Law 2003 Abstracts
Law Division
Clicking Your Speech Rights Away: The Constitutionality of Gagwrap Licenses • Genelle I. Belmas, California State-Long Beach and Brian M. Larson (attorney at Law) • While the courts have recognized the constitutionality of “shrinkwrap” licenses to protect the rights of software producers, an insidious clause has crept into some of these licenses. Dubbed “gagwrap clauses,” these terms of use may include content-based restrictions on speech that the authors believe are invalid. This paper examines one such clause and subjects it to a combination of contract and First Amendment jurisprudence, providing a possible test for the constitutionality of gagwrap clauses.
Applying First Amendment & Regulatory Constructs To The Internet • Justin Brown, Florida • Varying structural and technological characteristics within mass communication systems provide the basis for courts to interpret the First Amendment differently across media. Congress and the FCC have also invoked similar calculations to promote broader public interest goals and construct specific regulatory classifications for different communication services. The collective effect of the medium-specific application of the First Amendment and the FCC’s regulation of electronic media has established sets of legal constructs that confer varying degrees of editorial rights and access obligations.
Proving Dilution: Survey Evidence in Trademark Dilution Actions • Matthew D. Bunker and James Glen Stovall, Alabama • Trademark dilution is an important new development in federal trademark law. Dilution provides a remedy to owners of famous trademarks when others use their mark in a way that blurs or tarnishes the famous mark. Federal courts have been less than helpful in explaining how dilution can be proved. This paper examines the current state of dilution law and suggests that consumer surveys may be the most useful means of proving dilution.
The Winds of Change and the Power of Students’ Voices: The Student Movement, the Vietnam Era and the Supreme Court Case of Tinker v. Des Moines Independent Community School District • Jennifer Cioffi, Ohio • In Des Moines, Iowa, in 1964, student protesters wore black armbands to school. They were suspended and they sued the school, leading to the seminal 1969 Supreme Court case called Tinker v. Des Moines Independent School District. This study, including an interview with John Tinker, examined the context of the times and legal demands by students for empowerment. Student power is central to this study. The particular facts of this case promoted the final decision.
Hyperlink Proximity: Operationalization of FDA- Mandated Fair Balance on Pharmaceutical Web Sites • Colleen Connolly-Ahern, Florida • U.S. FDA regulations require that pharmaceutical advertisements in traditional media include a “fair balance” of information. This study examined pharmaceutical Web sites to determine what effects the lack of FDA guidance have on site content. The study found FDA-mandated elements were not present on all sites. Using hyperlink proximity as a measure of “fair balance,” the study found that pharmaceutical Web sites are likely to place positive information closer to the Web site’s main homepage than negative information.
Websites and Incitement to Violence: A Case Study of the Application of the Brandenburg Standard to Planned Parenthood v. American Coalition of Life Activists • Juanita J. Covert, North Carolina-Chapel Hill • Can old standards be used for a new medium? This paper examines whether the incitement standard in Brandenburg v. Ohio can be appropriately applied to Planned Parenthood v. ACLA and whether the Nuremberg Files website would have been considered unprotected speech using that standard. Cases citing Brandenburg and findings regarding the nature of the Internet in ACLU v. Reno were considered. It is argued that the Brandenburg standard is applicable and that the website could be considered unprotected.
Victor’s Victory • Sandra Davidson, Missouri-Columbia • This paper covers the unanimous Supreme Court victory of “Victor’s Little Secret” over “Victoria’s Secret.” The bottom line is that unless the plaintiff can prove damage, its trademark dilution case will fail. This case continues the unthawing of puckish creativity of Campbell v. Acuff-Rose. In exploring the changes Victor’s victory makes, past cases are covered, including ones that involve Gucci Goo diaper bags and Lardashe jeans, and appropriation cases such as “Here’s Johnny.”
Stealing Information: Application Of A Criminal Anti-Theft Statute To Leaks Of Conhdential Government Information • Irina Dmttrieva, Florida • The article explores whether the federal government holds a property interest in confidential government information and, if it does, whether that interest is protected by a criminal anti-theft statute, 18 U.S.C. § 641. The article argues that application of Section 641 to leaks of government information might unduly restrict the legitimate speech of government employees and impede media investigations into government misconduct.
