Law and Policy 2014 Abstracts
Open Competition
Familiar Airspace: Fixing Privacy Torts to Protect Against Drone Intrusions • Courtney Barclay, Syracuse University; Kearston Wesner, University of Minnesota – Duluth • Unmanned aerial vehicles – drones – promise to revolutionize countless industries, not the least of which is journalism. However, a significant concern regarding the commercial use of drones – and other surveillance technology – is privacy. This article discusses the failures of current privacy paradigms. The authors suggest an overhaul of the “reasonable expectation of privacy” standard to reinvigorate privacy protections, a necessary step for the integration of drones into government and commercial surveillance.
Rap Music and the True Threats Quagmire: When Does One Man’s Lyric Become Another’s Crime? • Clay Calvert, University of Florida; Papadelias Sarah, University of Florida; Emma Morehart, University of Florida • This paper examines the complex and unsettled state of the true threats doctrine through the lens of the equally complicated, controversial and multi-faceted musical genre of rap. Rap, although generally protected by the First Amendment, frequently is caught in the crosshairs of criminal prosecutions focusing on whether or not it constitutes a true threat of violence. Ultimately, the paper offers suggestions for how to clarify the doctrinal issues, with rap illustrating and supporting those ideas.
Matters of Public Concern and Outrageous Speech: Exploring the Malleable Boundaries of IIED and Free Speech Three Years After Snyder v. Phelps • Clay Calvert, University of Florida • This paper analyzes how the Supreme Court’s Snyder v. Phelps decision in 2011 is now affecting lawsuits brought against media defendants for intentional infliction of emotional distress. Snyder pivoted largely on the Court’s expansive definition of “public concern.” Using four post-Snyder cases as analytical springboards, the paper examines how Snyder and its conception of public concern are being deployed by both courts and media defense attorneys in IIED cases premised upon the publication of allegedly outrageous speech.
Private Status, Public Ties: University Foundations and Freedom of Information Laws • Alexa Capeloto, John Jay College of Criminal Justice/CUNY • Auxiliaries and foundations have become an increasingly popular, powerful means of buttressing public institutions of higher education in the face of waning state support. In the last three decades a handful of state legislatures and judiciaries have attempted to delineate the status of university-affiliated foundations vis-à-vis Freedom of Information laws. However this review finds that in nearly two-thirds of the country their status remains undecided, potentially pushing large swaths of university-related funding and functions beyond the reach of public access.
Political Culture, Policy Liberalism, Public Opinion and Strength of Journalist’s Privilege in the American States • Casey Carmody, University of Minnesota-Twin Cities; David Pritchard, University of Wisconsin-Milwaukee • Although the legal environment for newsgathering varies considerably from state to state in the United States, comparative studies of state press law are rare. Focusing on legal protections for source confidentiality – journalist’s privilege – the present study tested three hypotheses. The first posited that a state’s political culture would be a significant predictor of the strength of the state’s journalist privilege. The second posited that a state’s level of policy liberalism would be a significant predictor of the strength of the state’s journalist privilege. The third posited that public support for journalistic confidentiality within the state would be a significant predictor of the strength of the state’s journalist privilege. Data for state political culture came from Daniel Elazar’ and Ira Sharkansky’s classifications. Data for policy liberalism came from the State and Local Public Policies in the United States research project. Data for public opinion was from a national survey by the Pew Center for the People and the Press. Data on journalist’s privilege came from a content analysis of statutes, court decisions, and administrative orders from 48 states. The results did not support the hypothesis about political culture. The hypotheses involving policy liberalism and public opinion, however, were strongly supported. The study contributes to a richer understanding of American press law by concluding that legal standards favoring a freer flow of information are more likely to be found in states with higher levels of policy liberalism and public support for journalistic confidentiality.
Rube Goldberg-Like Contrivances and Broadcasting: The Litigation Challenging Aereo • Kevin Delaney, The University of North Carolina at Chapel Hill • The broadcast industry has been abuzz over Aereo, a company that streams broadcast content without a license over the Internet to subscribers. The nation’s broadcasters have sought to enjoin Aereo by arguing that Aereo’s service violates their right under the Copyright Act of 1976 to perform works publicly. This paper explores Aereo’s service in the context of the public performance right and offers an argument for how courts should interpret the public performance right.
