First Amendment Commons^™

Ng9-1-1, Cybersecurity, And Contributions To The Model Framework For A Secure National Infrastructure, Andrew Jackson Coley

Catholic University Journal of Law and Technology

9-1-1 call networks form the foundation of emergency communications infrastructure. However, a lack of funding and taking such networks for granted has led to a gradual yet predictable outdating of this critical infrastructure. Fortunately, recent efforts have acknowledged as such, and dedicated public safety officials have worked to update 9-1-1 systems to Next Generation 9-1-1 (NG9-1-1).
NG9-1-1 is an IP-based network with 21^stcentury technology capable of handling increased call volume, more resilient networks, and providing significantly more data to first responders, among litany of other advancements. With this much needed advancement comes the responsibilities of ensuring a secure …

Think Of The Children: Using Iied To Reformulate Disturbing Speech Restrictions, Richard Lorren Jolly

University of Michigan Journal of Law Reform

The Colorado State Court of Appeals recently upheld an injunction restricting public displays of aborted fetuses. The court held that the restriction passed strict scrutiny because the state had a compelling interest in protecting children from the psychological harm of “disturbing images” and the injunction was narrowly tailored. This marked the first time an injunction had been upheld on this rationale. This Note critiques that holding and others. It contends that while some federal and state courts have recognized the interest in protecting the psychological wellbeing of children from disturbing speech as compelling, the interest is not supported by precedent. …

Network Neutrality And The First Amendment, Andrew Patrick, Eric Scharphorn

Michigan Telecommunications & Technology Law Review

The First Amendment reflects the conviction that the widest possible dissemination of information from diverse and antagonistic sources is essential to public welfare. Like the printing press, the Internet has dramatically transformed the marketplace of ideas by providing unprecedented opportunities for individuals to communicate. Though its growth continues to be phenomenal, broadband service providers— acting as Internet gatekeepers—have developed the ability to discriminate against specific content and applications. First, these gatekeepers intercept and inspect data transferred over public networks, then selectively block or slow it. This practice has the potential to stifle the Internet’s value as a speech platform by …

S!*T, P*@S, C*^T, F*#K, C*@!S*&!Er, M*!#$*@!*#^R, T*!S - The Fcc's Crackdown On Indecency, Lindsay Weiss

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Big Censorship In The Big House—A Quarter-Century After Turner V. Safley: Muting Movies, Music & Books Behind Bars, Clay Calvert, Kara Carnley Murrhee

Northwestern Journal of Law & Social Policy

On the twenty-fifth anniversary of the United States Supreme Court’s decision in Turner v. Safley, this Article examines how federal courts across the country are applying the Turner standard today in cases involving the First Amendment free speech rights of inmates. Are courts too quick today to support the censorial proclivities of prison officials? Do judges too readily capitulate in deference to the concerns of those tasked with overseeing the incarcerated? Those are the key questions this Article addresses by analyzing inmate access to magazines, movies, books, and other common forms of media artifacts. This Article’s determinations stem from …

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 …

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 …

"Fleeting Expletives" Are The Tip Of The Iceberg: Fallout From Exposing The Arbitrary And Capricious Nature Of Indecency Regulation, Dave E. Hutchinson

Federal Communications Law Journal

On November 4, 2008, the Supreme Court heard arguments in FCC v. Fox Television Stations, which centers on whether or the FCC's policy allowing fleeting expletives to be found actionably indecent is arbitrary and capricious. The Second Circuit found that the fleeting expletives policy is arbitrary and capricious as a matter of administrative law. The Supreme Court decision will provide much needed guidance for what constitutes a reasoned basis in the indecency regime's contextual approach. This Note argues that--despite the FCC's recognition that time and context changes the meaning of language-the FCC's indecency regime is at loggerheads with broadcasters because …

Reassessing Turner And Litigating The Must-Carry Law Beyond A Facial Challenge, R. Matthew Warner

Federal Communications Law Journal

In recent decades, the must-carry rules have had a troubled constitutional history. After two sets of rules were struck down by the D.C. Circuit for violating the First Amendment rights of both cable programmers and operators, Congress revised the must-carry rules in the 1992 Cable Act. In 1997, the Supreme Court, in a 5-4 decision, determined that the congressional must-carry law was facially constitutional. However, does the Turner II decision preclude further First Amendment challenges to the must-carry law? This Note argues that the answer is no and that the time is drawing near for new challenges.

Expansion Of Indecency Regulation: Presented By The Federalist Society's Telecommunications Practice Group, Kevin J. Martin, Adam G. Ciongoli, Robert W. Peters, Roger Pilon, David B. Sentelle

Federal Communications Law Journal

This is a transcript of the November 10, 2005, panel discussion at the National Lawyer's Convention presented by the Federalist Society's Telecommunications Practice Group. The panelists debate and discuss the Federal Communications Commission's ("FCC") regulation of indecent content.

