Law & Policy 2013 Abstracts

Open Competition

Documenting Fair Use • Jesse Abdenour, UNC-Chapel Hill • The United States Copyright Act of 1976 allows for fair use of copyrighted material under certain circumstances, but federal courts have been inconsistent in rulings on copyright infringement cases in which a documentary filmmaker claims fair use. This can be problematic for documentarians, since they often use copyrighted materials such as historical footage and songs. The “Documentary Filmmakers’ Statement of Best Practices in Fair Use,” released in 2005, aimed to clear up the confusion surrounding fair use in documentaries by providing guidelines for documentary filmmakers to follow. This paper analyzes relevant federal court cases in which a documentary maker was sued under the Federal Copyright Act for infringement and in which the court addressed the issue of whether the use was or was not covered by the fair use provisions in the Act. This case analysis is conducted in an effort to determine if the federal rulings in such cases have changed since the Documentary Filmmakers’ Statement was released, as some have indicated. Federal cases in which a news organization or production company was sued under the Act for infringement due to the use of copyrighted reality footage are also examined, as well as the Documentary Filmmakers’ Statement itself.

The FTC Enters The Blogosphere: The Marketplace of Ideas and The FTC’S Regulation of Blogger Speech • Cassandra Batchelder • In 2009, the Federal Trade Commission made a step into the 21st century by amending its Guides Concerning Use of Endorsements and Testimonials in Advertising. The new Guides target endorsements of products or services by bloggers who have a connection to the advertiser who sells the good or service and do not disclose this connection. While the Guides may provide clarity to consumers, they also raise concerns about the First Amendment rights of bloggers. This paper employs a marketplace of ideas approach and examines the three instances since the Guides’ enactment in 2009 when the FTC relied on the Guides in its work. The paper finds that the Guides improperly treat all blogger speech as commercial speech and do not further the goals underlying the marketplace of ideas in the online context. The paper concludes that the FTC’s action to date have targeted advertisers, which faces far few First Amendment concerns, and that the Guides should be modified to reflect the FTC’s goal of encouraging advertisers to be honest about their dealings with bloggers.

Forcing the Web to Forget: The “right to be forgotten,” free expression, and access to information • Cheryl Ann Bishop, Non • New technologies provide instantaneous communication and access to information escalating tensions between the right to information privacy and rights to free expression and information in a digitized world. Recently the European Commission proposed a draft of new Data Protection Regulation, which includes the controversial “right to be forgotten,” a right to have one’s personal data erased from webpages. At the same time, the European Court of Justice is hearing a case on whether Google can be forced, under the Spanish “right to be forgotten” and the current EU data protection directive to removes links from its search indexes to webpages containing suspect personal information. This paper assessed implications for rights to free expression and information regarding the draft Data Protection Regulation and its proposed “right to be forgotten” by analyzing the pertinent sections of the draft and case law of the ECJ interpreting the current data protection directive. Drawing on this analysis, this paper assessed implications of a “right to be forgotten” in terms of the Google case currently being heard by the ECJ, and finds that there are possible negative implications for free expression and information regardless of outcome.

An “Actual Problem” in First Amendment Jurisprudence? Examining the Immediate Impact of Brown’s Proof-of-Causation Doctrine • Clay Calvert, University of Florida; Matthew Bunker, University of Alabama • This paper analyzes the immediate impact on First Amendment jurisprudence of the U.S. Supreme Court’s “direct causal link” requirement adopted in 2011 in Brown v. Entertainment Merchants Association. Brown, in embracing an empirically focused proof-of-causation doctrine, marked the first time in the Court’s history it had used the phrase “direct causal link” in any free-speech case. But just one year later, the Court again deployed it a very different factual context in United States v. Alvarez to strike down a federal law making it a crime to lie about earning military medals. Then, in December 2012, a federal judge used Brown’s “direct causal link” test to enjoin a California law that prohibits healthcare providers from engaging in sexual orientation change efforts with gay minors. The paper explores problems with adopting Brown’s quantitative and empirical causation standard in cases like Alvarez where an intangible injury (reputational harm) to an inanimate object (a medal) is the alleged compelling interest. Bridging doctrine with theory, the paper also examines how the direct causal link requirement comports with the marketplace of ideas theory upon which much of First Amendment jurisprudence is premised.

