Law 2000 Abstracts
Law Division
Determining Fame under the Federal Trademark Dilution Act of 1995 • Sue Westcott Alessandri, North Carolina • Because of the law’s newness, the true effect of the Federal Trademark Dilution Act of 1995 has yet to be seen. The small body of precedents, however, may serve to guide corporations required to provide evidence on the “fame” of their trademarks in FTDA cases. An analysis of the five reported cases heard thus far by the U.S. Courts of Appeals – and specifically two circuits’ decisions in determining the fame of a trademark – shows that advertising history, expenditures and market research may be the best evidence corporations can present.
Broadening the Scope of the Newsgathering Privilege to Protect Nontraditional Journalists: A Definitional Dilemma • Laurence B. Alexander, Florida • This paper explores the statutory and common law development of the journalist’s privilege, giving special attention to the parameters drawn to limit protection only to those who work in traditional roles in traditional news organizations. It also examines the widely accepted “checking value” theory of Vincent Blasi on the role that news-source confidentiality plays in serving as an additional check on abuses of government power. This underlying theory is considered in determining whether the journalist’s privilege should be expanded beyond its current scope.
The First Amendment & Postmodern Tendencies in Cyberspace • Justin Brown, Penn State • To address the possibilities and difficulties of expression on the Internet, legal scholars and courts have been articulating jurisprudence. While many have been boastful of a robust marketplace of ideas, missing from the discourse has been an examination of the postmodern tendencies of cyberspace. This paper reviews developing jurisprudence and offers a unique perspective of how the First Amendment may protect expression in the cultural environments of converging and evolving media.
The “Enticing Images” Doctrine: An Emerging Principle in First Amendment Jurisprudence? • Clay Calvert, Penn State • The split of authority among the federal appellate courts that emerged in 1999 concerning the Child Pornography Prevention Act’s prohibition of “virtual” child pornography presents a propitious opportunity to examine the emergence of a nascent principle in First Amendment jurisprudence • the enticing images doctrine. Under this doctrine, otherwise lawful images of fictional content can be prohibited because they “entice” or “seduce” minors to engage in illegal conduct. The roots of the doctrine take hold in more than just the CPPA.
Silencing Foreign Voices: Restrictions on Alien Ownership of Broadcast Stations • James V. D’Aleo • North Carolina • Broadcast ownership provisions have been present in American society in some form or another since 1912. The time has come for these restrictions to be lifted. The current provisions have been in place, with little variation, since the Communications Act of 1934. This paper argues that the original reasoning for these provisions no longer hold true in today’s society, indicating that foreign ownership restrictions should be lifted or relaxed.
First Amendment Rights of Non-Citizens In Light of Reno v. Arab American Anti-Discrimination Committee • Irina Dmitrieva, Florida • The article argues that in a recent case, Reno v. Arab American Anti-Discrimination Committee, the U.S. Supreme Court de facto denied the First Amendment rights to non-citizens in the immigration context. The article argues that denial of free speech rights to aliens robs this country of the valuable source of new ideas and beliefs, and impedes the process of cultural exchange among U.S. citizens and immigrants.
State Protection of Copyright Interest In Primary Law Materials • Irina Dmitrieva, Florida • The article demonstrates that at least half of 50 states claim copyright interest in their primary law materials, such as state statutes, court reports, and administrative regulations. At the same time, state control over primary law materials may restrict public access to legal documents of vital importance. The author suggests changes in the United States copyright law that would deny copyright protection to the texts of state statutes and judicial opinions.
Contracting the News: A Study of Online News User Agreements • Victoria Smith Ekstrand, North Carolina • The terms of user agreements on news Web sites represent a new paradigm in the sale of news. Rather than selling the news, today’s online publishers provide content in exchange for agreement to the conditions of user agreements. This study examines the provisions in online news user agreements. It finds that such agreements duplicate or exceed protections provided by existing law and will be strengthened by new Uniform Commercial Code legislation.
The Lochner Monster Redux: Buckley and The Path of Legal Realism in Today’s Campaign Finance Jurisprudence • Emily Erickson, Syracuse • This paper examines the parallel often drawn between Buckley v. Valeo and Lochner v. New York, exploring the progressive legal realist agenda that helped end the Lochner era and recent attempts by the Supreme Court to both escape and hide within the bowels of its own “Lochner monster,” Buckley. It then looks at the most recent campaign finance precedents, including January’s Nixon v. Shrink decision, to discern whether today’s Court seems able and willing to slay Buckley.
