Law and Policy 2018 Abstracts
Open Competition
Making @YourState “Friends” With #Privacy: Rights and Wrongs In State Social Media Privacy Password Statutes • Jacob Elberg, University of Kansas; Genelle Belmas, University of Kansas • Since 2012, over half the states have adopted social media privacy laws to protect students and employees from demands of schools and employers for their passwords or social media content as a requirement of admission or employment. This paper evaluates the legal landscape of social media privacy in terms of vintage communications laws and cases as well as new state statutes and makes some recommendations as to the best ways to craft new statutes.
Artificial Authors: Making a Case for Copyright in Computer-Generated Works • Nina Brown, S.I. Newhouse School of Public Communications • For years, computers have dominated humans at chess, poker, and even Jeopardy! Now, increasingly sophisticated artificial intelligence creates music, art, and even news stories. And though the purpose of copyright law is to encourage this exact type of artistic production, none of these works are protected because in the U.S., only humans can own copyrights. Instead of accepting the that law must lag behind technology, this paper explores whether copyright law can-and should-evolve.
First Amendment Envelope Pushers: Revisiting the Incitement-to-Violence Test with Messrs. Brandenburg, Trump & Spencer • Clay Calvert, University of Florida • This paper examines weaknesses with the United States Supreme Court’s Brandenburg v. Ohio incitement test as its fiftieth anniversary approaches. A lawsuit targeting Donald Trump, as well as multiple cases pitting white nationalist Richard Spencer against public universities, provide timely springboards for analysis. Specifically, In re Trump: 1) illustrates difficulties in proving Brandenburg’s intent requirement via circumstantial evidence, and 2) exposes problems regarding the extent to which past violent responses to a person’s words satisfy Brandenburg’s likelihood element. Additionally, the Spencer lawsuits raise concerns about: 1) whether Brandenburg should serve as a prior restraint mechanism for blocking potential speakers from campus before they utter a single word, and 2) the inverse correlation between government efforts to thwart a heckler’s veto via heightened security measures and Brandenburg’s imminence requirement. Ultimately, the paper analyzes all three key elements of Brandenburg—intent, imminence and likelihood—as well as its relationship to both the heckler’s veto principle and the First Amendment presumption against prior restraints.
Report and Repeat: Investigating Facebook’s Hate Speech Removal Process • Caitlin Carlson, Seattle University; Hayley Rousselle, Seattle University • Facebook’s Community Standards ban hate speech. Users are tasked with reporting this content, but little is known about how Facebook responds to these reports. This study identified 144 (n=144) posts containing hate speech and reported them to Facebook. A qualitative content analysis was performed on the removed (n=64) and not removed (n=80) content. This revealed inconsistencies in the removal process that curtailed certain forms of expression and left users open to abuse.
Journalists’ Access to 911 Recordings: Balancing Privacy Interests and the Public’s Right to Know about Casualties • Erin Coyle, Louisiana State University; Stephanie Whitenack, Louisiana State University • Nine-one-one call recordings may capture unique distress from a person’s final moments of life. Journalists argue that publicly disclosing those recordings could shed light on matters of public interest, but publishing that content might emotionally devastate surviving family. This research explored whether and how state statutes, court opinions, and attorney general opinions address that potential conflict and determine whether journalists may access and publish content from 911 calls related to tragic death scenes. This research found a tendency for court rulings, statutes, and attorney general opinions to strike a balance between the public interest in learning about government actions and the likelihood for disclosure of 911 records to intrude upon privacy interests. Some struck that balance by allowing journalists to listen to tape recordings, releasing transcripts of calls, or redacting sensitive personal information prior to releasing records.
The Internet of Platforms and Two-Sided Markets: Implications for Competition and Consumers • Rob Frieden, Penn State University • This paper examines developments in the Internet marketplace that favor powerful intermediaries able to install a platform accessed by that both upstream sources of content and applications as well as downstream consumers. Ventures such as Amazon, Facebook and Google have exploited, “winner take all” networking externalities resulting in the creation of seemingly impenetrable barriers to market entry even by innovative companies. Courts and regulatory agencies recognize the substantial market shares these ventures have acquired, but refrain from imposing sanctions on grounds that consumers accrue ample benefits when platform operators use upstream revenues to subsidize downstream services. The paper examines digital broadband platform operators with an eye toward assessing the aggregate benefits and costs to both upstream firms and downstream consumers. It concludes that governments have failed to revise and recalibrate tools that examine potential marketplace distortions and assess the potential for damage to competition and consumers. The paper demonstrates how the Justice Department, Federal Trade Commission and the Federal Communications Commission have relied on economic and legal doctrine ill-suited for digital broadband market assessments. These agencies have generated false positives, resulting in market intervention where no major problem exists, and false negatives where undetected major problems cause harm without remedy. Additionally these agencies appear to misallocate their resources and attention on insignificant matters when more compelling problems exist.
