Communications Law Commons^™

Bankrupt Marketplace: First Amendment Theory And The 2016 Presidential Election, Leonard M. Niehoff

Articles

In this article I advance two arguments. The first is that 2016 was a particularly important year for freedom of speech and the press, although not for conventional reasons. The second is that hte events of 2016 revealed that one of the essential components of our democracy - the central role that free expression plays in the democratic process - is in a state of serious dysfunction, if not crisis.

Ethics For Media Lawyers: The Lessons Of Ferguson, Leonard M. Niehoff

Articles

Ferguson, Missouri, has a population of roughly 21,000 people. Thirty cities in Missouri have larger populations. The Edward Jones Dome, where the St. Louis Rams play football, seats three times as many people. Most of us had never heard of Ferguson prior to August 9, 2014, when a police oficer named Darren Wilson shot and killed an unarmed black teenager named Michael Brown. But, to paraphrase the grim observation of Ambrose Bierce, war is how Americans learn geography. So, as violence and vandalism erupted on its streets, the nation turned its attention toward Ferguson and labored to understand the place, …

Taming The "Feral Beast": Cautionary Lessons From British Press Reform, Lili Levi

Articles

No abstract provided.

Three Puzzling Things About New York Times V. Sullivan: Beginning The Anniversary Conversation, Leonard M. Niehoff

Articles

This is the 50th anniversary of a watershed year in the history of the civil rights movement. During that year, the Southern Christian Leadership Conference mounted its anti-segregation campaign in Alabama; Commissioner "Bull" Connor turned dogs and fire hoses on demonstrators; activists were attacked; riots flared; George Wallace blocked the doors of a public university to keep black students out; President Kennedy dispatched troops to Alabama and called for the passage of a civil rights bill; Medgar Evers was murdered; the then-largest human rights demonstration in U.S. history converged on Washington; Martin Luther King Jr. gave his historic speech at …

Purpose And Effects: Viewpoint-Discriminatory Closure Of A Designated Public Forum, Kerry L. Monroe

University of Michigan Journal of Law Reform

In early 2010, amidst a series of racially charged incidents on campus, the student government president at the University of California at San Diego revoked funding to all student media organizations in response to controversial speech on the student-run television station. It is well established that once the government has opened a forum, including a "metaphysical" forum constituted by government funding for private speech, it may not discriminate based on the viewpoints expressed within that forum. However, it has not been clearly established whether the government may close such a forum for a viewpoint-discriminatory purpose. This Note argues that courts …

The Journalism Ratings Board: An Incentive-Based Approach To Cable News Accountability, Andrew Selbst

University of Michigan Journal of Law Reform

The American establishment media is in crisis. With newsmakers primarily driven by profit, sensationalism and partisanship shape news coverage at the expense of information necessary for effective self-government. Focused on cable news in particular this Note proposes a Journalism Ratings Board to periodically rate news programs based on principles of good journalism. The Board will publish periodic reports and display the news programs' ratings during the programs themselves, similar to parental guidelines for entertainment programs. In a political and legal climate hostile to command-and-control regulation, such an incentive-based approach will help cable news fulfill the democratic function of the press.

The Independent Significance Of The Press Clause Under Existing Law, C. Edwin Baker

All Faculty Scholarship

The paper argues that only the assumption that the Press Clause has a meaning independent of the Speech Clause could explain either different First Amendment treatment of individuals and the press or different First Amendment treatment of the press and other businesses. Suggesting an interpretation of the Press Clause as protecting the institutional integrity of the Fourth Estate, it then examines fifteen areas of law and finds that in each area the press receives different treatment – precisely the different treatment that the Fourth Estate theory predicts. Moreover, no area of law is found to be inconsistent with this independent …

In Search Of Regulatory Equilibrium, Lili Levi

Articles

No abstract provided.

The Classified Information Protection Act: Killing The Messenger Or Killing The Message, Mitchell J. Michalec

Cleveland State Law Review

The purpose of this Note is to discuss the adequacy of existing statutory and administrative protections for classified information, examine how the agencies responsible for protecting this information implemented controls, and how the courts interpreted these existing protections. This Note argues that the failure of the government to prevent "leaks" is not necessarily a failure of the existing scheme, but rather a failure of the government to apply current controls. Furthermore, it demonstrates that the Classified Information Protection Act is an unnecessary, overbroad, and in some cases, ineffective alternative to the existing protections, with a great potential for abuse. If …

Reporting The Official Truth: The Revival Of The Fcc's News Distortion Policy, Lili Levi

Articles

No abstract provided.

