June 9, 2010
Off-Campus Student Speech and Public School Control
The Third Circuit recently reheard two student speech cases, Snyder v. Blue Mountain School District, and Layshock v. Hermitage School District, in order to try to reconcile opposing lower court decisions regarding whether and on what grounds public schools can restrict student speech that occurs off campus.
Julie Hilden comments here. Joseph A. Tomain, University of Louisville Brandeis School of Law, has published Cyberspace is Outside the Schoolhouse Gate: Offensive Online Student Speech Receives First Amendment Protection, in the Drake Law Review (volume 59, 2010), on the issue. Here is the abstract.
Doctrinal and normative analyses show that schools do not possess jurisdiction over offensive online student speech, at least when it does not cause a substantial disruption of the school environment. This article is a timely analysis on the limits of school jurisdiction over offensive online student speech.
On February 4, 2010, two different Third Circuit panels issued opinions reaching opposite conclusions on whether schools may punish students based on online speech created by students when they are off-campus; one of these cases may be heard en banc. Another case addressing this same issue is currently pending before the Second Circuit. This article provides in-depth analysis on all three cases as well as associated case law
Specifically, the article focuses on one of the four Supreme Court student speech rulings, Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986). In Fraser, the court held that a school may discipline a student for giving a lewd and indecent speech at a mandatory school assembly. Fraser created an exception to the Court’s seminal student speech case, Tinker v. Des Moines Area School District, 393 U.S. 503 (1969). Tinker required a substantial disruption of the school environment before a school could punish student speech. Fraser did not require a substantial disruption because the student gave a speech filled sexual innuendo before a captive school audience.
Lower courts struggle with whether Fraser applies to offensive online speech. On February 4, 2010, one Third Circuit panel affirmed the district court by holding that Fraser does not apply to online speech. On the same day, a different Third Circuit panel declined to analyze Fraser, even though the district court upheld a school’s decision to discipline a student under Fraser. Instead, that Third Circuit panel upheld the punishment under Tinker. While not creating an express intra-circuit split, these decisions do not resolve the uncertainty as to whether Fraser applies to online student speech. The case pending before the Second Circuit will address Fraser because the certified question is whether “a school may discipline a student for inappropriate comments made off campus on a blog.”
The rule articulated in this article is that Fraser does not apply to offensive online student speech, regardless of whether it is created or accessed on or off-campus. This rule is supported by doctrinal analysis of Fraser and its progeny. The article also provides normative support for this rule under self-realization theory. Self-realization theory is influential in our Supreme Court’s First Amendment jurisprudence and was most recently invoked in Citizens United v. Federal Election Commission, 130 S. Ct. 876, 972 (Jan. 21, 2010) (Stevens, J., dissenting). Because of conflicting lower court decisions, the issue of online student speech rights will likely reach the United States Supreme Court. Through doctrinal and normative analysis, this article illustrates the importance of limiting school jurisdiction over online student speech to protect First Amendment rights of minors and others.
Freedom of Information Law in Russia and the U.S.
A brief study of the new Russian freedom of information law (No. 8-FZ, Feb. 9, 2009) through the lens of the U.S. Freedom of Information Act. While the new Russian law addresses many prior concerns of information-freedom advocates and creates a much more robust regime of access to information, several problems remain. These are in part due to certain provisions in the law, which are phrased rather broadly, as well as to the lack of institutional independence that continues to plague the Russian judiciary, at least in cases to which the government is a party. All-in-all, however, this law presents a positive step forward for freedom of information in Russia.
Download the paper from SSRN at the link. (Paper is in Russian.
Privacy and Photography in Public
Until recently, Anglo-Australian law refused to recognise a legally enforceable right to privacy. One consequence of this position was that individuals had scant protection if their photograph was taken in a public place and subsequently published. The dictum that what one could see, one could photograph represented the common law position. However, given recent developments in privacy protection, particularly in the United Kingdom following the introduction of the Human Rights Act 1998 (UK), the applicability of this dictum is doubtful. There is a growing body of case law in which individuals complain about the publication of photographs of them taken in a public place. This article argues that the common law’s original position on this issue rested implicitly upon an equivalence between the human eye and the camera, which prevented any distinction being drawn between the acts of looking, seeing, photographing and publishing. There has been an epistemological shift in the common law’s attitude towards photography, so that now a distinction is drawn between the human eye and the camera, which allows legal consequences to attach to the publication of photographs, even if those photographs are taken in a public place. In addition, there has been a shift in the concept of privacy in the legal imagination of the common law. Whereas the common law historically constituted privacy around the concept of private property, the emerging position constituted privacy around the private individual.
Download the essay from SSRN at the link.
June 8, 2010
New Report Assesses Impact of Tax Incentives On U.K. Film Industry, Warns Of Cutbacks
A report prepared by Oxford Economics says that if the UK film industry loses the tax incentives it presently receives, it would suffer dramatically. Currently, according to the report, the industry is withstanding the recession, but things could change if the government changes its incentive policy. Read the report here.
Professor Brett Frischmann's Remarks On the Internet Before the FCC, April 12, 2010
In this brief comment, filed on April 12, 2010 in the FCC Open Internet proceeding (GN Docket No. 09-191), I make two points: First, I argue that the FCC must resist falling into the rhetorical trap set by many participants in the debate who attempt to frame the policy debate narrowly in terms of antitrust and regulatory economics. A myopic focus on antitrust and regulatory economics misses other important dimensions at stake in the debate. Essentially, this perspective views the Internet as a mere supply chain of markets. It fails to appreciate that the Internet is a mixed commercial, public, and social infrastructure that supports an incredible variety of market and nonmarket systems and user activities that yield private, public, and social goods. Too many participants in the debate (on both sides) accept the premise that competition would alleviate concerns about discrimination or prioritization by network providers. It would not, as I discuss.
