September 29, 2012
The FCC and Incentive AuctionsThe FCC backs a plan to reclaim and re-auction parts of the broadcast spectrum that wireless broadcasters could then use to expand their reach. Some present broadcasters will not be interested in giving up their parts of their spectrum, says New York Times reporter Edward Wyatt, but some will, for a portion of the auction proceeds. More here from the Times. More here on the incentive auctions from the FCC's website.
September 28, 2012
"Innocence of Muslims" Producer JailedJudge Suzanne Segal has jailed Nakoula Basseley Nakoula, who as it turns out is really named Mark Youseff. Mr. Youseff is the producer of "Innocence of Muslims," the 14-minute trailer which has apparently caused a great deal of the violence in the MIddle East, and over which Cindy Lou Garcia has filed a second lawsuit. Judge Segal indicated that her decision is based on Mr. Youseff's "lengthy pattern of deception," and said he was a flight risk.
Former "Cops" Producer Sues CompanyFifty-seven-year-old Steven Kiger says the production company in charge of the long-running Fox show "Cops" fired him in 2010 because he was too old, and has filed suit under a number of state and federal statutes. Mr. Kiger has not sued the Fox network.
Media Reporting and Queensland Laws
Rhonda A. Breit and Richard L. Fitzgerald have published Changes in Media Reporting after RTI Laws in Queensland, presented at the CPRafrica 2012/CPRsouth 7 Conference, Port Louis, Mauritius, September 5-7, 2012. Here is the abstract.
This paper outlines findings of research into how journalists’ use and report issues related to freedom of information (FOI) and right to information (RTI) in Queensland, following the introduction of access to information reforms in 2009.
A triangulated analysis was used incorporating quantitative and qualitative methods. At a quantitative level, the text analytics software Leximancer was used to identify key concepts, issues and trends in 786 relevant articles from national, metropolitan and regional newspapers. At a qualitative level, discourse analysis was used to identify key themes and patterns from the newspaper articles. Finally, semi-structured interviews with journalists who use and report on RTI/FOI were conducted in order to identify journalists’ attitudes towards RTI and to provide context for the analysis of newspaper reports.
Both qualitative and quantitative shifts in the media reporting of RTI and FOI were revealed across three time periods representing the periods before, during and after the reform implementation. The findings offer insights into the role of newspapers in promoting and/or framing the public sector information environment in Australia. This benchmark study will enable researchers within and beyond Asian contexts to monitor the role journalists’ play as information converters under push model RTI and their capacity to work collaboratively with government agencies in maximizing the usefulness of public sector information.
Download the paper from SSRN at the link.
And More About Tobacco Regulations and Speech
Danielle Weatherby, Whiteman, Osterman & Hanna, and Terri Day, Barry University School of Law, have published The Butt Stops Here: The Tobacco Control Act’s Anti-Smoking Regulations Run Afoul of the First Amendment in volume 76 of the Albany Law Review (2012). Here is the abstract.
This paper discusses the First Amendment implications of the graphic images provision of the Family Prevention Tobacco Act of 2009, which requires tobacco companies to display these images plus a 1-800-QUIT-NOW number on 50% of the front and back of cigarette packages. This mandate goes way beyond the type of compelled disclosures which pass First Amendment scrutiny, when the statements are factual and are intended to dispel consumer confusion about a product. Under Supreme Court precedent, these factual disclosures are subject to limited judicial review, even lower than the intermediate scrutiny applied to commercial speech regulations. Because the graphic images are not factual statements meant to dispel consumer confusion, this lower standard of review should not apply. A recent Supreme Court case held that strict scrutiny applies to content-based regulations, even in the commercial context. Therefore, this article proposes that the question of whether these graphic images violate the First Amendment is subject to strict scrutiny judicial review. Under this standard, the government cannot establish the least restrictive means prong of strict scrutiny. There are other means available to the government to effectuate its goal of reducing teen smoking and encouraging adult abstinence. Government cannot “conscript” private companies into being a “mini-billboard” for the government’s anti-smoking message. Two Circuit Courts of Appeals have addressed the First Amendment issue presented by the graphic images provision. There is a split in the Circuits. Given the split in the Circuits and the potential “slippery slope” of government using speech regulations to control unhealthy habits, this case will probably reach the Supreme Court. If these graphic images pass First Amendment scrutiny, the next thing we might see are pictures of fat people or clogged arteries on Lay’s potato chip packages.Download the article from SSRN at the link.
The First Amendment and Tobacco Package Warnings
Stephanie Bennett has published Paternalistic Manipulation through Pictorial Warnings: The First Amendment, Commercial Speech, and the Family Smoking Prevention and Tobacco Control Act in volume 81 of the Mississippi Law Journal (2012). Here is the abstract.
Beginning in 2012, the Family Smoking Prevention and Tobacco Control Act will require pictorial warning labels on both regular and smokeless tobacco products. The warnings contain textual statements encouraging smoking cessation as well as graphic images depicting cadavers, crying children, and cancerous lesions. As presently required by the U.S. Food and Drug Administration, the warnings both unconstitutionally compel and suppress commercial speech. The warnings violate the First Amendment under every existing Supreme Court standard for evaluating commercial speech regulations: the “reasonable relation” standard of Zauderer v. Office of Disciplinary Counsel; the strict scrutiny standard of Wooley v. Maynard; and the intermediate scrutiny standard for commercial speech disclosure and suppression expressed in Central Hudson Gas & Electric Corporation v. Public Service Commission. Rather than tax tobacco products, ban tobacco products, use removable warnings already adopted by many countries including Canada, or implement educational programs to inform consumers about the dangers of using tobacco products, the FDA has instead resorted to paternalistic manipulation of consumers and infringement upon the First Amendment rights of tobacco manufacturers.
Download the article from SSRN at the link.
September 26, 2012
The Impact of the Georgia State University Copyright Ruling: One Lawyer's Take
At the Chronicle of Higher Education, a copyright lawyer weighs in on a recent district court opinion's application to his own work. Says attorney Zick Rubin in part about Judge Orinda Evans' ruling in the Georgia State case,
As a result, Mr. Rubin says he doesn't mind that professors continue to assign a limited number of pages from his copyrighted works to their students, and he doesn't think they need to ask his permission, or pay royalties. According to him, the ruling is in line with the spirit of the Copyright Clause.
[T]hree of the four determining factors for fair use come out in the "fair" direction: First, Professor McClain is assigning my chapter for nonprofit educational purposes, not for commercial gain; second, although some have said that Liking and Loving reads like a novel, it is a factual and—ahem!—scientific work; third, the portion that is being copied is only one chapter out of 10 and makes up only a small proportion of the book's pages.
The only factor that tilts in the "unfair" direction is the fact that, thanks mainly to the work of the copyright center, there is a readily available licensing market for photocopying excerpts of my book. In 3-to-1 cases like this one, Judge Evans determined that Georgia State's copying was fair use and required no permission at all. Out of some 75 instances that the court considered, the judge found only five to be infringements—and each of them involved the use of two or more chapters of a book. Although the Georgia State case involved electronic course reserves, not photocopies, the same fair-use calculus applies.
September 24, 2012
Uganda Arrests, Jails British Man For Presenting Play With Gay ThemeUgandan authorities arrested and jailed producer David Cecil for staging a play about gays without official permission, according to CNN. They released him after four days, and he is scheduled to appear in court in October. Homosexual acts are illegal in Uganda; a few years ago one Uganda legislator introduced a bill to make homosexuality punishable by death, but that move was finally abandoned this year.
September 23, 2012
Speech on the Net
The New York Times' Somini Sengupta on how those companies that control access to the Internet make decisions about speech.