Law 2004 Abstracts
Law Division
The Durban Principles, Jurisdictional Issues, and International Libel In the Digital Age: A Marriage of Convenience? • Adedayo Abah, Washington and Lee University • This study makes the argument that the Durban Principles in conjunction with ‘focal point’ standard established in Zippo Mfg. Co. v. Z4po Dot Corn, Inc., and enlarged upon in Young v. New Haven Advocate, as well as Revell v. Lidov are worthy of consideration as international standards for evaluating jurisdictional issues in international libel cases based on Internet publication. This standard of analysis will also enable U.S. courts to enforce foreign libel judgments in the U.S.
Balancing the Right to Privacy and the Right of Access: Access to Child-Abuse Records in the 50 States • Courtney Anne Barclay, University of Florida • With recent tragedies in child-welfare systems, critics have called for more public access to child-abuse records to increase accountability. The purpose of this study is to assess the current level of confidentiality for those records. This study compared the statutes of all 50 states, the District of Columbia and the federal laws regarding the child abuse record confidentiality. Florida and New Jersey, two states known for child-welfare tragedies, were the two most open states.
Challenging The Wisdom Of Solomon: The First Amendment And Military Recruitment On Campus • Clay Calvert and Robert D Richards, Pennsylvania State University • This paper analyzes the ongoing legal battle in the federal courts over the constitutionality of the Solomon Amendment. This statute allows the federal government to withhold all funds from colleges and universities that refuse to allow military recruiters on-campus access. It is being challenged by a number of law schools and law professors who claim that it violates their First Amendment rights of free expression, academic freedom and freedom of expressive association.
Medium-Based Regulation and Criminal Libel on the Internet • Edward L Carter, U.S. Court of Appeals, Third Circuit • Courts reviewing the constitutionality of content-based speech regulations examine the government’s interest in relationship to the unique characteristics of the content in question and the fit between means and ends. The recent phenomenon of states selectively prosecuting alleged criminal libels on the Internet necessitates application of a similar test. Under this test for “medium-based regulation,” the unique characteristics of the Internet must closely relate to the state’s asserted interest in treating online speech differently than other mediated speech.
In Search of a New Radio Market Definition: The Modified Metro • Amy Jo Coffey, University of Georgia • Regulatory complications tend to accompany media industry growth. Radio is no exception. The signal contour overlap method of radio market definition has produced anomalies that, by the FCC’s own admission, were never intended by Congress. In 2003, the FCC redefined the radio market, opting for a geographically-based definition. However, the new definition produces new anomalies. This paper analyzes the contour overlap method and alternatives. Finally, a radio market definition remedy is offered: “The Modified Metro.”
Sunshine Laws: How Are States Making Lawbreakers Pay? • Lynn Corney, University of North Carolina at Chapel Hill • This paper examined the open records and open meetings laws of all 50 states, specifically scrutinizing portions that address awarding attorney fees. While some states statutes require legal fees be paid to a party who successfully brings an open meetings or records lawsuit, other state statutes regard attorney fees as merely a possibility. Some make no mention of attorney fees whatsoever. This paper also analyzed court cases in which media outlets have sued for access. The results will help journalists better understand sunshine laws in each state, and the examination of recent cases will serve as a guide to how state courts are deciding to use the fee-awarding provisions of the statutes.
A Real Home-Field Advantage: The Status of University Foundations Under State Public Records and Open Meetings Laws • Charles Davis and Scott Reinardy, University of Missouri • Private, non-profit university foundations have grown into multi-million-dollar entities with very little public scrutiny. The foundations’ private status in many states allows them to conduct university business without accountability to the tax-paying public that supports the institutions. In recent years, however, several state courts have opened the records of university foundations. This paper analyzes the public records status of university foundations, concluding that courts in most states would find such foundations public agencies for purposes of freedom of information laws.
Reforming Alone: An Examination Of State FOI Advocacy Groups • Emily Erickson, Louisiana State University • Journalists have long fought to improve the public’s ‘right to know’ without the public knowing anything about this battle – problematic when reform is best served by broad coalitions. But in the 1990s, a number of ostensibly citizen-based state FOI groups began emerging as state-level access reform efforts gained momentum. This paper presents a typology of FOI advocacy groups, exploring their strengths and weaknesses, and the difficulty journalists face in making any of them truly citizen-based.
