Administrative Law Commons^™

Banned Books & Banned Identities: Maintaining Secularism And The Ability To Read In Public Education For The Well-Being Of America's Youth, Megan M. Tylenda

Indiana Journal of Law and Social Equality

Books containing LGBTQ+ themes and characters are being removed from public school libraries at a rapid rate across the United States. While a book challenge has made it to the Supreme Court once before, the resulting singular plurality opinion left courts without a clear test to apply, ultimately leaving students’ First Amendment rights in the air. Additionally, the increasingly relaxed view of courts towards religious influence in public schools indicates that if a modern case were to reach the Supreme Court, religious challenges may be accepted, which would leave LGBTQ+ students who seek to see themselves represented in literature without …

Just-Right Government: Interstate Compacts And Multistate Governance In An Era Of Political Polarization, Policy Paralysis, And Bad-Faith Partisanship, Jon Michaels, Emme M. Tyler

Indiana Law Journal

Those committed to addressing the political, economic, and moral crises of the day— voting rights, racial justice, reproductive autonomy, gaping inequality, LGBTQ rights, and public health and safety—don’t know where to turn. Federal legislative and regulatory pathways are choked off by senators quick to filibuster and by judges eager to strike down agency rules and orders. State pathways, in turn, are compromised by limited capacity, collective action problems, externalities, scant economies of scale, and—in many jurisdictions—a toxic political culture hostile to even the most anodyne government interventions. Recognizing the limited options available on a binary (that is, federal or state) …

Situating Structural Challenges To Agency Authority Within The Framework Of The Finality Principle, Harold J. Krent

Indiana Law Journal

No abstract provided.

Corporatizing Administrative Law For Economic Constitutionalism In Ghana: An African Legal Study, Rowland Atta-Kesson

Maurer Theses and Dissertations

As the Government of Ghana partners the private sector to promote district industrialization in Ghana under what is locally called “one-district-one factory” (1D1F), this study argues that it is important to foster economic constitutionalism with legal and institutional innovations. One such innovation is this study’s emergent or grounded theory of corporatized administrative law. The study is unique because it contributes to the so-called new administrative law theory with fresh evidence from Ghana on the interface between the public and private sectors under the district industrialization program. The key problem is the challenge that democratic policy discontinuity poses to business protection …

Policing In A Democratic Constitution, Michael Wasco

Indiana Journal of Constitutional Design

Most constitutions contain provisions relating to or impacting policing. Separate from the armed forces and intelligence services, the police are the state’s internal security apparatus, and codifying issues related to policing within a constitution can ensure efficient service delivery and human rights protections.

Originating from the Libyan constitution making process, this paper provides a taxonomy of options for constitution drafters and scholars. More so than other issues, such as separation of powers or human rights protections generally, policing sections are very country specific. While not advocating for specific best practices, the work gives ample justifications for certain policing principles and …

Legislative Committee Systems: A Design Perspective, Chase Stoddard

Indiana Journal of Constitutional Design

Committees are the defining characteristic of the modern legislature. While the centrality and study of party politics goes back further than committee politics, the focus on committee systems emerged over the course of the twentieth century, and legislatures could not function as we understand them without this mechanism. The United States Congressional committee system is the most studied system, yet virtually every country utilizes a committee system of some sort within its legislature. Despite their ubiquity in and centrality to the operations of legislatures, committees remain insufficiently studied, especially outside of the United States. The existing body of work tends …

Taxonomy Of Minority Governments, Lisa La Fornara

Indiana Journal of Constitutional Design

A minority government in its most basic form is a government in which the party holding the most parliamentary seats still has fewer than half the seats in parliament and therefore cannot pass legislation or advance policy without support from unaffiliated parties. Because seats in minority parliaments are more evenly distributed amongst multiple parties, opposition parties have greater opportunity to block legislation. A minority government must therefore negotiate with external parties and adjust its policies to garner the majority of votes required to advance its initiatives.

This paper serves as a taxonomy of minority governments in recent history and proceeds …

The Government’S Lies And The Constitution, Helen L. Norton

Indiana Law Journal

The government’s lies can be devastating. This is the case, for example, of its lies told to resist legal and political accountability for its misconduct; to inflict economic and reputational harm; or to enable the exercise of its powers to imprison, to deploy lethal force, and to commit precious national resources. On the other hand, the government’s lies can sometimes be helpful: consider lies told to thwart a military adversary or to identify wrongdoing through undercover police work. The substantial harms threatened by some government lies invite a search for ways to punish and prevent them. At the same time, …