Reporting The Truth And Setting The Record Straight: An Analysis Of U.S. And Japanese Libel Laws, Ellen M. Smith

Michigan Journal of International Law

This Note argues that U.S. courts and lawmakers should adopt some aspects of Japanese libel law. Part I compares the balances struck in U.S. and Japanese libel law between promoting press freedoms and protecting individual interests. Part II focuses on the extent to which each system succeeds in addressing the objectives of encouraging aggressive, accurate reporting, and compensating libel victims. Finally, Part III proposes a new U.S. libel standard that would adopt, with some modifications, key elements of Japanese libel law without running afoul of established U.S. constitutional requirements.

Why There Should Be An Independent Decennial Commission On The Press, Lee C. Bollinger

Faculty Scholarship

In 1947, the Commission on Freedom of the Press chaired by Robert M. Hutchins, published its report entitled "A Free and Responsible Press:" Sharply criticized by the media when published, the Hutchins Commission Report (as it has come to be known) seems to have assumed only minor status within the history of freedom of the press in this century, as well as among reports on social problems generally. In this article, I will consider whether the Hutchins Commission Report deserves a different fate. Given the media's usually astounding self-preoccupation, the fact that the Report was about the "press" would lead …

Leathers V. Medlock: The Supreme Court Changes Course On Taxing The Press, Robert M. Howie

Washington and Lee Law Review

No abstract provided.

The First Amendment Fights Back: A Proposal For The Media To Reclaim The Battlefield After The Persian Gulf War, Michelle Tulane Mensore

Washington and Lee Law Review

No abstract provided.

Gentile V. State Bar Of Nevada: Implications For The Media, Gregory A. Garbacz

Washington and Lee Law Review

No abstract provided.

Foreword, Lee C. Bollinger

Faculty Scholarship

The mass media are too important to American democracy, too capable of causing injury, and too easy a target for the perennial wish to find a scapegoat for the country's ills ever to be very far from the center of public attention and debate. That is certainly true today. And, though every generation probably thinks that it stands at a crossroads on the question what to do with the media, I would nevertheless venture to say that the issues of our time are more serious, and more complex, than ever before. One can safely predict, in any event, that we …

Banning Broadcasting – A Transatlantic Perspective, Geoffrey Bennett, Russel L. Weaver

Journal Articles

The British Government's decision to prohibit radio and television networks from airing interviews or statements by members of certain Northern Ireland organizations, or by allies and sympathizers of such organizations (the Broadcasting Ban or Ban) is analyzed in context. From an analysis of the Ban, some conclusions are drawn about the nature of judicial review.

The Press And The Public Interest: An Essay On The Relationship Between Social Behavior And The Language Of First Amendment Theory, Lee C. Bollinger

Michigan Law Review

I would like to explore in this essay one aspect of the contemporary American debate over the theory of freedom of speech and press. The subject I want to address is this: whether the principle of freedom of speech and press should be viewed as protecting some personal or individual interest in speaking and writing or whether it should be seen as fostering a collective or public interest. Sometimes this issue is stated as being whether the first amendment protects a "right to speak" or a "right to hear," though in general the problem seems to be whether we should …

The Jury, Seditious Libel And The Criminal Law, Thomas A. Green

Book Chapters

The seditious libel trials of the eighteenth century constitute an important chapter in the history of freedom of the press and the growth of democratic government. While much has been written about the trials and about the administration of the criminal law in eighteenth-century England, little has been said about the relationship between the libel prosecutions and the more pervasive and long-standing problems of the criminal law. We have perhaps gone too far in positing-or simply assuming-a separation between political high misdemeanors and common-run felony cases such as homicide and theft. For there were points of contact between the two: …

The First Amendment Reconsidered: New Perspectives On The Meaning Of Freedom Of Speech And Press, Michigan Law Review

Michigan Law Review

A Review of The First Amendment Reconsidered: New Perspectives on the Meaning of Freedom of Speech and Press edited by Bill F. Chamberlin and Charlene J. Brown

The Recent Decline And Fall Of Freedom Of The Press In English Law, Vaughan T. Bevan

Vanderbilt Journal of Transnational Law

A television company broadcasts a program criticizing a nationalized corporation and disclosing documents passed to it secretly by one of the corporation's employees. The corporation asks the television company to reveal the identity of the employee. The television company refuses and eight of nine judges ultimately decide that the refusal is unjustified.