Fights From the First Amendment Fringes: Debating the Meaning of “Speech” Amid Shifting Cultural Mores & Changing Technologies • Clay Calvert, University of Florida • This paper examines the meaning of the word “speech” in the First Amendment, using three cases from 2012 as analytical springboards for both legal and cultural analysis. The cases center on whether tattooing and tattoos, “Liking” on Facebook, and begging for money constitute speech. The subjects were chosen, in part, because they force judges to confront shifting cultural stereotypes or technological advances. The paper draws on scholarly literature beyond the law to contextualize these skirmishes within broader cultural, social and/or technological frameworks. The paper concludes by identifying principles at the macro and micro levels distilled from the cases.

Lost in Translation: Reviewing the Stored Communications Act in Practice • Robyn Caplan, School of Communication and Information, Rutgers University • Though the Stored Communications Act has faced criticism for being outdated, little has been done to revise the Act to reflect technological changes in remote storage and computing practices. And yet, can the judiciary system be tasked with the responsibility of interpreting the SCA to reflect current technological reality? This paper examines two subpoenas issued under the SCA to investigate the impact of the use of outdated technical distinctions on decisions governing the privacy and surveillance of data.

Sexual Conversion Therapy and Freedom of Speech • Kara Carnley, University of Florida; Brittany Link, University of Florida; Linda Riedemann, University of Florida • This paper analyzes, from both a doctrinal and theoretical perspective, the First Amendment speech interests now at stake before the U.S. Court of Appeals for the Ninth Circuit in Welch v. Brown and Pickup v. Brown. Those cases pivot on a new California law banning mental health providers from performing sexual orientation change efforts (conversion therapy) on minors. Two district court judges reached radically different conclusions about the First Amendment questions in December 2012. The paper explores how three recent Supreme Court decisions involving seemingly disparate factual scenarios – Brown v. Entertainment Merchants Association, United States v. Alvarez and Gonzales v. Carhart – and three venerable theories of free speech – the marketplace of ideas, democratic self-governance and individual self-realization – might affect the outcome of the cases on appeal.

The Arrival of Real Malicia: Actual Malice in Inter-American Court of Human Rights • Edward Carter, Brigham Young University • The Inter-American Court of Human Rights decided two cases in recent years that represent a significant step for freedom of expression in nations that belong to the Organization of American States. In 2004, the Court had stopped short of adopting a standard that would require proof of “actual malice” in criminal defamation cases brought by public officials. In 2008 and 2009, however, the Court did adopt actual malice in two similar cases. The Court’s progress toward actual malice is chronicled and the ramifications of that jurisprudential development for Central and South America are discussed.

The State of Indecency Law: A Positive and Normative Evaluation of the Fox Cases • Kevin Delaney, The University of North Carolina at Chapel Hill • This past summer, after nearly a decade of litigation, the Supreme Court released its long-awaited ruling in FCC v. Fox Television Stations, Inc. In Fox, many experts thought the Court would deem unconstitutional the government’s regulation of broadcast indecency. The Court did not, however. Rather, the Court offered a narrow holding that upheld the government’s regulations. This paper evaluates, both positively and normatively, the state of indecency regulation subsequent to the Court’s ruling in Fox.

Arab Media Regulations: Identifying restraints on freedom of the press in laws of six Arabian Peninsula countries • Matt Duffy, Georgia State University • This article analyzes media regulations of the six Gulf Cooperation Council (GCC) countries on the Arabian Peninsula—Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates. The laws are analyzed and compared to international approaches that aim to balance freedom of expression against other societal obligations. The analysis shows that GCC laws go far beyond international norms in several areas including defamation, insults and criticisms, public order, and the banning of “false news.”