Sheppard v. Maxwell Revisited: A “Roman Holiday,” a “Carnival” or “Decorum Comparable with the Best? • W. Wat Hopkins • Possibly the most common term used to characterize the trial of Sam Sheppard for the murder of his wife is “Roman holiday.” The Supreme Court of the United States reported that “bedlam reigned in the courthouse during the trial. Four months after the Supreme Court delivered its opinion, however, 10 journalists who covered the trial for respected media organization wrote the justices and told them they were wrong. The trial, they told the justices, was conducted with “decorum comparable with the best.” This paper explores the question of who was right – the Court or the reporters.
Anthem Protests & Public-College Athletes: Is There a Need for a Constitutional Audible? • Carmen Maye, Univ. of South Carolina • National-anthem protests reveal complexities associated with symbolic counter-speech tied to symbols of patriotism. For public-college officials and coaches, the complexity of game-time anthem protests extends beyond the court of public opinion. Uniformed collegiate student-athletes occupy a constitutional limbo-land in which the signals are mixed. Courts considering coach-imposed limits on anthem protests should eschew the traditional and school-specific options in favor of one that allows for a more direct balancing of interests.
“Walk” This Way, Talk This Way: How Do We Know When the Government is Speaking After Walker v. Sons of the Confederacy? • Kristen Patrow, University of North Carolina Chapel Hill • “One prong of the three-part government speech test developed in Walker required the Court to examine whether reasonable observers would understand the message as the government’s. Determining what a “reasonable observer” might consider government speech is nebulous at best. Analysis of six cases shows that paths to limiting this ambiguity of the doctrine include requiring a clear message, the government to self-identify as the speaker, and medium scarcity.”
Seeking clarity: European press rights at peaceful assemblies • Jonathan Peters, University of Georgia • European intergovernmental organizations are developing guidelines to establish a baseline for press rights at peaceful assemblies. This paper contributes to those efforts in two ways. First, it reviews existing European press protections in the assembly context. Second, it discusses issues that should be addressed in the forthcoming guidelines. The scholarly value of this paper is to explore the procedural and substantive dimensions of European press rights at assemblies, while the practical value is to clarify key issues and suggest ways to address them.
Considering Fair Use: DMCA’s Takedown & Repeat Infringers Policies • Amanda Reid, UNC Chapel Hill • The 20th anniversary of the DMCA is an appropriate occasion to reflect on the First Amendment implications of this legislative compromise between copyright holders and online service providers. DMCA safe harbors were intended to protect business interests and expressive interests. As digital media are woven into modern daily life, this safe harbor schema needs recalibration to protect fair uses. To recalibrate, this paper explores how fair use considerations should be operationalized under the DMCA framework.
Transparency Reporting and Content Takedowns: Examining Internet Censorship in the United States and India. • Enakshi Roy, Western Kentucky University • Drawing on the literature on internet censorship this study investigates the practice of content takedowns carried out by the United States’ and Indian governments. To that end this research employs two studies. Study 1 examines the transparency reports of Google, Facebook, and Twitter from 2010- 2015 to find out what content is removed from these platforms. Study 2 through in-depth interviews with technology lawyers and authors of transparency reports finds out about the content removal process and its complexities. The findings show “defamation” is one of the most cited reasons for content removal in both the United States and India. “Privacy and Security” is another top reason for content removal in both countries. In India, “Religious Offense” was the most frequently cited reason for content removal. Findings reveal a disturbing trend where defamation notices were misused to request takedown of content that was critical of the governments, politicians, public figures, law enforcement officials, and police. The findings of this comparative study are important, they demonstrate several ways in which the internet is being censored even in democratic countries without the knowledge of the users. Such censorship maybe eroding the freedom of speech guaranteed by the Constitutions of both the United States and India.
Internet Memes and “Cultural Flourishing”: A Democratic Approach to Copyright • Yoonmo Sang, Howard University • This paper explores the socio-cultural implications of Internet memes in conjunction with legal and policy inquiry that involve copyright and freedom of expression. In doing so, the concept of cultural democracy is advanced to better understand Internet memes that are created and shared by ordinary people to express their emotions, ideas and opinions in order to better understand cultural and political events. This normative study unpacks implications of Internet memes and applies the concept of cultural democracy to Internet memes in the context of copyright law. This study ultimately argues that the concept of democratic culture provides an alternative understanding of copyright legislation as well as a viable theoretical justification for copyright reforms in support of users’ creative use of preexisting cultural works in the age of user-generated content.
