Law and Policy 2006 Abstracts
Law and Policy Divisions
Watchdog on a Leash: Reporter’s Privilege in Federal Criminal Circuit Court Cases • Kirsten Margrethe Beattie, University of North Carolina at Chapel Hill • Since Branzburg v. Hayes (1972), courts at the state and federal level have struggled to interpret and apply the common law derived from the case’s 5-4 majority. While some states have enacted shield laws offering reporters varying levels of privilege, Rule 501 of the Federal Rules of Evidence and federal common law deny the existence of a reporter’s privilege. This paper examines how Federal Circuit Courts have interpreted Braznburg and what privilege reporters can claim.
Judicial Deference or Acquiescence?: The Use of FOIA Exemption 7(A) as a New National Security Exemption in Center for National Security Studies v. U.S. Department of Justice • Cheryl Bishop, University of North Carolina at Chapel Hill • This paper examines the use of FOIA precedent on judicial deference as applied in the D.C. Circuit Court of Appeals decision in Center for National Security Studies v. U.S. Dept. of Justice, as well as subsequent FOIA cases that cited the ruling. The court majority accorded a high level of deference to the executive in ruling that the information in question was exempt under Exemption 7(A) of the FOIA.
From PETA To Lamparello: The Chilling Effect Of Trademark Law On Political Parody • Kellie Cairns and Dale Herbeck, Boston College • Cybersquatters register domain names using protected trademarks for financial gain. Laws invoked to combat cybersquatting, most notably the Lanham Act and the Anticybersquatting Consumer Protection Act, have been erroneously extended by the courts to reach legitimate political expression in cases like PETA v. Doughney. Rather than privileging the economic interest of trademark holders, future decisions should follow the logic of Lamparello v. Falwell and focus on the viewpoint espoused by the web site.
The Press as Interest Group: Mainstream Media in the United States Supreme Court • Eric B. Easton, University of Baltimore • This study explores the influence that news media organizations exert on the United States Supreme Court as parties and amici curiae. The study found, inter alia, that the media succeed more often than not, although by a relatively small margin, with far greater success in content-related than in newsgathering cases. Media organizations have been more successful as parties than as amici, and more successful against state and local government entities than against the federal government.
Reese’s Pieces in My Birkin, Please: An Examination of Product Placement in TV and Calls for Reform • Emily Erickson and Anne C. Osborne, Louisiana State University • Abstract not available.
Libel Law and the Postmodern Dilemma: The Search for Truth • Kathy Roberts Forde, University of Minnesota, Twin Cities • To consider the ways in which constitutional jurisprudence has grappled with postmodern language problems is to try to reconcile two systems of thought with radically different assumptions about knowledge. Yet, as this study’s case analysis will demonstrate, the language and truth issues implicated in New York Times v. Sullivan and its progeny require such a reckoning.
Commercial Speech in Public Schools: Evaluating the First Amendment Rights of Advertisers • Joshua H. Godwin, University of North Carolina-Chapel Hill • This paper examines the regulation of advertising in public schools and advertisers’ First Amendment rights to force a school to accept their advertisements. It outlines court rulings illustrating the confusion regarding the state versus local authority battle for control of in-school advertising.
The Chinese Conundrum: When Culture Is At Odds With The Adoption Of Copyright Law • Gary C. Guffey, University of Georgia • Prints, paintings, graphic art, books, music, movies, software and many other copyrighted works are illegally copied and account for as much as 90 percent of China’s art and literature market. An analysis using legal consciousness theory and property rights theory suggests the Chinese culture may be one of the biggest hurdles for the adoption of copyright as a legal concept.
International Criminal Tribunals: Does the Reporters Privilege Apply? • Elaine Hargrove-Simon, University of Minnesota-Twin Cities • This paper reports on the decision of the Appeals Chamber in the International Criminal Tribunal for the former Yugoslavia, which ruled that war correspondents are entitled to reporter’s privilege. Because reporter’s privilege is seen as essential to democracy, this paper takes the position that future international cases involving reporters (in particular the newly-created International Criminal Court), should allow evidentiary guidelines giving all journalists reporter’s privilege.
From PETA to Lamparello: The Chilling Effect of Trademark Law on Political Parody • Dale Herbeck, Boston University • Abstract not available.