Transfer of Collective Journalistic Works from Real Space to Cyberspace under French and American Intellectual Property Law. • Lyombe Eko, University of Iowa • This article is a comparative analysis of how the exceptional intellectual property law regimes of the United States and France managed the legal conflicts that were spawned by the transfer of collective journalistic works published in newspapers and magazines in real space to cyberspace (digital electronic databases, servers, the Internet and the “cloud”). Both countries approached the issue within the framework of their respective, exceptional intellectual property law regimes. In the United States, courts refused to transfer wholesale, the law of collective works that is applicable to the print media in real space, to the dematerialized realities of searchable databases in cyberspace. In France, courts held that the unauthorized transfer of the journalistic work of both freelance and full-time journalists from real space to cyberspace violated the French Intellectual Property Code. While these controversies show that legal provisions governing the privileges of authors and the rights of individual contributors to collective works under intellectual property law are functionally equivalent in the United States and France, the contexts, and the philosophical rationales for the decisions are different.

The Impact of Next Generation Television on Consumers and the First Amendment • Rob Frieden, Penn State University • Consumers have access to an ever increasing inventory of video content choices as a result of technological innovations, more readily available broadband, new business plans, inexpensive high capacity storage and the Internet’s ability to serve as a single medium for a variety of previously standalone services delivered via different channels. They increasingly have little tolerance for “appointment television” that limits access to a particular time, channel and device. Access to video content is becoming a matter of using one of several software-configured interfaces capable of delivering live and recorded content anytime, anywhere, to any device and via many different transmission and presentation formats. Technological and marketplace convergence eliminate the viability of judicial and regulatory models that apply varying degrees of First Amendment protection as a function of the medium delivering the content. With the Internet serving as a single conduit for a variety of information, communications and entertainment (“ICE”), ventures can offer a bundle of services that span two or more regulatory classifications, e.g., the ability of wireless handsets to make telephone calls, to receive video programming and to access the Internet. This paper will examine the ongoing migration from channels to software-configured platforms for accessing video content with an eye toward assessing the impact on consumers and the First Amendment. The paper identifies the need for significant amendment of the Communications Act of 1934 to provide a light-handed and limited, but explicit statutory basis for the FCC to resolve predictable disputes between stakeholders and to remedy anticompetitive practices.

“Ag-Recording” Laws Disassembled • Emily Garnett, University of Missouri School of Journalism • Four “Ag-Recording laws” in place in Kansas, Montana, North Dakota, and Utah violate three major First Amendment rights. The laws are overly broad because they restrict a constitutionally protected form of speech, whistleblowing. They are content-based restrictions of speech that are not content-neutral, do not serve a compelling government interest, and are not minimally restrictive. Finally, two of the state laws in place in Kansas and Montana are examples of prior restraint.

Physicians, Firearms and Free Expression • Justin Hayes, University of Florida; Daniel Axelrod, University of Florida; Minch Minchin, University of Florida • This paper analyzes, from both a doctrinal and theoretical perspective, the First Amendment speech interests now at stake before the U.S. Court of Appeals for the Eleventh Circuit in Wollschlaeger v. Farmer. The case pivots on Florida’s Firearm Owners’ Privacy Act, a statute supported by the National Rifle Association that limits physicians’ ability to question patients about gun ownership. The paper also addresses an issue unresolved by the Supreme Court in its abortion opinion in Planned Parenthood v. Casey: What standard of scrutiny should apply to measure the validity of statutes affecting doctors’ speech within the doctor-patient relationship?

American Hemispheric Exceptionalisms: A comparative analysis of U.S. and Brazilian laws of defamation and racist speech • Brett Johnson, University of Minnesota • Two exceptionalisms exist in the American hemisphere: U.S. (i.e. “American”) exceptionalism, and Brazilian exceptionalism. These exceptionalisms are most evident within each country’s laws regarding racist speech and defamation. The United States permits racist, discriminatory, blasphemous and borderline defamatory speech like no other country. In Brazil, racism and other forms of hate speech are banned under constitutional and statutory law, and the law acts to protect the honor of citizens, especially public figures. This paper will compare these two areas of law within each country. The paper will address foundational cases and constitutional precepts in both the U.S. and Brazilian context and incorporate both U.S. and Brazilian legal theory in order to show how each exceptionalism plays a central role in its respective country’s civilization vision as both a hemispheric and global power.