Can the Effect of Richmond Newspapers Stretch Even Further? An Analysis of the Right of the Press to Cover Immigration Hearings • Dale L. Edwards, North Carolina-Chapel Hill • Two 2002 district court cases found a right of public access to deportation hearings. On appeal, two appeals courts applied the Richmond Newspapers test to determine whether that First Amendment right existed and arrived at opposite conclusions. This paper suggests a right of access to deportation hearings is reasonable because of the hearings’ similarity to criminal court trials, a history of openness, and lower court decisions extending access to civil and some administrative proceedings.
How Masson v. New Yorker Has Shaped the Legal Landscape of Narrative Journalism • Kathy Roberts Forde, North Carolina-Chapel Hill • Masson v. New Yorker’s interpretation of the actual malice standard has been shaping the legal landscape in which narrative journalism is practiced for over a decade. Of the twenty federal court and state high court defamation cases citing Masson that have involved substantive issues of narrative technique, Masson provided clear victories for defendants in eighteen of the cases. In the two remaining cases, as in Masson itself, disputed questions of material fact sent the cases to juries for resolution.
Kasky v. Nike, Inc.: The End of Constitutionally Protected Corporate Speech? • Karla K. Gower, Alabama • At issue in Kasky v. Nike, Inc. is whether statements made by Nike in response to allegations about its overseas labor practices are commercial or corporate speech. In ruling that the speech was commercial, the California Supreme Court proposed a limited-purpose test that essentially makes all corporate speech commercial speech and subject to strict liability. This paper examines the court’s decision and proposes a test for determining when speech by a corporation should be considered commercial speech.
Let the Record Speak: How the Freedom of Information Act’s Legislative History Debunks the Supreme Court’s “Central Purpose” Doctrine • Martin E. Halstuk, Penn State and Bill F. Chamberlin, Florida • The U.S. Supreme Court defined the “central purpose” of the Freedom of Information Act in Dept. of Justice v. Reporters Committee for Freedom of the Press in 1989. Over the years, this decision has had a profound impact on public access to government-held information, substantially narrowing the scope of the FOIA. An examination of the FOIA’s legislative history strongly suggests that the Court’s “central purpose” test contravenes FOIA’s congressional intent for a broad policy of full disclosure.
The Chickens Have Come Home To Roost: Individualism, Collectivism, And Conflict In Commercial Speech Doctrine • Elizabeth Blanks Hidman, Washington State • Using individualist and collectivist political philosophies, this paper analyzes the Supreme Court’s conception of commercial speech protection since 1980. It concludes that the Court’s commercial speech doctrine has suffered from a fundamental internal conflict arising from the difficulty in choosing one or the other of those political philosophies, and suggests that that conflict will continue-as will the Court’s inability to express a coherent commercial speech doctrine-until the Court makes an overt choice between collectivist and individualist approaches to the protection of commercial speech.
Cross Burning Revisited: What The Supreme Court Should Have Done in Virginia v. Black And Why it Didn’t • W. Wat Hopkins, Virginia Tech • The Supreme Court’s 1992 decision RAV. v. St. Paul holding a cross-burning ordinance to be unconstitutionally discriminatory created as many questions as it answered. By granting certiorari in a cross-burning case out of Virginia, the Court has the opportunity to set things right, holding cross burning to be protected political speech. The Court, however, is likely to err again and hold the Virginia law to be constitutional.
Protecting Kids or Attacking the First Amendment? Video Games, Regulation and Protected Expression • James D. Ivory, North Carolina-Chapel Hill • This paper inspects a recent federal court decision, Interactive Digital Software Association v. St. Louis County, Mo., in which the court ruled that video games did not constitute expression meriting First Amendment protection. Via an examination of the history of similar cases in federal courts, the Interactive Digital ruling is here found to be inconsistent with other rulings; an affirmation of this decision in the U. S. Court of Appeals would prolong an unacceptable contradiction.
The Meikleojohn Model: Reassessing Alexander Meiklejohn’s “Town Meeting” Theory in the Supreme Court’s Corporate Speech Jurisdiction • Robert L. Kerr, Oklahoma • The free-speech paradigm of Alexander Meiklejohn has provided fundamental direction for the Supreme Court’s protection of a free press and democracy since the mid twentieth century. This research examines the body of 27 Supreme Court cases that have drawn on Meiklejohnian reasoning, with particular attention to application of his “town meeting” model. Analysis of the many Court opinions citing Meikeljohn supports that model as a more effective manner for regulating corporate speech in a manner consistent with self governance.