Accessing Records Six Feet Under: A 50-state Study of Statutory Autopsy Laws • Ana-Klara Hering, University of Florida • Public access to autopsy records is regulated at the state level, but no two states treat the issue in an identical manner. This study found that almost the same number of states that consider autopsy records presumptively open consider them closed. However, the majority of states are not absolute in their treatment of this issue. Most statutes contain exemptions, which allow for disclosure of otherwise sealed records, or vice versa.
Opening Bottlenecks: On Behalf of Mandated Network Neutrality • Bill Herman, University of Pennsylvania • Among the most contentious issues in communication policymaking in 2006 is the topic of “network neutrality,” the principle that internet service providers should generally treat all data and applications equally. This paper defends network neutrality regulation in the face of withering criticism by legal scholar Christopher Yoo. This paper rebuts Yoo’s claims of improved network management and economic welfare, and it presents the case for regulations requiring network neutrality on First Amendment and other grounds.
Two Competing Visions of the Fundamentals of Copyright • Minejeong Kim, Hawaii Pacific University • This paper is an attempt to provide a theoretical framework that can guide the focal inquiry of copyright jurisprudence. The author of this paper argues that there are two competing visions of the fundamentals of copyright and that the contrasting views help to explain what happens in copyright law.
The Facebook: Placing Universities Face-to-Face with First Amendment Concerns — How University Action Toward Hate Speech on Online Social Network Threatens College Students’ First Amendment Freedoms • Kimberly Lopez, University of Florida • The online social network Facebook has become one of the most popular Web sites with an estimated 64 percent of undergraduates listed in the network. As the new technology continues to grow, universities begin to monitor the site and hold students accountable for their posts’ content, especially for hate speech. This paper uses legal research methods to explore the body of law likely to apply to a Facebook hate speech case brought before a court.
State Guarantees of Freedom of the Press May Again Be Best, Just as They Were First • Joe Mathewson, Northwestern University • After more than a century and a half of disuse, the First Amendment has been since 1964 the strongest legal protection of a free press. But recent contempt citations suggest that that period of expanding reach is over. Therefore the press freedom guarantees of the state constitutions, which preceded the First Amendment and declare affirmatively the right to publish, may be the best hope for future protection of press freedom.
Is the Chill Gone? A Follow-Up Study of Newspaper Editors Regarding Libel • Roy L. Moore, Georgia College & State University, Elizabeth K. Hansen, Eastern Kentucky University, and Davide Girardelli, University of Kentucky • Replicating a 1992 study, this study uses a 2004 national sample of 180 editors to examine frequency of actual and threatened libel suits against daily newspapers, chilling effect, factors associated with chilling effect and changes over time. Given the decline in large libel suits and awards, predicted a reduced chilling effect.
Adjudicating Libels in Information Society • Nikhil Moro, Ohio State University • Personal jurisdiction is a vexing problem in adjudicating libel cases in the information society. The various traditions of freedom of expression scholarship are unable to reconcile the individualization condition enabled by emergent technologies to the need to resolve multiple personal jurisdictions. This paper uses a frame of freedom of expression to address the jurisdictional challenge posed to libel law by the information society.
Planting The Seeds Of Constitutional Conflict: A Look At The Legal Landscape Concerning Presidential Power and the NSAs Wiretapping Program • Brian Pafundi, University of Florida • Following the terrorist attacks of September 11, 2001, President Bush authorized the NSA to conduct “electronic surveillance of Americans and others inside the United States to search for evidence of terrorist activity without the court approved warrants ordinarily required for domestic spying.” Since the wiretapping involves both domestic and foreign communications, the surveillance program raises numerous legal questions.
The Politics of Censorship: A Curved Explanation for a Contentious Phenomenon • Jason B. Reineke, The Ohio State University • The social science literature has offered a variety of results and explanations regarding the relationship between political ideology and support for censorship. The present research asks whether the relationship might best be described nonlinearly in order to reconcile these inconsistencies. An examination of data from the General Social Survey suggests that individuals who are very liberal or very conservative both tend to be significantly more supportive of censorship than a linear description predicts.
Policy issue networks and the Freedom of Information Act: An examination of 50 years of Congressional Testimony • Jeannine E. Relly, University of Arizona • The U.S. Freedom of Information Act (FOIA) is the product of numerous political agreements and compromises. In many ways, it is no different from other legislation and policies with its cycles of testimony from elite private actors, including union members, business representatives, consumer advocates, and other groups, which have entered and exited the policy-making process in the 40 years since the original law was passed.