That, in essence, is the story of British Steel Corp. v. Granada Television, Ltd. If this situation had arisen in the United States, legal consequences probably would be unremarkable in view of the law's considerable experience with such matters. The novelty posed for English law, however, and the …

Regulation Of Indecency In Political Broadcasting, Jonathan Golomb

University of Michigan Journal of Law Reform

The article considers both the constitutional and statutory aspects of the regulation of indecency in political broadcasting. The discussion is limited to considering "indecency," a term excluding obscenity or incitement to violence, because the government's power to regulate these types of speech is well established. Indecent speech would be protected if used in the print media, since it does not fall within the established First Amendment exceptions. The basic constitutional question, therefore, is whether the broadcast media are inherently different from the print media, so as to justify different treatment of indecent political speech. This article will contend that they …

International Law And Control Of The Media: Terror, Repression And The Alternatives, Jordan J. Paust

Indiana Law Journal

Terrorism and the Media: Legal Responses, Symposium

Freedom Of The Press And Public Access: Toward A Theory Of Partial Regulation Of The Mass Media, Lee C. Bollinger

Faculty Scholarship

During the past half century there have existed in this country two opposing constitutional traditions regarding the press. On the one hand, the Supreme Court has accorded the print media virtually complete constitutional protection from attempts by government to impose affirmative controls such as access regulation. On the other hand, the Court has held affirmative regulation of the broadcast media to be constitutionally permissible, and has even suggested that it may be constitutionally compelled. In interpreting the first amendment, the Court in one context has insisted on the historical right of the editor to be free from government scrutiny, but …

Freedom Of The Press And Public Access: Toward A Theory Of Partial Regulation Of The Mass Media, Lee C. Bollinger Jr.

Michigan Law Review

The purpose of this article is to examine critically these decisions and to explore whether there is any rational basis for limiting to one sector of the media the legislature's power to impose access regulation. The article takes the position that the Court has pursued the right path for the wrong reasons. There is a powerful rationality underlying the current decision to restrict regulatory authority to broadcasting, but it is not, as is commonly supposed, that broadcasting is somehow different in principle from the print media and that it therefore is not deserving of equivalent first amendment treatment. As will …

Shield Laws: Partial Solution To A Pervasive Problem, Robert M. O'Neil

Articles by Maurer Faculty

No abstract provided.

The Expanding Constitutional Protection For The News Media From Liability For Defamation: Predictability And The New Synthesis, Michigan Law Review

Michigan Law Review

The tort of defamation has a long and complex history dating back to the sixteenth century. Though this tort from the very beginning did not find favor with the law courts, it has managed to survive into the second half of the twentieth century. But this survival may not endure much longer since the Supreme Court has found a deep conflict between the law of defamation and the first amendment. The reasons for this conflict and the Supreme Court's basic resolution of it in favor of first amendment values have been the subject of much scholarly comment, but the Court's …

The Newsman's Privilege: An Empirical Study, Vince Blasi

Michigan Law Review

Today, the statutory, common-law, and constitutional aspects of the long-dormant problem are being re-examined by many legislators, judges, and academicians. The Supreme Court is scheduled to address the constitutional question some time this term. I propose to enter this fray. In this article, I will report the results of an empirical survey that I have undertaken. In subsequent articles, I will analyze the eighteen state statutes that grant newsmen a privilege, consider whether protection for the reporter-news source relationship is compelled by existing common-law principles, and address the question whether a newsman's privilege is properly to be inferred from the …

The Warren Court And The Press, John P. Mackenzie

Michigan Law Review

The conventional wisdom about the relationship between the ·warren Court and the news media runs something like this: With a few exceptions, the press corps is populated by persons with only a superficial understanding of the Court, its processes, and the values with which it deals. The Court has poured out pages of legal learning, but its reasoning has been largely ignored by a result-oriented news industry interested only in the superficial aspects of the Court's work. The Court can trace much of its "bad press," its "poor image," to the often sloppy and inaccurate work of news gatherers operating …

"Uninhibited, Robust, And Wide-Open"--A Note On Free Speech And The Warren Court, Harry Kalven Jr.

Michigan Law Review

There are several ways to give at the outset, in quick summary, an over-all impression of the Warren Court in the area of the first amendment. The quotation in the title can for many reasons be taken as its trademark. The quotation comes, of course, from a statement about public debate made in the Court's preeminent decision, New York Times v. Sullivan, and it carries echoes of Alexander Meiklejohn. We have, according to Justice Brennan, "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open .... " What catches the eye is …