Law and Policy 2017 Abstracts

‘Famous in a Small Town’: Indeterminacy and Doctrinal Confusion in Micro Public Figure Doctrine • Matthew Bunker, University of Alabama • The determination of which defamation plaintiffs are public figures is frequently outcome-determinative in libel litigation. Yet courts are wildly inconsistent in their rulings on what this paper refers to as micro public figures – individuals who have achieved notoriety within a small geographic area or within a particular cultural niche. Should such plaintiffs be characterized as all-purpose public figures? This paper analyzes the case law and offers a more precise approach to this problem.

Gag Clauses and the Right to Gripe: The Consumer Review Fairness Act of 2016 • Clay Calvert, University of Florida • This paper examines new legislation, including the federal Consumer Review Fairness Act signed into law in December 2016, targeting non-disparagement clauses in consumer contracts. Such “gag clauses” typically either prohibit or punish the posting of negative reviews of businesses on websites such as Yelp and TripAdvisor. The paper asserts that state and federal statutes provide the best means, from a pro-free expression perspective, of attacking such clauses, given the disturbingly real possibility that the First Amendment has no bearing on contractual obligations between private parties.

Social Media Under Watch: Privacy, Free Speech, and Self-Censorship in Public Universities • Shao Chengyuan • This study examines social media monitoring in the case of two large Southeast public universities. One university has been using a social media monitoring program for years; the other has not adopted this new form of monitoring technology. In this survey, students were asked about their perception and acceptance of monitoring from the university, their concern for online privacy, support for online free speech, and experience with cyberbullying. This study explores the relationships among attitude toward online privacy and online free speech, perception and acceptance of monitoring, and willingness to self-censor when speaking on social media. The correlation analysis showed that the more one is concerned about online privacy and supports online free speech, the less likely that person would regard social media monitoring as acceptable. While those who were more concerned about online privacy were more likely to self-censor, those who were more supportive of online free speech were less likely to self-censor. Most important, this survey found that perception of monitoring was not positively correlated with self-censorship, which goes against the assumption that awareness of surveillance from an authority would cause self-censorship. In addition, this study found that, while 85 percent of the surveyed students use social media on daily basis, more than 60 percent were not greatly concerned about social media monitoring from the university and the government. Implications for studies on social media monitoring and direction for future research are discussed.

Don’t Bother: How Exemption 3 of the Freedom of Information Act Enables an Irrebuttable Presumption of Surveillance Secrecy • Benjamin W. Cramer, Pennsylvania State University • The Freedom of Information Act of 1966 (FOIA) gives American citizens a legally-protected procedure to request documents from federal agencies in the Executive Branch and to appeal denied requests. However, the Act acknowledges that some government-held information should remain undisclosed for purposes of safety or security, so the act has exemptions mandating that certain categories of information can be withheld. Exemption 3 states that a federal agency can withhold a document that has already been deemed non-disclosable in a different statute. Exemption 3 is often used by agencies that are involved in traditional national security practices and the controversial modern techniques of pervasive electronic surveillance, as justification for keeping information on those practices secret. This is possible because there are many other statutes in the security field that already allow those types of documents to be withheld in the event of a citizen request, and FOIA Exemption 3 does not allow flexibility in how those statutes are interpreted. This has allowed agencies to exercise greater discretion toward information that they do not wish to disclose to citizens, while the judiciary has almost uniformly deferred to agency discretion. This article will argue that Exemption 3 has inadvertently made the security and surveillance establishment more secretive, creating a nearly irrebuttable presumption that documents must not be disclosed to citizens or journalists.

Who Should Regulate? Testing the Influence of Policy Sources on Support for Regulations on Controversial Media • Kyla Garrett Wagner, University of North Carolina at Chapel Hill; Allison Lazard, University of North Carolina at Chapel Hill • Policy research has explored the relationship between perceived effects of controversial media exposure and support for regulations on controversial media, but it has yet to examine how the source of these regulations impacts support. Therefore, this study used a between-subjects experiment to explore how sources of media policies (government vs. industry) influence support for a media policy. Two policy were used: one on pornography and one on violent video games. Other potential predictors of policy support (source credibility, attitudes, and beliefs) were also assessed. We found that while the source of a media policy did not influence support for a media policy, perceived credibility of the policy source and personal beliefs and attitudes about the controversial media were significant predictors of support for a media policy. However, these variables influenced support for the two media policies differently. This study suggests 1) policymakers should assess regulations on controversial media individually to understand what will gain social support for a policy, and 2) future research is needed to explain the differences in these variables across media policies.

