Law and Policy 2012 Abstracts
The Closing of the Ether: Communication Policy and the Public Interest in the U.S. and Great Britain, 1921-1926 • Seth Ashley, Boise State University • The function of a nation’s media system depends on its structure. But how do systems come to be structured in different ways? Through a comparative historical institutional analysis of the origins of broadcast media systems in the United States and Great Britain in the early twentieth century, this study examines reasons that private, commercial interests dominated the U.S. system while Britain granted a monopoly to the publicly funded, noncommercial BBC.
Tracking, Technology, and Tweens: Better Regulation to Protect Children’s Privacy Online • Lisa Barnard, University of North Carolina at Chapel Hill • The FTC recently proposed changes to the COPPA Rule, to keep pace with technological development. In his book Code 2.0, Lawrence Lessig argued regulation is the sum of social norms, market forces, architecture, and the law. This paper examines transcripts from a U.S. Senate Subcommittee hearing and an FTC workshop to determine how each of these regulatory forces affects children’s online privacy, revealing alternative ways the FTC and Congress can better protect children’s privacy online.
The Anonymous Speech Doctrine in the Internet Era: Developments in Libel, Copyright, and Election Speech • Jason Shepard, Cal State Fullerton; Genelle Belmas, Cal State Fullerton • The Supreme Court has long protected anonymity for speakers and writers. The Internet enables anonymity for individuals who write blogs, download music, and participate in political discussion. However, this poses a challenge for plaintiffs who want to sue anonymous online speakers for libel, copyright infringement, or election speech. This paper evaluates current legal developments in these areas and makes recommendations about how the law should deal with these different but related areas of anonymous speech.
Social Science, Media Effects & The Supreme Court: Is Communication Research Relevant After Brown? • Clay Calvert, University of Florida; Matthew Bunker, University of Alabama; Kimberly Bissell, University of Alabama • This paper examines the implications of the Supreme Court’s 2011 ruling in Brown v. Entertainment Merchants Association for the future use of social science evidence and communication research to supply legislative facts supporting laws targeting harms allegedly caused by media artifacts. The Brown majority set the bar for the relevance of social science evidence exceedingly high, while Justice Breyer, in contrast, adopted a much more deferential approach that embraced the evidence proffered by California.
To Defer or Not to Defer? Deference and Its Differential Impact on First Amendment Rights in the Roberts Court • Clay Calvert, University of Florida; Justin Hayes, University of Florida • This paper examines deference as it affects First Amendment speech rights under the Roberts Court. Using six recent decisions as analytical springboards, the paper demonstrates profound disagreements among the justices on the use of deference. Like a spigot, deference is turned on and off by justices, and even when turned on, it can flow freely and or be reduced to a trickle. Such malleability makes deference a critical concept on today’s Court when speech rights hang in the balance.
Past Bad Speakers, Performance Bonds & Unfree Speech • Clay Calvert, University of Florida • Using the legal woes of infomercialist Kevin Trudeau as an analytical springboard, this paper examines the First Amendment issues raised by imposing performance bonds on “past bad speakers” as conditions precedent for future speech. Performance bonds blur the line separating prior restraints from subsequent punishments, and they represent a form of government intrusion in the marketplace of ideas – a form of interventionism, premised on financial incentivism, that ostensibly discourages dangerous or unlawful speech from re-entering speech markets.
American Un-Exceptionalism: The Case of Copyright Law’s Public Domain and Freedom of Expression • Edward Carter, Brigham Young University • The relationship between American copyright law and free speech has long been a complicated one. This research reviewed scores of Supreme Court opinions discussing the public domain. Although the Court in a January 2012 opinion said the public domain was not of constitutional significance, the reality is that Court precedents on the public domain sketch a broad role for that concept.
Public Interest . . . what Public Interest? How the Rehnquist Court Created the FOIA Privacy Exceptionalism Doctrine • Martin E. Halstuk, College of Communications, Pennsylvania State University; Benjamin W. Cramer, Institute for Information Policy, College of Communications, Pennsylvania State University; Michael D. Todd, University of New Hampshire • This article examines whether the Obama Administration has disclosed more records requested under the Freedom of Information Act than previous administrations, and specifically examines the uses of the FOIA privacy exemptions by federal agencies and departments.