New Media, New Guideline? • Hyosun Kim, University of North Carolina • This study examines the possible advertising regulatory issues surrounding DTC advertising of prescription drugs by analyzing NOVs and warning letters sent to pharmaceutical companies in the past five years, with particular attention to online media promotion. The study found that the fair balance issue is a concern for online pharmaceutical promotions of prescription drugs. In addition, the research shows that new alleged violation categories were added due to the advent of new media.

Cameras in the Courtroom 2.0: How Technology is Changing the Way Journalists Cover the Courts • Christina Locke Faubel, University of Florida • The “cameras in the courtroom” issue has expanded to include handheld image dissemination and real-time reporting using cell phones, laptops, and third-party platforms such as Twitter. This study examined the legal status of live-reporting with mobile devices in state and federal courtrooms across the country and developed both a model policy for courts on the use of electronic devices and a list of best practices for journalists.

The right to bear cannons: Reevaluating DDoS actions as civic protest • Vyshali Manivannan, Rutgers University School of Communication & Information • This article will reconstitute Distributed-Denial-of-Service actions as symbolic speech within a civil disobedience framework. It will consider technical, historical, and sociocultural inflections of law and policy concerning the Computer Fraud and Abuse Act, DDoS case law, symbolic speech considerations, and semiotic disobedience of expressive altlaws. Finally, it will suggest a revision of legal frameworks and current DDoS strategies to redress the overreach and exorbitant punishments of the CFAA without exceeding First Amendment protections.

Drone Journalism: Using Unmanned Aircraft to Gather News and When Such Use Might Invade Privacy • Karen McIntyre, University of North Carolina at Chapel Hill • Journalists in the United States have started gathering news by collecting photos, video, and other data using small drones – aircraft with no onboard pilot. The new use of this technology could benefit the future of journalism. However, it currently is illegal for private people or entities to operate drones for commercial purposes. The Federal Aviation Administration, which regulates drone use, is developing new rules that are expected to allow commercial drone use, but not until the end of 2015. Once journalists can legally operate drones, how will they be able to use them without invading people’s privacy? This paper examines the possible uses of drones for journalism and how drones are regulated. Further, it analyses court decisions in existing surreptitious newsgathering and aerial surveillance cases, which courts might rely upon to decide future cases in which journalists intrusively use drones. Based on these cases, this paper suggests the ways drone journalism may invade a person’s privacy and offers guidelines to journalists considering the use of unmanned aircraft to gather news.

Check your rights at the schoolhouse door: Thomas and the narrowest view of student speech • William Nevin, University of Alabama • In Morse v. Frederick, the Supreme Court was confronted with a difficult issue: Should students be allowed speech rights where that speech is on illegal drug use? Justice Clarence Thomas, in siding with the majority against the student, went so far as to claim students should have no First Amendment rights. This paper is an examination of how Thomas came to that conclusion and ultimately a refutation of his methods.

Participatory Democratic Governance and Judicial Balancing of Privacy and Expression in the United Kingdom • Bryce Newell, University of Washington, Information School • The rights of privacy and expression often conflict. Case law from the United Kingdom suggests that the incorporation of the European Convention on Human Rights into domestic law has changed domestic participatory governance in the UK and, in line with prior theory, has increased transparency and given greater political authority to courts. It has also spurred the growth of domestic privacy law at the expense of the rights of the press to free expression.

The Supreme Court’s “Indecision” on the FCC’s Indecency Regulations Leaves Broadcasters Still Searching for Answers • Robert Richards, Pennsylvania State University; David J Weinert • In June 2012, the U.S. Supreme Court left broadcasters in a “holding pattern” by sidestepping the longstanding question of whether the F.C.C.’s broadcast indecency policy can survive constitutional scrutiny today given the vastly changed media landscape. The Court’s narrow ruling in FCC v. Fox Television Stations, Inc. let broadcasters off the hook for the specific on-air transgressions that brought the case to its docket, but did little to resolve the larger issue of whether such content regulations have become obsolete. This paper provides an in-depth analysis of the legal hurdles the F.C.C. will face in attempting to construct any modified policy governing broadcast indecency. It discusses the insurmountable First Amendment considerations that will plague the Commission in its efforts, including the current exceptions that swallow the rationale for the regulations and the dramatically changed media landscape that render them futile.