Depictions of Obscene Content: How Internet Culture and Art Communities Can Influence Federal Obscenity Law • Austin Linfante, Ohio University • A recent decision by the United States District Court for the Southern District of Iowa, United States v. Handley (S.D. Iowa 2008), complicates how current obscenity law (notably the PROTECT Act of 2003) can prosecute depictions of obscene content. These would include any sort of artwork or simulation that simulates or uses fictional characters to depict otherwise obscene material without using or harming any real-life living beings. This paper will first look at previous court cases, laws and academic literature to determine how obscene content as well as depictions of obscene content have been ruled in the past in terms of whether or not they are protected speech. This will also include examining how online art communities such as DeviantArt and FurAffinity police themselves when it comes to this type of content. There will also be a discussion about how specific types of obscene content like child pornography and bestiality affect a viewer’s likelihood to commit sex crimes themselves. Afterwards, this paper will present the case behind expanding current federal law on obscene content to include depictions of this type of obscene behavior. These model laws will all be based on how large art communities currently police this kind of content. This should ultimately lead to preventing future sex crimes against children and animals as well as provide effective obscenity law.

A Gap in the Shield? Reporter’s Privilege in Civil Defamation Lawsuits 2005-2016 • Meghan Menard-McCune, LSU • The purpose of this study is to determine how state courts and legislatures have addressed reporter’s privilege in civil defamation cases. After an analysis of court cases in six states, the study found three issues relating to reporter’s privilege that the courts addressed: 1) The state shield law’s definitions of news and news media 2) The waiver of the shield law and the protection of unpublished material 3) The shield law’s defamation exception.

“Oligopoly of the Facts”? Media Ownership of News Images • Kathleen Olson, Lehigh University • This paper examines the use of the idea/expression dichotomy, the fair use doctrine and the First Amendment in cases involving news organizations suing for copyright infringement over the use of their news images, including photographs, film and video footage.

Voting Booth or Photo Booth?: Ballot Selfies and Newsgathering Protection for User-Generated Content • Kristen Patrow • This paper addresses whether ballot selfies qualify for First Amendment protection. The analysis includes both newsgathering and speech claims. Snapchat filed an amicus brief in the First Circuit case, Rideout v. Gardner. The work concentrates on Snapchat’s contention that user-generated work is newsgathering activity. The paper reviews cases on newsgathering during elections and the voting process. The analysis shows that ballot selfies are best understood as a hybrid of speech and access rights.

Say this, not that: government regulation and control of social media • Nina Brown, Syracuse University/Newhouse; jon peters • Internet law and policy discussions are converging on the problem of fake news and the idea that “the private sector has a shared responsibility to help safeguard free expression.” They have also raised the possibility of federal government intervention. This article advances those discussions by exploring what Congress could do to enact legislation requiring social media platforms to remove fake news—and whether that would be prudent. It also explores the First Amendment’s role in the private sector.

The Heat is On: Thermal Sensing and Newsgathering – A Look at the Legal Implications of Modern Newsgathering • Roy Gutterman, Syracuse University; Angela Rulffes, Syracuse University • Thermal imaging technology, which was once used primarily by the military, has made its way into the civilian world. Journalists have already begun making use of the technology, and as that use becomes more prevalent concerns about legal issues also arise. This paper, relying on tort privacy cases, Fourth Amendment case law, and theoretical conceptualizations of privacy, provides an in-depth examination of the legal implications surrounding the use of thermal imaging devices for newsgathering.