Second, I offer a particular nondiscrimination rule that differs somewhat from the one articulated by the Commission in the Notice of Proposed Rulemaking. The FCC should prohibit broadband Internet access service providers from discriminating based on the identity of the user or use in the handling of packets. Under this approach, user may be defined as sender or receiver; use may be defined as application or content type; handling may be defined as all transport and related services associated with delivery of packets. This simple nondiscrimination rule may seem overly strong in that it appears to rule out a significant range of activities that some might label “reasonable network management.” But as I discuss, this rule is not overly restrictive; rather, it strikes an appropriate balance. It primarily rules out certain fine-grained forms of price or quality discrimination, does not rule out other forms of price discrimination that are not based on user/use identity, such as typical second-degree price discrimination, and does not rule out efficient methods for managing congestion, such as traditional usage-sensitive or congestion pricing. This rule maintains a general-purpose, mixed infrastructure and best preserves the Internet’s openness.
Download the remarks from SSRN here.
FCC Announces Updated Agenda For Workshop On Emergency Alerting, June 10th
firstname.lastname@example.org. Depending on the volume of questions and time constraints, the
The Federal Communications Commission’s (FCC’s) Public Safety and
Homeland Security Bureau (PSHSB) and the Federal Emergency Management Agency’s (FEMA’s)
National Continuity Programs (NCP) today released an updated agenda for the workshop on 21st
Century Emergency Alerting: Leveraging Multiple Technologies to Bring Alerts and Warnings to the
Public. The workshop will be held on Thursday, June 10, 2010, from 9:00 a.m. to 1:00 p.m. in the
Commission Meeting Room (TW-C305).
The event will highlight the status of and relevant details related to the Integrated Public Alert
and Warning System, including the Next Generation Emergency Alert System (EAS) and the
Commercial Mobile Alert System. This public meeting will also provide FEMA, the FCC and other
Federal partners an opportunity to gather feedback on outstanding issues related to these systems, the
upcoming National EAS test, and the FCC’s upcoming inquiry proceeding on next generation alerting.
(See detailed agenda below.)
Those in the public who watch the live video stream of the event may email event-related
panel moderators will work to respond to as many questions as possible during the workshop.
Audio/Video coverage of the meeting will be broadcast live with open captioning over the Internet
from the FCC's web page atwww.fcc.gov/live. The FCC’s web cast is free to the public and does not
The workshop will be open to the public; however, registration will be limited to the seating
available. Reasonable accommodations for persons with disabilities are available upon request. Please
include a description of the accommodation you will need. Individuals making such requests must
include their contact information should FCC staff need to contact them for more information.
Requests should be made as early as possible. Please send an e-mail email@example.com or call the
Consumer & Governmental Affairs Bureau: 202-418-0530 (voice), 202-418-0432 (TTY).
For additional information about the meeting, please contact Susan McLean by email:
Susan.McLean@fcc.govor by phone: 202-418-7868.
June 7, 2010
Copyright and Its Metaphors
Drawing on debates in Sweden about Internet freedom, particularly those connected to copyright and file sharing, and on the European legislative trend of amending copyright, this chapter analyses metaphors and conceptions in terms of a societal paradigmatic shift and the collision of mentalities. Kuhnian paradigms are wedded with the mentalities of the French Annales School of historic research. The chapter argues that the “building blocks” of these mentalities and paradigms can be studied in metaphors, in public debates or in legislation, which may reveal the conceptions they emanate from. This chapter touches upon ethical, moral and legal issues related to the digitalization of society. The relevancy of this chapter in relation to the theme of the book is found in the conceptualization of “deviancy”. One has to ask from what perspective or paradigm the judgment of the behavior takes place, and in what historical context it is made.
Public Charities and Political Speech
As a precondition to maintaining its tax-exempt status, a public charity cannot campaign for or against any candidate for office. This prohibition, introduced in 1954 without fanfare, debate, or legislative history, has since created uncertainty and administrative burden for public charities, and has provoked firestorms of debate among academics, policymakers, and directors of public charities themselves. The subjects of these debates have ranged from the wisdom to the constitutionality of such a prohibition on political speech.
The debates have not, however, provided any significant certainty to public charities or to policymakers. Without legislative history or debate, public charities can only guess at the purposes underlying the prohibition. The arguments used to defend the prohibition are met by equally compelling counterarguments, while the arguments for why the prohibition should be eliminated are equally countered.
As this debate occurs, the penalty for violation of the prohibition is the loss by a public charity of its tax-exempt status. In light of the draconian nature of the penalty, the IRS underenforces the prohibition, as some public charities routinely flout the prohibition and others self-censor more than is necessary in order to stay on the right side of an uncertain line. Neither reaction leads to the efficient administration of the tax law.
The problem, this Article argues, is that all of the arguments surrounding the prohibition on public charities’ political campaigning takes place in the shadow of the current language of IRC § 501(c)(3), to which commentators and policymakers must ascribe purpose. Rather than argue the benefits and deficiencies of the current regime, the discussion of the role of public charities in political campaigns needs to start anew, without taking as a given the benefits and burdens of the current system. Whatever the result of the new discussion, however, the Article argues that is necessary to provide the IRS with the option to impose intermediate penalties on public charities that violate a prohibition on campaigning.
Download the paper from SSRN at the link.