Disfavored Advertising: Telemarketing, Junk Faxes and the Commercial Speech Doctrine • Emily Erickson and Anita G Day, Louisiana State University • In February 2004, the Tenth Circuit upheld the constitutionality of a national do-not-call registry, reversing a district court decision that found it unconstitutional for privileging non-commercial telemarketing over commercial telemarketing. This paper will examine how telemarketing and “junk” fax rules – and the constitutional challenges to those rules – have provided yet another opportunity for the U.S. Supreme Court to rethink its commercial speech doctrine, or at least give better guidance to courts applying the Central Hudson test.
Privilege and Pragmatism: How the Seventh Circuit Put Journalists and Their Sources on Thin Ice • Anthony L Fargo, University of Nevada at Las Vegas • Journalists have long claimed that the First Amendment press clause protects them from subpoenas for their work product, but there is much disagreement in the law. A recent ruling from a federal appellate court, in McKevitt v. Pallasch, continues a recent trend of erosion of the privilege in federal courts. The paper examines the meaning of McKevitt and also examines how the legal philosophy of the opinion’s author, Judge Richard A Posner, affected the outcome.
“Don’t Pooh-Pooh Our Poo Poo”: Penalty, Subsidy, and Refusal to Fund in the Aftermath of National Endowment for the Arts v. Finley • James R Gaddy, Louisiana State University • Legal scholars said the Finley decision would create a “chilling effect” in government subsidy programs and unlawfully expanded the government speech doctrine. By analyzing cases that subsequently use Finley for a substantive part of their rationale, this article argues the opposite: the courts have rejected the government’s attempts to interpret the decision as allowing viewpoint discrimination. It argues further that, under the government speech doctrine, Finley provides the controlling precedent for truly “hybrid speech” cases.
Holding the Spymasters Accountable: A Proposed Model for CIA Disclosure Requirements Under the Freedom of Information Act • Martin Halstuk, Pennsylvania State University • For the last two decades, CIA secrecy has gone largely unchecked, principally because of a sweeping 1985 United States Supreme Court decision that exempted the Agency from virtually any disclosure requirements under the Freedom of Information Act (FOIA). This paper argues that the Court’s rationale for blanket CIA secrecy has been outmoded by modern events, and it proposes a legislative model that would establish guidelines for CIA information disclosure under the FOIA.
The Aftermath of Bartnicki v. Vopper: Judicial Determinations on Telephone Conversations of Public Concern • Laura J Hendrickson, Georgetown University • This paper examines the brief aftermath of the 2001 Supreme Court decision Bartnicki v. Vopper to explore its significance for journalism. In Bartnicki, the Court excused a radio broadcaster from liability for broadcasting a cell phone conversation illegally recorded by an anonymous person. They relied on the Daily Mail principle that issues of public concern are constitutionally protected. Therefore, the paper concludes by discussing issues of public concern in the context of intercepted telephone conversations.
In the Interest of Security: The Impact of 9-11 on State Access-to-Information Laws • Suzanne Horsley, University of North Carolina at Chapel Hill • This paper examines the legislation regarding access-to-information laws that has been passed by the states since the terrorist attacks on September 11, 2001. It categorizes the changes that have been made to determine the implications of these legislative moves for the media and the public. Forty of the states and the District of Columbia succeeded in passing new laws in attempts to thwart terrorist access to critical information. The resulting sixty-two new laws in this study were categorized as follows: records exemptions to ensure safety and security, closed meetings to ensure safety and security, provisions for allowing media access, and calls for further study on ways to protect government information. While there are many concerns about the speed and breadth of the new legislation, there was a mixed response to what the changes mean for American citizens and reporters.
Making Kalle Lasn’s Case: CBS v. Democratic National Committee Revisited • Gordon Jackson, University of Wisconsin at Madison • This paper undertakes a First Amendment analysis of the discretion of federal broadcast licensees to exclude advertisers that they deem unsuitable for other than the standard reasons of indecency. The issues are crystallized by the case of Kalle Lasn and Adbusters Media Corp., who have tried unsuccessfully to get the networks to run their anti-ads, which attempt to de-glamorize consumption. The main business of the paper is to revisit the principal impediment to an action by Lasn – a 1973 U.S. Supreme Court holding, CBS v. Democratic National Committee. This case seems to stand for the proposition that decisions by licensees on who will use the public airwaves to advertise can never be characterized as state action, and therefore are beyond constitutional reach.