Lock or Key: Does FOIA Sufficiently Open the Right to Information? • Tyler Prime, Arizona State University; Joseph Russomanno, Arizona State University • A year after the 50th anniversary of the passage of the Freedom of Information Act was observed, criticism of – and disappointment in – the law is significant. Though written with the strong guidance of journalists, FOIA, according to many, has failed to live up to its initial promise of peeling back the layers that too often shroud the federal government in secrecy, and allowing the news media and other citizens to contribute first-hand to the democracy. The United States was only the third nation to pass such a law, but during the half-century since then, the nation has slipped to 51st among world nations by one measure in right to information. FOIA is much to blame. Issues with response rates, unorganized systems and subjective interpretations of the act and its exemptions have combined to lock information from public access rather than acting as the key it was intended to be. This paper utilizes data from annual federal agency FOIA reports to the attorney general from 2008 to 2015. This information indicates that across multiple metrics, FOIA has increasingly struggled to fulfill and often failed to provide records to requesting parties. The trends revealed suggest that significant overhaul is necessary. Rather than prescribing another round of amendments that are little more than Band-Aids on a withering dinosaur, this paper concludes with a detailed set of recommendations – highlighted by a crowd-sourced request database – that move far from FOIA’s original paper-based model that still rests at its analog core.

The Protection of Privacy in the Middle East – A Complicated Landscape • Amy Kristin Sanders, Northwestern University in Qatar • “throughout the Middle East – erroneously viewed by many outsiders as a homogenous region steeped in conservative Islamic culture – the legal landscape varies dramatically with regard to privacy. This article discusses the many influences that have shaped the legal culture throughout the region, which has drawn inspiration from the British Common Law approach, the European Civil Law heritage and centuries of Islamic thought. The result is unique legal environment that blends together traditional religious values, the impact of decades of colonialism and the recent effects of global interconnectedness as a result of the Internet and social media. Not surprisingly then, the legal framework surrounding the protection of privacy is intricate. It would be much easier to allude to the Middle East in sweeping generalizations, dividing it simply into the Levant countries on the western side and the Gulf countries on the eastern shore. But, that approach fails to address the peculiarities that exist from country to country. Although space constraints require painting with a broad brush, this article endeavors to shed light whenever possible on the region’s similarities and differences by using specific examples from countries. Recognizing the enormous undertaking that would be necessary to catalog each and every law pertaining to privacy across 14 nations, this article instead lays out a comparative framework – highlighting the influences of the common law and civil law traditions on the legal framework throughout the Middle East. It provides a high-level overview of privacy law as it exists throughout the Middle East – comparing various sources of law from Bahrain, Egypt, Iran, Iraq, Israel, Jordan, Kuwait, Lebanon, Oman, Qatar, Saudi Arabia, Syria, the United Arab Emirates and Yemen. In addition, a substantive case study highlights important recent developments and helps foreshadow coming trends in the region.”

Killer Apps: Vanishing messages, encrypted communications, and the challenges to freedom of information laws • Daxton Stewart, TCU • In the early weeks of the new presidential administration, White House staffers were communicating among themselves and leaking to journalists using apps such as Signal and Confide, which allow users to encrypt messages or to make them vanish after being received. By using these apps, government officials are “going dark” by avoiding detection of their communications in a way that undercuts freedom of information laws. In this paper, the author explores the challenges presented by encrypted and ephemeral messaging apps when used by government employees, examining three policy approaches — banning use of the apps, enhancing existing archiving and record-keeping practices, or legislatively expanding quasi-government body definitions — as potential ways to manage the threat to open records laws these “killer apps” present.

Knowledge Will Set You Free (from Censorship): Examining the Effects of Legal Knowledge and Other Editor Characteristics on Censorship and Compliance in College Media • Lindsie Trego, UNC-Chapel HIll • Issues of censorship in higher education have lately been common in the news, however it is unclear to what degree college newspapers experience external influences. This study uses an online survey of public college newspaper editors to examine specific censorship practices experienced by newspaper editors at public colleges, as well as editor compliance with these practices. Further, this study explores how personal characteristics of editors might influence perceptions of and compliance with censorship practices.