Reconsidering the Federal Journalist’s Privilege for Nonconfidential Information: Gonzalez v. NBC • Anthony L. Fargo, Rhode Island • In 1998, the Second Circuit U.S. Court of Appeals in Gonzalez v. NBC ruled that there was no federal journalist’s privilege for nonconfidential information. The case appeared to go against precedent in the Second Circuit and appeared to be a serious blow to journalists’ efforts to expand the privilege to other circuits. However, a year later, the Second Circuit reconsidered Gonzalez and held that there was a privilege for nonconfidential information.
The Supreme Court’s Heavy Hand: The Reversal of Libel Decisions • Mike Farrell, Kentucky • The Supreme Court has near-total control of its docket, each year considering less than 100 of the seven thousand appeals it receives. When the Court grants certiorari, it is a signal the justices are more likely to reverse the decision of the lower federal court or the state court. An earlier study found the Supreme Court reversed the lower court in more than 60 percent of the cases it decided between 1953-90.
The Malice Muddle: The Changing Definition of Malice And Its Threat To The Fair Report Privilege • Deborah Gump, North Carolina • Suppose a mayor accused a councilmember at a town meeting of selling drugs. Next, suppose the reporter from the Daily Banner was told by his editor to forget about the accusation because the mayor’s libel suit would bankrupt the paper. Wouldn’t happen, you say? Under new court interpretations of the fair report privilege, it might. The privilege protects reporters from libel suits if they cover official proceedings accurately, fairly, and without common law malice.
Policy of Secrecy, Pattern of Deception: How the Government Tried to Undermine Press Freedom and the Right to Know During the Federalist Period • Martin E. Halstuk, Nevada-Las Vegas • The Supreme Court has consistently rejected arguments that the First Amendment provides the press with any rights not also afforded to the general public. The purpose of this paper is to explore the question of whether there is an historical basis to argue for constitutionally protected newsgathering privileges for the press. To illuminate this issue, this examination focuses on several events that took place between 1787 and 1798.
Circumventing Copyright with Controlling Technology • Matt Jackson, Penn State • The Digital Millennium Copyright Act added a new chapter to Copyright Act that protects the anti-circumvention technology used by copyright owners to restrict access to their content. In Universal City Studios v. Reimerdes, the first case involving these new provisions, the district court held that traditional defenses to copyright infringement did not apply to some violations of the anti-circumvention provisions. The DMCA and the Reimerdes case is evidence of a paradigm shift in copyright from a legal concept to a technological concept.
Libel in 48 Points: How Courts Have Ruled since Sullivan on Allegedly False and Defamatory Headlines Atop Accurate Stories • Susan Keith, North Carolina • The U.S. Court of Appeals for the 9th Circuit ruled in late 1999 that a headline could be actionable for libel on its own, even when the story to which it referred was substantially accurate. This no doubt pleased the plaintiff in the case, actor Brian “Kato” Kaelin, who had sued the National Examiner, a supermarket tabloid, over the headline “Cops Think Kato Did It.” However, the ruling also brought to the forefront the fact that some courts consider allegedly libelous headlines in context of the accompanying stories while others do not.
Web Site Framing: Copyright Infringement Through the Creation of an Unauthorized Derivative Work • Greg Lisby, Georgia State • The technological explosion and convergence that are the Internet and the World Wide Web • increasing amounts of information from a variety of sources, coupled with the accelerating change in the form of that information, from discrete media into one constant barrage of digitized bits • have posed new problems for copyright that promise to shake the law to its 300-year-old print media foundations. Take framing, as an example.
Hands in the “Cookie” Jar: Disclosure of Internet Transaction Generated Information under State Public Records Law • Harlen Makemson, North Carolina • This paper analyzed whether Internet transaction generated information such as cookie files are subject to disclosure under state freedom of information statutes and whether such information could fall under trade secret exemptions. For states that define public records as those made in connection with public business, disclosing cookies makes intuitive sense and is consistent with the legislative intent of broad access. Current laws leave courts ill-equipped to rule on the disclosure of cookie files.
Journalists on Journalistic Conduct in the Law of Libel • Tracie L. Mauriello and Thomas A. Schwartz, Ohio State • The U.S. Supreme Court’s requirement that libel plaintiffs show fault on the part of defendants has generated a body of law that examines journalistic conduct. Some see this as a threat to press freedom. After analyzing the responses of journalists to two libel case scenarios, this paper finds that journalists have higher standards for the practice of journalism than those of the Court and that they expect to be held legally accountable for journalistic malpractice but that they are unable to articulate a sense of proper journalistic conduct.
