response to changing technologies impact on copyright law. This paper compares four titles of the DMCA to the copyright case law on digital works and reveals that copyright law already incorporated most of the legal principles embodied in the DMCA. Thus, the DMCA is an example of fine tuning copyright law only enough to implement the WIPO treaties while avoiding issues not yet judicially addressed.
Changing Circumstances, Contexts, and Concepts: Analyzing the Supreme Court’s Use of Public Through a Half-Century of Rulings on Electronic Media • Susan Dente Ross and Julie Andsager • Communication policy rests upon the concept of a public whose interests can be, should be, and are served by government. Yet the concept of public has been criticized as vague, poorly understood, and inconsistently applied by the Supreme Court. This study used a computer assisted content analysis program to analyze the use of the term public within the text of Supreme Court rulings. This method illustrates the highly contextual meaning of public as applied by the Court in its electronic media rulings since the mid-1900s.
The Driver’s Privacy Protection Act Of 1994: Does Congress Have The Constitutional Authority To Override State FOI Laws By Regulating Access To State Driver’s Licenses? • Joey Senat, Oklahoma State University • Seven federal courts have examined the Driver’s Privacy Protection Act (DPPA). While the conflict between individual informational privacy and public access to millions of government records is at the heart of the statute, its fate more likely depends upon how courts resolve a conflict between the Commerce Clause and Tenth Amendment. This research concludes that Congress unconstitutionally commandeered states’ freedom of information policies when it enacted the statute.
Grumbling Barriers to Newsroom Searches: The Erosion of the Privacy Protection Act of 1980 • Dan Shaver, North Carolina-Chapel Hill • The Privacy Protection Act of 1980 was enacted to create barriers to the issuance of warrants for newsroom searches in the aftermath of the U.S. Supreme Court’s Zurcher vs. Stanford Daily decision This study finds that although newsroom searches are not widespread, adverse court rulings, limited sanctions for violations, law enforcement-and sometimes press-ignorance of the law, and Congressional tampering have significantly weakened the intended protections of the Act.
Congress Shall Make No Law Defining Who Is A Journalist • Kathy Sheehan, Washington • Despite the First Amendment, American courts have made case law numerous times defining who qualifies for legal protection as a journalist and who does not. With the explosion of Internet publishing in the 1990s, anyone with a computer and a modem can be a journalist. This paper examines cases, especially with state shield laws, where courts have created definitions for journalists. It also discusses how such definitions might be applied on the Internet and what problems could develop there.
Reno v. ACLU And Its Progeny: Implications For Communication Professionals • Truda Shinker, Ohio University • In Reno v. ACLU, the Supreme Court’s first encounter with the Internet and an indicator of the medium’s legal future, the Court ruled the Communications Decency Act of 1996 unconstitutional and granted the Internet the broadest possible protection under the First Amendment. In this paper, the author discusses the issues surrounding the Internet, the Communications Decency Act, and the Court rulings in the case, as well as the implications the case has for the future.
To Filter or Not To Filter: The Role of Public Libraries in Determining Internet Access • Barbara H. Smith, Florida • To filter or not to filter-that is the question facing public librarians who must decide if they can legally restrict patrons’ access to “offensive” web sites. The purposes of this paper are to examine the theoretical and practical aspects of blocking Internet content and to analyze the recent federal district court’s ruling that stated a Virginia library’s filtering policy was unconstitutional because it constituted prior restraint, was not narrowly tailored and was overly inclusive.
Dangerous Liaison: Speech in a Climate of Violence • Josie Tullos, SUNY Brockport • It is usually assumed that potentially dangerous speech will be evaluated under standards developed in advocacy cases or “fighting words” cases. Recent decisions involving various types of expression by anti-abortion activists indicate, however, that a different analysis may apply. The law of “true threats” is now being followed in cases involving speech that is not, on its face, a threat. This analysis relies heavily on context and raises questions about what expression is protected under the First Amendment when the context includes a general climate of violence.
Incitement: Hit Men, Hit Lists and Hit Movies • Lorna Veraldi, Florida International University • Recently, a jury awarded $107 million dollars in damages to abortion providers who claimed the posters and Web site of anti-abortion activists constituted a threat. The award seems unlikely to withstand a Constitutional challenge under the narrow incitement test set forth in Brandenburg v. Ohio. However, recent decisions concerning potential liability for “aiding and abetting” violence may signal a change in the court’s willingness to hold speakers accountable for speech that provokes violence.
Make ‘em Laugh: Assessing the Outcome of Actionable Humor Cases Against Intellectual Property and Publicity Right Challenges • Nancy Whitmore, Michigan State University • The degree of First Amendment protection parody, satire, and other forms of humor receive varies with the cause of action applied and type of humor the court determines is at issue in the case. This paper uses a content analysis research design to explore the correlates of the outcomes of cases involving actionable humor and intellectual property and publicity right challenges in order to assess the factors that have a relationship to the disposition of these cases.
Must-Carry: A Flawed Economic Analysis • Nancy Whitmore, Michigan State University • The must-carry rules, which require cable operators to carry the signals of local broadcast television stations, was hailed as a measure that would preserve the economic viability of the local independent broadcaster by unlocking the anticompetitive grip the local cable company placed on access to its system. But in the end, local independent stations became economically viable not because they were guaranteed carriage on a cable system, but because they represented a practical programming outlet for conglomerate firms with large investments in content production.
The Consent Defense in Television News Gathering • Scott D. Wiltsee, Georgia • When television news reporters enter private property or reveal private facts about individuals, they walk a fine line that may ultimately subject them to trespass or other privacy torts. This analysis examines a number of key court cases in which reporters relied on either explicit or implied consent defenses for trespass and privacy violations. These precedents reveal that reporters must remain particularly vigilant, because the success of the consent defense remains a moving target.
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