Law 1997 Abstracts
Law Division
Protection Without A Shield: Revisiting the Journalist’s Common Law Privilege • Laurence Alexander, University of Florida • This paper surveys the case law in state without protective shields, reports on the general findings across the states and analyzes specific cases that illustrate trends. It is an attempt to look back over the period since Branzurg vs. Hayes to determine how courts have defined the protection for journalists who are subject to court subpoenas in states that have not enacted shield laws.
Heat of the Moment: Flag-Burning and Legal Theory • Genelle I. Belmas, University of Minnesota • The U.S. Supreme Court invalidated 48 state flag desecration laws and the equivalent federal statute in Texas vs Johnson in 1989. The Court was divided 5-4. Brennan wrote for the majority, Kennedy filed a concurring opinion, and both Stevens and Chief Justice Rehnquist offered dissenting opinions. This paper analyzes these opinions in light of three socio-legal theories: historicism, positivism, and critical legal studies.
Of Jellyfish and Community Leaders: Redefining the Public Figure in Libel Litigation • John Bender, University of Nebraska-Lincoln • Courts say public figures are celebrities or leading figures in pre-existing public controversies. The definitions conflict with First Amendment values because they confuse celebrity with influence, overlook powerful but little-known persons and place investigative reporting at greater risk than routine reporting. Courts should redefine public figures as those involved in matters of public interest and who occupy influential positions, have reputations for being influential or are deeply involved in the decision-making process.
Privatized Government Functions and Freedom of Information: Public Accountability in an Age of Private Governance • Matthew D. Bunker, University of Alabama, Charles N. Davis, Southern Methodist University • Privatization Ñ the notion of private corporations providing governmental services Ñ is generating tremendous interest at all levels of government in the United States. This paper explores the public access issues raised by privatization and suggests that current statutory law fails to adequately address the line between public agency and private actor. In an attempt to provide a judicial standard for determining when to provide access to privatized records, the authors suggest a public function analysis which considers a number of factors.
When First Amendment Principles Collide: Negative Political Advertising & The Demobilization of Democratic Self-Governance • Clay Calvert, Pennsylvania State University • This article explores the First Amendment tensions created by negative political advertisements. On the one hand, such ads constitute political speech Ñ expression at the core of First Amendment values. On the other hand, new data suggest that these televised ads actually deter citizen participation in democracy, suppressing voter turnout. The article considers whether the information value of negative ads outweighs the detrimental affect on participatory democracy.
Obstacles to Defamation Recovery in Cyberspace • Mark Cenite, University of Minnesota • The ancient tort of defamation may not survive in interactive cyberspace user forums for the reasons that those forums appeal to many, they are easily accessible, anonymous, international, high-volume, rapid-transmission, chaotic forums. Existing statutory and case law favors system operators, a likely target of suits. Courts are reluctant to leave the defamed without remedy, but fortunately, an alternative remedy that maximizes freedom of expression, the opportunity for reply, is inherent in the medium.
The Constitutionality of the FDAÕs Tobacco Restrictions as a First Amendment Issue • Yung Kym Choi, Michigan State University • This article analyzes the constitutionality of the FDA’s tobacco rule by applying Central Hudson test. It discusses the history of tobacco advertising regulation and evolution of commercial speech protection. The availability of alternatives is found to be a crucial indicator of the fit between the FDAÕs ends and means. Regulation incorporating all four marketing factors is suggested as an alternative approach to achieve the goal of the FDA rule while upholding First Amendment principles.
44 Liquormart A Prescription for Commercial Speech: Return to Virginia Pharmacy • Frances L. Collins, Timothy D. Smith, Kent State University • The U.S. Supreme Court unanimously overruled a liquor price advertising ban last year in 44 Liquormart v. Rhode Island, raising the possibility that commercial speech doctrine is headed for a major change. Already the impact has been felt in three federal circuits, even though there was no clear majority backing the main opinion’s strong support for 1st Amendment protection or commercial speech. The Court has since reversed and remanded two cases for reconsideration in light of 44 Liquormart, in the Fourth and Fifth Circuits. In the Ninth Circuit, an appeals court panel unanimously invalidated a ban on broadcasting casino ads, relying in large part on 44 Liquormart. As a result, the authors feel the stage has been set to retire Central Hudson as the focus of commercial speech analysis and replace it with the more liberal, and predictable, rationale found in Virginia Pharmacy Board v. Virginia Citizens Consumer Council. That 1976 decision afforded 1st Amendment protection to advertising as long as it is truthful, not misleading, and promoting a legal product. While 44 Liquormart was decided using the Central Hudson four-part test, Justice John Paul Stevens, author of the main opinion, wrote at length about the evils of government regulation of advertising for paternalistic ends, a key component in the Virginia Pharmacy decision. The authors believe the 44 Liquormart decision points to a new approach to commercial speech doctrine, based on an old, but respected, case.