An Analysis of FTC Cases Involving Substantiation of Health Claims in Food Advertising • Jeanne-Marie DeStefano, University of North Carolina at Chapel Hill • The Federal Trade Commission and Food and Drug Administration share responsibility for regulating the marking of food, cosmetics, over-the-counter drugs and cosmetics. The FTC has primary responsibility for regulating truth or falsity of all advertising (other than labeling) while the FDA has primary jurisdiction over the labeling.
The Life, Death, and Revival of Implied Confidentiality • Woodrow Hartzog, Cumberland School of Law at Samford University • The concept of implied confidentiality is almost totally ignored by the law in the digital era. This article explores the curious diminishment of implied confidentiality and demonstrates that while courts regularly consider numerous factors in analyzing implied confidentiality, they have failed to organize or canonize them. This article proposes a decision-making framework to help courts consistently ascertain whether an implied obligation of confidentiality exists regardless of whether the relationship is online or offline.
The ‘High Life’ at ‘Mimi’s’: West Virginia’s Wrongful Ban of Limited Video Lottery Advertising • Matthew Haught, University of South Carolina • This paper explores the case of West Virginia Association of Club Owners and Fraternal Services [WVACOFS] v. John Musgrave. The author argues that the ruling of the United States Court of Appeals for the Fourth Circuit upholding a state ban on advertising and restrictions on naming of privately operated video lottery parlors as constitutional violates the principles set out in Central Hudson Gas and Electric v. PSC and Greater New Orleans Broadcasting Association, Inc. v. United States.
Getting Excited About the CALM Act: The First Amendment and Loud Commercials • Dale Herbeck, Boston College • On December 2, 2010, Congress adopted legislation designed to combat a serious problem that plagues many of the industrialized nations of the world: the menace of loud television commercials. The measure, the Commercial Advertisement Loudness Mitigation (CALM) Act, directs the Federal Communications Commission (FCC) to apply a “recommended practice” on sound volume developed by the Advanced Television Systems Committee (ATSC).
The Triangle of Minority Ownership, Employment and Content: A Review of Studies of Minority Ownership and Diversity • Dam Hee Kim, University of Michigan • Diversity has been a goal of U.S. communications policy. Yet, the FCC’s diversity and minority preference policies governing broadcast ownership have been challenged due to doubts concerning the assumed nexus among minority ownership, a diverse workforce and content provided to the community of owner, the triangle.
Facial Recognition vs. the Law • Robert G. Larson III, University of Minnesota • This article will explore the legal issues surrounding facial recognition technology. The author will examine the privacy concerns, implications for personal freedom, fairness and security problems, and risks of escalation arising from facial recognition technology. The article will then discuss the legal implications of facial recognition technology, delving into First and Fourth Amendment jurisprudence and common law privacy torts, and will assess their success or failure as remedies for the concerns raised by this technology.
Online News Aggregators, Copyright, and the Hot News Doctrine • Robert G. Larson III, University of Minnesota • This article will assess the continued validity of legislating online news aggregation in the face of the changing media landscape. The first section will provide a foundational explanation of online news aggregation and the problems created by such practice. Section II will explore several theoretical principles that apply to online news aggregation. Legal principles of copyright law and unfair competition—including the hot news doctrine—will be explored in Section III.
Surveying the Post-Apocalyptic Landscape: Campaign-Finance Reform and Free Speech After Citizens United • Matthew Telleen, University of South Carolina; Carmen Maye, University of South Carolina; Erik Collins, University of South Carolina • This paper explores the state of campaign-finance reform since Citizens United v. FEC. In that controversial 2010 case, the Supreme Court of the United States decided that restrictions on independent campaign expenditures unconstitutionally limit the free-speech rights of “persons,” including for-profit corporations. Since that opinion, alternative approaches for campaign-finance regulation have begun to emerge. Which alternatives, if any, will prove most effective, or whether a new pathway to reform will emerge, remains to be seen.