Where Is The First Amendment?: A Case Study Examining Internet Service Provider Safe Harbor Under The Digital Millennium Copyright Act Of 1998 • Shawn D Katz, Trinity University • A case currently pending in the U.S. District Court of Northern California, Online Policy Group, Pavlosky and Smith v. Diebold, could have a profound influence on the future interpretation of the Digital Millennium Copyright Act (DMCA) in the United States. In this case, Diebold Election Systems sent cease-and-desist letters to Internet Service Providers (ISPs) who were carrying sites which were allegedly posting infringing internal corporate documents. Consequently, the ISPs, who are provided a safe harbor from copyright infringement liability under the DMCA, had the sites shut down. After unwanted publicity about the action, Diebold withdrew its allegations. The Online Policy group and two Swarthmore students, however, did not drop the issue, and instead brought action against Diebold. The paper examines how the DMCA laws that allowed the sites to be shut down constitutes an unconstitutional prior restraint on speech.
Freedom of the press for the Cherokee Phoenix during the early nineteenth century: An elegant dream, an elusive myth • Kevin R Kemper, University of Missouri at Columbia • Media scholars long have known that the Cherokee Phoenix, the official paper for the Cherokee Nation, has been suppressed at times. By comparing literature and historical sources, this study details how the federal, state, and tribal governments controlled the Cherokee press during the early nineteenth century. Also, this paper looks at seditious libel during this time, giving support to Leonard Levy’s theory that seditious libel extended past.
Nike v. Kasky: Reconsideration of noncommercial v. commercial speech • Eyun-Jung Ki, University of Florida • This study examines the case of Nike v. Kasky. The primary discussion in this paper is about a public relations campaign by Nike that responded to allegations of poor working conditions for employees in their foreign factories. Whether false or misleading statements should be categorized as commercial or noncommercial speech, and therefore unprotected or protected, is the most important issue in the case. The main discussion is about the distinction between commercial and noncommercial speech, in terms of judicial scrutiny and the degree of protection afforded each type of speech. The author suggests that speech such as that used by Nike should be protected under the First Amendment and proposes ways to prevent corporations from making false or misleading speech.
“More Likely to Withhold Information?”: Comparison of Implementation of FOIA Policies under the Clinton and Bush Administrations • Minjeong Kim, University of North Carolina at Chapel Hill • A month after the September 11, 2001, the U.S. Attorney General released a new Freedom of Information Act (FOIA) policy instructing federal officers to withhold information whenever it is necessary and possible. This policy contrasts with that of the Clinton administration. To explore whether two different FOIA policies have resulted in real differences in the effectiveness of FOIA as an instrument of access, this study analyzed data from annual FOIA reports issued by all fourteen federal departments and sixty-one independent federal agencies for fiscal years 1998 through 2002. Some evidence was found indicating the Bush Administration FOIA policy might have impaired the effectiveness of FOIA as an instrument of access, although dramatic differences were not found.
Secrecy Or Security: Identifying Trends In State Access Law Legislation • Nissa Laughner, University of Florida • Since September 11, 2001, states have aggressively pursued and passed legislation that would limit or prohibit access to information related to national and state security. Since the current “war on terror” may be indefinitely extended, states are likely to continue to limit access in favor of national security. State legislation, however, may be limiting public access to a great deal of information that poses little direct security risk. Ultimately, states may be frustrating the public policy motives between public access. This paper analyzes state legislation relating to safety and security and public access in order to evaluate trends in state access policies.
‘To Protect The Interests’: How The Unique Constitutional Status Of American Indians Affects The Trademark Case Against The Washington Redskins® • Dan Lewerenz, Pennsylvania State University • This paper employs American Indian law as an entree for First Amendment analysis of the trademark lawsuit against Pro-Football, Inc., owners of the Washington Redskins. The Trademark Trial and Appeals Board vacated the “scandalous” and “disparaging” Redskins trademark, but in September 2003 a federal judge overturned that ruling. No previous analysis of this case has considered how the unique constitutional status of American Indians, and concomitant federal responsibilities toward American Indians, might influence the First Amendment questions.