First Amendment Metaphors: From “Marketplace” to “Free Flow of Information” • Morgan Weiland, Stanford University • As cognitive linguist George Lakoff has shown, metaphors play a central role in structuring what humans understand as possible. In the First Amendment context, the central organizing metaphor for how judges, scholars, and the public understand the freedom of expression is as a “marketplace.” But little scholarly attention has been paid to a second metaphor that animates the Supreme Court’s thinking about expressive freedoms: the “free flow of information.” This paper’s project and contribution is to recover the free flow metaphor in the Court’s First Amendment doctrine, spanning over 40 opinions dating to the 1940s. This paper reviews every First Amendment opinion in which the Court used the metaphor, finding that the metaphor, by providing a new architecture that structures—and limits—how it is possible to think about who or what counts as a speaker, what qualifies as speech, what the proper role for the press is, and what role the state can play in the expressive environment, undergirds the Court’s development of libertarian theories of speech and the press. Understanding the free flow metaphor’s conceptual structure matters not only because it reveals a shift in the deeper logic of rights and responsibility undergirding the freedoms of expression, a perspective unavailable when looking at the doctrine through the marketplace metaphor’s lens. It also provides a better framework for understanding and fixing the contemporary expressive environment online because some of the most pressing social problems—cyberbullying and fake news—make more sense when assessed through the free flow metaphor’s framework.

Fake News and the First Amendment: Reconciling a Disconnect Between Theory and Doctrine • Sebastian Zarate, University of Florida; Austin Vining, University of Florida; Stephanie McNeff, University of Florida • This paper analyzes calls for regulating so-called “fake news” through the lens of both traditional theories of free expression – namely, the marketplace of ideas and democratic self-governance – and two well-established First Amendment doctrines, strict scrutiny and underinclusivity. The paper argues there is, at first glance, a seeming disconnect between theory and doctrine when it comes to either censoring or safeguarding fake news. The paper contends, however, that a structural-rights interpretation of the First Amendment offers a viable means of reconciling theory and doctrine. A structural-rights approach focuses on the dangers of collective power in defining the truth, rather than on the benefits that messages provide to society or individuals. Ultimately, a structural-rights interpretation illustrates why, at the level of free-speech theory, the government must not censor fake news.

Half the Spectrum: A Title IX Approach to Broadcast Ownership Regulation • Caitlin Carlson, Seattle University • Women make up half of the U.S. population yet own less than eight percent of commercial television and radio broadcast licenses. This is incredibly problematic given the important role women’s media production and ownership plays in the feminist movement. Mass media set the agenda for public debate, frames issues, and primes viewers with the frameworks they should use to evaluate those issues. Women’s greater participation at ownership levels would enable women to speak publicly about their experience, which could substantially alter the agenda set by mass media or shift the frames used to interpret current events. For its part, the FCC has been trying for the past 40 years to address the absence of women and people of color from media ownership. However, in 2016 the Commission rejected race- or gender-based considerations in favor of privileging independent media organizations as the most effective way to achieve viewpoint diversity. Given the failure of the FCC to fix the problem, I argue here that a radical new approach is needed. Using Title IX of the Education Amendments of 1972 a guide, I propose that legislation be developed that prohibits denying members of either sex the chance to participate in broadcast media organizations, which like educational institutions, receive financial benefits from the federal government. Here, I liken broadcast licenses to federal funds and propose that failure to comply with this anti-discrimination policy could result in license removal.

China’s personal information protection in a data-driven economy: A privacy policy study of Alibaba, Baidu and Tencent • Tao Fu • China’s Internet companies are expanding their businesses at home and abroad with huge consumer data at hand. However, in the global data-driven economic and technological competition, China’s personal information protection is behind that of the West. By content analyzing the online privacy policies of leading Chinese Internet and information service providers (IISPs) – Alibaba, Baidu, and Tencent, this study found their privacy policies to be generally compliant with China’s personal information protection provisions. The three IISPs used proper mechanisms showing their commitment, measures, and enforcement to data security but their Fair Information Practices need further improvement. The ecosystem of personal information protection in China is severe and users need privacy literacy. Privacy policies in this study offer more about ‘notice’ than they do ‘choice’. Chinese IISPs collect and use information extensively in the guise of providing value to the user. Societal mechanisms such as joining a third-party, seal-of-approval program and technological mechanisms such as using a standardized format for privacy policies have not been widely sought by Chinese IISPs. Lagging behind their global acquisition and operation, Chinese IISPs’ efforts in personal information protection have given insufficient consideration to transborder data flow, and to change of ownership. Recommendations were offered.