The Espionage Act, the Obama Administration & Freedom of the Press: Two Case Studies • Ralph Engelman, LIU Brooklyn • The Obama Administration has made unprecedented use of the Espionage Act of 1917 to prosecute government officials who leak classified information pertaining to national security to the press. After placing the Act in historical context, the study examines two such prosecutions initiated in 2010. The two cases have troubling implications for freedom of the press, especially the ability of reporters to access and protect confidential sources. In the first case, Thomas A. Drake, a whistleblower at the National Security Agency (NSA), was indicted under the Espionage Act for his communication with reporter Siobhan Gorman of the Baltimore Sun. He eventually pleaded guilty to a misdemeanor without jail time after the government dropped the most serious charges. In the second case, the Justice Department targeted Stephen Jin-Woo Kim, who worked at the State Department and leaked secret information about North Korea’s nuclear program to reporter James Rosen of Fox News. Kim ultimately pled guilty to one count and received a 13-month prison term. Both cases had significant ramifications. Thomas Drake’s ordeal influenced Edward Snowden’s decision to release NSA documents abroad instead of through domestic channels. The government’s characterization of James Rosen as a possible “co-conspirator” of Kim’s, in a warrant application to access the reporter’s email accounts, prompted a firestorm of criticism by press organizations. The paper concludes that the Drake and Kim cases substantiate calls to replace the Espionage Act with new legislation that will more effectively safeguard both government secrets and press freedom.
New Models and Conflicts in the Interconnection and Delivery of Internet-mediated Content • Rob Frieden, Penn State University • This paper examines the dramatic changes in interconnection and compensation and compensation agreements between content providers and carriers resulting from increasing reliance on the Internet for video delivery to consumers. It identifies emerging models, in which Internet Service Providers (“ISPs”) seek to collect payments from both end users and content providers. While supportive of commercially negotiated agreements between concerned parties, the paper recommends that regulators ensure transparent network management practices by disclosing special arrangements with individual content providers. The paper also suggests ways for regulators to prevent retail ISPs, providing the last kilometer of service, from creating a bottleneck as a way to force surcharge payments from upstream carriers and content providers. The paper also will examine existing and likely future interconnection disputes with an eye toward identifying where conflicts will arise and how they can get resolved. The paper supports commercially driven negotiations, like those occurring between television broadcasters and cable television operators. However, regulatory authorities may need to arbitrate and promote settlements when now-essential Internet access becomes blocked or congested. The paper concludes that ISPs should have the opportunity to provide both end users and content sources alternatives to “best efforts” content delivery, but that they should not create artificial congestion as justification for additional compensation.
Net Bias and the Treatment of “Mission-Critical” Bits • Rob Frieden, Penn State University • This paper assesses whether and how Internet Service Providers (“ISPS”) can demand paid service enhancements for particular types of traffic and customers without disadvantaging competitors and harming consumers. It will use the recent paid peering agreement between Netflix and Comcast as a case study as well as other instances where parties negotiate carriage of “mission critical” bits and “must see” television. The paper concludes that the Federal Communications Commission lacks jurisdiction to regulate ISP price and quality of service discrimination. However, the paper also concludes that network bias does not always serve anticompetitive goals, nor does it always result in an unlevel competitive playing field. The paper identifies instances where a regulatory referee remains necessary to offer timely resolution of increasingly frequent disputes about what constitutes fair network bias particularly for the carriage of bandwidth intensive video content.
Evaluating Intent in True Threats Cases: The Importance of Context to Threatening Internet Messages • Brooks Fuller • Following the Supreme Court’s most recent ruling on the true threats doctrine, Virginia v. Black, significant conflict emerged among lower courts. Speakers’ use of Internet forums and social networking websites to threaten others raises significant questions regarding the application of the true threats doctrine to modern modes of communication. This paper utilizes legal research methods to examine the problematic relationship between Internet speech and true threats, and the inconsistent application of the true threats doctrine.
Does Access to Environmental Information have a Critical Problem?: Interpretation of FOIA’s Exemption 4 after the Critical Mass III Decision • Kylah Hedding, University of North Carolina at Chapel Hill • This paper then analyzes how Exemption 4 cases have been decided in the federal appeals courts since the Critical Mass III decision in 1992. It first provides a background of the FOIA and Exemption 4, including the National Parks and Critical Mass decisions in the District of Columbia Circuit. This is followed by a review of the current scholarship centered around how FOIA requests and Exemption 4 denials are implemented, the confusion surrounding Exemption 4, and recommendations for improvements.
