Law and Policy 2016 Abstracts
Debut Faculty Paper Competition
Not the Publisher, Still the Proprietor: Bypassing a Website’s Immunity Under Section 230 in Sex Trafficking Cases • Andrew Pritchard; Elaina Conrad • Section 230 of the Communications Decency Act shields websites from liability for user-submitted content, including content that perpetrates sex trafficking. However, this immunity is avoided when a website’s liability does not stem from its role as publisher. Courts’ treatment of websites as real property, combined with well-established principles of landowner liability, should allow websites to be held liable for their role in sex trafficking: not for third-party content, but for crimes resulting from it.
Unmasking The Anonymous Cyberbully: A New Approach • Ben Holden, University’ of Illinois • Americans have the right under the U.S. Constitution to speak anonymously. However, this right is not absolute and is subject to laws of general applicability, including the civil law of defamation. Courts frequently find that the First Amendment’s implied anonymity right yields to the procedural rights of civil defamation plaintiffs when the plaintiff is not a public figure and the speech is not a matter of public concern. But it is generally very difficult, if not impossible, to prove each element of civil defamation and related torts – plus the absence of privilege – without the identity of the speaker. The growing and potentially deadly problem of teen bullying by electronic communication lies at the intersection of these lofty constitutional principles and the practical imperative of parents to keep their kids safe. This Conference Paper suggests a standard for unmasking the Anonymous Teen Cyberbully.
EU v. U.S. Data Protection: An Unsafe Harbor? • Holly Hall, Arkansas State University • A recent ruling by the Court of Justice of the European Union declared the mechanism for data transfer known as Safe Harbor invalid. Many were critical of Safe Harbor for poor enforcement and confusing terminology. The revelations of former CIA employee, Edward Snowden, of United States government agencies’ mass surveillance programs added to the doubts of the functionality of Safe Harbor. The case leading to Safe Harbor’s downfall, Schrems v. Data Protection Commission, led to a new data transfer agreement called Privacy Shield. This paper will examine the evolution of data privacy protection law in the United States and European Union, the Safe Harbor provisions, the decision of the Schrems case, and the implications of Schrems on the newly announced Privacy Shield, shaping the data protection frameworks of the future.
Fight Terror, Not Twitter: Why Section 230 Should Insulate Social Media from Material Support Claims • Nina Brown • Twitter promotes itself as a global communications platform of free expression. ISIS and other terrorist organizations promote themselves via Twitter. A recent lawsuit by a widow of a government contractor killed in a terrorist attack argues that the proliferation of terrorists on Twitter, and Twitter’s reluctance to stop it, violates the Antiterrorism Act. This article explores the dangers associated with holding social media companies responsible for such attacks, and offers a solution to avoid liability.
Open Competition
Cyber Breach: Where privacy ends and data security begins • Angela Rulffes, Syracuse University • This article proposes that data security and privacy are distinguishable concepts that have different harms. Privacy violations, with some exceptions, involve the publication of personal information without permission. A data breach, however, is the loss of data. Data breaches should be treated as a breach of a duty of care, and states should implement laws that create a fiduciary relationship between companies and consumers and provide for civil liability if personal data is not protected.
Crash and Learn: The Inability of Transparency Laws to Penetrate American Monetary Policy • Benjamin W. Cramer, Pennsylvania State University; Martin E. Halstuk, Pennsylvania State University • The article will argue that the Federal Reserve System, thanks to its legislative structure, place within the American government, and court precedents regarding transparency statutes, is insulated from public oversight of almost all of its operations. The second section introduces the Fed’s history and structure. The following section will discuss the role of transparency and secrecy in the 2007-2008 financial crisis. The fourth section will consider whether two potentially powerful transparency statutes, the Freedom of Information Act and the Federal Advisory Committee Act, can be used to reveal documents from the banking sector and its regulators, along with the relevant statutory and case histories of those acts. The article will conclude with a discussion of the factors that have made the Federal Reserve System, and its internal decision-making processes, particularly impenetrable to citizens, journalists, and politicians who seek information on crucial matters of monetary policy.
