Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

A Member of the Law Professor Blogs Network

Friday, April 8, 2011

Wayne State University Removes Info From Website After Open Records Request

From the Chronicle of Higher Education: Wayne State University's Douglas A. Fraser Center for Workplace Issues has removed some material from its website, apparently on the advice of attorneys, after it received some open records requests from the Mackinac Center for Public Policy

April 8, 2011 | Permalink | TrackBack (0)

West Virginia Enacts Reporter's Shield Law

West Virginia's acting governor Earl Ray Tomblin signed a reporter's shield law in effect April 7. Link to the text (scanned upside down by the providing website).

April 8, 2011 | Permalink | TrackBack (0)

Media Beginning To Harass Middleton Family

The annoyances have begun. Kate Middleton's family has gotten in touch with the Press Complaints Commission over photographers who have been following Mrs. Middleton and Kate's sister Pippa as they have been out and about shopping (presumably for wedding events). The PCC noted that it has advised members of the media that while they may take photos of persons out in public areas, "'Journalists must not engage in intimidation, harassment or persistent pursuit.'" More coverage here from CBS, here from the BBC.

April 8, 2011 | Permalink | TrackBack (0)

Spam As Nuisance

Snehashish Ghost, Christ University, Bangalore, School of Law, and Santanu Chakraborty have published Spam: A Cyber Age Nuisance. Here is the abstract.

This project aims to explore nuisance caused by spamming. We will be analyzing an American case Intel Corp. v. Kourosh Kenneth Hamidi and focus on the dissenting opinion of one of the judges and illustrate how the principle of nuisance is more apt than trespass to chattel to prove that a spammer is liable for the loss of productivity or harassment suffered by the ISP and the end user.

The scope of the topic is to analyse the case law pertaining to spamming in USA, as it is most advanced in this field, and discussing at length the principle of nuisance and how it is apt in combating spamming. We have emphasized on nuisance so we would argue in favour of it and prove that trespass to chattel holds weaker argument against spamming.

Download the paper from SSRN at the link.

April 8, 2011 | Permalink | TrackBack (0)

Justice Souter On Government Speech

Sheldon H. Nahmod, Chicago-Kent College of Law, Institute for Law and the Humanities, has published Justice Souter on Government Speech at 2010 Brigham Young University Law Review 2097. Here is the abstract.

Justice David Souter, who replaced Justice William Brennan, was seated on October 3, 1990, and retired on June 29, 2009. As it turns out, Justice Souter’s tenure coincided exactly with the birth and development of the government speech doctrine in the Supreme Court. Rust v. Sullivan was handed down in 1991, and the most recent case, Pleasant Grove City v. Summum, was handed down in 2009.

This Article is modest in scope and primarily descriptive. I propose to address each of the nine Supreme Court decisions in which government speech is discussed either by the Court or by Justice Souter, with an emphasis on Justice Souter’s often differing and cautionary observations about the doctrine. I do not engage here at a normative level with the government speech doctrine, even though I am worried about the Court’s increasing use of the doctrine to avoid difficult First Amendment issues.

Download the article from SSRN at the link.

April 8, 2011 | Permalink | TrackBack (0)

FCC To Hold Workshop On Interoperability of Customer Mobile Equipment Across Commercial Spectrum Blocks In 700 MHz Band

 

From the FCC

 

On Tuesday, April 26, 2011, from 9:00 a.m. to 12:00 p.m., the Federal Communications Commission’s (FCC’s) Wireless Telecommunications Bureau will hold a workshop on the interoperability of customer mobile equipment across commercial spectrum blocks in the 700 MHz Band.  The Commission has been actively monitoring and encouraging progress in the development of technical specifications and devices for the 700 MHz band, particularly devices that can operate in multiple frequency blocks within the band.[1]  The workshop will focus on exploring solutions for promoting the development and availability of equipment for the 700 MHz band.  In addition, the workshop will discuss providers’ technology choices for the 700 MHz band, including the planned deployment of Long Term Evolution (LTE) technology by certain providers, and how these technology choices can affect equipment availability, competition, and roaming.  The workshop will be held in the Commission Meeting Room at FCC Headquarters, located at 445 12th Street, SW, Room TW-C305, Washington, DC  20554. 

