Law 2001 Abstracts
Law Division
To Rate or Not to Rate? A Comparison of Internet Rating Systems with the Television Industry’s Ratings • Chantal Francois Bailliet, Loyola University • The Internet industry created ratings for its content despite a Supreme Court ruling stating the medium merits the same level of First Amendment protection as print. The Internet is looking to regulate itself much like the television industry did when it adopted its ratings. The difficulty lies in that the Internet is very different from television and accordingly, rating its content brings different problems. In the end, there are more effective solutions than ratings.
New Protection for Speech Rights: Media Use of State Anti-SLAPP Legislation • Matthew D. Bunker, University of Alabama, and Paul H. Gates, Jr., Appalachian State University • “Strategic Lawsuits Against Public Participation” (“SLAPPs”) have been defined as meritless lawsuits brought to silence opponents through intimidation rather than to vindicate genuine legal rights. As a number of states have created statutory means of countering such lawsuits, called anti-SLAPP statutes, it has become clear that at least some of these statutes can also be used by media defendants to defeat libel and related tort claims. This paper explores this new legal weapon and its use by the press.
The Effects of Desnick V. ABC: Setting Boundaries for Surreptitious Newsgathering • James V. D’Aleo, University of North Carolina-Chapel Hill • The 1994 decision in Desnick v. American Broadcasting Companies by the Seventh Circuit Court of Appeals was a shift from the way courts previously decided newsgathering cases. While literally adhering to the rule that the media must follow all generally applicable laws, the Desnick court protected ABC by using the limitations of the torts involved. This paper examines Desnick ‘s effect on newsgathering cases by investigating how later cases used the reasoning found in this case.
Drawing Swords After Feist: Efforts to Legislate the Database Pirate • Victoria Smith Ekstrand, University of North Carolina-Chapel Hill • This paper examines the debate over database piracy after the Supreme Court case, Feist V. Rural Publications, Inc. It concludes that since Feist, appellate courts have struggled to define the constitutional requirement of originality to protect databases as compilations under copyright law and suggests that the adoption of the Altal abstraction test for software programs may offer some guidance to courts required to sort unprotectable ideas and facts of a database from protectable expression.
What Gives You the Right(s)?: Tasini V. New York Times Co. • Cindy J. Elmore, The University of North Carolina-Chapel Hill • There have been only three federal court rulings to interpret -01(c) of the 1976 Copyright Act as it applies to freelancers working for the publishers of collective works. Yet, the most recent decision did not fully address all of the arguments made in the two earlier opinions. This article examines the three opinions and the legal rules established by them, points out questions, omissions and inconsistencies left unresolved, and provides some guidelines for freelancers.
Updating SPJ’s Report on the Journalist’s Privilege: Three Years Later, Is the Privilege Truly Eroding? • Anthony L. Fargo, University of Rhode Island • The Society of Professional Journalists issued a report in 1997 called “The Erosion of the Reporter’s Privilege.” The report said that judicial support for the journalist’s privilege appeared to be wavering, citing recent cases and expert commentary. This study found that appeals and legislation had reversed the effects of many of the decisions cited. However, the report’s finding that the judiciary was becoming more hostile to journalists was supported by judges’ comments in recent cases.
The Journalist’s Privilege for Nonconfidential Information in States Without Shield Laws • Anthony L. Fargo, University of Rhode Island • Figures compiled by the Reporters Committee for Freedom of the Press show that most news media subpoenas seek nonconfidential information. Journalists argue that all subpoenas infringe important First Amendment rights to a free flow of information and an independent press. While courts in most of the nineteen states without shield laws protect confidential sources, however, courts in only two states extend the privilege to nonconfidential information in both civil and criminal proceedings, this study found.
The Public Interest Be Damned: Lower Court Treatment of The Reporters Committee “Central Purpose” Reformulation • Martin E. Halstuk, Penn State University and Charles N. Davis, University of Missouri • This article addresses the U.S. Supreme Court’s “central purpose” formulation in Reporters Committee V. Department of Justice under the federal Freedom of Information Act. By examining all lower federal court opinions interpreting Reporters Committee and by analyzing the effects of the Court’s opinion on the implementation of the EFOIA, the paper finds that the Court’s opinion has greatly narrowed the scope of the FOIA and limited the power of EFOIA to democratize electronic information.
Sex, Professors, and the Internet: First Amendment Problems with the Fourth Circuit’s Ruling in Uroftskv V. Gilmore • Susan Keith, University of North Carolina-Chapel Hill • The U.S. Court of Appeals for the Fourth Circuit erred in several ways when it upheld a Virginia law that said state employees, including professors doing legitimate research, had to have agency approval before accessing sexually explicit material online with state-owned computers. The ruling in Urofskv V. Gilmore was based on faulty interpretations of Pickering and its progeny and neglected to seriously consider cases in which the U.S. Supreme Court recognized individual academic freedom.
Hyperlinks and the First Amendment: Toward a Hierarchy of Protection • Susan Keith, University of North Carolina • This paper seeks to determine whether hyperlinks have been viewed by courts as protected speech and outlines a proposed hierarchy of First Amendment protection for hyperlinks. It argues that courts have explicitly and implicitly recognized that hyperlinks deserve some First Amendment protection, though insufficient protection has been accorded to certain types of hyperlinks. The paper further suggests a four-level model that would give broad protection to unauthorized surface links to non-infringing content, unauthorized deep links, and links to infringing content but award less protection to some third-party hyperlinks, unauthorized inline links, and unauthorized framing hyperlinks.
