Law Commons^™

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 …

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 …

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 …

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 …

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 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 …

Antitrust Language Barriers: First Amendment Constraints On Defining An Antitrust Market By A Broadcast's Language, And Its Implications For Audiences, Competition, And Democracy, Catherine J.K. Sandoval

Federal Communications Law Journal

This Article explores whether the language of a broadcaster's program appropriately defines an antitrust market, consistent with First Amendment and antitrust principles. In its evaluation of the 2008 private equity buyout of Clear Channel Communications, the Department of Justice ("DOJ") defined the antitrust market by the language of the broadcast, as it had done for the 2003 merger of Univision and Hispanic Broadcasting Corporation. This Article uses social science research on Spanish and English-language radio and television to evaluate that decision. It argues that the distinct content and messages that characterize Spanish and English-language programming show that market definition is …

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.

You Said What? The Perils Of Content-Based Regulation Of Public Broadcast Underwriting Acknowledgments, Andrew D. Cotlar

Federal Communications Law Journal

Public broadcast stations in the United States are forbidden to air promotional announcements in exchange for payment from commercial entities. However, these stations must acknowledge any financial contribution from donors that support particular programs without promoting the goods and services offered by those donors. While the FCC has attempted to maintain the conceptual distinction between promotional and nonpromotional information, it has struggled to apply this distinction within the context of an evolution in advertising practice.

As a result, many noncommercial educational licensees find it difficult to apply the FCC's rules. A careful analysis of how the FCC underwriting determinations yields …

An Architecture For Spam Regulation, David Dickinson

Federal Communications Law Journal

Junk email, commonly referred to as "spam," is the current scourge of the Internet. In late 2004, unwanted email messages were being delivered at a rate of 12.4 billion per day. The variety of tools used to combat spam have failed to make a significant impact. Legislative efforts, such as the CAN-SPAM Act of 2003, met with substantial enforcement complications. The communications industry responded with a variety of technical advances, such as filters and blacklists, but those innovations are still unable to reliably distinguish between wanted and unwanted messages. Real coordination between legislative and technical spam control tactics has yet …

Rehearsal For Media Regulation: Congress Versus The Telegraph-News Monopoly, 1866-1900, Menahem Blondheim

Federal Communications Law Journal

In this Article, Menahem Blondheim presents a critical historical analysis of the dawn of communications regulation as it began with the evolution of domestic telegraphy and developed into a coherent link between 19th century technological, business, and social developments and twentieth century First Amendment thought. First, the Article examines the political and economic environment which led to the development of national telegraph and news networks, like Western Union and the Associated Press. The Author then proceeds to assess the role of the mid-to-late nineteenth century American legislature, and how the debate over telegraph and wire service regulation realigned the powers …

Legislating The Tower Of Babel: International Restrictions On Internet Content And The Marketplace Of Ideas, Michael F. Sutton

Federal Communications Law Journal

The First Amendment to the U.S. Constitution protects the expression of diverse viewpoints in virtually any medium. Nevertheless, the modern novelty of "borderless" communication via the Internet strains our ideal of keeping government out of the business of regulating speech. This Note reveals the conflict between the First Amendment's national protections and the Internet's lack of national boundaries, while also arguing for international intervention for the protection of free speech. This Author articulates the real danger of "watered-down speech" unless both the FCC and the international community provide regulations and harmonized international standards for online content that reflect First Amendment …

Say Cheese: The Constitutionality Of State-Mandated Airtime On Public Broadcasting Stations In Wisconsin, Andrew D. Cotlar

Federal Communications Law Journal

Last year, the State of Wisconsin passed legislation which would require statechartered public broadcasting television networks to carry political advertising for candidates free of charge. In this article, Andrew Cotlar raises many concerns about the wisdom of such legislation and the impact this trend may have on public broadcasters throughout the nation. The author begins by analyzing the current position of the law on political access requirements, at both federal and state levels, and then argues that the public television stations should continue to be free to exercise substantial editorial discretion. The Article proceeds to critique the Wisconsin statute as …

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.