 

AGENDA

 

Interoperability of Customer Mobile Equipment

Across Paired Commercial Spectrum Blocks in the 700 MHz Band

 

9:00 a.m.         Welcoming Remarks

 

9:10 a.m.         Panel 1:  Technical Issues Related to 700 MHz Interoperability and the Development of Standards for the 700 MHz Band

                       

In this panel, industry experts will discuss the interoperability issues associated with the 700 MHz bands, as well as the technical issues related to the current and developing standards for 700 MHz equipment.  For example, while LTE technology enjoys a rapidly growing number of commercial commitments and deployments, worldwide 3GPP standards, and a wide ecosystem of devices and network equipment, it still faces interoperability and interference challenges in the 700 MHz bands.  Topics will include:

 

  • Status of Band 12 (Lower 700 MHz A, B, and C blocks) technical standards
  • Status of development of 3GPP technical standards for the aggregation of 700 MHz with other spectrum bands, in both symmetrical and asymmetrical configurations
  • Interference issues related to the broadcast use of Channel 51 and Lower 700 MHz Blocks D & E, and the impact of these interference issues on the use of Band 12 versus Band 17 equipment
  • Possible implications for interference issues in the event that the Lower D and E blocks are used for supplemental downlink
  • Implications of the trend toward inter-band carrier aggregation and the multi-radio devices needed to support this feature, such as how these multiple radios may affect the number of bands that can be supported in a single device
  • Capabilities of future RF chipsets and devices, including development of technologies that may facilitate multi-band support
  • Technical challenges in developing a single upper band that covers Band 13 and Band 14 (i.e., public safety broadband)

 

10:30 a.m.      Break

 

10:40 a.m.       Panel 2:  Market Issues Related to 700 MHz Equipment

 

Industry representatives and consumer groups will address market issues related to 700 MHz equipment currently being offered or developed for consumers in general.  Topics will include:

 

  • Status of the current and near-term market for 700 MHz devices, including projected growth for devices/handsets based on current and future uses
  • Availability of Band 12 devices, and of the critical components for their manufacture, including the development of cost-effective chipsets that will support providers’ choice of technology for the Lower 700 MHz band, as well as fallback technologies such as EV-DO/1xRTT or UMTS in other relevant bands
  • Ability of small/regional providers to obtain Band 12 devices at competitive cost, impact of economies-of-scale, and potential to improve device economies-of-scale through aggregation of provider demand
  • Status of devices capable of operating in multiple parts of the 700 MHz band (including Lower 700 MHz and Upper 700 MHz bands), as well as in other bands, such as the cellular bands and bands above 1 GHz
  • Effect of interoperability on promoting the public interest, including promoting competition, access to broadband, public safety and the widespread availability of service in rural areas 

 

12:00 p.m.       Adjourn

            Interested parties may file comments using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies.[2]  Comments filed through the ECFS can be sent as an electronic file via the Internet to http://www.fcc.gov/cgb/ecfs/.  Generally, only one copy of an electronic submission must be filed.  If multiple docket or rulemaking numbers appear in the caption of the proceeding, commenters must transmit one electronic copy of the comments to each docket or rulemaking number referenced in the caption.  In completing the transmittal screen, commenters should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking numbers.  All filings concerning this Public Notice should refer to RM No. 11592.  Parties may also submit an electronic comment by Internet e-mail.  To get filing instructions for e-mail comments, commenters should send an e-mail to ecfs@fcc.gov, and should include the following words in the body of the message, “get form.”  A sample form and directions will be sent in reply.  Parties who choose to file by paper must file an original and four copies of each filing.  If more than one docket or rulemaking number appears in the caption of this proceeding, commenters must submit two additional copies for each additional docket or rulemaking number.

            Paper filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail).  All filings must be addressed to the Commission’s Secretary, Office of the Secretary, Federal Communications Commission.  Parties are strongly encouraged to file comments electronically using the Commission’s ECFS. 

  • Effective December 28, 2009, all hand-delivered or messenger-delivered paper filings for the Commission’s Secretary must be delivered to FCC Headquarters at 445 12th St., SW, Room TW-A325, Washington, DC  20554.  The filing hours at this location are 8:00 a.m. to 7:00 p.m.  All hand deliveries must be held together with rubber bands or fasteners.  Any envelopes must be disposed of before entering the building.  PLEASE NOTE:  The Commission’s former filing location at 236 Massachusetts Avenue, NE is permanently closed.

 

  • Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD  20743.

 

  • U.S. Postal Service first-class, Express, and Priority mail should be addressed to 445 12th Street, SW, Washington DC  20554.