The Artificial Marketplace: Examining Potential Changes to Marketplace Theory in the Era of AI Communicators • Jared Schroeder, Southern Methodist University • Artificially intelligent communicators, particularly since the 2016 U.S. presidential election, have occupied an increasing role in democratic discourse. Their natures, as non-human actors with fundamentally different capabilities and motivations than citizens, raise substantial questions about whether the marketplace of ideas theory, the Supreme Court’s dominant rational for freedom of expression, can persist in its current form. In other words, the growing presences of artificially intelligent communicators undermine some of the foundational assumptions of the marketplace approach. This paper contends that without some revisions to the fundamental building blocks of the theory, it will no longer be viable as a rationale for freedom of expression in the AI-infused discourse of the twenty-first century. To this end, this paper explores the increasing influence of artificially intelligent communicators, the traditional assumptions of the marketplace approach, the longstanding criticisms of the theory, Justice Oliver Wendell Holmes’s conceptualization of truth, and judicial opinions regarding the rights of other non-human communicators, such as animals and corporations. This paper ultimately proposes a process-focused, public-good-based revision to the theory’s foundational assumptions. Ideally, such a revision would allow the theory to remain functional in the growing artificial marketplaces of the twenty-first century.
Give Me a ©: Refashioning the Supreme Court’s Decision in Star v. Varsity • Jared Schroeder, Southern Methodist University; Camille Kraeplin, Southern Methodist University; Anna Grace Carey, Southern Methodist University; Lauren Hawkins, Southern Methodist University • Fashion designers have struggled to establish their works as expressions that qualify for copyright protection. The Supreme Court’s decision last spring in Star v. Varsity was less of a victory for fashion designers than it might appear. The Court’s effort to clarify and apply the “separability test,” stopped short of providing the clarity needed to protect the works of fashion designers. This article contends that this confusion can be resolved by conceptualizing fashion designs as forms of art that are often applied to useful objects, rather understanding them as useful items that, if their designs can be conceptually separated from the object, can receive protections.
Confronting Power, Defining Freedom and Awakening Participation: An Argument for Expanding Media Law Education • Erik Ugland • This article contends that some understanding of media law and policy is now indispensable for citizens in the Digital Age and proposes strategies for expanding knowledge of these subjects. This knowledge is essential to citizens’ self-preservation and individual agency, it equips them to engage in emerging First Amendment debates, and it enables their participation in settling media policy dilemmas (surveillance, net neutrality, big data) whose resolution will ultimately affect the broader balance of social power.
Defamation Per Se and Transgender Status: When Macro-Level Value Judgments About Equality Trump Micro-Level Reputational Injury • Austin Vining, University of Florida; Ashton Hampton; Clay Calvert, University of Florida • This paper uses the September 2017 defamation decision in Simmons v. American Media, Inc. as a springboard for examining defamatory meaning and reputational injury. Specifically, it focuses on cases in which judges acknowledge plaintiffs have suffered reputational harm, yet rule for defendants because promoting the cultural value of equality weighs against redress. In Simmons, a normative, axiological judgment – that the law should neither sanction nor ratify prejudicial views about transgender individuals – prevailed at the trial court level over a celebrity’s ability to recover for alleged reputational harm. Simmons sits at a dangerous intersection – a crossroads where a noble judicial desire to reject prejudicial stereotypes and to embrace equality collides head-on with an ignoble reality in which a significant minority of the population finds a particular false allegation (in Simmons, transgender status) to be defamatory. The paper concludes by proposing variables for courts to apply in future cases where a dispute exists over whether an allegation is defamatory per se, rather than leaving the decision to the discretion of judges untethered from formal criteria.
Requester’s Paradox: Acknowledging FOIA’s Defects, Moving toward Proactive Disclosure • A.Jay Wagner, Bradley University • “Hillary Clinton’s email fiasco exposed long-standing issues in the FOIA. Her deliberate circumvention of records management rules and the State Department’s intentionally misleading response to FOIA requests demonstrated deep and troubling flaws in the contemporary FOIA paradigm. In looking at the laws and judicial interpretation that undergird records management and adequate search elements, the study finds little in the way of legal obligations and a court system limited in combatting the problems. FOIA requesters already suffer from a paradox – never truly knowing what records exist – and these twin failures further undermine the access mechanism. The study explores the unsteady foundation on which the FOIA rests and uses these failures to campaign for more reliance on proactive disclosure mechanisms. In considering proactive disclosure, the study looks at both international and domestic efforts where no request for information is needed. The United States has already experimented with expanding proactive disclosure, including a Justice Department pilot study and amended small elements to the FOIA statute in 2016.
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