Eyes in the Skies: First Amendment Implications of the Domestic Drone Ban as Applied to Newsgathering • Sean Lawson, University of Utah; Cynthia Love; Avery Holton, University of Utah • Unmanned aircraft systems (UASs), commonly referred to as “drones,” have rocketed to public attention in the last decade largely as a result of the U.S. military’s use of this technology in the “war on terror.” As UASs are put to a growing number of uses in the domestic airspace, they have become the latest cause of technopanic. As a result, the predominant response from news media and other actors has been fear, legislation, and regulation. In 2007, the FAA attempted to ban the commercial use of UAS. Efforts to enforce this ban have included sending dozens of cease and desist letters, and even one attempt to levy a $10,000 fine. Most often, these UAS operators have been engaging in aerial photography, sometimes for newsgathering purposes. To date, little attention has been paid to the First Amendment implications of the ban. This article argues that aerial photography with drones, whether commercial or not, is protected First Amendment activity. This is particularly the case when the aerial photography is used for newsgathering purposes, as it has been in a number of instances where the FAA has taken enforcement action. As currently formulated, the FAA’s blanket ban on commercial use of UAS, which it asserts includes aerial photography and news gathering, constitutes a content-based restriction and a prior restraint on speech that is unconstitutional. The FAA must take First Amendment protected uses of this technology into account as it proceeds with meeting its Congressional mandate to promulgate rules for domestic UASs.
The Heckler’s Veto: Applying an on-the-street doctrine to Internet communications • Brett Johnson, University of Minnesota • The term “heckler’s veto” has been used in reference to the power of private intermediaries to stifle speech that audiences vociferously deem too extreme to belong in online discourse. This paper looks at First Amendment theory and doctrine surrounding the term. The paper’s goal is to better understand the benefits and limitations of using this government-specific term in the context of extreme speech in intermediary-driven Internet communications. The paper concludes with policy recommendations for intermediaries and hecklers.
“Execute not Pardon”: The Pussy Riot Case, Political Speech and Blasphemy in Russian Law • Volha Kananovich, University of Iowa • This paper explores the issue of freedom of expression in Russia through the lens of the Pussy Riot blasphemy case (2012). By blending legal analysis with historically and culturally informed exploration, this paper examines the reasoning used by Russian law to authorize limitations on freedom of religiously contextualized speech and discusses its implications for expanding the “forbidden ground” for legitimate political debate in contemporary Russia.
Antitrust Exemptions, Football, and an (anti)Competitive Marketplace: An Analysis of the Future of the Relationship Between NFL Sunday Ticket and DirecTV • Lauren Anderson, Florida State University; Erin Looney, Florida State University • The NFL’s billion-dollar deal with DirecTV for NFL Sunday Ticket (Sunday Ticket) ends after the 2014 season, and even as subscription prices have fallen, the out-of-market package is still out of reach for many consumers. This paper examines related case law and broadcast regulation and uses competition as a framework for exploring DirecTV and the NFL’s options for providing out-of-market football games to consumers when the existing contract expires.
Kicking the Tires of First Amendment Theory: Noncommercial Versus Commercial Falsehood in Supreme Court Opinions • Carmen Maye, University of South Carolina • Criminal sanctions may be on the horizon for deceptive commercial speech. If so, the ability to distinguish deceptive, commercial messages from nondeceptive, noncommercial messages assumes even greater significance at a time when doing so is becoming increasingly difficult. It may be time for a new approach to the regulation of deceptive commercial speech. For perspective, this paper examines the Court’s disparate treatment of deceptive commercial speech and its theoretical influences, as articulated in Court opinions.
Child Rearing and the First Amendment • Minch Minchin • This student paper examines the First Amendment right of minors to receive speech within the context of parental rights and the ostensible governmental interest of protecting children from harmful materials. Drawing from judicial precedent, contemporary scholarship and application of free-speech theory, this paper contends that the harms foisted upon free-speech rights of children and parental rights of adults generally outweigh any benefits produced by state attempts to keep minors ignorant about potentially offensive ideas.
The “Sovereigns of Cyberspace” and State Action • Jonathan Peters, University of Dayton • This paper contributes to the body of knowledge about online free speech and the ongoing policy discussion about designing a governance structure for a single and global Internet. It explores the state action doctrine in the U.S., examining (1) how it distinguishes the public and private spheres, and (2) whether it forecloses the First Amendment’s application to private Internet companies. This paper also suggests a state action theory suitable for the digital world.
