Law and Policy 2009 Abstracts
Law and Policy Division
Garland v. Torre and the Birth of Reporter’s Privilege • Stephen Bates, Nevada, Las Vegas • In 1957, Marie Torre, TV columnist for the New York Herald Tribune, wrote that Judy Garland was balking over a planned CBS special, apparently because, according to Torre’s network source, she “thinks she’s terribly fat.” Garland sued CBS for defamation and subpoenaed Torre to learn the name of her source. Torre herself then became something of a celebrity by refusing to identify him.
Information-Privacy Rights in International Human Rights Law • Cheryl Ann Bishop, Quinnipiac • The right of access to personal information held by governments is an evolving right in international human rights law. This study examines the right to personal information guaranteed by the various human rights regimes – the European, Inter-American, African, and United Nations – and identifies commonalities regarding how the right is conceptualized. This study finds that the right to personal information is broadly recognized and that it is conceptualized fairly consistently across the various human rights regimes.
The Greatest First Amendment Victory Harry A. Blackmun Ever Lost: How the U.S. Supreme Court Decided Gannett Co. Inc. v. DePasquale • John Bender, Nebraska-Lincoln • In Gannett v. DePasquale, the Supreme Court rejected enforceable right for the public to attend judicial proceedings under the Sixth Amendment. In dissent, Justice Harry A. Blackmun argued for recognizing such a right. Blackmun’s dissent began as the majority opinion and became a dissent only after Justice Lewis F. Powell Jr. switched his vote. Notes and memoranda among the papers of Justices Blackmun and Powell provide insights into why Powell switched his vote.
Tinker’s Midlife Crisis at 40: Tattered and Transgressed But Still Standing • Clay Calvert, Florida • This paper examines the erosion of the strength of the Supreme Court’s 1969 opinion in Tinker v. Des Moines Independent Community School District. Indicators of decline range from Justice Thomas’ stunning call in Morse v. Frederick for overruling Tinker to recent lower-court opinions using Tinker to censor off-campus expression posted on the Internet. The paper explores possible reasons for the decline and abuse of Tinker and it makes suggestions for its reinvigoration.
Bailing Out the Print Newspaper Industry: A Not-So-Joking Public Policy & First Amendment Analysis • Clay Calvert, Florida • Daily print newspapers face a financial crisis. This paper examines what initially was a satirical proposal for a government bailout of the print-newspaper industry, modifying the initial idea and then both defending and critiquing it. In the process, the paper: uses the work of constitutional scholar Cass Sunstein and veteran journalists; employs the marketplace of ideas metaphor; and examines the press’s watchdog role, the Supreme Court’s Tornillo decision and the Newspaper Preservation Act of 1970.
Contrasting Concurrences of Clarence Thomas: Deploying Originalism and Paternalism in Commercial and Student Speech Cases • Clay Calvert, Florida, and Matthew Bunker, Alabama • This paper compares and contrasts, through the lenses of both originalism and paternalism, Justice Thomas’ radically different views of free expression in two relatively new areas of First Amendment jurisprudence: commercial speech and student speech. The paper pivots on the question of how Thomas reached diametrically opposed conclusions about the scope of – indeed, very existence of, in the case of students -speech rights in 44 Liquormart, Inc. v. Rhode Island and Morse v. Frederick.
Gate keeping the gatekeepers: International Community and Freedom of Information in Kosovo • Lindita Camaj, Indiana • This study suggests that the effects of international community are greater during the adopting process of FOI laws in transitional countries, but less effective on behavioral changes that accommodate the implementation of these laws.
Truth be Told: An Analysis of FDA Interpretation of “True Statement” Regulations for DTC Advertising • Sheetal Chhotu-Patel, North Carolina • Direct-to-consumer prescription drug advertisements are legally required to provide a “true statement,” of drug information. This study analyzes how the FDA interprets the true statement requirement by examining 68 regulatory letters. With a few exceptions, the FDA interpreted literally the complaint categories of omission of material information, unsubstantiated comparative claims, overstatement of efficacy, and broadening of indications. Inclusion of risk information and how risk information is presented were more broadly interpreted. Implications are also discussed.
Clearing Up the FOIA Transparency Question: How Congress Can Break the Coming Deadlock • Benjamin Cramer, Michael D. Todd, and Martin E. Halstuk, Penn State • The purpose of this paper is to shed light on what is shaping up to be a clash between the newly inaugurated President Barack H. Obama’s stated goals for transparency and the Supreme Court’s restrictive view of agency-disclosure obligations under the FOIA. This research project concludes that a resolution to this conflict ultimately rests with the third branch of government—the Congress, which possesses the legal authority to decide this question.