Student Data in Danger: What Happens When School Districts Rely on the Cloud • Chanda Marlowe, University of North Carolina at Chapel Hill • According to Fordham Law School’s Center on Law and Information Policy’s report “Privacy and Cloud Computing in Public Schools,” 95% of public school districts rely on cloud services for a diverse range of functions. The use of cloud services raises serious privacy concerns. For example, in March of 2014, Google admitted to scanning students’ emails and gathering data that were used to target ads to those students. Under the threat of lawsuits, Google promised to stop; however, in December 2015, Google was accused of collecting and using student data for non-education purposes again, this time in violation of the Student Privacy Pledge that it signed January 2015. Yet, schools continue to contract with private sector corporations to obtain cloud services, leaving parents to wonder what information is collected on their children, how that information is being used, and how, if at all, that information is being protected. The purpose of this paper is to discuss the major privacy problems that school districts face when they rely on cloud services offered by private corporations, to analyze how FERPA and state privacy laws are addressing these problems, and to offer possible solutions that go beyond FERPA and state privacy laws. This topic is important because legislation must strike the right balance between protecting students’ personal information and meeting the technological needs of schools.
Underinclusivity and the First Amendment: The Legislative Right to Nibble at Problems After Williams-Yulee • Clay Calvert, University of Florida • Using the U.S. Supreme Court’s 2015 opinions in Williams-Yulee v. Florida Bar and Reed v. Town of Gilbert as analytical springboards, this paper examines the slipperiness – and sometimes fatalness – of the underinclusiveness doctrine in First Amendment free-speech jurisprudence. The doctrine allows lawmakers, at least in some instances, to take incremental, step-by-step measures to address harms caused by speech, rather than requiring an all-out, blanket-coverage approach. Yet, if the legislative tack taken is too small to ameliorate the harm that animates a state’s alleged regulatory interest, it could doom the statute for failing to directly advance it. In brief, the doctrine of underinclusivity requires lawmakers to thread a very fine needle’s eye between too little and too much regulation when drafting statutes. To wit, underinclusivity was tolerated and permitted by the majority in Williams-Yulee, but it proved fatal in Reed. This paper suggests that while Williams-Yulee attempts to better define underinclusivity, its subjectivity remains problematic.
Counterspeech, Cosby and Libel Law: Some Lessons About “Pure Opinion” & Resuscitating the Self-Defense Privilege • Clay Calvert, University of Florida • Using the recent federal district court opinions in Hill v. Cosby and Green v. Cosby as analytical springboards, this paper explores problems with the concept of pure opinion in libel law. Specifically, Hill and Green pivoted on the same allegedly defamatory statement made by attorney Martin Singer on behalf of comedian Bill Cosby, yet the judges involved reached opposite conclusions regarding whether it was protected as pure opinion. Furthermore, the paper analyzes notions of counterspeech and the conditional self-defense privilege in libel law in arguing for shielding Singer’s statement from liability. Although the self-defense privilege was flatly rejected in Green because it was not recognized under the relevant state law, it merits renewed consideration in similar cases where attorneys verbally punch back against their clients’ accusers in the court of public opinion.
The Right to Record Images of Police in Public Places: Should Intent, Viewpoint or Journalistic Status Determine First Amendment Protection? • Clay Calvert, University of Florida • Using the February 2016 federal district court ruling in Fields v. City of Philadelphia as an analytical springboard, this paper examines growing judicial recognition of a qualified First Amendment right to record images of police working in public places. The paper argues that Judge Mark Kearney erred in Fields by requiring that citizens must intend to challenge or criticize police, via either spoken words or expressive conduct, in order for the act of recording to constitute “speech” under the First Amendment. The paper asserts that a mere intent to observe police – not to challenge or criticize them – suffices. The paper also explores how recording falls within the scope of what some scholars call “speech-facilitating conduct.” Additionally, the paper criticizes Kearney’s view, as well as that of a federal judge in the Southern District of New York in 2015, suggesting that the right to record is possessed only by journalists, not by all citizens.