Duty To Defend And The Rule Of Law, Gregory F. Zoeller

Indiana Law Journal

This Article challenges Eric Holder’s and William Pryor’s views and explains the proper role of a state attorney general when a party challenges a state statute. In short, an attorney general owes the state and its citizens, as sovereign, a duty to defend its statutes against constitutional attack except when controlling precedent so overwhelmingly shows that the statute is unconstitutional that no good-faith argument can be made in its defense. To exercise discretion more broadly, and selectively to pick and choose which statutes to defend, only erodes the rule of law. (introduction)

Wikileaks And The First Amendment, Geoffrey R. Stone

Federal Communications Law Journal

FCBA Distinguished Speaker Series

In November 2010, Julian Assange's WikiLeaks collaborated with major media organizations to release thousands of classified U.S. State Department documents. American soldier Bradley Manning stands accused of leaking those documents to the website. In response, Congress introduced the SHIELD Act to amend the Espionage Act of 1917, making it a crime for any person to disseminate any classified information concerning American intelligence or the identity of a classified informant. Such sweeping language, while possibly constitutional as applied to government employees like Manning, is plainly unconstitutional as applied to those like Assange and WikiLeaks who subsequently publish …

Bart Cell Phone Service Shutdown: Time For A Virtual Forum?, Rachel Lackert

Federal Communications Law Journal

The balancing act between protecting First Amendment rights and the necessity of law enforcement to maintain the public order is not simple under normal circumstances. On August 11, 2011, San Francisco's Bay Area Rapid Transit ("BART") created a paradigm embodying the very essence of this problem by shutting down cell phone and Internet service to prevent citizens from organizing and planning a protest. Both the constitutional and telecommunications law implications of BART's cell phone and Internet shutdown beg for analysis and reform, especially in an age of rapidly advancing technology. This Note analyzes the legal implications of BART's shutdown, and …

The Fcc’S Sponsorship Identification Rules: Ineffective Regulation Of Embedded Advertising In Today’S Media Marketplace, Jennifer Fujawa

Federal Communications Law Journal

In the contemporary media landscape, the advertising industry is increasingly relying on embedded advertising to reach consumers. The scope of embedded advertising in today's marketplace raises significant concerns and complicated First Amendment questions regarding the type of regulation needed to suit the interests of all parties concerned. In 2008, the FCC released a joint Notice of Intent/Notice of Proposed Rulemaking entitled Sponsorship Identification Rules & Embedded Advertising, which requested comments on the FCC's proposed changes to its sponsorship identification rules in light of this growing prevalence of embedded advertising. Yet, four years later, the FCC's sponsorship identification rules are exactly …

Of Burning Houses And Roasting Pigs: Why Butler V. Michigan Remains A Key Free Speech Victory More Than A Half-Century Later, Clay Calvert

Federal Communications Law Journal

More than fifty years after the U.S. Supreme Court rendered its unanimous decision in Butler v. Michigan, the case remains a pivotal-if unheralded and perhaps underappreciated-victory for freedom of speech. This Article analyzes the Butler principle and demonstrates how courts repeatedly apply it across different media platforms and in a myriad of factually distinct contexts, ranging from prohibitions on the sale of sex toys to bans on beer bottles with offensive labels. The Article initially provides an in-depth look at Butler, drawing on literary scholarship, historical newspaper articles from the time of the case, and other sources. It then illustrates …

Wiretapping The Internet: The Expansion Of The Communications Assistance To Law Enforcement Act To Extend Government Surveillance, Christa M. Hibbard

Federal Communications Law Journal

Criminal use of the Internet to circumvent traditional government phone wiretaps has inspired the Obama Administration to create a proposal to expand the Communications Assistance to Law Enforcement Act ("CALEA"). CALEA was passed in 1994 to regulate telephone and broadband companies to ensure compliance with standards to enable government wiretapping. The proposed amendment of CALEA would allow the government to require all communications service providers to meet technical standards necessary to comply with a wiretap order. The expansion of CALEA would likely widen its scope to social networking sites, instant messaging, gaming consoles that allow conversation among multiple players, and …

When Does F*** Not Mean F***?: Fcc V. Fox Television Stations And A Call For Protecting Emotive Speech, W. Wat Hopkins

Federal Communications Law Journal

The Supreme Court of the United States does not always deal cogently with nontraditional language. The most recent example is FCC v. Fox Television Stations, in which the Justices became sidetracked into attempting to define the f-word and then to determine whether, when used as a fleeting expletive rather than repeatedly, the word is indecent for broadcast purposes. The Court would do well to avoid definitions and heed Justice John Marshall Harlan's advice in Cohen v. California to provide protection for the emotive, as well as the cognitive, element of speech

The "Strong Medicine" Of The Overbreadth Doctrine: When Statutory Exceptions Are No More Than A Placebo, Christopher A. Pierce

