Law 1998 Abstracts
Law Division
Merging Law and Ethics: Discourse Legal Theory and Freedom of Expression • David S. Allen, Illinois State University • Building on the work of Jurgen Habermas, this paper argues that discourse legal theory put forward a blatantly political idea of law that is guided by the ethical goal of improving discourse in society. In an attempt to take the discussion from the abstract to the practical, the U.S. Supreme Court’s Hurley decision is examined. It is suggested that discourse legal theory puts forward a more protective standard for disempowered groups than current interpretations.
The Viability of the Libel-proof Plaintiff Doctrine Following the Masson Decision • Raymond N. Ankney, North Carolina-Chapel Hill • Defamation laws allow a person to sue for statements that damage his or her reputation. However, a few courts have ruled that some defendants have such poor reputations that they should not be allowed to sue for libel. this paper reviews how courts have ruled on the libel-proof plaintiff doctrine following the Supreme Court’s ruling in Masson v. New Yorker Magazine, which repudiated part of the doctrine. The analysis showed that it remains a viable defense for media defendants.
Videodialtone Reconsidered: Prospects for Competition in the Wake of the Telecommunication Act of 1996 • David J. Atkin, Cleveland State University • The purpose of this study is three fold: (1) to revisit the rationales behind the 1996 Telecommunication Act, (2) evaluate its short term and likely long term impacts on cable industry structure and conduct, and (3) update the state of cross-media competition between cable, local telephone and long-distance industries, in order to provide a context to explore implications of greater merger activity facilitated by the Act. Implications for industry conduct are discussed, particularly in light of cable-telco competition facilitated by the 1996 Act.
Building Bridges: Metaphors and Analogies Used by Courts in Cases Involving the Internet • Stephanie Lyn Beck, North Carolina-Chapel Hill • Increased Internet use in recent years has resulted in increased litigation and legislation surrounding speech via this new medium. In order to adjudicate these cases, courts have looked to a variety of regulatory models for guidance. This paper examines the models courts have used in their attempts to adjudicate questions of defamation, indecency and interstate commerce. Specifically, this paper will examine the application of the publisher, distributor, commerce clause, and broadcasting models.
Behind the Veil: The Rights of Private Individuals in the Wake of Hustler v. Falwell • Diane L. Borden, George Mason • The primary theories of speech liability • libel, invasion of privacy, and infliction of emotional distress • have been so broadly applied and with such conflicting brushstrokes that even private plaintiffs have little recourse when the mass media sully their reputations or harm their peace of mind. judicial tests have tended to turn on the idea of “publickness” • whether the speech is of public concern and whether the plaintiff is a public person.
“Exclusive” Reputation Injury: Harm by Hypocritization and the Emerging Reputational Dyad in Free Speech Jurisprudence • Clay Calvert, Pennsylvania State University • This paper analyzes the Ninth Circuit Court of Appeals’ 1997 decision in Eastwood v. National Enquirer, Inc. The paper argues that Eastwood: 1) is a defamation action masquerading as a misappropriation case, and, as such, is part of a trend in First Amendment jurisprudence in which plaintiffs attempts to plead around the high hurdles of libel law when suing the media; 2) rekindles the need for finding better measures of reputational harm.
Mass Communications Research in First Amendment and Other Media-Related Federal Court Opinions • Dane Claussen, Georgia • Lexis-Nexis searches determined levels of social science evidence from academic journal articles in mass communication, economics, psychology, and political science cited by all federal courts in all published opinions. Mass communication research is cited only a small fraction as often as that from other fields. Possible explanations are offered. This paper also reviews the history and status social science research’s use in American federal courts, highlighting Monahan and Walker’s research and proposals.
Setting New Boundaries: How Iowa Newspaper Editors Are Applying A New Law Granting Them Expanded Access to Juvenile Names • Constance K. Davis, Iowa • On July 1, 1997, a new Iowa law allowed the release of names of juveniles as young as ten when they are taken into custody or when they commit any public offense. This paper examines whether Iowa newspapers have expanded their use of juvenile names and finds editors have only nudged at their previous boundaries.
Craft or Profession: Court Rulings Leave Room for Journalists to Decide the Question • Lori Demo, North Carolina-Chapel Hill • In the early 1990s, the courts issued conflicting rulings on three cases that asked whether newspaper journalists are professionals exempt from overtime pay under federal laws. The conflicting rulings can prove puzzling for newspaper managers who want to follow the law while also controlling newsroom payroll costs. This paper examines the professional orientation of journalists from sociological and legal perspectives and offers editors guidelines for how they can increase the professional orientation of the journalists from sociological and legal perspectives and offers editors guidelines for how they can increase the professional orientation of their staffs.
Mirrored in Parody, Mired in Paradox: Trademark Dilution and An Ancient Art • Stephen J. Earley, Denver • The passage of the federal Trademark Dilution Act (FTDA) in early 1996 opened up the latest battleground in the long tradition of litigation between those who practice the ancient art of parody and those who feel its sting. This paper explores recent legal frameworks along with historical factors, changing technologies, and aspects of politics and culture which make parody as a form of commentary more controversial, and arguably more vital, than ever.
The Supreme Court Press Corps • Dru Riley Evarts, Ohio University • The author, who was at the U.S. Supreme Court for the 1996-1997 term, surveyed the Court’s press corps, replicating in part a survey of that group that Everette Dennis had done in 1974. The 1997 group was much larger and 100 per cent of the “regulars” in the press corps participated. Among the findings are comparisons of the male/female ratio, age, media, political and social leanings, and these reporters’ opinions on a number of suggestions that have been made by which the Supreme Court could make coverage of that institution more readily available to the public.