Space, The Final Frontier-Expanding Fcc Regulation Of Indecent Content Onto Direct Broadcast Satellite, John C. Quale, Malcolm J. Tuesley

Federal Communications Law Journal

The vast majority of viewers today receive video programming from multichannel video programming providers-mostly cable television or direct broadcast satellite ("DBS")-rather than directly over-the-air from broadcast stations. While the FCC has not hesitated to sanction broadcasters for what it deems to be indecent content, it consistently has found that it lacks the authority to regulate indecency on subscription services like cable television. Citizens groups and some in Congress now seek to extend indecency restrictions to DBS services under existing law or through the enactment of new legislation. It is true that DBS, because of its use of radio spectrum to …

In The Dark: A Consumer Perspective On Fcc Broadcast Indecency Denials, Genelle I. Belmas, Gail D. Love, Brian C. Foy

Federal Communications Law Journal

Indecency regulation has been a hot political and social topic since Janet Jackson revealed her breast during the 2004 Super Bowl halftime show. The number of indecency complaints the FCC receives each year continues to rise. Moreover, to further complicate matters, in 2007 the Second Circuit overturned the FCC policy that so-called "fleeting expletives" would be considered indecent. However, there has been no systematic review of the complaints from the perspective of the complainant. How has the FCC managed its increasing indecency complaint load, and what does it tell consumers who have taken the time to write formal complaints about …

The Fcc Complaint Process And Increasing Public Unease: Toward An Apolitical Broadcast Indecency Regime, Kurt Hunt

Michigan Telecommunications & Technology Law Review

[...]I propose depoliticizing the broadcast indecency regime by utilizing polling to determine the average broadcast viewer's opinion, divorced from all the pressures inherent in relying on the complaint process as a proxy. In section II, I will discuss the background and development of the broadcast indecency doctrine from the days of the Federal Radio Commission in the 1920s through the present day. I will also explain why the apparent increasing public unease is misleading, and why valid First Amendment concerns are steamrolled by the fiery nature of the debate. In section III, I will explain why the FCC's reliance on …

Excuse Me, Sir; You're Sitting In A No Cell Phone Pornography Section, You'll Have To Put That Away: May The Fcc Regulate The Content Of Wireless Broadband Transmissions, H. William Beseth Iii

Cleveland State Law Review

This Note will argue that the scope of the FCC's authority to regulate traditional broadcast content does not extend to the content transmitted to wireless devices via broadband transmission. Part II of this Note provides a study of the key cases that characterize the scope of the FCC's statutory authority to regulate traditional broadcast content. Additionally, Part II presents a discussion of the First Amendment and the limits it imposes on the FCC's regulation of broadcast content. Part III evaluates whether content transmitted by new technologies fits into the regulatory scope of the FCC's authority according to the tests set …

Rethinking Regulation Of Advertising Aimed At Children, William A. Ramsey

Federal Communications Law Journal

In 1990, Congress passed the Children's Television Act ("CTA"), which directed the FCC to establish standards for broadcasters regarding the amount of children's programming aired and to enforce limits on the amount of commercial time aired during children's programming. The limits are meant to protect children from various harms caused by advertising aimed at children. This Note examines the constitutionality and the effectiveness of these commercial limits. The Note concludes that while the CTA's commercial limits are probably constitutional under the Court's test for regulations of commercial speech, the limits do not provide children with adequate protection from the harms …

Out Of Thin Air: Using First Amendment Public Forum Analysis To Redeem American Broadcasting Regulation, Anthony E. Varona

University of Michigan Journal of Law Reform

American television and radio broadcasters are uniquely privileged among Federal Communications Commission (FCC) licensees. Exalted as public trustees by the 1934 Communications Act, broadcasters pay virtually nothing for the use of their channels of public radiofrequency spectrum, unlike many other FCC licensees who have paid billions of dollars for similar digital spectrum. Congress envisioned a social contract of sorts between broadcast licensees and the communities they served. In exchange for their free licenses, broadcast stations were charged with providing a platform for a "free marketplace of ideas" that would cultivate a democratically engaged and enlightened citizenry through the broadcasting of …

The Role Of The Federal Communications Commission On The Path From The Vast Wasteland To The Fertile Plain, Kathleen Q. Abernathy

Federal Communications Law Journal

No abstract provided.

Revisiting The Vast Wasteland, Newton N. Minow, Fred H. Cate

Federal Communications Law Journal

No abstract provided.