Reforming the Lifeline Program: Regulatory Federalism in Action? • Krishna Jayakar; EUN-A PARK, Institute for Information Policy at Pennsylvania State University • This paper considers whether common national standards for determining participants’ eligibility and designating service providers in the Lifeline program are preferable to a decentralized system where state utility commissions have greater influence over these program parameters. Two recent decisions of the Federal Communications Commission (FCC), a 2016 Order and its reversal in March 2017, on the designation of Eligible Telecommunications Carriers to provide broadband Lifeline service, centered on this question. Statistical analysis of program data demonstrates that state-by-state variations in enrollment may be attributed to state-level policy actions, after controlling for alternative demographic and economic explanations. On the premise that state-by-state variations in participation rates in a federal program are unfair because they burden consumers solely based on their location, this paper concludes in favor of national standards.

The Medium is the Message: Digital Aesthetics and Publicity Interests in Interactive Media • Michael Park, Syracuse University • Recent application of the right of the publicity doctrine to interactive media has led to inconsistent rulings and uncertainty to the doctrine’s scope, when pitted against First Amendment considerations. These recent court decisions have inadequately explained the disparate application, and this uneven application of legal principles raises serious free speech concerns for expressive activities with other emerging interactive media platforms such as virtual reality. However, these recent decisions have unveiled discernible principles that help explain the disparate approach of the right of publicity doctrine to new interactive media. This article articulates the assumptions guiding the disparate application of the doctrine. This article begins with a historical overview of the right of publicity doctrine and the various approaches adopted by the courts. It will then focus its attention on the transformative work test and address the recent analytical pivot—from a holistic examination of the work to a myopic focus on the individual avatar—by employing a natural rights theory argument to explain the courts’ narrow approach to transformativity. Furthermore, this paper makes the case that the courts’ discordant doctrinal treatment of interactive games is premised in the misplaced notion that the medium lacks artistry and authorial signature (i.e. interactive games are not art, but rather craft). Finally, this work advances the argument that while today’s interactive games present rich historical and pedagogical content, courts have failed to adequately apply common law and statutory exemptions that include not only news, but works of fiction, entertainment, public affairs and sports accounts.

The Privilege That Never Was: The Curious Case of Texas’ Third-Party Allegation Rule • Kenneth Pybus, Abilene Christian University; Allison Brown, Abilene Christian University • Beginning in 1990, the year the Supreme Court of Texas decided McIlvain v. Jacobs, journalists and media lawyers alike operated under the belief that news outlets in Texas had a powerful protection against libel lawsuits when reporting third-party allegations about matters of public concern. Relying on McIlvain, appeals courts cited the “third-party allegation rule” time and again when finding in favor of media defendants. But, after more than two decades, the Supreme Court threw the state’s libel jurisprudence into discord by ruling in 2013 that the third-party allegation rule didn’t exist in common law and, in fact, never had existed. A corrected opinion withdrew some repudiatory language but introduced more ambiguity. The Texas Legislature responded to this abrupt about-face in the summer of 2015 by crafting and passing an apparently sweeping statutory third-party allegation privilege that restores the protections journalists believed they had in such cases. Little legal scholarship has examined the circuitous history of this privilege and its powerful potential for limiting libel claims against media.

Beyond “I Agree:” Users’ Understanding of Web Site Terms of Service • Eric Robinson, University of South Carolina; Yicheng Zhu, University of South Carolina • With the ubiquitous use of websites and social media, the terms of service of these sites have increasing influence on users’ legal rights and responsilibities when using these sites. But various studies have shown that users rarely review these terms of service, usually because they are too much trouble and are often are too complex for most users to understand; one proposed solution is simplification of the language of these documents. Our experiment took advantage of a major website’s revision of its terms of service to reduce legal jargon and make them more understandable to determine whether the changes resulted in language that more effectively conveyed the intended meanings. But our results show that such changes are likely to have minimal effect, and that users generally based on understanding of what is permitted and not permitted on websites with their preconceived notions. Based on this finding, we present some proposals to address this issue.