 

            Parties shall also serve one copy with the Commission’s copy contractor, Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th Street, S.W., Room CY-B402, Washington, D.C. 20554, (202) 488-5300, or via e-mail to fcc@bcpiweb.com.

            Documents in RM No. 11592 will be available for public inspection and copying during business hours at the FCC Reference Information Center, Portals II, 445 12th St. S.W., Room CY-A257, Washington, DC 20554.  The documents may also be purchased from BCPI, telephone (202) 488-5300, facsimile (202) 488-5563, TTY (202) 488-5562, e-mail fcc@bcpiweb.com.

            To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

            This matter shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules.[3]  Persons making oral ex parte presentations are reminded that memoranda summarizing the presentations must contain summaries of the substance of the presentations and not merely a listing of the subjects discussed.  More than a one- or two-sentence description of the views and arguments presented generally is required.[4]  Other requirements pertaining to oral and written presentations are set forth in section 1.1206(b) of the Commission's rules.[5]

Audio/video coverage of the meeting will be broadcast live with open captioning over the Internet from the FCC's web page at www.fcc.gov/live.  The FCC’s webcast is free to the public. 

 

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 to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau: 202-418-0530 (voice), 202-418-0432 (TTY). 

 

            For further information about the workshop, please contact Nicole McGinnis of the Spectrum and Competition Policy Division, Wireless Telecommunications Bureau at (202) 418-2877, or via e-mail at Nicole.McGinnis@fcc.gov.


[1] On February 18, 2010, the Wireless Bureau released a Public Notice seeking comment on these issues, in response to a petition for rulemaking filed by the 700 MHz Block A Good Faith Purchasers Alliance (Alliance).  See Wireless Telecommunications Bureau Seeks Comment on Petition for Rulemaking Regarding 700 MHz Band Mobile Equipment Design and Procurement Practices, RM No. 11592, Public Notice, DA 10-278 (Mar. 1, 2010) (citing 700 MHz Block A Good Faith Purchaser Alliance Petition for Rulemaking Regarding the Need for 700 MHz Mobile Equipment to be Capable of Operating on All Paired Commercial 700 MHz Frequency Blocks, filed Sept. 29, 2009).  Comments, Reply Comments, and other documents filed in the proceeding may be viewed using the Commission’s Electronic Comment Filing System (ECFS) at http://fjallfoss.fcc.gov/ecfs/ using the proceeding number RM-11592.

[2] See Electronic Filing of Documents in Rulemaking Proceedings, GC Docket No. 97-113, Report and Order, 13 FCC Rcd 11322 (1998).

[3] 47 C.F.R. § 1.1200 et seq.

[4] See 47 C.F.R. § 1.1206(b)(2).

[5] 47 C.F.R. § 1.1206(b).

April 8, 2011 | Permalink | TrackBack (0)

Wednesday, April 6, 2011

Is Hate Speech Legislation Needed In Kenya?

Stephen Thuku Mbaaro has published "Freedom of Expression and Public Order: Exploring the Need for Hate Speech Legislation in Kenya". Here is the abstract. 

Freedom of speech and expression is one of the most fundamental rights and freedoms and is essential in any attempt to build a democratic, social and political order. It is enshrined into most of the world’s constitutions and in other international instruments. Speech is an expression of one self and should not be curtailed unless in very clear circumstances which should be properly provided for in law and not defy reason. Normal human beings ought to be allowed to speak ,sing, write or perform other acts of art facilitating expression and to prevent a person from expressing a view or a belief or even an emotion is to deny him/herself basic dignity.

As much as it is a sacred right closely guarded by the most high of laws, it is overt that freedom of expression through speech is not absolute. It has to be regulated for public order purposes. The Kenyan constitution for example provides for situations as to when an individual has give up his/her freedom of expression. While underscoring the fact that freedom of speech and expression is not absolute and citizens are not protected in everything they choose to say, Mr. Justice Holmes in the united states supreme court decision in Schenck v. United States stated that the most stringent protection of free speech would not protect a man in falsely shouting fire in the theatre and causing panic. He went on to state that it would not protect a man from an injunction against uttering words that may have the effects of force and the question in each case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that congress has a right to prevent.

Free speech is one aspect of the freedom of expression and this paper aims at studying it and seeking to see whether it is possible to strike a balance between free speech and public order. Of most important will be hate speech which can be said with confidence to stem from abuse of the freedom of expression.