Avoiding Slim Reasoning And Shady Results: A Proposal For Indecency And Obscenity Regulation In Radio And Broadcast Television, Jacob T. Rigney

Federal Communications Law Journal

This Note explores the relevant law regarding the issue of indecency and obscenity in broadcast, with particular focus on a 2001 Policy Statement released by the FCC. The Author examines the major problems with the regulatory scheme as it now exists, and offers an alternative. The Author concludes by arguing that leaving the subjective decisions regarding indecency to market forces, leaving parents to determine what should or should not be indecent, and leaving the FCC free to pursue obscenity with greater zeal is the most appropriate course of action for the future.

Proactive Legislation And The First Amendment, Stuart Minor Benjamin

Michigan Law Review

It is a commonplace that the world is changing rapidly, with whole sectors of the economy being transformed. New forms of communication, like the World Wide Web, e-mail, and satellite television, have risen from obscurity to ubiquity in less than a decade. The speed of these changes has led some to express concern about the ability of governments to respond. The fear is that governments cannot keep up with developments as they occur and thus get hopelessly behind. The solution, according to some, is for the government to act proactively - before a harm has arisen, so that the government …

Viacom-Cbs Merger: Media Competition And Consolidation In The New Millennium, Andrew Jay Schwartzman

Federal Communications Law Journal

No abstract provided.

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

Articles

No abstract provided.

The First Amendment Case Against Fcc Ip Telephony Regulation, Tuan N. Samahon

Federal Communications Law Journal

This Comment argues that IP telephony, like handbills and traditional print media, deserves First Amendment protection against FCC regulatory authority. After briefly reviewing the IP telephony phenomenon within the larger context of "digital convergence," the Comment examines the FCC and Supreme Court’s technologically driven First Amendment jurisprudence—particularly, the First Amendment’s conspicuous absence from the IP telephony dialogue, and, correspondingly, the prominence of assurances of regulatory forbearance in Congress, the courts, and the FCC. In response, the Author offers First Amendment content-based and content-neutral arguments against the proposed telephony regulations. At the very least, the affordability and innovation IP telephony offers …

"Chilling" The Internet? Lessons From Fcc Regulation Of Radio Broadcasting , Thomas W. Hazlett, David W. Sosa

Michigan Telecommunications & Technology Law Review

Congress included the Communications Decency Act (CDA) in the Telecommunications Act signed into law on February 8, 1996. The bill seeks to outlaw the use of computers and phone lines to transmit "indecent" material with provisions of jail terms and heavy fines for violators. Proponents of the bill argue it is necessary to protect minors from undesirable speech on the Internet. The CDA was immediately challenged in court by the American Civil Liberties Union, and the special 3-judge federal panel established to hear the case recently declared the Act unconstitutional. Yet, its ultimate adjudication remains in doubt. Ominously, the federal …

How Far Is Too Far? The Line Between "Offensive" And "Indecent" Speech, Milagros Rivera-Sanchez

Federal Communications Law Journal

Defining "indecency" in the context of radio broadcast seems quite a chore. While the Federal Communications Commission has struggled to set fbrth workable guidelines for "indecency," a great deal of uncertainty continues to surround broadcasters. Recognizing this confusion, the article surveys indecency complaints which were made to the FCC between 1989 and 1995 and eventually dismissed. An analysis of cases which the FCC fbund "not actionably indecent" helps delineate the FCC's decency standard. Dismissed cases are also compared and contrasted with cases in which the FCC took action against a broadcaster

The First Amendment Status Of Commercial Speech: Why The Fcc Regulations Implementing The Telephone Consumer Protection Act Of 1991 Are Unconstitutional, Deborah L. Hamilton

Michigan Law Review

This Note considers the constitutionality of the FCC's regulations implementing the no-recorded-message provision of the 1991 TCPA and concludes that they violate the First Amendment because they impermissibly distinguish between commercial and noncommercial speech. Part I explains the structure of the FCC's recorded-message regulations and demonstrates that the regulations explicitly distinguish commercial recorded messages from other recorded messages. Part II examines First Amendment protection for commercial speech in light of three 1993 Supreme Court decisions that restructured commercial speech doctrine by holding that the government can single out commercial speech for regulation only in response to a distinct harm arising …

Federal Broadband Law, John Thorne, Michael K. Kellog, Peter W. Huber, Jeffrey A. Wolfson

Richmond Journal of Law & Technology

The authors of this book have brought together a vast and varied array of experience. Mr. Thorne is the Vice President & Associate General Counsel for Bell Atlantic; Mr. Huber is a Senior Fellow at the Manhattan Institute for Policy Research; and Mr. Kellogg is a Partner at Kellogg, Huber, Hansen & Todd. A reader will find the occasional use of technical jargon, such as "domsats" (domestic satellites), "coax" (coaxial cable), and "syndex" rules (syndicated exclusivity rules to protect syndicated, non-network programming) to be somewhat confusing. "Telcos" and "cablecos" are telephone and cable companies, respectively. Overall, however, technical jargon is …

Second Chance, Newton N. Minow

Federal Communications Law Journal

No abstract provided.