Holding Higher Education Accountable: Three Decades of Public Records Litigation Involving the University of Wisconsin • David Pritchard, University of Wisconsin-Milwaukee; Jonathan Anderson, USA TODAY NETWORK – Wisconsin • Analysis of a comprehensive set of trial-court public records cases involving the University of Wisconsin over a 30-year period showed that news organizations constitute a strong majority of plaintiffs, that issues involving administrative searches and academic freedom are relatively rare, that news organizations and activist groups seeking records always prevail, and that the university has begun to ask the legislature to provide via statute the confidentiality that the university has not been able to get from the courts. The research is distinctive in that it focuses on trial court cases over an extended period of time. The generalizability of research from a single state is discussed.
Libel by the Numbers: The Use of Public Opinion Polls in Defamation Lawsuits • Eric Robinson, Louisiana State University • Libel plaintiffs must show that the defendant made a defamatory statement which lowered esteem of the plaintiff in the community. Polls can show this, but courts were initially reluctant to allow polling evidence. While courts have become increasingly receptive, use of polls in defamation cases remains rare. This article reviews libel cases in which polls have been used, and recommends that more defamation plaintiffs consider using polls and that courts be receptive to such evidence.
Mobile Broadband: A Cross Country Comparison • Hsin-yi Sandy Tsai • There are significant differences among countries with regard to their mobile broadband penetration rates. This study aims to understand whether public policies influence these differences and what kind of policies/regulations, if any, are necessary and/or sufficient conditions for higher mobile broadband (high speed mobile Internet) penetration rates. Although many studies have probed the factors influencing fixed broadband penetration, few studies have focused on mobile broadband. In order to capture the complicated interactions among factors related to mobile broadband penetration, in this study, in addition to using econometric approaches, a different approach—Qualitative Comparative Analysis (QCA)—was utilized to analyze the policy and economic factors that affect mobile broadband penetration in 34 OECD (Organisation for Economic Co-operation and Development ) countries. By using both econometric approaches and QCA, this study found six necessary conditions for higher mobile broadband penetration: 1) technology neutrality, 2) higher quality of regulation, 3) higher fixed broadband penetration rates, 4) higher mobile competitive intensity, 5) higher urban population, and 6) higher education. The results of econometric analyses were largely consistent with these findings and also found income, education, and competition to be important determinants of mobile broadband penetration.
The Holmes Truth: Toward a Pragmatic, Holmes-influenced Conceptualization of the Nature of Truth • Jared Schroeder, Southern Methodist University • This paper examines how the Supreme Court has conceptualized truth in freedom-of-expression cases and draws from pragmatic approaches to philosophy, the so called “pragmatic method” put forth by American philosopher William James and the judicial philosophy of Justice Oliver Wendell Holmes, to propose a unifying conceptualization of truth that could be employed to help the Court provide consistency within its precedents regarding the meaning of a concept that has been central to the Court’s interpretation of the First Amendment but has never been explicitly defined by the Court.
Congress Shall Make No Law…Unless? The Expansion of Government Speech and the Narrowing of Viewpoint Neutrality • Jason Zenor, SUNY-Oswego • In Walker v. Sons of Confederate Veterans, the U.S. Supreme Court upheld the State of Texas’ denial of a private organization’s request to place a confederate flag on specialty license plates. The Court upheld that denial as a form of government speech, a doctrine that has only recently developed but gives the government absolute immunity to make decision based upon viewpoints. This paper argues that the government speech doctrine has granted the government the right to coerce the free marketplace of ideas. Thus, the paper proposes a new legal test that would limit when speech is considered governmental and place further checks on the government’s ability to endorse political ideas when communicating administrative policy.