The First Amendment Regime for Direct Satellite Broadcasting (DBS): Satellite Broadcasting & Communications Association v. FCC • Seung-Eun Lee, Florida • This study explored what the First Amendment status of the satellite broadcasting is, particularly as it is compared to other media such as cable and over-the-air-broadcasting. The author examined Satellite Broadcasting and Communications Association v. FCC’ that interpreted the Satellite Home Viewer Improvement Act’s “carry one, carry all” provision. The author argues that the First Amendment regime for satellite broadcasting should be established in relationship with other media such as over-the-air broadcasting and cable.
Defamation and Mental Disorder: The Enduring Stigma • Karen Markin, Rhode Island • Court opinions provide evidence that an allegation of mental disorder continues to be defamatory, despite modern treatments for the condition. This paper traces the history of cases based on “imputations of mental derangement” and identifies several important trends. Generally, contemporary claims are actionable if they are based on a medicalized allegation that affects the plaintiff’s professional status. But courts have been quick to recognize a qualified privilege for employers and physicians to make such allegations.
Faculty Copyright in International Online Distance Education: Case of U.S. and Mexico • Lisa M. Paulin, North Carolina-Chapel Hill • Parallel to current growth in globalization and digitalization of information is the growth of international online distance education. This trend has prompted both education and legal research scholars to ponder copyright ownership of faculty-authored works in this setting. Using Mexico as a case study, this paper examines U.S. copyright law, Mexican copyright law, and the Berne Convention, yet finds that the concerns of many remain unanswered. The clearest answer lies in well-defined university policies.
Critique of Dilution Law: A Re-examination of the Bases of Trademark Protection • Amanda Reid, Florida • Federal trademark dilution law is a subset of trademark law. This paper explores whether dilution law is necessary in light of the expansion and evolution of the traditional “likelihood of confusion” analysis and the law of unfair competition. Dilution seeks to prevent the “whittling away” of a mark’s uniqueness, even when consumers are not confused about the origin of the goods. Hypothetical examples of dilution include Dupont shoes, Buick aspirin, Schlitz varnish, and Kodak pianos.
Privacy Versus Public Access: An Analysis of How Courts Balance These Competing Social Interests When Government Records Are Computerized • Joey Senat, Oklahoma State • Using as its framework the six factors applied by courts when the government records are ink and paper, the study analyzed how computerization of the requested data affected the balancing of privacy and public access. It also examined if judges’ attitude toward technology, as reflected in the language of their written opinions, influenced their decisions, identified problems with the way courts resolve this conflict, and recommends ways to help courts be more consistent, predictable and balanced in weighting these social values.
Personal Jurisdiction Over Media Libel Cases In The Internet Age. • Robert L. Speilman, Miami • When the Internet edition of a newspaper or magazine is published, it is instantly available to a worldwide audience. Potentially it opens the publication to libel suits in any forum. This paper explores the evolving United States law of personal jurisdiction over Internet publishers and journalists in libel actions. Federal appeals court decisions in Young v. New Haven Advocate and Revell v. Lidov are analyzed. The decisions are victories for the press. Nevertheless, some second-guessing of editorial decisions by editors is inevitable.
Newsgathering And The First Amendment: Toward A Progressionist Theory Of Constitutional Interpretation • Erik F. Ugland, Marquette • Despite three decades of litigation, the law of newsgathering remains substantially unsettled. Doctrinal disparities need to be eliminated and essential definitional questions (e.g., who is a journalist?) need to be answered. This requires a comprehensive free press theory that is built upon a clear theory or approach to constitutional interpretation. This paper addresses some of these fundamental questions, and provides at least some preliminary answers, by applying a progressionist approach to interpreting the First Amendment.
A Framework for Access to Court Records in Florida • Roxanne S. Watson and Bill F. Chamberlain, Florida • As federal, and state Courts formulate policies on which court documents should be placed on their websites, a Florida Committee, relying on the experiences of other states, formulated guiding principles for its policy on access to court records in February 2003. This paper examines the effectiveness of the Florida Recommendations and the extent to which Florida built on the State-wide Guidelines and Maryland’s experience to formulate a comprehensive policy.
The Neutral Reportage Doctrine 25 Years After: An Update On The Still “Fledgling” Libel Defense • Kyo Ho Youm, Oregon • The debate about the viability of neutral reportage as a constitutional defense to libel continues. And given the “current limbo” that the neutral reportage doctrine is facing as it enters its 25-year evolution, the constitutional libel defense deserves another in-depth look. This article examines the theoretical underpinnings and judicial interpretations of the neutral reportage doctrine.
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