Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, February 18, 2011

Anti-Pornography Campaigns and Civil Rights

Anders Walker, Saint Louis University School of Law, has published A Horrible Fascination: Sex, Segregation, & the Lost Politics of Obscenity as Saint Louis University Legal Studies Research Paper No. 2011-06. Here is the abstract.
Taking Virginia editor James Jackson Kilpatrick’s publication of The Smut Peddlers in 1960 as a starting point, this article shows how southern segregationists used the battle against pornography to build a constitutional coalition determined to prevent the Supreme Court from wresting further power from the states, this time under the rubric of upholding morality - itself a front for undermining civil rights. Rather than a quixotic, one-man quest, Kilpatrick’s turn to prudence joined a larger, regional campaign, a constitutional guerilla war mounted by moderates and extremists alike that swept onto cultural, First Amendment terrain even as the frontal assault of massive resistance succumbed to federal might. Dubious moral regulations emerged across the South, extremists and moderates alike declared the need to reinvigorate decency, and land bridges between the South and the nation began to rise out of the Warren Court’s perceived sea of liberal, degenerating jurisprudence.
Download the paper from SSRN at the link.

February 18, 2011 | Permalink | TrackBack (0)

FCC Announces Forum On Nationwide Public Safety Mobile Broadband Network

From an FCC announcement:

On Friday, March 4, 2011, from 9:00 a.m. to 3:30 p.m., the Federal Communications Commission’s (FCC’s) Public Safety Homeland Security Bureau’s (PSHSB) Emergency Response Interoperability Center (ERIC) will host a forum to garner input on the technical framework for the nationwide public safety mobile broadband network to ensure nationwide interoperability.  This network must be technically compatible and fully interoperable from the first day of network deployment in order to serve as the nationwide broadband network envisioned for America’s first responders.  The forum will be held in the Commission Meeting Room at FCC Headquarters, located at 445 12th Street, SW, Room TW-C305, Washington, DC  20554. 

See the agenda for the forum here.

February 18, 2011 | Permalink | TrackBack (0)

FCC Asks Verizon To Investigate Failure To Link Up 911 During Recent Snow Emergency

From an FCC news release:

Washington, D.C. – Jamie Barnett, Rear Admiral (ret.) and Chief of the FCC’s Public Safety and Homeland Security Bureau, this week requested that Verizon provide the Commission with a full assessment of what caused the failure to connect approximately 10,000 wireless emergency calls to 911 call centers in Montgomery and Prince George’s Counties, Maryland, during the January 26, 2011 snowstorm, identify remedies to help prevent similar occurrences in the future, and implement solutions to quickly restore reliable network operations when there are problems.

The Bureau’s preliminary findings show that on January 26th all 14 circuits in the Verizon network that properly route all wireless calls in Montgomery County failed and nine of 10 Verizon circuits in Prince George’s County failed over a five-hour period on the night in question.  This resulted in approximately 8,300 blocked 911 calls in Montgomery County and 1,700 blocked 911 calls in Prince George’s County that evening.

Rear Admiral Barnett in a letter delivered to Verizon yesterday wrote, “… any 911 call which is not connected can have serious consequences, but the large number of missed 911 calls on January 26th is alarming. The public rightly expects that they can use 911 to reach the appropriate first responders in an emergency.” He further stated, “We are particularly concerned that this problem may be widespread across Verizon’s footprint” and that Verizon investigate the extent of the problem across its network. The full text of the letter is available here:

In addition to the cases highlighted above, the letter notes that similar incidents involving blocked 911 calls occurred in 2010 in Montgomery and Prince George’s Counties, with one incident resulting in delayed urgent medical attention for a caller who was unable to reach 911. A similar problem with wireless 911 calls being blocked from reaching a Fairfax County, Virginia 911 call center occurred on January 26, 2011 as well.

The Bureau is requesting that Verizon respond to the following questions, among others, to address the public safety concerns raised by the series of recent incidents in Montgomery and Prince George’s Counties:

Q) Is the problem localized to the 911 call centers using the Hyattsville and Rockville, Maryland selective routers?

Q) Was this the same problem that occurred in Fairfax County, Virginia?

Q) Can this problem occur elsewhere in the nation?

Q) Has this problem occurred in other states and if so, in which states?



Chief Barnett requested that Verizon complete its assessment and provide a comprehensive response to the FCC no later than March 10, 2011. In addition to the written response, Chief Barnett has requested a meeting with Verizon representatives within the next two weeks to discuss the matter and identify appropriate resolutions to address the problems identified.

