Law and Policy 2015 Abstracts
Open Competition
The Right to be Forgotten and Global Googling: A More Private Exchange of Information? • Burton Bridges • The lack of privacy regulation remains a concern in the United States and abroad. With the European Union’s introduction of the Right to be Forgotten, people are requesting to hide data and search engines are being forced to comply. This paper will explore how the unregulated flow of information is being balanced with the innate desire for individual discretion. Additionally, the implications of the EU’s law will be contrasted and theoretically applied to the U.S.
Difficulties and Dilemmas Regarding Defamatory Meaning in Ethnic Micro-Communities: Accusations of Communism, Then and Now • Clay Calvert, University of Florida • This paper examines the complicated issues of community and defamatory meaning that arise in libel law when plaintiffs allege reputational harm within ethnic and geographically-bound micro-communities. The paper uses three recent cases involving false accusations of communism targeting Vietnamese war refugees residing in the United States as analytical springboards for tackling this issue. Although some scholars seemingly presumed libel-by-communism to be a relic of the Cold War era, the issue is very much alive and well in ethnic enclaves. The paper also contrasts the public policy concerns of libel-by-communism cases with the ones that animate the defamation-by-homosexuality disputes that are garnering significantly more scholarly attention.
Begging the Question of Content-Based Confusion: Examining Problems With a Key First Amendment Doctrine Through the Lens of Anti-Begging Statutes • Clay Calvert, University of Florida • This paper examines numerous problems now plaguing the fundamental dichotomy in First Amendment jurisprudence between content-based and content-neutral speech regulations. The troubles were highlighted by the U.S. Supreme Court’s 2014 divided decision in McCullen v. Coakley. Building from McCullen, this paper uses a quartet of federal court rulings from 2014 and 2013 involving anti-begging ordinances affecting the homeless as analytical springboards for examining these issues in depth. Ultimately, the paper proposes a three-step framework for mitigating the muddle and calls on the nation’s high court to take action to clarify the proper test for distinguishing between content-based and content-neutral regulations.
Calling Them Out: An Exploration of Whether Newsgathering May Be Punished As Criminal Harassment • Erin Coyle, Louisiana State University; Eric Robinson, Louisiana State University • Newsgathering requires repeated telephone calls, aggressive questions, and investigation of matters that can cause emotional distress. Some sources threaten to file or file harassment charges on the basis of such actions. This study explored whether state criminal harassment laws may be applied to punish newsgathering. This study found that the wording of most harassment laws should prevent their application to newsgathering. Nonetheless, journalists have been threatened to be charged or charged with harassment for newsgathering.
To Pray or Not to Pray: Sectarian Prayer in Legislative Meetings • Mallory Drummond, High Point University • The purpose of this research paper is to explore the Supreme Court’s seemingly inconsistent application of the First Amendment to sectarian prayer at legislative meetings. Recently, the Supreme Court reacted to prayer practices in Forsyth County, North Carolina and the Town of Greece, New York in what appears to be contradictory ways. This paper attempts to reconcile these decisions and offer suggestions to guide future decisions by local governments.
A First Amendment Right to Know For the Disabled: Internet Accessibility Under the ADA • Victoria Ekstrand, UNC – Chapel Hill • The Americans with Disabilities Act (ADA) will celebrate its 25th anniversary in 2015. Enacted by Congress and signed into law by President George H.W. Bush, the ADA was designed to ensure that people with disabilities are given independence, freedom of choice, control of their lives, the opportunity to blend fully and equally into the rich mosaic of the American mainstream. Title III of the ADA defines what kinds of public and private spaces must provide access and accommodations to the disabled. Missing from that list, because of the ADA’s timing, is the Internet, effectively shutting the disabled out of the rich marketplace of ideas online. This paper examines both the case law surrounding this omission and the foot-dragging of the executive and legislative branches in extending Title III to the Internet. It argues that extending Title III to the Internet may be bolstered by First Amendment right to know principles.
Network Neutrality and Consumer Demand for Better Than Best Efforts Traffic Management • Rob Frieden, Penn State University • This paper assesses whether and how Internet Service Providers (ISPs) can offer service enhancements for video traffic while still fully complying the new rules and regulations established by the Federal Communications Commission (FCC) in March, 2015. The paper concludes that the FCC exacerbated regulatory uncertainty by failing to identify whether and how ISPs can provide higher quality of service treatment for high speed, bandwidth intensive video traffic. The paper concludes that the FCC should identify how ISPs can reduce the potential for degraded delivery of mission critical, must see video content. The Commission should permit better than best efforts traffic routing provided it does not degrade conventional best efforts routing and serve anticompetitive goals.