“Peculiarly the ‘Marketplace of Ideas'”: A Case Against Hazelwood in the University • Kristy Roschke • The U.S. Supreme Court has repeatedly acknowledged the public university as a “marketplace of ideas,” however lower court decisions have questioned how broad university students’ First Amendment rights should be. At the center of the conflict is the 1988 U.S. Supreme Court decision in Hazelwood School District v. Kuhlmeier, a high school student speech case that increased school officials’ control over school-sponsored speech. This paper argues that by not considering the special characteristics of the university, courts have misapplied Hazelwood in six cases in the past decade, resulting in an erosion of the marketplace of ideas on the university campus.
Cause and Effect: The Free Speech Transformation as Scientific Revolution • Joseph Russomanno • Just as the social sciences helped to expose the fallacy of direct, cause-and-effect speech, they also contributed to the recognition that speech-restrictive laws had been written and judged from the standpoint that words may be the explicit cause of undesirable behavior. This paper examines the transformation in free speech doctrine, its parallel track with the emergence of the social sciences and views the change as a paradigm shift within the context of Kuhnian scientific revolution.
The Corporation in the Marketplace of Ideas • Matthew Telleen, Elizabethtown College • In 2010, the Supreme Court decided Citizens United v. FEC. In this paper, the framework of law and economics is utilized to analyze the value of corporate political speech to the marketplace of ideas. Tracing the history of Supreme Court decisions dealing with corporate political speech, variables can be isolated that deal with each component of speech in the marketplace, the speech itself (the product), the speaker (the producer), and the audience (the consumers).
Broadband Penetration: A Qualitative Comparative Analysis (QCA) Approach • Hsin-yi Tsai • This study aims to understand what kind of policies/regulations and economic factors are necessary and/or sufficient for having higher broadband penetration rates. By using fuzzy-set Qualitative Comparative Analysis (QCA), we analyzed the necessary and sufficient conditions that resulted in higher broadband penetration in OECD countries. In order to have higher broadband penetration rates, the main necessary condition was that countries did not include broadband into their universal service objectives. The examination of sufficient conditions revealed that higher population density, higher education, higher income, higher market concentration and reliance on market forces (no inclusion of broadband universal service objectives) were sufficient for higher broadband penetration rates. Lower income, lower population density, and lower education were present in all countries that exhibited lower broadband penetration. However, having lower population density, lower income, and lower education did not necessarily imply lower broadband penetration. This study found that countries characterized by lower income and lower population density would be able to achieve high broadband penetration rates if they had high education, higher market concentration, and policies that require local loop unbundling (LLU) and that support public private partnerships (PPP).
Video Games and NCAA Athletes: Resolving a Modern Threat to the First Amendment • Alexander Vlisides, University of Minnesota • A group of current and former NCAA student-athletes recently settled their claims with video game maker Electronic Arts for $40 million. Both the Third and Ninth U.S. Circuit Courts of Appeals ruled that the First Amendment did not protect use of the athlete’s likenesses in a football video game. However these cases fail to give a clear answer to a question that has plagued content producers for decades: when does the First Amendment protect the use of a person’s likeness against right of publicity claims? This paper answers this question by performing a close reading of the Supreme Court’s one case addressing right of publicity, Zacchini v. Scripps-Howard. The Supreme Court’s analysis identifies the government’s interests in protecting right of publicity by establishing its foundation in the marketplace theory of the First Amendment. Based on this analysis, the paper scrutinizes the three major right of publicity tests used by lower courts, finding that they fail to serve the interests enumerated by the Supreme Court. The tests have led to results inconsistent with the marketplace theory adopted by the Supreme Court and which threaten traditionally protected creative works. The paper thus proposed a two-tiered right of publicity test. The test first distinguishes commercial from noncommercial speech by applying an existing Supreme Court test, and then evaluates noncommercial speech by balancing the marketplace interests identified in Zacchini. Reevaluating the right of publicity doctrine will lead to more consistent results and greater protection for expressive works.
The Jamaican Access Law and the Trade Secrets Exemptions: Decisions of the Tribunal • Roxanne Watson, University of South Florida • The Jamaican Access to Information Act, the third access law to be passed in the British Caribbean, was passed in 2002 and implemented in 2004. Because of the infancy of the act, its boundaries have not been fully determined by the court. In the 12 years since this statute has been in operation the Access to Information Tribunal has made a eight decisions touching on the balance between the right to access government held information and the exemption for trade secrets and confidential business information. This paper outlines the Tribunal’s decisions and reasonings relating to the confidential business exemption in order to ascertain the direction of the law as it relates to access in these areas.
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