A Safeguard for National Security or a Wall of Secrecy Protecting Government Agencies? • Nelson Mumma Jr., North Carolina • The Freedom of Information Act was created to ensure that ordinary American citizens have access to government agency documents. This is important because it theoretically keeps the government accountable and allows individuals to access information they might need to knowledgeably vote and participate in the democratic process. However, Congress created nine exemptions to the FOIA, which allow government agencies to withhold information under certain conditions. Exemption 1 allows agencies to withhold documents if the release of these documents could harm national security or foreign relations.
Violence against the Press in Latin America: Protections and Remedies in International Law • Michael Perkins, Brigham Young • This paper analyzes recent cases decided by international human-rights tribunals that found attacks against journalists to be violations of the free-expression guarantees of the American Convention on Human Rights, the western hemisphere’s leading human-rights treaty. This study argues that the American Convention’s guarantees are being interpreted as demanding strict accountability from governments for investigating complaints of violence against the press, punishing journalists’ assailants, and indemnifying their survivors.
William Lloyd Garrison, Bejamin Lundy & Seditious Libel • Amy Reynolds, Oklahoma • This paper explores early attempts to suppress abolitionist speech and discusses how those attempts helped shape the views of two leading abolitionist figures. In response to efforts to suppress their speech and presses, Garrison and Lundy began to raise questions about what free speech and free press meant and brought public attention to issues of free expression. They also illustrated the power the press had to illuminate these issues.
Counter Speech 2000: A New Look at the Old Remedy for “Bad” Speech • Robert Richards and Clay Calvert, Penn State • The doctrine of counter speech was firmly implanted in First Amendment jurisprudence by Justice Brandeis nearly three-quarters of a century ago. This article revisits this well-worn doctrine. In particular, it analyzes its strengths and weaknesses through the prism of an eclectic collection of five very recent controversies in which counter speech has been employed as an antidote to “bad” speech. The medium and the message in each case is different, stretching from messages of tolerance on billboards to counteract the effects of hate speech to videos available on the World Wide Web to ward off the effects of an allegedly negative television program.
Reno v. Condon: Regulating State Public Records as Commodities in an Information Marketplace • Joey Senat, Oklahoma State • In upholding the Driver’s Privacy Protection Act, the Supreme Court granted Congress the constitutional authority under the Commerce Clause to override state FOI laws in order to restrict disclosure of drivers’ license data. The Court treated states as database owners and public records as commodities in interstate commerce. This paper argues that the Court should have adopted the reasoning of those lower courts that struck down the statute as a federal infringement upon states’ rights.
Defining the Concept of “Harmful to Minors “ in the Age of the Internet • Barbara Smith, Florida • For over 150 years, the United States government has emphasized the importance of protecting children from harm, especially in the area of sexually explicit material. However, society’s definition of pornography and determinants of harm have changed over time. Moreover, the emergence of the Internet has posed a challenge for government regulators. This paper proposes solutions to ensure that the government’s interest in protecting minors from Internet content is carried out in the least restrictive manner.
Freedom of the Private-University Student Press: A Constitutional Proposal • Brian J. Steffen, Simpson College • While the First Amendment protects public-university student journalists from censorship by the state, students at private universities are without constitutional protection from censorship. Courts usually have been unwilling to recognize First Amendment rights on the private campus, partly because most advocates of free-press rights have argued that the Constitution should apply with equal force on public and private campuses. This paper calls for a balancing of the First Amendment interests of the students against the pedagogical and philosophical interests of the private institution.
Tainted Sources, Matters of Public Concern: Applying the Wiretapping Laws to Media Disclosures • Josie Tullos, SUNY-Brockport • The ease of electronic eavesdropping has again raised the troublesome problem of balancing the tension between the First Amendment and personal privacy. That tension seemed overwhelming in two recent cases involving disclosure penalties in wiretapping statutes. The cases left Circuits divided and indicate that closer attention needs to be paid to the privacy concerns underlying the statutes. This paper suggests that a better approach is to look at privacy law as an aspect of community.
Pleading the Fifth: Media Economics, Free Air Time, & the Fifth Amendment • Glenda C. Williams, Alabama • Campaign finance reformers often use the concept of “free air time” as an incentive for voluntary compliance (compelling television stations to provide free advertising time for federal candidates). This paper outlines arguments from both proponents and opponents of free air time, with special emphasis on the two interpretations of “public interest.” Media economic theory is then used to support the argument that free air time would indeed take the property created by broadcasters: their audience.
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