Federal Communications Law Journal

In United States v. Stevens, the United States Supreme Court invalidated a federal statute criminalizing the interstate sale and distribution of depictions of animal cruelty on First Amendment grounds. While Stevens demonstrates the Court's reluctance to create a new category of speech outside of First Amendment protection, Stevens also stands for the proposition that borrowing the exceptions clause from the Court's obscenity standard will not adequately protect a statute from invalidation as overbroad. This Note discusses the use of the obscenity standard's exceptions clause in nonobscenity statutes and the Court's treatment of the exceptions clause in Stevens. This Note concludes …

How Elevation Of Corporate Free Speech Rights Affects Legality Of Network Neutrality, Barbara A. Cherry

Federal Communications Law Journal

In Citizens United v. Federal Election Commission (2010), the U.S. Supreme Court overruled a century of precedent to hold that corporations must be treated identically to natural persons with regard to political speech. This Article describes how the Court's decision is a radical departure from history that mirrors the FCC's flawed analysis in its classification of broadband Internet access services as an information service with no separable telecommunications component subject to common carriage regulation. Overall, the combinatorial effect of Citizens United and the FCC's classification of broadband access service as an information service is to elevate the constitutional free speech …

Wikileaks Would Not Qualify To Claim Federal Reporter’S Privilege In Any Form, Jonathan Peters

Federal Communications Law Journal

This Article addresses whether WikiLeaks could claim a federal reporter's privilege if the U.S. government or a U.S. entity tried to compel one of the site's staff members to disclose the source(s) of any documents it has released. After exploring the origins of the First Amendment-based privilege, the Author argues that WikiLeaks would not be able to claim it. First, the website does not engage in investigative reporting. Second, it has not taken steps consistently to minimize harm. He also discusses congressional attempts to pass a federal shield law, paying special attention to H.R. 985 and S. 448, the two …

International Media Law Reform And First Amendment Agnosticism: Review Of Lee Bollinger’S Uninhibited, Robust, And Wide-Open: A Free Press For A New Century, Enrique Armijo

Federal Communications Law Journal

Lee Bollinger's Uninhibited, Robust, and Wide-Open argues that in an increasingly globalized world, the United States must seek to export First Amendment free press principles to other countries. His project, however, is belied by the fact that media law is a product of context and history as much as legalism. His proposals for reconceptualizing our own animating vision for a free press here in the States are also in many important respects inconsistent with the First Amendment itself.

From One [Expletive] Policy To The Next: The Fcc's Regulation Of "Fleeting Expletives" And The Supreme Court's Response, Brandon J. Almas

Federal Communications Law Journal

After the broadcast of the 2003 Golden Globe Awards, during which the lead singer from U2 uttered an expletive on national television, the FCC revisited its prior policy on the use of expletives on the airwaves and declared, for the first time, that "fleeting expletives" are offensive according to community standards and are therefore finable. In a lawsuit filed in the Second Circuit Court of Appeals, Fox Television Stations, Inc. along with a number of other broadcasters argued that the FCC's new policy was arbitrary and capricious under the Administrative Procedure Act and unconstitutional under the First Amendment. The Second …

Examining The Fcc's Indecency Regulations In Light Of Today's Technology, Elizabeth H. Steele

Federal Communications Law Journal

Indecency regulations promulgated by the FCC used to be effective, but today's technological advances call those regulations into question. With the prevalence of digital video recorders and the availability of television shows on the Internet, children have unprecedented access to material broadcast at all times of day. As a result, the "safe harbor" rationale restricting the broadcast of indecent material no longer makes sense. A move toward deregulation is the most logical step to take, as it would prevent any First Amendment violations and would allow the networks freedom to broadcast material that the public may be interested in without …

Fcc V. Fox Television Stations And The Fcc's New Fleeting Expletive Policy, Jerome A. Barron

Federal Communications Law Journal

This Article focuses on the Supreme Court's decision in FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800 (2009). In that case, the Supreme Court upheld an important change in the FCC indecency regulation. In the past, the FCC's policy had been that the broadcast of a single expletive did not violate FCC indecency policy. In order for such fleeting expletives to be actionable, the FCC required that they had to be repetitive and gratuitous. But in 2004, in response to the use of some expletives by entertainers during the Golden Globe Awards, the FCC changed its policy and …

Thwack!! Take That, User-Generated Content!: Marvel Enterprises V. Ncsoft, Carl Michael Szabo

Federal Communications Law Journal

Comic-book heroes show us how to be valiant, how to fight for those less fortunate, and, in some circumstances, how to combat those who break the law. Such is the situation in the case of Marvel Enterprises, Inc. v. NCSofl Corp., a battle between user-generated content and the copyright violations that resulted.