Hate speech is defined as that type of speech which is used to deliberately offend an individual, racial, ethnic or religious group seeking to dehumanize the individual or group or express anger, hatred, violence or contempt against them. It incites society to violence and creates tensions between people with some looking at others with suspicion and contempt based on what has been told to them regarding the target group. Kenya has been a victim of violence prompted through hate speech time and again but she has no specific law governing it. The different pieces of legislation can be said to be barely effective and not deterrent in nature and therefore this problem has continued to manifest itself time and again and mostly at times of high political tides. It has therefore been argued by some people that Kenya needs a specific law prohibiting hate speech if the vice is to be contained.It is these arguments for and against a hate speech law in Kenya that need to be studied critically with one bearing in mind that the freedom of expression and free speech is a fundamental right and freedom which is enshrined in the constitution and other international instruments that Kenya is party to.

The issue of hate speech has not been knotty in Kenya alone and other countries have similarly had to grapple with it in diverse ways that have suited the circumstances peculiar to their countries.8 In examining whether legislation against hate speech is the best way for Kenya, it will therefore be important to also consider the circumstances of the other countries and how they have attempted to deal with the issue.

Download the paper from SSRN at the link.

 

April 6, 2011 | Permalink | TrackBack (0)

The Effects of Wikileaks' Leaks

Mark Fenster, University of Florida College of Law, has published Disclosure's Effects: Wikileaks and Transparency. Here is the abstract.

Constitutional, criminal, and administrative laws regulating government transparency, and the theories that support them, rest on the assumption that the disclosure of information has transformative effects: disclosure can inform, enlighten, and energize the public, or it can create great harm or stymie government operations. To resolve disputes over difficult cases, transparency laws and theories typically balance disclosure’s beneficial effects against its harmful ones. WikiLeaks and its vigilante approach to massive document leaks challenge the underlying assumption about disclosure’s effects in two ways. First, WikiLeaks’s ability to receive and distribute leaked information cheaply, quickly, and seemingly unstoppably enables it to bypass the legal framework that would otherwise allow courts and officials to consider and balance disclosures’ effects. For this reason, WikiLeaks threatens to make transparency’s balance irrelevant. Second, its recent massive disclosures of U.S. military and diplomatic documents allow us to reconsider and test the assumption that disclosure produces effects that can serve as the basis for judicial and administrative prediction, calculation, and balancing. For this reason, WikiLeaks threatens transparency’s balance by disproving its assumption that disclosure necessarily has predictable, identifiable consequences that can be estimated ex ante or even ex post. 

This article studies WikiLeaks in order to question and evaluate prevailing laws and theories of transparency that build on the assumption that disclosure’s effects are predictable, calculable, and capable of serving as the basis for adjudicating difficult cases. Tracing WikiLeaks’s development, operations, theories, and effects, it demonstrates the incoherence and conceptual poverty of an effects model for evaluating and understanding transparency.

Download the paper from SSRN at the link.

April 6, 2011 | Permalink | TrackBack (0)

Tuesday, April 5, 2011

MPAA Sues Zevida For Copyright Infringement

From the AP: The Motion Picture Association of America (MPAA) is suing Zediva, that company which has started releasing new films early via the Internet. According to its press release, the MPAA is suing for copyright infringement, because Zediva "illegally streams movies to its customers without obtaining required licenses from the movie studios, in violation of the studios’ right to “publicly perform” their works."

Zediva claims it is like a brick-and-mortar DVD “rental” store and therefore not obligated to pay licensing fees to copyright holders. But the DVD “rental” label is a sham. In reality, Zediva is a video-on-demand service that transmits movies over the Internet using streaming technologies in violation of the studios’ copyrights.

“Zediva’s mischaracterization of itself is a gimmick it hopes will enable it to evade the law and stream movies in violation of the studios’ exclusive rights,” said Dan Robbins, Senior Vice President and Associate General Counsel for the MPAA. “Courts have repeatedly seen through the façade of this type of copyright-avoidance scheme, and we are confident they will in this case too.”

The studios and law-abiding streaming services are making significant investments in new
technologies to offer consumers a variety of authorized online distribution services. Zediva’s model undermines these and future investments, as well as the interests of legitimate distribution businesses.

Here's a link to the complaint.

April 5, 2011 | Permalink | TrackBack (0)

Copyright and Music Sampling

Thomas Wuil Joo, University of California, Davis, Law School, has published A Contrarian View of Copyright: Hip-Hop, Sampling, and Semiotic Democracy. Here is the abstract.