The Declining First Amendment Rights of Government News Sources • Robert Drechsel, Wisconsin • In Garcetti v. Ceballos, the Supreme Court in 2006 held that public employees have no First Amendment protection against retaliation for speech they engage in pursuant to their job duties. The decision inherently strengthens government’s ability to control employees’ interaction with the press. Judges are struggling to determine what constitutes speech pursuant to job duties. Courts seem to be trying to interpret Garcetti to protect employee-to-journalist speech, but Garcetti limits their discretion to do so.
Bursting the Bubble: Complaints about Soap Operas to the Federal Communications Commission, 2004-2008 • Marsha Ducey, College at Brockport (SUNY) • This paper explores the content of complaints about daytime serials to the Federal Communications Commission during the years 2004 through 2008. A quantitative content analysis on a total of 198 complaints was done. The complaints show that the complainants do not have a clear understanding of what the Federal Communications Commission can regulate. The most common complaints were related to language that complainants considered profane and/or obscene and to the depiction of homosexual relationships.
American Exceptionalism, The French Exception, and Harmonization of International Intellectual Property Law • Leo Eko, Iowa • The aim of this paper was to study the differential postures of the United States and France with regard to international intellectual property law, using as a case study both country’s adhesion to the Berne Convention for the Protection of Literary and Artistic Works, and transposition of the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) of 1996.
Lies, Damn Lies and Statistics: Developing a Clearer Assessment of Market Penetration and Broadband Competition in the United States • Rob Frieden, Penn State • The paper concludes that the FCC and the National Telecommunications and Information Administration have overstated broadband penetration and affordability by using an overly generous and unrealistic definition of what qualifies as broadband service, by using zip codes as the primary geographic unit of measure and by misinterpreting available statistics. Additionally the FCC includes as competition services lacking any true cross-elasticity with other services based on substantial price differences.
Using social frameworks: Incorporating word-picture juxtaposition research into libel law • Tom Grimes, Texas State, Robert Drechsel, Wisconsin, and Amy Reynolds, Indiana • This paper uses Monahan and Walker’s (1987) social framework approach to incorporate word-picture juxtaposition research into the adjudication of libel law. Specifically, it argues for a new category of defamation, Type 3, which occurs when a message receiver incorrectly “remembers” something as defamatory because of racial, ethnic or gender stereotypes.
False Sense of Security: The impact of FERPA’s campus crime provision on the release of student records related to campus safety • Jennifer Harlow, North Carolina • Despite recent tragic events on college campuses, the federal student privacy law continues to impede information-sharing critical to campus safety. FERPA was amended in 1992 to allow access to campus law enforcement records following the Student Press Law Center v. Alexander decision. This paper reviews court cases and legislative action to address how FERPA has been applied in questions involving access to campus security since that amendment.
We All Need Somebody To Lean On(Line): Can Promises of Confidentiality Protect Digital Self-Disclosure? • Woodrow Hartzog, North Carolina • Conventional wisdom dictates individuals can have no expectation of privacy when disclosing information online. This paper examines how promises of confidentiality might legally affect the self-disclosure of information on online social networks. It concludes that the doctrine of promissory estoppel could serve to protect self-disclosure if, as a function of the online social network, explicit promises of confidentiality are required before disclosure occurs. However, a limited recovery for damages reduces the significance this remedy.
Defining Journalists: The Application of the Definition of “Journalist” to Bloggers • Shin Haeng Lee, Indiana • As the Internet has emerged as a powerful medium, a heated controversy has developed over whether bloggers can be regarded as journalists and protected by shield laws as much as traditional journalists.
Still Have a Ticket to Ride (Along): An Examination of Media Joint Activities with Law Enforcement • Jasmine McNealy, Florida • Recently the family of a man, who committed suicide when police attempted to arrest him, sued NBC claiming that its hit show “To Catch a Predator” caused the man’s death and violated his civil rights. This case demonstrates the continued possible liability for news organizations that participate in joint activities with law enforcement. This paper discusses both U.S. Supreme and lower court cases involving ride-alongs and the issues that surround this newsgathering activity.
Audience Measurement, the Diversity Principle, and the First Amendment Right to Construct the Audience • Philip Napoli, Fordham • This paper uses the lawsuits filed in 2008 by the Attorneys General of New York and New Jersey against radio audience measurement firm Arbitron, in response to Arbitron’s launch of the Portable People Meter, as the basis for an inquiry into the appropriate speech classification of audience ratings data.
We’re All Publishers Now: A New Look at Publishing in the Digital Age • Rich Powell, Indiana • The concept of publishing as a matter of law is becoming increasingly complex. Current U.S. law defines publishing in three areas – one statutory (copyright) and the others equity (libel and privacy). The standards in all three definitions are fairly distinct, but well-suited to their specific intentions. It is now questionable, however, if these definitions are suitable in the digital age.