While the issue of copyright liability has been seen in hundreds of comments and notes from courts and attorneys alike, the issue of copyright liability on the internet remains an open question that if not addressed, could endanger the protection afforded to authors. Federal and state suits have …

Music As Speech: A First Amendment Category Unto Itself, David Munkittrick

Federal Communications Law Journal

Perhaps the most ubiquitous of art forms, music accompanies daily activities from shopping to jogging. Music permeates modem society, and there is little question it constitutes an integral mode of expression. Despite recognition of music's worth, however, there is little explanation of music in First Amendment jurisprudence. A rationale for First Amendment protection begins with analysis of the particular medium of speech. Through a foray in musical aesthetics and the history of musical censorship, this Note discusses the role of music in political, societal, and individual experience. Music has had an important role in political events, from the fall of …

The Sound Of Money: Securing Copyright, Royalties, And Creative "Progress" In The Digital Music Revolution, Armen Boyajian

Federal Communications Law Journal

Academics and popular critics alike want to distill, reform, or altogether destroy U.S. copyright law as we know it. Much of this stems from animosity toward the old-guard record industry's alleged practices of overcharging consumers, underpaying royalties to artists, and suing teenagers and grandmas. But what those calling for reform all seem to neglect is a tiny but inevitable fact: for the first time in history, composers and recording artists can keep their copyrights.

Tangible media sales are being replaced by P2P file sharing, retail downloads, and streaming Webcasts. Digital technologies and wireless networks have opened prime channels for music …

A "Pay Or Play" Experiment To Improve Children's Educational Television, Lili Levi

Federal Communications Law Journal

This Article addresses both the constitutionality and the efficacy of the FCC's current rules that require broadcasters to air children's educational programming. It argues that, even though the rules would probably pass muster under the First Amendment, they should nevertheless be substantially revised.

Empirical studies show mixed results, with substantial amounts of educationally insufficient programming. This is predictable-attributable to broadcaster incentives, limits on the FCC's enforcement capacities, and audience factors. Instead, the Article advises a turn away from programming mandates. It proposes a "pay or play" approach that allows broadcasters to pay a fee to a fund for high-quality public …

Protecting The Cloak And Dagger With An Illusory Shield: How The Proposed Free Flow Of Information Act Falls Short, Jill Laptosky

Federal Communications Law Journal

Journalists who use secret sources may be presented with a staggering dilemma-disclose the source to comply with a subpoena or go to jail to protect the source. Despite the U.S. Supreme Court's holding in Branzburg v. Hayes (1972), most jurisdictions now recognize that journalists have a privilege not to disclose their confidential sources when compelled to do so by the government. While the degree of the privilege's protection varies across jurisdictions, the fact that such a privilege exists at all may surprise anyone who has read Branzburg, which held that the First Amendment cannot support the existence of the privilege. …

Restraining False Light: Constitutional And Common Law Limits On A "Troublesome Tort", James B. Lake

Federal Communications Law Journal

The defamation tort is the common law's established remedy for false speech that causes reputational and emotional injury. That tort is subject to intricate constitutional, legislative, and common law rules that have evolved over decades. The false light invasion of privacy tort also provides a potential cause of action in response to injurious falsehood. False light, however, has been subject to much less judicial and legislative scrutiny than defamation. As a result, courts often are uncertain about the proper limits on false light and, in some cases, have countenanced false light claims that would have failed if filed as defamation …

Leave Me Alone! The Delicate Balance Of Privacy And Commercial Speech In The Evolving Do-Not-Call Registry, Andrew L. Sullivant

Federal Communications Law Journal

In 2004, the Tenth Circuit held that although the newly enacted do-not-call registry restricted commercial speech, the restriction was narrowly tailored and thus fell within the bounds of the Constitution. Since that decision, the Federal Trade Commission has amended the do-not-call registry to abolish the provision that required individuals to re-register every five years, and in 2008, Congress passed the amendment. This Note argues that the five-year reregistration requirement is a substantial factor in the registry's narrow tailoring. By removing the requirement, questions as to the restriction's constitutionality reemerge.

The Terrorist Is A Star!: Regulating Media Coverage Of Publicity-Seeking Crimes, Michelle Ward Ghetti

Federal Communications Law Journal

Publicity-seeking crimes, including terrorism, almost by definition depend on the media for their effectiveness. Twenty-five years ago, when the bulk of this article was written, critics both within and outside the news industry had begun to voice an awareness, if not a concern, for the ease with which such criminals obtained publicity on both a national and international platform and it looked as if something might be done within the media establishments to thwart this manipulation of the press. Today, it is possible to look back and see that, in fact, nothing has been done and, so, individuals such as …