The Journalist’s Privilege for Nonconfidential Information in States with Shield Laws • Anthony L. Fargo, Florida • A 1997 report by the Society of Professional Journalists warning of an erosion in the journalist’s privilege, plus recent case law and empirical studies, have focused attention on protections for nonconfidential information. This study found that sixteen states and the District of Columbia appear to protect nonconfidential information is statutes, but little consensus about the nature of the privilege exists.
Free Speech v. Fair Trial A 50-State Analysis of Trial Publicity Rules • Kathy R. Fitzpatrick, Southern Methodist • This paper addresses the question of what rules — if any — should regulate attorney speech in the trial context. A 50-state analysis of professional disciplinary (ethics) rules was conducted in an effort to better understand the various state approaches to restricting attorneys’ extrajudicial comments. The results indicate a need to reconsider the broad range of existing state practices and to develop a universal rule consistent with Constitutional principles.
A Methodological Framework for Comparative Media Law • Karla Gower, North Carolina-Chapel Hill • This paper examines the secondary literature on comparative methodology in the disciplines of law, sociology, and political science for a methodological framework to be used when comparing media law in different countries. After deriving the methodological framework, the paper critiques comparative media law articles in light of that framework. The paper concludes that a consistent method is absent in mass communication comparative legal research and that a workable comparative methodology would strengthen the field of mass communication law.
Bits, Bytes and the Right to Know: How the Electronic Freedom of Information Act Holds the Key to Public Access to a Wealth of Useful Government Databases at Nominal Costs • Martin Halstuk, Florida • The Electronic Freedom of Information Act (EFOIA) became law on October 2, 1996. The purpose of this paper is to focus on one of the EFOIA’s key provisions, Section 3, which says all records compiled by federal agencies — even those recorded and stored in electronic formats — are subject to the Act’s policy of full disclosure. This paper concludes the EFOIA Section 3 has the potential of providing public access to a wealth of useful government databases at nominal costs.
Divergence of Duty: Differences in the Legal and Ethical Responsibilities of the Media in the Branch Davidian-ATF Shootout • Elizabeth Blanks Hindman, North Dakota State • ABSTRACT NOT AVAILABLE.
Revisiting Free Speech on Private Property in the New Information Environment: A First Amendment Response to the Private Ownership Model • JoAnne Holman, Purdue • The utility of government as regulator of telecommunications industries in the post-Telecommunications Act era has been questioned by proponents of deregulation and competition. This paper argues that government has an important role in formulating the structural policy necessary to ensure system access to the new communications technologies. It examines how the doctrine of free speech on private property provides grounding for policy to ensure users can access a diversity of information sources and disseminate their own information to others.
When News Artists Take Without Asking: Digital Photo Collage As Transformative Commentary • Wilson Lowrey, Georgia • This article explores the copyright implications for news publications when news artists sample and distort protected news photos in digitally created photo collages. To date, no case on digital sampling of visual media has been tried. The author weighs the rights of the photographer and the rights of the news publication in a hypothetical case involving a photo collage created by the author. Several samplings are examined, each progressively more significant, to determine the threshold of infringement.
The Supreme Court and its “Public”: The Maturation of Theory and Interpretation • Susan Dente Ross, Washington State University • This study explores the complex and transient nature of publics and the evolution of legal policy by applying public opinion theory and the policy cycle concept to the multi-branch adoption and interpretation of the public interest concept. This research suggest that shifting Supreme Court interpretations of the public interest reflect the maturation of policy, and reflect and contribute to the continuing cycle of theory development.
On Denying the Obvious: A Critical Examination of Competing Ethical and Legal Claims Regarding Holocaust Denial • Kevin R. Stoner, Russell Sage • ABSTRACT NOT AVAILABLE.
The Firebrand of My Youth: Oliver Wendell Holmes and the Influence of Emerson • Joseph A. Russomanno, Arizona State University • There is probably no figure in American jurisprudence who has been studies and whose record has been more studied and whose record has been more analyzed than Oliver Wendell Holmes, Jr. Among the aspects of Holmes’ career that have commonly piqued the interest of scholars is the apparent transformation of Holmes’ view of the First Amendment and freedom of expression rights. In 1919, Holmes led a re-direction of the U.S. Supreme Court and its interpretation of these rights with a dissenting opinion in which he set forth a broader approach than what had previously been used, and what Holmes himself had previously held.
Link Law: The Evolving Law of Internet Hyperlinks • Mark Sableman, J.D., St. Louis, MO • Contrary to the “freedom to hyperlink” ethos, case law refutes any absolute right to link on the Internet. Rather, business and intellectual property law imposes limits on linking. This article reviews the basics of the legal theories applicable to hyperlinks; describes key hyperlink cases that have arisen involving direct links, “framing” and “inlining,” hidden metalinks, and contributory infringement through links and mirror sites; and concludes that linkages will often be subject to legal controls.
Defamation by Racial Misidentification: A Study of Exposure to Public Hatred and Contempt In the South • John C. Watson, North Carolina-Chapel Hill • This a cross-disciplinary study of journalism law, history, and sociology. Specifically, it is an examination of the periods in Southern history when courts ruled that it was defamatory and libelous per se to identify a white person as black. By studying defamation lawsuits filed in Southern courts from 1791 through this century this paper traces the evolution and regression of the racial misidentification. Here, court ruling are treated as historical artifacts that reflect the Southern social structure.
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