For additional information please contact Lisa Fowlkes, Deputy Bureau Chief of the Public Safety and Homeland Security Bureau at (202) 418-7452 or via email:

February 18, 2011 | Permalink | TrackBack (0)

Thursday, February 17, 2011

The Analogy Between Wikileaks and the New York Times of the Pentagon Papers Case

Derek E. Bambauer, Brooklyn Law School, is publishing  Consider the Censor in a forthcoming issue of the Wake Forest Journal of Law & Public Policy. Here is the abstract.
WikiLeaks is frequently celebrated as the whistleblowing heir of the Pentagon Papers case. This Essay argues that portrayal is false, for reasons that focus attention on two neglected aspects of the case. First, the New York Times relied on a well-defined set of ethical precepts shared by mainstream journalists to contextualize the Papers and to redact harmful information. Second, American courts acted as neutral arbiters of the paper’s judgment, and commanded power to enforce their decisions. WikiLeaks lacks both protective functions to regulate its disclosures. The Essay suggests that WikiLeaks is a bellwether: an exemplar of the shift in power over data generated by plummeting information costs. While that trend cannot realistically be reversed, the Essay offers two responses to the problems that WikiLeaks and its progeny create. First, established media outlets must continue to act as gatekeepers governed by strong journalistic ethics, even in an environment of ubiquitous access to raw data. Second, governments should consider, and debate, the possibility of using technological countermeasures – cyberattacks – against intermediaries threatening to disclose especially harmful data. There are times when the censor should win.
Download the article from SSRN at the link.

February 17, 2011 | Permalink | TrackBack (0)

Wednesday, February 16, 2011

Information and Democracy in India

Sharmendra Chaudhry, National Law School of India University, has published Right to Information in India. Here is the abstract.

Right to Information is the bulwark of democratic government. This right is essential for the proper functioning of the democratic process. Right to Information is an integral part of the freedom of speech and expression enshrined in Article 19(1)(A) of the constitution, which is regarded as the first condition of liberty. It occupies preferred position in the hierarchy of liberties giving succour and protection to other liberties. The expression "freedom of speech and expression" in Article 19(1)(a) has been held to include the right to acquire information and disseminate the same. It includes the right to communicate it through any available media whether print or electronic or audio-visual, such as, advertisement, movie, article or speech, etc. This freedom includes the freedom to communicate or circulate one’s opinion without interference to as large a population in the country, as well as abroad, as is possible to reach. Communication and receipt of information are the two sides of the same coin. An important aspect of freedom of speech and expression is considered the freedom to receive and disseminate information without any hindrance. Without adequate information, a person cannot form an informed opinion.

The aim of the researcher is to outline firstly the significance of the right to information, particularly in empowering ordinary citizens to combat state corruption as well as to highlight some lacuna in the Right to Information Act. The aim is to focus over the efforts at the national level to legislate this right. The researcher has tried to focus over the implication of Right to Information Act over the Higher Judiciary in the light of latest controversy in the case of The Central Public Information Officer, Supreme Court of India v. Subhash. Whether the RTIA is meeting expectations about its revolutionary potential? This is a question that is relevant not only in India, but in many other countries in similar circumstances, which have either adopted or are considering the adoption of FOIA-style legislation. The aim of this article to is synthesize the main findings of these recent Indian studies.

The only way to secure substantial right to information available to the citizens of India is to implement the Right to Information Act, 2005 strictly according to the provisions of law. It is essential that the Higher Judiciary should realize its responsibility and should be covered within the scope of the RTI Act. Higher the authority, higher should be the accountability to the people of India.

Download the paper from SSRN at the link.

February 16, 2011 | Permalink | TrackBack (0)

The French Internet/Creation Statute

Nicolas Lucchi, Universita di Ferrar, Facolta di giuisprudenza, Max Planck Institute for Intellectual Property and Competition Law, NYU School of Law, Hauser Global Program, University of Texas at Austin School of Law, and Stanford Law School, Center for Internet & Society, has published Access to Network Services and Protection of Constitutional Rights: Recognizing the Essential Role of Internet Access for the Freedom of Expression in volume 19 of the Cardozo Journal of International and Comparative Law (2011). Here is the abstract.
In January 2010, after a troubled process, the French law for "creation and Internet", commonly known as Hadopi 2, was finally adopted in an amended form. The enacted text was the result of corrective action undertaken by the Conseil constitutionnel (France’s highest constitutional authority), through Decision No. 2009-580 DC of the 10th of June 2009. The Conseil examined the mechanism of sanctions introduced by the regulatory measure assessing the compliance with fundamental rights and freedoms, such as the presumption of innocence, the separation of powers, the right of defense, the right to fair trial, the respect of the right to be heard and the necessary compromise between copyright and freedom of expression and communication.
Download the article from SSRN at the link.

