Friday, September 18, 2009
Thursday, September 17, 2009
Although they emerged seven decades apart, commercial broadcasting and the Internet were greeted with similar excited declarations of their potential to transform American democracy by hosting an electronic free marketplace of ideas that would inform and enlighten citizens and catalyze discussion on issues of public importance. The federal government played a central role in the initial development and proliferation of both technologies, but then assumed very different regulatory orientations to the two industries once they were commercialized. In broadcasting, the government took on an interventionist posture promoting civic republican First Amendment values by means of a variety of public interest programming requirements, justified by the public ownership and scarcity of broadcast spectrum. Technological, constitutional, regulatory and political constraints, however, conspired to render the broadcast public interest standard largely ineffective at realizing the democratic and expressive potential of the broadcast media.
In contrast to its proactive orientation towards broadcasting, the government shifted to a noninterventionist posture towards the Internet after having played a seminal role in its creation and popularization. While touting the Internet’s importance as a transformative democratic and expressive instrument, the government has preferred to rely on the commercial marketplace to optimize the Internet as a ubiquitous and vibrant platform of diverse and free democratic discussion, cultural expression, and social interaction.
The government’s deference to the commercial marketplace to realize the democratic and expressive potential of the Internet, and especially high-speed broadband, has not served the nation well. The United States continues to fall significantly behind other industrialized nations in the proliferation of broadband service that is universal, fast and inexpensive. Although expression abounds on the Internet, private censorship does too. There is very little public space online where the full complement of First Amendment protection applies, and very few local governments have interactive online presences. Whereas the Internet was hoped to bring citizens together for deliberative democratic exchange, there is much evidence that it atomizes attention, breeds civic disengagement, and fosters factionalism and polarization, while often undermining true deliberation in political discussion.
In light of these concerns, as well as the Internet’s emergence as a medium rivaling broadcasting in centrality and influence, this article argues that the federal government should adopt a much more proactive approach towards the Internet and broadband especially. It proposes that some of the principal goals valorized by the broadcast public interest standard - universal service, democratic engagement in a marketplace of ideas, diversity and localism - should serve as a template for affirmative government interventions designed to promote the Internet’s democratic and expressive potential while helping mitigate its harms. The article discusses a number of proposals to operationalize a broadband public interest standard, including direct subsidies for universal broadband service to underserved communities, support for public fora on local and state government websites as well as noncommercial locally oriented content, and a requirement for network neutrality. It concludes with a discussion of how such proposals would be consistent with the First Amendment, satisfying both the autonomy-rooted and civic republican conceptions of democracy, and avoiding the legislative, regulatory and administrative pitfalls of the broadcast public interest standard.Download the Article from SSRN here.
Wednesday, September 16, 2009
Tuesday, September 15, 2009
The Sacramento Bee reports that a California trial judge has ruled that a former University of California, Davis, police officer may take steps to discover who has posted anonymous comments on a Google blog by hiring an "independent third party" to unearth that person (or persons') identity. The ruling comes after Calvin Chang, the former police officer, found comments on blogger David Greenwald's site that he thought were made by UC Davis "insiders" in violation of a settlement agreement. While the judge agreed with Mr. Greenwald that Mr. Chang could not simply demand the names of the posters, she will allow further action on Mr. Chang's part to uncover the names of the posters--hence the hiring of the third party. Read more here.
Monday, September 14, 2009
According to the Blog of Legal Times, Gerald and Patricia Green have been found guilty under the Foreign Corrupt Practices Act of "conspiring to bribe a former Thai government official to obtain contracts that provided for, among other things, control of the annual Bangkok International Film Festival." Read more here in a Blog of Legal Times post.
Although the Google Books Settlement has been criticized as anticompetitive, I conclude that this critique is mistaken. For out-of copyright books, the settlement procompetitively expands output by clarifying which books are in the public domain and making them digitally available for free. For claimed in-copyright books, the settlement procompetitively expands output by clarifying who holds their rights, making them digitally searchable, allowing individual digital display and sales at competitive prices each rightsholder can set, and creating a new subscription product that provides digital access to a near-universal library at free or competitive rates. For unclaimed incopyright books, the settlement procompetitively expands output by helping to identify rightsholders and making their books saleable at competitive rates when they cannot be found. The settlement does not raise rival barriers to offering any of these books, but to the contrary lowers them. The output expansion is particularly dramatic for out-of-print books, for which there is currently no new output at all.
Although they have differed in their approaches, courts deciding right of publicity cases have almost uniformly assumed that the appropriate way to test the constitutionality of the claim is to weigh the plaintiff's publicity interest against the defendant's free speech claim. The question left unanswered is what could possible give sufficient weight, in particular to a nonadvertising publicity claim, to allow it plausibly to outweigh the first amendment. The paper argues that no plausible jurisprudential predicate for this practice exists unless one is willing to accept the argument that interests expressed in economic terms are inherently weightier than traditional liberty interests. If this argument is unattractive, then the premise behind applying a balancing test for publicity claims is also flawed, leaving the tort The paper suggests that, at least outside the area of advertising uses, traditional first amendment analysis leave only the smallest of spaces for publicity rights.