Proxies and Proximate Cause: The Future of Immersive Entertainment and Tort Liability • Jason Zenor, SUNY-Oswego • In June of 2014, two teenage girls lured their friend into the woods and stabbed her 19 times. The heinousness of the crime itself was enough to make it a national news story. But what really caught the attention of the nation was the motive for the crime. The girls wanted to appease the Slender Man, a murderous apparition who had visited them in their sleep and compelled them to be his proxies. Many people had never heard of the Slender Man, a fictional internet meme with a sizeable following of adolescents fascinated with the macabre. Soon the debate raged as to the power and responsibility of such memes. As for legal remedies, media defendant are rarely held liable for third parties crimes. Thus, the producers of violent memes are free from liability. But this law developed in an era of passive media where there was disconnect between media and audience. The paper examines how media liability may change as entertainment becomes more immersive. First, this paper examines the Slender Man phenomenon and other online memes. Then it outlines negligence and incitement law as it has been applied to traditional entertainment products. Finally, the paper posits how negligence and incitement law may be applied differently in future cases against immersive media products which inspire real-life crimes.
Escaping the “Bondage of Irrational Fears”: Brandeis, Free Speech and the Politics of Fear • Joseph Russomanno, Arizona State University • The war of words typically inherent in presidential campaigns seemed to reach unprecedented levels in late 2015. Calls to silence some of the rhetoric brings to mind the free speech doctrine of Louis Brandeis, including his belief that the proper remedy to “bad” speech is not enforced silence, but instead more speech. This paper examines political developments of this period through the lens of Justice Brandeis’ doctrine and its major elements: fear, courage, education and democracy.
Dismissed: Removal of College Media Advisers & Student Journalists’ First Amendment Rights • Lindsie Trego, UNC-Chapel Hill • Cases of indirect censorship of collegiate media have recently made news headlines. In many of these cases, advisers have been administratively removed in response to disputes between student editors and administrators. These cases call into question whether student journalists can successfully seek legal redress for indirect acts against their First Amendment rights. This paper examines whether removal of college media advisers constitutes an injury to student journalists in the context of First Amendment litigation.
A Doctrine at Risk: Content-Neutrality in a Post-Reed Landscape • Minch Minchin • This paper analyzes the lack of cohesion within the U.S. Supreme Court regarding the distinction between content-neutral and content-based regulations of expression. Highlighting two recent cases that illustrate a high degree of fracturing among the justices—McCullen v. Coakley and Reed v. Town of Gilbert—this paper suggests that without further clarification about the doctrine’s nature, purpose and application, the venerable First Amendment canon may soon disintegrate into constitutional oblivion.
Indecency Four Years After Fox Television Stations: From Big Papi to a Porn Star, an Egregious Mess at the FCC Continues • Minch Minchin; Keran Billaud; Kevin Bruckenstein; Tershone Phillips • In 2012, the U.S. Supreme Court in Federal Communications Commission v. Fox Television Stations, Inc. failed to address critical First Amendment questions concerning the FCC’s broadcast indecency policy. More than three years later, this paper examines how the Commission has filled the void left by the Supreme Court with a series of erratic and disjointed moves. These include its March 2015 proposal to fine a television station the maximum $325,000 for airing a tiny, fleeting sexual image during a newscast. That action, somewhat stunningly, came just two-and-half years after the FCC claimed it would target only the most “egregious” instances of indecency. This paper analyzes, among other issues, the troubling implications of the record-setting fine, including arguments against it made by the National Association of Broadcasters. The paper also reviews the FCC’s call for public comment on its fleeting expletive policy, as well as it decision to jettison hundreds of thousands of indecency complaints following Fox Television Stations.
Influencing copyright policymaking: An examination of information subsidy in Congressional copyright hearings from 1997 through 2014 • Minjeong Kim, Hankuk University of Foreign Studies • Assuming that the scope and extent of protection embedded in copyright law is a policy choice resulting from a contestable policymaking process, this study traces the copyright policy debate from 1997 through 2014 by focusing on information subsidy to lawmakers at the Capitol. This study reports the findings from a content analysis of 341 testimonies at 60 Congressional hearings that dealt with the issue of copyright.