A dominant trend in intellectual property (IP) theory asserts that technologies such as digital copying enable individuals to resist the cultural dominance of the media industry. Under this view, individuals appropriate cultural material and “recode” it by assigning alternative meanings to it. By enabling more people to participate in the making of cultural meanings, recoding supposedly enhances “semiotic democracy.” IP theorists tend to argue that copyright law inhibits recoding, thus stifling semiotic democracy. The use of sampling in hip-hop music is frequently cited as a paradigmatic example of recoding that has been stifled by IP law.

This paper uses history, economics, and critical theory to question these arguments on both the empirical and theoretical levels. Many scholars assert that copyright law turned against recoding in the 1990s by requiring samplers to pay for copyright permission. But the music business – including the hip-hop sector – was already in the practice of paying for copyright permission. Judicial decisions simply codified existing practice, which treated copyright permission as merely one of the many costs of making music. Thus copyright law did not impede musical recoding generally or hip-hop specifically.

While economic markets work well in allocating recoding rights, however, this does not necessarily advance semiotic democracy, because market failures afflict the marketplace of ideas. Recoding embodies contradictory forces that both advance and retard semiotic democracy. Law and technology facilitating recoding not only help independent record labels and artists question the cultural meanings advanced by major record companies; they also allow the latter to appropriate from the former. Moreover, recoding not only creates new meanings from existing cultural materials, but also repeats and reinforces those dominant cultural meanings. Indeed, by creating alternative meanings for dominant cultural materials such as popular music, recoding can contribute to their commercial appeal and cultural influence.

Download the paper from SSRN at the link.

April 5, 2011 | Permalink | TrackBack (0)

Cloud Computing and Personal Data, Round Two

W. Kuan Hon, Christopher Millard, and Ian Walden, all of Queen Mary University School of Law, have published Who is Responsible for 'Personal Data' in Cloud Computing? The Cloud of Unknowing, Part 2. Here is the abstract.

In part one of this series, we considered what information is regulated as 'personal data' in the cloud. In this part two, we develop further the argument made in part one that it is not appropriate for infrastructure cloud providers, many of which are based outside Europe, to become subject arbitrarily to obligations under the EU Data Protection Directive due to choices made by their users.

EU data protection responsibilities and liabilities are imposed primarily on the 'controller,' who may employ 'processors' to process data for it. We suggest, as with the concept of 'personal data,' the binary nature of the controller/processor distinction is no longer tenable. In today's environment of complex chains of actors, end to end accountability should replace the binary distinction. While cloud computing service providers are commonly considered processors or controllers, this paper further argues that many infrastructure cloud computing providers are not even 'processors,' but simply provide facilities and/or tools for use by the controller/cloud user. Infrastructure as a Service and Platform as a Service providers, and certain Software as a Service providers, who offer no more than utility infrastructure services, will often not know whether information stored or processed through their services is 'personal data' or not – hence, the 'cloud of unknowing.' Infrastructure cloud providers are qualitatively distinct from services such as social networking websites.

We suggest that infrastructure cloud computing providers should be considered mere neutral intermediaries. Existing liability defences for certain service providers under the EU Electronic Commerce Directive, to help foster electronic commerce, are lost upon the provider having knowledge and control. Similarly, our proposed intermediary immunity from data protection obligations would be lost if the provider gains the requisite knowledge and/or the requisite access to such data. It may also behove cloud computing providers to develop appropriate common industry standards and best practices measures in order to help provide a clear boundary between this intermediary status and 'processor' (or even 'controller') status.

Download the paper from SSRN at the link.

April 5, 2011 | Permalink | TrackBack (0)

Harmonizing Internet Regulation and Addressing Privacy Issues

Dan Svantesson, Bond University School of Law, has published A Legal Method for Solving Issues of Internet Regulation; Applied to the Regulation of Cross-Border Privacy Issues as EUI Working Papers LAW No. 2010/18. Here is the abstract.

This article presents a legal method that can be used to find solutions to the challenges of regulating Internet technology. The method consists of ten steps and the reader is guided through the application of these steps. To illustrate the use of the method, it is applied to the research task of finding a solution to the conundrum of regulating cross-border data flows on the Internet. Thus, the article has two distinct aims, and it should benefit anyone with an interest in research methodology, as well as those interested in the regulation of privacy in general, and on an international level, in particular.

Download the paper from SSRN at the link.