Sex, Lies and the Internet • Robert Richards, Penn State • As blogs and social networking sites proliferate, the level of discourse continues to ramp up to a point where defamatory and other damaging content is becoming more commonplace. This paper examines whether an Internet Service Provider should ever face liability for such actionable content, particularly when the third-party remains anonymous, or should the protections of Section 230 remain intact. It proposes changes to the current immunity that has existed for more than a dozen years.
Punishment for Shade: An Analysis of Penalties and Remedies for Violations of Open Meetings Laws Across the Country • Adrianna C. Rodriguez and Laurence B. Alexander, Florida • All 50 states and the District of Columbia have enacted open meetings laws. States’ open meetings laws contain penalty provisions to remedy violations that may include civil and criminal penalties, injunctive relief, invalidation of action and removal from office. However, while state laws may provide for penalties to be levied against public officials who disregard open meetings laws, violations persist and there is little evidence that penalties are enforced.
Bloggers as Limited-Purpose Public Figures: New Standards for a New Media Platform • Amy Kristin Sanders and Sarah Arendt, Minnesota • The traditional public-figure doctrine needs to be adapted to the new faces of online media and the ever-changing conversation outlets available to news consumers on the Internet. After reviewing the traditional tests for plaintiff status determinations in defamation cases, this paper establishes a legal standard that American courts can use to determine plaintiff status in cases involving bloggers who sue for defamation.
Defining Matters of Public Concern Through State Court Decisions on Statutory Anti-SLAPP Motions • Autumn Shafer, North Carolina • This research analyzes how courts have defined the key legal concept of matters of public concern through state court decisions involving anti-SLAPP laws with threshold requirements of public concern. Factors such as whether the case involved media, government, the topic, online expression or the original SLAPP (Strategic Lawsuit Against Public Participation) are evaluated for their role in how courts have determined if a matter is of public concern. Implications to First Amendment jurisprudence are discussed.
The Right to Know, “Special Privileges” and Institutional Constraints: A Comparison of Access Cases • Derigan Silver, Denver • Based on an examination of multiple cases dealing with access to national security locations and information, the paper concludes that although many courts are unwilling to totally embrace the notion that a right of access exists outside of the judiciary, most have used the judicial access precedents to support arguments that there is at least a qualified right of access guaranteed by the First Amendment.
Power, National Security and Transparency: Judicial Decision Making and Social Architecture Theory in the Federal Courts • Derigan Silver, Denver • Examining federal cases dealing with national security and transparency, this paper determines how federal courts identify the main legal issues present in a case, or “frame” the cases, and the legal factors—such as precedent, framers’ intent/originalism, or textualism—they use to reach or justify their conclusions. The paper contends that aggregated together these decisions have created an “architecture of power” that determines how our society controls national security information.
Statutory Shield Laws in Constitutional Orbits: Rise of the ‘Covered Person’ Issue • Dean Smith, North Carolina • With the election of President Barack Obama, passage of a federal shield law protecting journalists from compelled disclosure seems certain. It also seems certain that the scope of the law’s protection – its “covered person” definition – will continue to be a source of rancor. A curious feature of debate has been the prominence of constitutional rhetoric in a discussion about statutory law.
Challenging Civil Contempt: An alternate approach to keep journalists out of jail • Daxton Stewart, Texas Christian • Despite their continued assertion of a First Amendment or common law reporter’s privilege in federal courts, journalists continue to be sent to jail, and recent consideration of a federal reporter’s shield law, if passed, would still not provide an absolute shield. In three high-profile cases since 2004, journalists were found in civil contempt of court and ordered to be confined in jail, despite their arguments that imprisonment would not coerce them to testify.
Do We Still Need Dignity: Hate and Dignity in the United States and Germany • Michael D. Todd, Penn State • This study is a comparison of landmark U.S. Supreme Court decisions concerning the treatment of hate speech and landmark German Constitutional Court decisions concerning the preservation of human dignity. The study concludes that the current limits on free speech protections under German federal law were a necessity when the law was written, but may now be an outdated and overly limited approach to free speech protections.
Sexual Speech on Internet Blogs and the Privacy Tort of Disclosure of Private Information • Kearston Wesner, Florida • Blogs (online diaries) can threaten privacy because the blogger can divulge personally-identifiable, embarrassing information to a wide audience. In 2004, a Senate staffer raised a novel issue by sharing her partners’ sexual information: what happens when someone’s First Amendment right to disclose her history conflicts with another’s desire for privacy? This paper analyzes constitutional law and the tort of public disclosure of private information to determine how courts have attempted to balance these competing interests.
Access to Information as a Right: South Korea’s 20-Year Experience • Kyu Youm, Oregon • Given that South Korea is often touted as a model case for the United States in exporting democracy abroad, Korea’s evolving experience with freedom of information deserves a systematic analysis. This is all the more compelling, considering that this year marks the 20th anniversary of the Korean Constitutional Court’s landmark case on access to information as a constitutional right.
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