Newspapers, Cross-Ownership, and Antitrust in the Digital Era • Frank Russell, University of Missouri-Columbia • This paper examines the Federal Communications Commission’s newspaper-broadcast cross-ownership rule in the context of reduced print publication days for Newhouse Newspapers’ publications in New Orleans and Alabama and the rise of online sources for local news. A standard of audience concentration is proposed based on the Herfindahl-Hirschmann Index, or HHI, used by the U.S. Department of Justice and Federal Trade Commission to measure economic concentration in a market.

The “First Amendment” in Nepal: How Madison’s America Informs Press Freedom Efforts Globally • Joseph Russomanno, Arizona State University • As the reality of McLuhan’s global village grows by the day, previously under-the-radar nations assume new positions of relevance. Analyzing Nepal’s efforts to transform itself from monarchy to democracy, complete with a constitution that includes press and speech freedom provisions, is useful. It serves to highlight the uniqueness of America’s post-revolutionary experience that resulted in, among other documents, the First Amendment. This paper focuses on those unique circumstances, in part by utilizing a Madisonian perspective.

A Reputation Held Hostage? Commercial Mugshot Websites and the Trade in Digital Shame • Kearston Wesner, University of Minnesota Duluth • Recently, a spate of websites trafficking in arrestees’ booking photographs has emerged. Booking photographs, commonly known as mugshots, are ordinarily legitimate public records that enable people to engage in a “community watchdog” function and ferret out government abuses of power. However, these new websites also serve a nefarious commercial purpose. They post mugshots for public review and only offer to remove them upon suitable payment, even when the subject of the mugshot has been exonerated of any crime. Publication of mugshots raises significant privacy interests and concerns about prejudicial trials. Further, easy access to government documents and a high possible payoff will likely fuel the creation of more similar sites. The paper analyzes the status of mugshot websites and considers two recent proposals for dealing with them: the right-of-publicity lawsuit and statutory measures.

When (News)Gathering Isn’t Enough: The Right to Gather Information in Public Places • Elizabeth Woolery, UNC-Chapel Hill • In dozens of highly publicized cases in 2011, reporters were arrested covering Occupy Wall Street and spin-off protests. In other cases citizens have been arrested for using their cell phones to videotape law enforcement officials. Though these cases are factually different, they raise this same important legal issue: Is there a First Amendment right to gather information in public places?

The Press, the Public, and Capital Punishment: California First Amendment Coalition and the Development of a First Amendment Right to Witness Executions • Elizabeth Woolery, UNC-Chapel Hill • The United States Supreme Court has never addressed the issue of access to government-conducted executions. This paper examines the approaches courts have used to determine whether a First Amendment right of access to witness all phases of executions exists, in light of and following the the Ninth Circuit’s 2002 holding in California First Amendment Coalition v. Calderon (CFAC). Two recent cases have again put the issue of constitutional access to executions in the national spotlight.

(Virtual) Crime & (Real) Punishment: The PROTECT Act’s Punishment of Erotic Cartoons as Child Pornography • Jason Zenor, SUNY-Oswego • In 2008, Christopher Handley was convicted and sentenced to six months in jail for receiving Japanese anime cartoons that portrayed fictional children engaged in bestiality. Pursuant to the PROTECT Act, possession of virtual child pornography was punished as it was found to be obscene. This current law replaced the Child Pornography Protection Act, which had an outright ban on virtual child pornography, but was deemed unconstitutional by the U.S. Supreme Court in Ashcroft v. Free Speech Coalition.  However, under the PROTECT Act, if the work is deemed to be obscene, the defendant will be sentenced under the more severe crime of child pornography- and is forever branded a sex offender- even if it is only possession of the work. This paper argues that such an overbroad law-based in the good intention of protecting children from actual harms- is instead, at best, a tenuous connection between the unwanted harm and the speech prohibited. First, this paper will examine the development of sexually explicit Japanese animation and the sociological and historical roots of the genre, illustrating the social value that it has for its fandom. Second, the paper will outline recent cases where collectors of such anime have been convicted of obscenity possession and sentenced as child pornographers. Next, the paper will outline the law of obscenity and child pornography in the United States. Finally, the article will argue that the PROTECT Act is overbroad and misguided and is antithetical to free expression values.

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