In Pursuit of Undue Influence: Government Efforts to Justify Regulation of Corporate Political Speech Since Bellotti • Robert L. Kerr, University of North Carolina-Chapel Hill • This study examines government efforts to establish compelling justification for regulating corporate political speech, which received constitutional protection in the 1978 First National Bank of Boston V. Bellotti decision. Courts have since rejected many government efforts to regulate corporate political speech, but have accepted narrowly drawn efforts to prevent quid pro quo corruption and to ensure that wealth amassed through the corporate form in the economic marketplace not be used to unfairly influence the political marketplace.
An “Unholy Alliance”: The Law of Media Ride-Alongs • Karen M. Markin, University of Rhode Island • This paper describes and analyzes legal claims arising from the increasingly common journalistic practice of the media accompanying authorized individuals who are performing official duties. Courts were generally sympathetic to plaintiffs when the media accompanied officials into a home or other traditionally private space. The author concludes that legal support for the ride-along is weak and that the practice is not supported by either the libertarian or social responsibility theories of the press.
Is the Public Interest Meaningless?: Levels of Meaning and Ambiguity in the Public Interest Standard • Philip M. Napoli, Fordham University • In light of recent statements by new FCC Chairman Michael Powell that the public interest standard in communications regulation is essentially meaningless, this paper revisits the long-running debate over the meaning – or lack thereof• of the public interest standard. This paper argues that the question of the meaning of the public interest standard actually contains three separate tiers of the analysis, as the public interest concept can be broken down into three separate levels of meaning: (a) the conceptual level; (b) the operational level; and (c) the applicational level. This paper illustrates that much of the ambiguity and inconsistency associated with the public interest standard resides within the operational and applicational levels. This paper then pinpoints the specific sources of ambiguity and inconsistency and suggests means by which greater definitional specificity and consistency can be brought to the public interest standard.
Copyright or Copy Wrong: An Analysis of University Claims to Faculty Work • Ashley Packard, University of Houston-Clear Lake • Most universities claim to own at least some faculty-created works. This paper explores ownership of faculty-created intellectual property by examining copyright cases that have touched on faculty ownership of their work, the teacher exception to the work for hire doctrine and its relationship to academic freedom, and university copyright policies. It concludes that faculty have little protection for their work other than university copyright policies that may not alter the traditional work for hire arrangement set up by the Copyright Act.
“Burning” News Sources and Media Liability: Cohen V. Cowles Media Co. Ten Years After • Joseph A. Russomanno and Kyu Ho Youm, Arizona State University • Identifying a news source who has been promised anonymity has been typically regarded as improper journalism ethically. Exactly 10 years ago, in Cohen v. Cowles Media Co., the U.S. Supreme Court largely invalidated the practice legally. But what has been the impact of the decision over the past decade? This paper takes a two-pronged approach, examining Cohen’s influence in American courts and newsrooms. The results: while news organizations are being more careful, courts are more accommodating to free press interests.
IS INTERNET SERVICE PROVIDER IMMUNITY GROWING?: AN EXAMINATION OF IMMUNITY UNDER – 230 OF THE COMMUNICATIONS DECENCY ACT AFTER ZERAN • Elizabeth Spainhour, The University of North Carolina-Chapel Hill • In 1997, the 4th Circuit decided Zeran V. AOL, the first test of Internet Service Provider (ISP) immunity offered by – 230 of the Communications Decency Act of 1996. Under – 230, ISPs are not liable for third-party content. This paper examines the 17 cases reported since Zeran that cited – 230 to determine how immunity for ISPs has grown. The paper also addresses the circumstances under which nontraditional ISPs could receive – 230 immunity.
SCHOOL VIOLENCE: GETTING THE RECORDS • Carol Wilcox Stiff, University of North Carolina-Chapel Hill • When violence involving students erupts at school, journalists generally are faced with obtaining important records to substantiate their stories. To do that, they must cope with privacy laws that protect student records from abuse, state laws that prohibit the release of information about juveniles involved in crime, and the sensitive nature of the records themselves. This research focuses on what scholars have said about the broad area of school violence and three cases in which students were the victims, in California, Pennsylvania, and Colorado. In all these cases, the press was forced to go to court to obtain records and to cope with accompanying delays.
THE CASE AS ARTIFACT: A (RE)READING OF HAZELWOOD V. KUHLMEIER • Andrew H. Utterback, Northern Arizona University • The purpose of the essay is to illustrate the potential critical power of treating case law as “text” or “cultural artifact.” Using Hazelwood V. Kuhlmeier, the paper presents a Critical Legal Studies reading of the case from a methodological perspective stemming from Cultural Studies. The thesis of the essay is that Hazelwood V. Kuhlmeier (1) defines Constitutional freedom outside the bounds of the legal and problematizes American identity in the process, (2) illustrates the ideological conflicts inherent between an everyday life of practice and an identity-laden perception of a Constitutional ideal, (3) allows the State to deny the semiotic process and to actively define and produce what is acceptable, and (4) points out a uniquely late twentieth-century tension between individual and social rights which may define a future theoretical direction in free speech theory and practice.
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