The Evolution of Canon 35 and the Two Maverick States That Did Not Follow Suit • Michael Martinez, University of Tennessee • The American Bar Association passed Canon 35 prohibiting the taking of photographs and the broadcasting of court proceedings in 1937. All but two states, Colorado and Texas, adopted Canon 35 and the ban on electronic media coverage of trials lasted slightly more than 40 years among the rest of the states. This paper explores the implementation of Canon 35 and seeks to answer why Colorado and Texas refused to fall into lockstep with the rest.
Spam and the First Amendment Redux: Free Speech Issues in State Regulation of Unsolicited Email • Jasmine McNealy, Syracuse University • The scourge of email spam is more than 30 years old, and yet, it does not appear to be disappearing. In fact, spam has expanded to other ubiquitous Internet platforms including social media websites. It seems, then, that the many state anti-spam statutes have been unsuccessful in regulating the sending of unsolicited commercial email, but, not for lack of trying. This paper examines the First Amendment challenges to state anti-spam laws.
Who owns your friends?: PhoneDog v. Kravitz and business claims of trade secret in social media information • Jasmine McNealy, Syracuse University • Increasingly businesses are making use of social media including requiring employees to create and maintain social media profiles. What happens when an employee in charge of a social media profile leaves the company? To whom does that profile, and the friends or followers connected to that account, belong? This paper explores the emerging use of trade secret law by businesses claiming ownership social media profile information.
Protecting citizen journalists with actual malice • Nikhil Moro, North Texas; Deb Aikat, University of North Carolina at Chapel Hill • The U.S. Supreme Court has reserved its view on whether constitutional privileges for institutional media created in New York Times (1964) and its progeny extend to citizen journalists, bloggers and other “nonmedia” defendants. Small-Jane defendants, including citizen journalists, have emerged as ubiquitous publishers distinct from “media” such as well-heeled news and entertainment corporations. This paper analyzes the evolving information society in order to argue in favor of extending “actual malice” doctrinal protection to citizen journalists and other nonmedia defendants.
To Reveal or Conceal?–An ISP’s Dilemma: Presenting a New “Anonymous Public Concern Test” for Evaluating ISP Subpoenas in Online Defamation Suits • Cayce Myers, University of Georgia • This article proposes the “Anonymous Public Concern Test” which incorporates public concern analysis in enforcing Internet Service Provider subpoenas in online defamation suits. Current tests evaluating ISP subpoenas are either too pro-plaintiff or pro-defendant and are inconsistent with existing Supreme Court holdings concerning privacy rights and anonymous speech. The proposed “Anonymous Public Concern Test” is the best approach in dealing with ISP subpoenas because it protects both anonymous speech while preserving online defamation plaintiffs’ rights.
Mental illness, the news media and open justice: the Australian experience • Mark Pearson, Bond University • Tribunal and court cases involving people with mental illness pit the principles of open justice against modern notions of privacy and concerns that media attention might be counter-productive to the treatment of patients. This paper canvasses differences between Australian jurisdictions and considers three case studies, including a recent landmark decision in the United Kingdom, illustrating the competing interests at stake. It maps policy needs and suggests directions for further research.
Who are the Media? The Media Exemption to Campaign Finance Law • John Remensperger, University of North Carolina at Chapel Hill • This paper explores the FEC’s application of the media exemption and how it balances the freedom of the press against the restrictions required by campaign finance law. Depending how the exemption is applied, there is the potential for campaign finance principles to be undermined. The Court’s decision in Citizens United to allow increased corporate expenditures in political campaigns elevates the importance of examining potential loopholes through which remaining expenditure and disclosure rules can be sidestepped.