Jurisdiction over Internet Libels • Bill Loving, Idaho State University • The use of traditional minimum contacts analysis to decide jurisdiction is not appropriate in the age of the Internet. Courts continue to apply jurisdictional principles based on traditional models of commerce to cases involving libels created in distant forums and felt in the home states of defendants. Courts have denied plaintiffs access to forums where they suffered the greatest harm, where evidence can be most easily accessed and where issues can be most efficiently resolved.
Fighting for the Online Anonymous Speech of John and Jane Doe: Where Do We Go From Here? • Lesa Hatley Major, Louisiana State University • The debate over anonymous online speech has reached a boiling point in the last year, with numerous individuals and companies taking legal action to compel ISPs and Web publishers to identify anonymous online users. This paper argues for the amendment of existing anti-SLAPP statues to include online defamation and the provisions set forth in California Assembly Bill 1143 including the following criteria: adequate notice, SLAPP determinant, and financial equity.
An Analysis of the BCRA ◊ 201’s Disclosure Provisions for Electioneering Communications • Barbara M Miller, University of North Carolina at Chapel Hill • The paper examines the constitutionality of the compelled disclosure requirements the BCRA ◊ 201. Through an analysis of briefs and affirming and dissenting Court opinions, this paper clarifies the reasoning behind the Court’s decision in McConnell v. FEC regarding the BCRA ◊ 201. Additionally, this paper comments on the Court’s ruling and whether the BCRA will adequately address the Buckley loophole without crossing the line between preventing political corruption and circumventing the First Amendment.
Viewer Discretion Advised: Graphic Violence On Television News & The Television Rating System • Sarah E Real, Pennsylvania State University • This paper analyzes the dichotomy in the television rating system between rated images of fictional violence on entertainment programming and unrated images of real-life violence on newscasts. The paper, which argues that the dichotomy is increasingly illogical, critiques it through three different lenses: First Amendment theory and jurisprudence, the practices of broadcast journalism that blur the line between news and entertainment, and social-science evidence of the effects on children of fictional violence versus real-life violence.
Libel Law and Words: Innocent Construction in Illinois • Robert L Spellman, Southern Illinois University at Carbondale • The innocent construction rule in libel law is unique to Illinois. As it has evolved, it requires a judge at the start of a libel per se suit to dismiss the action if the alleged defamatory words can be reasonably construed as not of and concerning the plaintiff or to not be defamatory. The rule has given the news media in Illinois a better record of prevailing in libel suits than their counterparts in other large states. Recently the protection to the media has been eroded by restrictive interpretations by courts. One of the practical advantages of the rule has been savings in legal costs due to dismissals at the start of cases. That advantage suffered a setback in 2003 when a federal appeals court held that dismissal upon the pleadings violated federal procedural law. Nevertheless, the rule remains a useful protection for the news media.
Protecting the High and Mighty: Libel Law in Canada. • Robert L Spellman, Southern Illinois University at Carbondale • Canada’s judiciary does not share the liberal free press values of the United States as enunciated by the United States Supreme Court in New York Times v. Sullivan. In Hill v. Church of Scientology the Supreme Court of Canada in 1995 severely criticized Sullivan while upholding the largest libel verdict ever awarded by a Canadian court. The court reaffirmed Canada’s adherence to the strict liability regime of common law of libel. Hill involved criticism of the official conduct of a crown attorney. A government agency financed the libel suit. Hill was decided prior to the decision of the House of Lords in Reynolds v. Times Newspapers. Some softening of the pro-plaintiff bias of Canadian law may be indicated by Jones v. Campbell, a decision of the Nova Scotia Court of Appeal which applied Reynolds qualified privilege to overturn a libel verdict against two attorneys for their criticism of police conduct as unconstitutional and symptomatic of systemic racism.
Nike v. Kasky and the Running-But-Going-Nowhere Commercial Speech Debate • Samuel A Terilli, University of Miami • The lawsuit filed by Marc Kasky against Nike illustrates the dangers to free expression posed by Supreme Court decisions defining “commercial speech” as a category deserving of some, but not full, first amendment protection. The commercial speech doctrine should be replaced with the approach used by the Court to permit prosecutions of acts with the requisite intent to commit the underlying offense, even if the act was accomplished, in whole or in part, through expression.
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