The Angry Pamphleteer: Borderline Political Speech on Twitter and the True Threats Distinction under Watts v. United States • Brooks Fuller, UNC-Chapel Hill • Since the 1969 Supreme Court case Watts v. United States, courts have consistently held that politically motivated speech to or about public figures if the speech may be punished if it qualifies as true threats rather than protected political hyperbole. Criticism of public officials lies at the core of First Amendment protection, even when that criticism is caustic or crude. Such caustic speech appears on Twitter with increasing frequency, often pushing the boundaries of the constitutional guarantees of free speech. This paper explores the borderlines of protected political expression on Twitter. Through an analysis of the political speech-true threats cases that interpret Watts, this paper identifies and assesses three modes of analysis that lower courts use to distinguish political speech from true threats: 1) criteria-based analysis; 2) pure First Amendment balancing; and 3) line-crossing analysis. This paper concludes that of these three tests, criteria-based analysis is the most restrictive of borderline political speech and demonstrates how First Amendment balancing and line-crossing analyses appropriately address the speech realities of new media and political participation.
Scrutinizing the Public Health Debates Regarding the Adult Film Industry: An In-Depth Case Analysis of the Health-Based Arguments in Vivid Entertainment, LLC v. Fielding • Kyla Garret • In an effort to curb the spreading of sexually transmitted infections from the adult film industry to the surrounding community, the citizens of Los Angeles County, California, home to where 80 percent of all pornographic films are produced, passed the Safer Sex in the Adult Film Industry Act in November of 2012. Also known as Measure B, the ordinance requires the use of condoms during the production of all vaginal and anal sex scenes in hardcore porn. Posing significant obstacles for adult film production, industry leader Vivid Entertainment, LLC, responded by filing suit against Los Angeles County’s Department of Public Health in January of 2013 to obtain an injunction against the ordinance, claiming that the measure unconstitutionally infringes on the industry’s and its actors’ First Amendment Rights to freedom of speech and expression. Much of the debate surrounding Vivid Entertainment, LLC v. Fielding concerns the constitutionality of the ordinance, but little discussion reviews the underlying health claims presented in the case and the ordinance itself. This is an important case to explore as it is a case of first impression and could set a key precedent regarding health policy and First Amendment protected expression. The case is also likely to set precedent for future regulations specific to the adult film industry. Therefore, this paper first identifies the health-based arguments presented in Vivid Entertainment, LLC v. Fielding and then, utilizing a public health and health communication lens, analyzes the validity of these arguments to ultimately consider the constitutionality of Measure B.
Native Advertising: Blurring Commercial and Noncommercial Speech Online • Nicholas Gross, University of North Carolina at Chapel Hill, School of Journalism & Mass Communication • Mixing advertisement with art, entertainment, news, social commentary, and/or other content in the digital ecosystem, native advertising straddles the boundary between commercial and noncommercial speech. Similar forms of mixed-speech are examined through the lens of case law that has faced the task of separating commercial from noncommercial speech. This paper speculates on where native advertising might fall within this divide and what level of First Amendment protection this practice might merit under existing case precedent.
A Theory of Privacy and Trust • Woodrow Hartzog, Samford University’s Cumberland School of Law; Neil Richards, Washington University School of Law • The way we have talked about privacy has a pessimism problem. Privacy is conceptualized in negative terms, which leads us to mistakenly look for creepy new practices and focus excessively on privacy harms. This article argues that privacy should be thought of as enabling trust in information relationships. Privacy rules based on discretion, honesty, loyalty, and protection can promote trust in information relationships. There is a better path for privacy. Trust us.
Differential Reasonableness: A standard for evaluating deceptive privacy-promising technologies • Jasmine McNealy, University of Kentucky; Heather Shoenberger, University of Oregon School of Journalism and Communication • This paper reconsiders the Federal Trade Commission’s reasonable person standard with respect to deception in light of advances in technology, and the general lack of foundational understanding of how digital technologies work with respect to private information. We argue that the FTC should consider those technologies promising privacy to consumers under special analysis, much like the Commission examines those products and services targeting special groups like children, the elderly, and infirmed. Our argument is directed at what we call privacy-promising technologies. We define privacy-promising technologies as those mobile apps, software, online tools, etc., that claim privacy enhancement as part of their marketing strategies.