Revisiting copyright theories: Democratic culture and the resale of digital goods • Yoonmo Sang, Howard University • This study surveys theoretical justifications for copyright and considers the implications of the notion of cultural democracy for copyright law and policy. In doing so, the study focuses on the first sale doctrine and advocates the doctrine’s expansion to digital goods after discussing policy implications of the first sale doctrine. Arguments for and against a digital first sale doctrine are followed. The study argues that democratic copyright theories, in general, and the notion of cultural democracy, in particular, can and should guide copyright reforms in conjunction with a digital first sale doctrine. This study contributes to the growing discussion of democratic theories of copyright by demonstrating their applicability to copyright policy and doctrine.

A Secret Police: The Lasting Impact of the 1986 FOIA Amendments • A.Jay Wagner, Bradley University • The 1986 amendments to the Freedom of Information Act were a passed as a last-minute rider to the Anti-Drug Abuse Act, the Reagan era legislative contribution to the War on Drugs policies. The amendments though small in number and limited in congressional discussion have made a lasting impact on FOIA implementation. The three pieces – a broad restructuring of Exemption 7, the law enforcement exemption; the addition of exclusions for law enforcement and intelligence requests; and introduction of a new fee structure – were aimed at addressing concerns from the law enforcement and intelligence communities and in-line with the general aims of the Anti-Drug Abuse in providing law enforcement more tools and less scrutiny in combating illicit drug production, sale and use. The paper looks to consider the amendment along two tracks. In the tradition of legal scholarship, preceding legislative efforts, judicial decision and executive messaging are pursued in an effort to understand motives and purpose of the amendment. The second track uses a dataset of cabinet-level department FOIA annual reports figures from 1975 until 2016 in exploring the ways the FOIA has been used and administered. The dataset gleaned from more than 550 annual reports traces the ways the 1986 amendment altered civic access to information on policing and national security. Presently, Exemption 7 accounts for 57 percent of all exemption claims and “no records” responses – a direct outcome of exclusions – account for the closure of 15 percent of all records processed and demonstrate massive growth after the amendment. The study demonstrates how the 1986 FOIA Reform Act has undermined the public’s ability to provide oversight of law enforcement.

Essential or Extravagant: Considering FOIA Budgets, Costs & Fees • A.Jay Wagner, Bradley University • The budgets, costs and fees of the Freedom of Information Act represent the financial lifeblood of the access mechanism but are rarely considered in scholarship. This study considers these elements of FOIA administration through a combination of traditional legal scholarship and a database composed of more than 500 FOIA annual reports, compiling 93 percent of all cabinet-level department annual reports from 1975 until present. In exploring the legislative and judicial trajectory of the costs and fees of FOIA implementation, including the illustrative Open America decision and its recognition of a lack of resources as an acceptable rationale for delay, the study questions the sincerity of FOIA administration. Lack of resources has existed as a legal claim for delay since the 1976 Open America decision, yet no statutory progress has been made since. FOIA – a galling obligation for most federal agencies – is required to compete for funding with other agency priorities among the general agency budget. There is no legislative requirement nor guideline in how FOIA is funded, and as a result, FOIA funding is remarkably low (all while the federal government countenances resource excuses). Analysis of FOIA annual report data uncovers little in the way of consistent or coherent system in costs accrued, fees collected, staffing measures and general usage data. The study aims to take a small step in asking big questions about how and why FOIA is financed in the manner it is, and, further, whether such lack of funding and oversight demonstrates insincerity on the government’s part.

State-level Policies for Personal Financial Disclosure: Exploring the Potential for Public Engagement on Conflict-of-Interest Issues • John Wihbey, Northeastern University; Mike Beaudet, Northeastern University • This paper examines personal financial disclosure practices required for public officials across U.S. states and finds that more than 80 percent of states rate poorly when evaluated on a set of objective criteria. A “disclosure degree” score is calculated for each state; these scores are then brought together with a related set of measures to evaluate transparency more broadly for public officials in each state. Levels of public corruption in each state are also considered. For financial disclosure to be meaningful, we argue, three interconnected areas must be evaluated: First, the precision of the information required by law to be disclosed; second, the degree of openness and relevance of information toward the detection of conflicts of interest; third, the degree to which institutional monitors – prosecutors, news media, ethics commissions – can generate public knowledge.


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