When “Ripped from the Headlines” Means “See You in Court”: Libel By Fiction and the Tort Law Twist on a Controversial Defamation Concept • Robert Richards, Penn State University • From the television crime-drama series “Law & Order” to the forensic franchise of “CSI,” the trend toward creative works of entertainment fiction based upon real-life circumstances and real people continues to grow. This surge, which includes the 2011 Oscar winners “The King’s Speech” and “The Social Network,” prompted the United Kingdom’s newspaper The Observer to ask: “Is this glut of fact-based films a coincidence, or is something fundamental going on?
The Calm Before the Storm? Indecency Regulation in the 1990s • Amy Kristin Sanders, University of Minnesota-Twin Cities; Natalie Hopkins-Best, University of Minnesota • This article turns back the clock to the look at the history of the FCC’s regulation of indecency prior to its crackdown during the 2000s – back to the time period to which General Verrelli referred in his oral argument. First, it documents the legal precedent that allows the FCC to regulate broadcast programming.
Re-Defining Defamation: Psychological Sense of Community in the Age of the Internet • Amy Kristin Sanders, University of Minnesota-Twin Cities; Natalie Hopkins-Best, University of Minnesota • This article explores the relationship between community formation, freedom of expression and defamation in light of the Internet. Although the definition of community has long played a role in defamation litigation, the courts have been remiss in uniformly assessing a defamation plaintiff’s community. In the era of traditional media, courts typically relied upon geographical constraints, including where the plaintiff lived or worked.
Justices or Politicians in Robes? Using the Brandenburg Line to Examine Political Influence on Supreme Court Decisions • Jared Schroeder, University of Oklahoma • The Supreme Court’s Brandenburg test for threatening speech is traditionally viewed as the fruit of about a half a century of deliberate judicial evolution. A growing body of political science literature questions the traditional perspective. Regime theory seeks to explain the Court’s decisions by noting that justices tend to decide cases in a way that lines up with the prevailing political ideology.
Policy development under uncertain regulatory capture conditions: An insiders’ perspective • Amy Sindik, Univeristy of Georgia • This study examines policy development at the FCC as more than one dominant communications industry competes for regulatory capture. Through interviews with lobbyists employed by broadcast and wireless organizations, the study examines the way competition for regulatory favoritism impacts policy formation and the future of capture the FCC. The interviews suggest that no one industry fully captures the FCC and competition for regulatory favoritism has made industry-favored policy formation more difficult to accomplish.
The Real Story Behind the Nation’s First Shield Law: Maryland, 1894-1897 • Dean Smith, University of North Carolina at Chapel Hill • A key goal of this paper is to explore the emerging theory of “popular constitutionalism” by applying it to a singular moment in history: creation of the nation’s first statutory shield law to protect journalists from compelled disclosure of confidential sources.
Secrecy and Transparency of the Chinese Government: A Historical Perspective • Yong Tang, Western Illinois University • The year 2012 marks the fifth anniversary of the enactment of China’s national freedom of information law- Regulations of the People’s Republic of China on Open Government Information. The purpose of this article is to examine how both sides of government information policy-secrecy and transparency-have evolved in the long trail of the Chinese civilization.
Determinants of Broadband Competition and Service Quality in the United States • Robert LaRose, Michigan State University; Anthony Grubesic, Drexel University; Johannes M. Bauer, Michigan State University; Wenjuan Ma; Hsin-yi Sandy Tsai, Michigan State University • In February 2011, the National Telecommunications and Information Administration (NTIA) released the first version of the National Broadband Map (NBM). Semi-annual updates are scheduled until 2016 to close gaps in earlier data collection efforts and to reflect ongoing developments in broadband markets. This initiative, implementing the goals of the American Recovery and Reinvestment Act (ARRA) and the Broadband Data Improvement Act (BDIA), provides information about broadband Internet services in the United States at an unprecedented level of detail.
True threats, fake warnings: Proscribing intimidating speech in a context of violence • Bastiaan Vanacker, Loyola University Chicago • On April 14, 2010, Comedy Central aired the 200th episode of its hit cartoon show South Park. To mark this special occasion, the show’s creators Trey Parker and Matt Stone populated the episode with a slew of characters that appeared on the show during its 14-year-run, including religious figures such as Jesus, Buddha and Muhammad.
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