Public Health v. Commercial Speech: Are the FDA’s Tobacco Advertising Restrictions Constitutional? • Kay Ehas, University of Florida • An analysis of the FDA’s tobacco advertising regulations finds that they differ from recent regulations struck down by the Supreme Court. Previous Court cases involved either a total ban or bans on certain information. The FDA proposal balances the rights of adults to commercial information about a legal product and the promotion of an illegal product that is harmful to minors. The Supreme Court will likely uphold all of the advertising regulations except the billboard ban.
Presumed Innocent?: Network Newsmagazines’ Pretrial Coverage of the O.J. Simpson Criminal Case • Steven A. Esposito, Capital University • This research project applied findings from a comprehensive content analytic study to a narrative framework in examining network newsmagazines’ pretrial coverage of the O.J. Simpson criminal case. The nearly 17 hours of data analyzed, indicated family/friend was the top theme during the pretrial phase. The findings also revealed that ten percent of the newsmagazines’ total news time was devoted to coverage of the Simpson saga, coverage that often conveyed the impression of Simpson’s guilt.
The Concept That Would Not Die: Scarcity As a Justification for Broadcast Regulation • Anthony L. Fargo, University of Florida • The idea that the airwaves are a scarce public resource that must be regulated in the public interest has been around since the beginning of broadcast regulation in the 1920s. This paper explores the history of scarcity as a rationale for regulating broadcasters and examines how the concept has regained its efficacy in recent years despite a sharp increase in the number of media voices.
Burning the Global Village: The Constitutionality of State Laws Regulating Indecency in Cyberspace • Delores L. Flamiano, University of North Carolina • This paper examines the constitutionality of statutes regulating indecency on the Internet. Analyses of New York, Oklahoma, and Virginia indecency regulations and the Communications Decency Act indicate that legislators are attempting to restrict a wide range of Internet material. Most of the regulated material is protected by the First Amendment and therefore the statutes raise several constitutional issues. Currently in litigation, the New York statute and the CDA appear unlikely to pass constitutional muster.
Blurred Vision: How Supreme Court FOIA Opinions on Invasion of Privacy Have Missed the Target of Legislative Intent • Martin E. Halstuk, University of Florida • The Freedom of Information Act (FOIA) recognizes it is crucial for citizens to have access to government information to make informed decisions concerning self-rule. However, the law also acknowledges the importance of privacy Ñ two of the FOIA’s exemptions allow agencies to withhold information that would invade the privacy of individuals. The purpose of this paper is to explore the access-privacy conflict. The examination focuses on the major Supreme Court opinions regarding legal challenges to the privacy interests covered under the two FOIA exemptions. The principal question posed in this analysis asks whether the Court has fairly balanced the conflicting values of access and privacy within the guidelines established by Congress in crafting the FOIA.
In Self Defense: How the Government Uses National Security Reasons To Withhold Information Under the FOIA • Martin E. Halstuk, University of Florida • The American government’s need for confidentiality and secrecy in the areas of international relations and defense often conflicts with the democratic principles of an open society. While secrecy is necessary to conduct foreign affairs and devise national security policy, it also stifles the democratic process that helps keep citizens informed about what the government is doing. The purpose of this paper is to focus on court opinions in which the government cited national security as the reason to reject requests for disclosure under the Freedom of Information Act (FOIA). The principal question posed in this analysis asks: Have the courts exceeded the plain meaning and legislative intent of the FOIA in their opinions regarding the national security exceptions?
Point and Click for the Right to Know: An Analysis of the Electronic Freedom of Information Act of 1996 • Martin E. Halstuk, University of Florida • After five years of hearings, floor debated and compromises, Congress passed the Electronic Freedom of Information Act (EFOIA) on October 2, 1996. Legislatures crafted the law because new rules were needed to overcome obstacles in obtaining information from federal agencies in the era of new technology. Increasingly, government information is recorded and stored in electronic form. The purpose of this paper is to examine the history and content of the EFOIA to shed light on how the EFOIA crafters identified the problems of access in the computer age. The research question this paper explores is: How effective is the EFOIA in meeting the needs of access to government in the era of electronic record keeping and information storage?
A Limbo of Ambiguity: The Editorial Rights of State-Owned Licensees • Laura E. Johnson, University of Florida • Congress and the FCC have traditionally supported the concept that public television and radio stations operated by governments have the same responsibilities and freedoms as private stations. This paper will examine how the Courts have disagreed about the first amendment status of state-owned stations and their ability to act as editors. This ambiguity in the Courts has made it difficult for public state-owned stations to make editorial decisions, creating a chilling effect.
Media Rights versus Community Interests in Canada and the United States: Explorations in Legislative and Judicial Balancing • Vernon A. Keel, Wichita State University • This paper examines developments in five areas of media law in Canada and the United States, compares approaches to legislative and judicial balancing, and examines the way courts in both countries interpret their respective constitutional provisions for press freedom by looking at themes in those judgments that appear to promote individual rights of the mass media on one hand, or community and societal interests on the other.