An Examination of Ag-Gag and Data Trespass Statutes • Ray Whitehouse, UNC Chapel Hill • Since 1990, nine states have passed legislation that aims to limit undercover investigations of agricultural operations. These “ag-gag” laws attempt to limit investigations in three ways: by criminalizing recording and reporting on operations, criminalizing deceptive entry into operations, and by mandating that anyone recording abuse report it within a short time period. In 2015, two major events related to ag-gag laws took place. First, a federal judge ruled that Idaho’s ag-gag law was unconstitutional. This case decision, the first examining ag-gag laws, cast doubt on the constitutionality of other state ag-gag laws. Second, Wyoming passed a “data trespass” law that criminalized collecting information on “open land” with the intent to give that information to government agencies. Agricultural activists filed suit, claiming that it was an unconstitutional ag-gag law aimed at stopping citizen activists from reporting Clean Water Act violations by ranchers who lease public land from the state. Lawmakers disagreed, arguing that the bill simply strengthened existing trespass laws. This paper compares Wyoming’s data trespass law with all existing ag-gag laws and Idaho’s recently overturned law to examine its constitutionality. This examination is important because it incorporates recent legal outcomes that before now have not been incorporated into analysis of ag-gag laws. It suggests that because both the Idaho and Wyoming laws are similar in their construction and the legal questions in their respective cases are similar, the Idaho decision is very applicable to Wyoming’s data trespass law and casts serious doubts upon the constitutionality of Wyoming’s data trespass statute.
Speech v. Conduct, Surcharges v. Discounts: Testing the Limits of the First Amendment and Statutory Construction in the Growing Credit Card Quagmire • Rich Shumate, University of Florida; Stephanie McNeff, University of Florida; Stephenson Waters, University of Florida • This paper examines First Amendment speech concerns and related issues of statutory construction raised by so-called dual-pricing or anti-surcharge statutes that prohibit merchants from imposing “surcharges” on credit card purchases, but allow them to offer “discounts” to cash-paying customers. The paper uses the recent split of authority created by the November 2015 opinion of the U.S. Court of Appeals for the Eleventh Circuit in Dana’s Railroad Supply v. Florida and the September 2015 decision by the Second Circuit in Expressions Hair Design v. Schneiderman as a timely analytical springboard for analyzing these issues. These cases not only test the fundamental dichotomy in First Amendment jurisprudence between speech and conduct, but also the length to which courts should go to provide narrowing constructions to rescue otherwise unconstitutional statutes. Furthermore, the paper argues that dual-pricing laws detrimentally affect not only the right of merchants to speak, but also the unenumerated First Amendment right of consumers to receive speech directly affecting their pocketbooks. Finally, the paper concludes that dual-pricing laws smack of the worst kind of governmental paternalism – a form protecting corporate interests of credit card companies at the expense of consumers.
A ‘Net’ Gain for Society?: Examining the Legal Challenge to the FCC’s Net Neutrality Order • Sarah Papadelias, University of Florida • This paper analyzes the FCC’s 2015 net neutrality order and the pending legal challenges against the order. Net neutrality has risen as a prominent social and political issue with many different interests at stake. Initially, this paper discusses the history of net neutrality as a complex regulatory topic. The paper then examines the structure and substance of the 2015 order and explains the three major rules proffered by the order. Next, the paper outlines the legal arguments on each side of the lawsuit, tracking the many briefs submitted in the case. Ultimately, the paper concludes with a proposed judicial opinion predicting the D.C. Circuit’s ruling on the pending proceeding. It appears the FCC has bolstered its new net neutrality rules with the appropriate legal authority and the court likely will uphold the rules.
Free Speech v. Fair Disclosure: Does Citizens United Create a Constitutional Challenge for the SEC? • Sonia Bovio, Arizona State University • The U.S. Supreme Court’s Citizens United v. Federal Elections Commission ruling may have unexpected bearing on aspects of corporate speech currently regulated by the U.S. Securities and Exchange Commission (SEC). This paper outlines the First Amendment issues related to one SEC disclosure regulation in particular: Regulation Fair Disclosure (Reg FD), as they relate to Citizens United. It demonstrates how Reg FD could withstand constitutional challenges by reviewing elements of Citizens United that may favor the regulation, and by examining the intentions of the Framers of the First Amendment with regard to corporate speech, in particular James Madison’s perspective.
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