April 5, 2011 | Permalink | TrackBack (0)

Programme in Comparative Media Law and Policy Announces 13th Annual Annenberg-Oxford Media Policy Summer Institute

From Dr. Nicole Stremlau, University of Oxford

The Programme in Comparative Media Law and Policy at the University of Oxford (PCMLP) and the Center for Global Communication Studies at the Annenberg School for Communication, University of Pennsylvania  are pleased to announce the 13th annual Annenberg-Oxford Media Policy Summer Institute, to be held from July 4 - 15, 2011 at the University of Oxford.

The annual Summer Institute brings together young scholars and regulators to discuss important recent trends in technology, international politics and development and its influence on media policy.  Students come from around the world; countries represented at previous Summer Institutes include Jordan, Italy, Thailand, Kenya, China, Brazil, Egypt, Nigeria and Russia, among others.

This year the Summer Institute will also focus on media governance and strategic communication in conflict and post-conflict environments including Sudan, Somalia and Bosnia.  At the same time, the successful curriculum that has been the foundation of the Summer Institute over the years will continue, with sessions covering topics such as media and economic/social development, freedom of information, internet regulation and convergence.

Part of the course will be devoted to new developments in comparative approaches to regulation, looking at Ofcom in the UK and other agencies, including examples from the Middle East, Africa and Asia.

The seminar brings together a wide range of participants from around the globe and provides them with an environment in which significant policy issues are seriously discussed. The richness of the experience comes from exposure to a variety of speakers and from the discussions among participants themselves.

For more information and to apply please visit our website http://global.asc.upenn.edu/cgi-bin/projects.cgi?id=87&p=main or http://pcmlp.socleg.ox.ac.uk

APPLICATION DEADLINE: APRIL 10, 2011

http://pcmlp.socleg.ox.ac.uk

 

--------------------------------

Dr Nicole Stremlau

Programme in Comparative Media Law and Policy Centre for Socio-Legal Studies University of Oxford http://pcmlp.socleg.ox.ac.uk http://pricemootcourt.socleg.ox.ac.uk

+441865 271069

April 5, 2011 | Permalink | TrackBack (0)

Monday, April 4, 2011

Judicial Doctrines and the First Amendment

Marvin Ammori, University of Nebraska College of Law, has published First Amendment Architecture. Here is the abstract.

The right to free speech is meaningless without some place to exercise it. But constitutional scholarship generally overlooks the role of judicial doctrines in ensuring the availability of spaces for speech. Indeed, when scholarship addresses doctrines that are explicitly concerned with speech spaces such as public forums and media or Internet forums, it generally marginalizes these doctrines as "exceptions" to standard First Amendment analysis. By overlooking or marginalizing these decisions, scholarship has failed to explicate the logic underlying important doctrinal areas and what these areas reveal about the First Amendment's normative underpinnings. 

This Article adopts a different interpretive approach. It identifies and interprets the Court's role in ensuring, requiring, or permitting government to make spaces available for speech. Across a range of physical and virtual spaces, the Article identifies five persistent judicial principles evident in precedent and practice that require or permit government to ensure spaces to further particular, substantive speech-goals. 

Further, rather than quarantining these speech-principles as exceptions to the standard analysis, this Article explores the significance of these principles for "core" speech doctrine and theory. The resulting analysis poses fundamental challenges to conventional wisdom about the First Amendment and the normative principles generally believed evident in doctrine. Consequently, the Article provides timely guidance for legislators and judges, particularly for shaping access to the technology-enabled virtual spaces increasingly central to Americans' discourse.

Download the paper from SSRN at the link.

April 4, 2011 | Permalink | TrackBack (0)

'Sexting' and the First Amendment

Sherry Capps Cannon has published 'Sexting': First Amendment Right or Felony? Here is the abstract.

The age old practice of "show me yours and I’ll show you mine" has taken on a new meaning in the modern era of cell phones and computers. The social networking opportunities afforded teenagers by texting has morphed into "sexting," a recent phenomenon involving the sending of nude or semi-nude pictures, often taken by the sender or a friend of the sender, via cell phone or other electronic device to another individual. As minors deal in "self-exploitation" through this activity, they create a difficult dilemma for society struggling to respond in an appropriate manner to children as they self-generate their own brand of child pornography. 

The historical treatment of freedom of speech and pornography by the US Supreme Court is reviewed in this article. The first case on sexting to make its way through the federal courts, Miller v. Skumanick, is also examined to explore the legal implications of this modern day dilemma along with possible solutions for addressing this issue.

Download the paper from SSRN at the link.

April 4, 2011 | Permalink | TrackBack (0)