Social Science in Commercial Speech Cases, 1960-1996 • Arati R. Korwar, University of North Carolina • This paper analyzes the role social scientific research played in commercial speech cases decided by the U.S. Supreme Court from 1960 to 1996 and the lower court cases leading up to them. Discussing illustrative cases, this study finds that the use of social science in commercial speech case law is fairly common and that the most frequently cited types of social scientific research were economic, historical, survey and media-use.
Media Recognition and Access to the Presidential Primary Ballot • Karen M. Markin, University of Rhode Island • In a sizable minority of states that conduct presidential primaries, a candidate may qualify for placement on the ballot by being recognized by the media as a serious contender. Such statutes are poor public policy. They do not invite voter involvement and, given the nature of media coverage, may not lead to presentation of qualified candidates to the electorate. Democratic principles are better served when candidates follow tradition and file petitions bearing a specified number of voter signatures.
The Property Rights Associated with Factual Material and the Real-Time Transmission of Newsworthy Information • Paul McCreath, University of North Carolina • In January of 1996, two companies, STATS Inc. and Motorola Inc., started marketing beepers that would update National Basketball Association scores while the games were in progress. Shortly after the introduction of the service, the NBA filed suit requesting a permanent injunction to stop the sale of the SportsTrax service. The NBA was granted a permanent injunction, because of misappropriation, with the decision stating that SportsTrax benefited from the property of another having reaped where they have not sewn.
Virtual Meetings: Breakdown or Breakthrough in Participatory Government? • Susan D. Ross, Washington State • Analysis of state statutes finds laws that protect open government treat the use of information technologies differently. Roughly half the statutes fail to address the use of information technologies, and one-fifth of the states provide neither statutory nor legal opinion on virtual meetings. Such differences affect citizen access and checking on government. Strong open meeting statutes permit virtual meetings and assure citizen access to them.
Edwards vs. National Audubon Society and Libel Law: The Neutral Reportage Doctrine 20 Years After • Joseph A. Russomanno, Kyu Ho Youm, Arizona State University • It has been 20 years since the doctrine of «neutral reportage» was first established, providing the media will another possible libel defense. It is a doctrine, however, whose acceptance has been slow. This paper examines the history of the privilege, particularly focusing on its second decade, and its impact on American libel law. The verdict: while accepted and applied by some courts, most have set it aside, ruling its application to be unnecessary or inappropriate.
Protecting Student Voices on the World Wide Web: Student Personal Home Pages and the First Amendment • Joey Senat, University of North Carolina • No Abstract available.
An Analysis of Virginia’s Freedom of Information Act • John Shiffman, American University • This paper argues Virginia’s public record law is too weak to give its citizens reasonable access to government held information. Conceptually, the law is good Ñ it states exemptions should be construed narrowly and access construed broadly. But in practice the opposite is true: exemptions are viewed broadly, and access viewed narrowly. This paper concludes that a dramatic overhaul is necessary to change deep institutional resistance by state officials to citizen access to publicly-held documents.
First Amendment Scrutiny and Commercial Speech: Raising the Bar for Regulating Advertising of Lawful Products • Sigman L. Splichal, University of Miami, Matthew D. Bunker, University of Alabama, J. Brian O’Loughlin, University of Alabama • Advertising has long been a stepchild of the First Amendment. A recent decision by the United States Supreme Court may indicate that the Court is moving in a more protective direction, however. This paper examines key cases in the evolution of the commercial speech doctrine, and explores the opinions by the justices in Liquormart. The paper then analyzes what sort of constitutional impact Liquormart may have on other recent advertising controversies.
Litigation Public Relations: The Lawyers’ Duty to Balance News Coverage of Their Clients • John C. Watson, University of North Carolina • This paper asks whether lawyers’ First Amendment right to speak about their clients’ cases in the mass media is evolving to become an obligation to argue their cases in the court of public opinion as well as in the courts of law and thereby balance the news coverage of their clients. The study focuses on the evolution of this right/obligation through U.S. Supreme Court decisions and rules promulgated by the American Bar Association.
Cohen v. San Bernadino Valley College: Employee Speech or Academic Freedom • Nancy Whitmore, Michigan State University • In Cohen vs. San Bernadino Valley College, the Ninth Circuit struck down a university’s sexual harassment policy on grounds of unconstitutional vagueness and enjoined the institution from further disciplinary action against a professor who used sexually-charged speech in the teaching of a remedial English course. This paper argues that the Ninth Circuit erred in its application of law and offers specific recommendations on policy in this free speech area.
Sizing Up Trade Dress: New Era of Cases Tests the Limits of the Lanham Act • Elizabeth M. Withersoon, University of North Carolina • This paper examines how the 1988 Amendments to the Lanham Act and the U.S. Supreme Court’s decisions in Two Pesos v. Taco Cabana (1992) and Qualitex, Inc. vs. Jacobsen Products (1992) have affected the federal court’s interpretation and application of the Lanham Act in trade dress infringement cases. Trade dress is the subset of trademark law that protects product labeling and packaging and thought by some to be the most contentious area of trademark law.
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