Access to Information About Lethal Injections: A First Amendment Theory Perspective • Emma Morehart, University of Florida; Kéran Billaud, University of Florida; Kevin Bruckenstein • This paper examines, through the lens of First Amendment theory, current judicial debate regarding the access rights of inmates and the public to detailed facts about lethal-injection drugs, personnel and procedures. The paper uses several 2014 appellate court disputes as analytical springboards, including the U.S. Court of Appeals for the Ninth Circuit’s groundbreaking decision in Wood v. Ryan. The paper argues that the First Amendment doctrine developed in Press-Enterprise II too narrowly cabins and confines access rights in lethal-injection data cases. In contrast, three venerable theories of free expression – the marketplace of ideas, democratic self-governance and self-realization/human dignity – support the establishment of both an inmate’s and the public’s right to such information.
Cultural Variation on Commercial Speech Doctrine: India Exhibits Stronger Protections than the U.S. • Jane O’Boyle, University of South Carolina • India’s Constitution is younger than that of the United States, and this paper argues that it provides greater protections for commercial speech. This analysis reviews the major court decisions about commercial speech in both India and the United States, and compares the cultural distinctions of the two nations in defining its protections. Perhaps it is due to Americans’ sense of exceptionalism and their paternalistic government, but the U.S. Supreme Court has restricted commercial speech far more often than has the Supreme Court in India.
The Government Speech Doctrine & Specialty License Plates: A First Amendment Theory Perspective • Sarah Papadelias, University of Florida; Tershone Phillips, University of Florida; Rich Shumate, University of Florida • This paper examines, through the lens of First Amendment theory, the timely question of whether specialty license plates constitute private expression or government speech. In December 2014, the U.S. Supreme Court agreed to hear Walker v. Texas Division, Sons of Confederate Veterans to address this issue. Walker arises in the wake of substantial doctrinal disorder and confusion regarding the government speech standard since the Court’s 2009 ruling in Pleasant Grove City v. Summum. This paper argues that three venerable First Amendment theories – the marketplace of ideas, democratic self-governance and self-realization/human autonomy – pave a path for the Court to better understand the interests at stake in Walker and, in turn, to help resolve the doctrinal muddle.
Injunction Junction: A Theory- and Precedent-Based Argument for the Elimination of Speech Codes at American Public Universities • Barry Parks, University of Memphis • The issue of implementing speech codes on American public college campuses for the sake of regulating what should and should not be acceptable expression in the academic environment has been an intense legal debate for over 30 years. Arguments from the perspective of critical race theory—which calls for limits on expression for the sake of marginalized groups and voices—and First Amendment absolutism—which champions few limits on expression for the sake of a robust academic marketplace of ideas—have waged the two sides of the ongoing battle regarding speech on campus. However, in every instance where college speech codes have been challenged for constitutionality in the courts, free speech rights on campus have won. This study details the battle between opposing theoretical forces in the debate and chronologically surveys case law pertaining to American public college speech codes. Based on consistent legal precedent pointing to unconstitutionality on grounds of overbreadth, vagueness, and content-based restriction, this study argues that speech codes on college campuses should be eliminated.
First Amendment Protection or Right of Publicity Violation? Examining the Application of the Transformative Use Test in Keller and Hart • Sada Reed, University of North Carolina at Chapel Hill • The United States Ninth Circuit Court of Appeals and Third Circuit Court of Appeals administered the transformative use test in Keller v. Electronic Arts, Inc. (2013) and Hart v. Electronic Arts, Inc. (2013), respectively. This paper analyzes sports-related misappropriation cases before Keller and Hart, examining the tests used, the courts’ justification for the test, and how the use differs from Keller and Hart. Results suggest inconsistent application of this test, particularly in video game-related cases.