February 16, 2011 | Permalink | TrackBack (0)

The FCC's Proposed New Nondiscrimination Rule

Nicholas Brambe, Information Society Project at Yale Law School, has published Ill Telecommunications: How Internet Infrastructure Providers Lose First Amendment Protection as Michigan Telecommunications and Technology Law Review, vol. 17, no. 67 (2010). Here is the abstract.
The Federal Communications Commission (FCC) recently proposed an Internet nondiscrimination rule: “Subject to reasonable network management, a provider of broadband Internet access service must treat lawful content, applications, and services in a nondiscriminatory manner.” Among other requests, the FCC sought comment on whether the proposed nondiscrimination rule would “promote free speech, civic participation, and democratic engagement,” and whether it would “impose any burdens on access providers’ speech that would be cognizable for purposes of the First Amendment.”

The purpose of this Article is to suggest that a wide range of responses to these First Amendment questions, offered by telecommunications providers and civil society groups alike, have glossed over a fundamental question: whether the activities of broadband Internet providers are sufficiently imbued with speech or expressive conduct to warrant protection under the First Amendment in the first place. Yet if this question is not resolved, any subsequent analysis of those who facilitate Internet-based telecommunications will necessarily rest on an incoherent and insufficiently considered definition of the “speech” that is at the heart of First Amendment concerns.

The FCC’s proposed nondiscrimination rule is an attempt to ensure that when access providers route “lawful content, applications, and services” to users on behalf of some third-party information providers, they are also obligated to route lawful content, applications, and services to users from all other information providers. Based on this understanding of the FCC’s nondiscrimination rule as a form of the equal access rule upheld in Rumsfeld, the Article concludes that the nondiscrimination rule does not affect the speech and association rights of access providers. Internet access providers do not accrue the speech rights associated with the third-party content, applications, and other communications that they transport to users through their networks.
Download the publication from SSRN at the link.

February 16, 2011 | Permalink | TrackBack (0)

Tuesday, February 15, 2011

Italian Premier Faces Trial Over Sexual Conduct

From, word that Italian Premier Silvio Berlusconi, who owns media outlets in the country, will face charges for paying for sex with an underaged girl and then trying to cover up the act. This trial will be the first in which the Premier faces charges for his own conduct, although he has been to court numerous times over political activities. More here from the BBC.

February 15, 2011 | Permalink | TrackBack (0)

Roller Derby Names and Norms

David Fagundes, Southwestern Law School, has published Talk Derby to Me: Emergent Intellectual Property Norms Governing Roller Derby Pseudonyms. Here is the abstract.

Recent work has analyzed the increasing tendency of some social and professional groups use endemic social norms rather than formal law to regulate their intellectual property (IP). This qualitative empirical study extends and critiques existing work by examining how roller derby skaters regulate the pseudonyms under which they perform. Roller derby names are a central part of this countercultural, all-girl sport, adding to its distinctive combination of punk and camp. Skaters have developed an elaborate rule structure, registration system, and governance regime to protect the uniqueness of their skate names. The emergence of this extra-legal governance scheme despite the ready availability of IP theories (e.g., trademark, rights of publicity) to protect derby names challenges a central tenet of the prevailing literature that such norms emerge only where IP law has no substantive application. This analysis of derby names shows that IP norms emerge independently of law’s (un)availability, so long as the relevant group is close-knit and the norms are welfare-maximizing. These groups are especially likely to craft elaborate regulation and registration schemes where the relevant community is identity-constitutive, and where the intangible goods arise from nonmarket production. This study critiques existing explanations for IP norm emergence; suggests a counter-theory for the emergence of user-generated IP governance systems; casts further doubt on the adequacy of prevailing neoclassical economic assumptions underpinning IP doctrine; and calls into question what it means for rules to be law.

Download the paper from SSRN at the link.

February 15, 2011 | Permalink | TrackBack (0)

Monday, February 14, 2011

The Media and Climate Change

Tommaso Pavone, University of Michigan, Ann Arobr, Gerald R. Ford School of Public Policy, has published Hot Off the Press: Climate Change and the Mass Media. Here is the abstract.
The relationship between the mass media and climate change governance remains largely unexplored in the academic literature. In this paper, I argue that the media does influence outcomes on climate change. I provide an overview of media accounts on climate change, the factors which influence the reporting, and how the media can shape public opinion on the issue. Throughout, I treat the mass media as a mechanism of information diffusion and argue for its agenda-setting power on the climate change issue. Finally, I forward an original theoretical model whereby freedom of the press influences climate change governance. I argue that a freer media is more likely to transparently report the scientific consensus and thus take an implicitly normative stance in favor of climate change action. I then corroborate the model with multivariate regression analysis. The regression output finds that freedom of the press may correlate better with climate change activism than originally thought.
Download the paper from SSRN at the link.

February 14, 2011 | Permalink | TrackBack (0)

Dutch MP Can Challenge Charges In New Trial

Dutch MP Geert Wilders may challenge the charges of "anti-Islamic speech" pending against him, says a panel of judges. According to one judge, if his challenge succeeds, "the case will be closed". An earlier trial was aborted last fall. More here from the BBC.

February 14, 2011 | Permalink | TrackBack (0)