Market Definition, Merger Review and Media Monopolization: Congressional Approval of the Corporate Voice through the Newspaper Preservation Act • Amy Kristin Sanders, University of Florida • This paper will examine the effect of the Newspaper Preservation Act on competition in the daily newspaper market by analyzing legislative history, subsequent court interpretations and Justice Department implementation of the NPA. Part II of the paper discusses the legislative history of the NPA and the subsequent case law that has interpreted it. In addition, this section addresses the effects of the NPA on the Justice Department’s merger review process.
Invoking Privilege Since Branzburg: Are Bloggers Like Other Non-Traditional Journalists? • Jason Shepard, University of Wisconsin-Madison • In the 33 years since the U.S. Supreme Court rejected a First Amendment-based reporter’s privilege’ most federal and state courts have nonetheless carved out a privilege under certain circumstances. An analysis of cases in which non-traditional journalists have sought the privilege provides significant guidance in determining whether bloggers can invoke the privilege.
Policy, Practice, and Intent: Forum Analysis and the Uncertain Status of the Student Press at Public Colleges and Universities • Derigan A. Silver, University of North Carolina-Chapel Hill • Until recently the First Amendment rights of student newspapers at public colleges and universities had been considered to be largely coextensive with the rights of other newspapers.
Inherited tensions: The semantic struggle of the public interest • Maria Simone, Rowan University • This paper reports results from observations and interviews conducted with media activists. The examination focused on inherited tensions from historical interpretations of the public interest standard. These tensions demonstrate concerns about: 1) vagueness; 2) self-interest; and 3) consensus. The researcher argues the public interest provides limited benefit for guiding policy. In order to achieve the spirit of the public interest, advocates should shift discourses to those of media rights and justice.
The Promise of Arbitration: Can it succeed in journalism as it has in other businesses? • Daxton R. Stewart, University of Missouri • Both courts and businesses favor arbitration as an alternative to litigation, and nearly every kind of commercial transaction in the United States is now subject to some kind of arbitration agreement. This paper examines whether arbitration could be used by news publishers to provide an efficient means to resolve disputes.
Inciting Jealousy and Discontent The Remains of Constitutional Media Access to the Battlefield after Flynt v. Rumsfeld • Thomas C. Terry, University of North Carolina at Chapel Hill • It is the purpose of this paper to determine if there any constitutional arguments remaining for press access to the battlefield in the wake of the D.C. Circuit’s unanimous rejection of any such claim and the Supreme Court’s denial of certiorari for Flynt v. Rumsfeld in October 2004. The Supreme Court has never accorded the press access rights outside the courtroom and post-September 11 would probably not be inclined to grant any.
Access Control, Circumventing Devices, and the DMCA: A legislative history and case analysis • John Thomson Jr., University of Wisconsin-Madison • While the Digital Millennium Copyright Act was needed to combat digital piracy, the effect of the legislation has been to allow content owners greater control over how consumers use a copyrighted work. This paper offers an analysis of the legislative history and court application of the DMCA as it relates to access control and circumventing devices. It will be argued that, white user rights in access control was considered, the application poorly reflected Congress’ intent.
Evaluating cross-border Internet Hate Speech Regulation: a Normative Framework • Bastiaan Vanacker, University of Minnesota • This paper tries to develop a normative framework for assessing regulations of Internet content originating from another country. This framework is rooted in a representative concept of sovereignty, the end-to-end principle and the more practical principle of effectiveness. The framework was designed to assess regulatory attempts of European countries to limit hate speech originating from the United States, but can also be applied to other instances of cross border Internet content regulation.
International and Comparative Law on the Journalist’s Privilege: A Case of Reverse U.S. “Exceptionalism” in Freedom of the Press? • Kyu Ho Youm, University of Oregon • This paper examines the journalist’s privilege from an international and comparative perspective. Its main part comprises a discussion of U.S. law on the journalist’s privilege, comparison of the “shield laws” of several foreign countries, and an analysis of the ICIY’s decision in the Randal case, which involved Washington Post reporter Jonathan Randal.
The Yahoo! Case on Global Cybercommunication: National Laws Still Setting the Internet Borders • Kyu Ho Youm, University of Oregon • Yahoo! v. LICRA (9th Cir. 2006) focused on whether U.S. courts should enforce foreign cyberlaw judgments without violating the First Amendment on freedom of expression. This paper examines: (1) How are American news media protected against enforcement of foreign court judgments?; (2) On what ground did the Ninth Circuit rule en banc on the French court judgment against Yahoo!?; and (3) What is the significance of the Yahoo! case for cybercommunication?
Print friendly