Examining the Theoretical Assumptions Found Within the Supreme Court’s Use of the Marketplace Metaphor • Jared Schroeder, Augustana College • Supreme Court justices have employed the marketplace-of-ideas metaphor to communicate how they understand freedom of speech for nearly a century. The meanings behind metaphors, however, are not static. This study examines whether justices’ references to the metaphor in twenty-first-century cases remain primarily tied to the original meaning, one related to the Enlightenment ideas at the heart of Justice Oliver Wendell Holmes’s first use of the metaphor in 1919, or if the meaning has shifted to represent more discourse-based understandings of communication in democratic society, such as those put forth by John Dewey and Jürgen Habermas. The theoretical assumptions behind Enlightenment ideas and those of the discourse model differ substantially in regard to the nature of truth, the rationality of the individual, and the role of society. This study, through an analysis of recent Supreme Court decisions that referred to the marketplace metaphor, identifies evidence of a shift in the Court’s understanding of the foundational theoretical concepts behind the meaning of the metaphor. Importantly, the narrative that emerged from the analysis of the opinions suggested that when justices refer to the marketplace metaphor in contemporary decisions, they are commonly communicating meanings that relate with theoretical assumptions that differ from those that were at the heart of the metaphor as Justice Holmes introduced it into the Court’s vocabulary in 1919.
A Contextual Analysis of Neutrality: How Neutral is the Net? • Dong-Hee Shin; Hongseok Yoon; Jaeyeol Jung • This study compares and contrasts the U.S. and Korea in the context of network neutrality, focusing on debates among stakeholders and regulatory approaches. Similarities and differences are highlighted by comparisons within the broadband ecosystem framework: government functions, histories, people’s perceptions, regulatory approaches, legislative initiatives, and implementation. In Korea, a regulatory framework with suggested guidelines exists, and it can be used to address net neutrality in a case-by-case fashion. The U.S. follows a regulatory approach by creating enforceable non-discrimination rules. The findings in this study suggest that the issue is not only complicated because it is embedded contextually, but also because the respective parties’ diverse interests are multifaceted and vague. It is concluded, therefore, that a coherent and consistent approach is an effective way to govern neutrality.
Internet Governance Policy Framework, Networked Communities and Online Surveillance in Ethiopia • Tewodros Workneh, University of Oregon • The September 11, 2001 attacks on the United States unleashed an array of counter-terrorism initiatives across the world. Following the footsteps of the United States that adopted the Patriotic Act of 2001, many countries drafted and ratified anti-terrorism legal frameworks that targeted, among other things, communication systems and flows, on one hand, and journalistic reporting practices, on the other. In the past five years, traditionally democratic states like Australia, Great Britain, United States and New Zealand have come under attack for using these legal frameworks to undertake rampant online surveillance practices that significantly affected media freedoms. A more alarming trend, however, involves the broad and random interpretation of these laws in a number of states with authoritarian and quasi-authoritarian complexions. Anti-terrorism laws are increasingly used to tighten an already closed political space in many of these countries through criminalizing legitimate dissent and critical content. Under these anti-terrorism legal provisions, the most notable losers are journalists, bloggers and other media practitioners that have experienced attacks that range from verbal and physical abuses to torture and killings. This study attempts to discuss the chilling effect anti-terrorism laws brought to online communities in Ethiopia, and attempts to address (1) the metamorphosis of these laws in defining what an act of terrorism involves; (2) the ways the adoption of these laws condition networked communities and media freedoms.
The Digital Right to Be Forgotten in EU Law: Informational Privacy vs. Freedom of Expression • KYU YOUM; Ahran Park • The right to be forgotten allows an individual to demand that Google and other search engines erase links to information that he regards as prejudicial to him. In a landmark ruling, the European Court of Justice (ECJ) has read a right to be forgotten into the EU Data Protection Directive. Given that data protection as a global privacy vs. free speech issue deserves more systematic attention than ever, this paper examines the right to be forgotten in the European Union. Three questions provide the main focus: What’s the legal and theoretical framework of the right to be forgotten? How has the right to be forgotten evolved in EU law? What impact will the right to be forgotten exert on freedom of expression?
This is Just Not Wroking For Us: Why After Ten Years on the Job – It Is Time to Fire Garcetti • Jason Zenor • In Lane v. Franks, the U.S. Supreme Court held that public employees who give truthful testimony in court are protected so long as it was outside their ordinary job duties. This issue arose after ten years of the Garcetti rule which does not protect employee speech pursuant to their job duties- a nebulous topic in the digital era. In applying Garcetti, lower courts have extended it to include any speech that is a product of job duties. As a result, public employee speech that would serve the public interest is not protected as it is inherently a product of job duties. This paper applauds the new exception, but argues that the Court’s ruling was too narrow. Using the principles espoused in the case, this paper argues that the Court should have amended the Garcetti rule and refocused the test on the public trust rather than the employee-employer relationship
Debut Faculty Paper Competition
Feiner v. New York: How the Court Got it Wrong • Roy Gutterman, AEJMC member • When Irving Feiner was pulled off a soapbox while giving a speech, his disorderly conduct arrest would ultimately lead to a Supreme Court case and precedent which changed the law. The heckler’s veto, emerged and changed the law of free speech. The heckler’s veto is alive and kicking in contemporary cases today.
The value and limits of extreme speech in a networked society: Revitalizing tolerance theory • Brett Johnson, University of Missouri • This paper argues that Bollinger’s tolerance theory of freedom of expression should be revitalized as the core theory to guide analyses of issues of harmful or extreme speech in an era of networked communication. The paper first analyzes traditional negative First Amendment theories and legal doctrines that delineate the values and harms of speech, and then synthesizes these theories with tolerance theory. The paper then applies this synthesis to issues of extreme speech in networked communications.
Facebook’s Free Speech Growing Pains: A Case Study in Content Governance • Brett Johnson, University of Missouri • This paper examines the evolution of Facebook’s rules governing users’ speech on its platform, from its earliest terms of service to its most recent Community Standards (March 2015). The goal is to highlight Facebook’s ongoing identity conflict between being a platform that promotes speech and one that offers a safe community for its users. Ultimately, this paper argues that Facebook must be more transparent about the operations of its entire system of governing users’ speech.
A right to violence: Comparing child rights generally to child First Amendment freedoms • William Nevin, University of West Alabama • This paper argues that children should have the right to consume and produce violent speech for two reasons: because (1) children have restricted rights only where there are serious risks and consequences and that does not apply in the speech setting and (2) where child speech rights are limited, they have been done so only in the area of sexually explicit material.
Racial slurs and ‘fighting words’: The question of whether epithets should be unprotected speech • William Nevin, University of West Alabama • This paper seeks to answer two questions: first, whether racial slurs are considered fighting words under the law and second, whether they should be. In answering both questions in the affirmative, the paper traces the development of the fighting words doctrine before examining contemporary fighting words prosecutions and cases involving slurs. The paper also compares racial slurs as fighting words to race-based defamation in order to address whether slurs should be fighting words.
ISP Liability for Defamation: Is Absolute Immunity Still Fair? • Ahran Park • Since the mid-1990s, American Internet Service Providers (ISPs) have enjoyed immunity from liability for defamation under Section 230 of the Communications Decency Act. As Congress originally intended in 1996, Section 230 has strongly protected freedom of online speech and allowed ISPs to thrive with little fear of being sued for online users’ comments. Such extraordinary statutory immunity for ISPs reflects American free-speech tradition that freedom of speech is preferred to reputation. Although the Internet landscape has changed over the past 20 years, American courts have applied Section 230 to shield ISPs almost invariably. ISPs won in 83 of 85 cases in 1997 to 2014. Nearly all types of ISPs have been held to be eligible for immunity unless they are original online speakers. Even when ISPs have operated websites that have left digital scarlet letters on individuals, they have not been liable if the ISPs did not create or develop the defamatory contents. Bloggers, as website operators, could be immunized even when they exercised the traditional editorial functions unlike the traditional journalists. This paper suggest that CDA Section 230 of the United States should be revised to rebalance reputation with freedom of speech.
FoIA in the Age of Open. Gov: A Quantitative Analysis of the performance of the Freedom of Information Act under the Obama and Bush Administrations. • ben wasike • Using government transparency as the conceptual framework, this study used six standard FoIA parameters to quantitatively analyze and compare FoIA performance between the Obama and Bush administrations in terms of: Efficiency, disposition, type of exemptions, redress, staff workload and overall demand. Results indicate that while efficiency is higher under Obama, agencies are releasing information only in part. While appeals were processed faster under Bush,petitioners have had more success under Obama. Additionally, FoIA staff workload has dramatically reduced under Obama. Demand for public records was also higher under Bush. One notable finding was that contrary to popular outcry, neither administration emphasized the national security and law enforcement exemptions to deny information. Legacy and commonality were also findings indicating that certain trends transcend the incumbent. The implications to government transparency are discussed within.
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