Communications Law | Open Access Articles | Digital Commons Network™

Can Police Track Your Wireless Calls? Call Location Information And Privacy Law, Laurie Thomas Lee

Cardozo Arts & Entertainment Law Journal

No abstract provided.

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Contracts Of Convenience: Preventing Employers From Unilaterally Modifying Promises Made In Employee Handbooks, Brian T. Kohn

Cardozo Law Review

No abstract provided.

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The Indecency Of Unsolicited Sexually Explicit Email: A Comment On The Protection Of Free Speech V. The Protection Of Children, Monique Redford

Seattle University Law Review

Because the state of Washington has a compelling interest in protecting the moral and psychological welfare of its children, the current spam law should be amended to also proscribe the transmission of unsolicited sexually explicit commercial email within its borders. This article argues that such an amendment would not violate either the dormant Commerce Clause or the First Amendment. In support of this thesis, section II first addresses the pervasive problem of children-not just adults-receiving sexually explicit material via unsolicited email. Then, sections III through V discuss the implications of the dormant Commerce Clause, the First Amendment, and the policy …

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Law And Information Platforms, Philip J. Weiser

Publications

No abstract provided.

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A Constitutional Crisis In The Digital Age: Why The Fbi's "Carnivore" Does Not Defy The Fourth Amendment, Aaron Y. Strauss

Cardozo Arts & Entertainment Law Journal

No abstract provided.

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Race To The Stars: A Federalism Argument For Leaving The Right Of Publicity In The Hands Of The States, Usha Rodrigues

Scholarly Works

This Note will argue that, given the variation in the right of publicity from state to state, and the relative newness of this property right, Congress should refrain from passing a law to federalize it. Although there are sound arguments for adopting this right, there are also reasons to hesitate. Given that only half of the states have adopted it, federalization seems premature. This Note will only obliquely address the main objection usually leveled at a robust right of publicity, namely that it stifles creativity and implicates First Amendment concerns. The focus instead will be on the right of individual …

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Gur Aryeh V. Second Television And Radio Authority, Aharon Barak, Shlomo Levin, Dalia Dorner

Translated Opinions

Facts: Petitioners are the subject of a film made by or for the respondents. The film was designated for broadcast on television on Shabbat. When the petitioners discovered the film was going to be broadcast on Shabbat they approached the Second Television and Radio Authority, and asked that the film not be broadcast on Shabbat stating that broadcast of the film on Shabbat would harm their religious feelings and violate their religious freedom. The request was denied by the Second Television and Radio Authority, which was willing to add captions on the screen which would state that the film was …

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The Public Interest Standard: Is It Too Indeterminate To Be Constitutional?, Randolph J. May

Federal Communications Law Journal

This Article argues that the congressional delegation of public interest authority to the FCC likely violates the nondelegation doctrine that inheres in the constitutional separation of powers scheme and that, even if the courts do not hold the public interest delegation unconstitutional, Congress should revise the Communications Act to set forth more specific guidance for the FCC. In today’s environment of “convergence,” in which competition is flourishing across communications sectors, Congress should not shirk its responsibility to establish fundamental policy for an industry that contributes so much to the overall health of our economy. This Article argues that Congress should …

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Filth, Filtering, And The First Amendment: Ruminations On Public Libraries’ Use Of Internet Filtering Software, Bernard W. Bell

Federal Communications Law Journal

Traditionally, whenever the government has sought to regulate speech, analysis of its action focused on conventional issues, such as the type of forum involved, whether the government acted in a regulatory or a proprietary role, and whether the regulation could be defined as a prior restraint. With the advent of the Internet and the opportunity for the widespread dissemination of viewpoints, however, new issues have arisen. This Article focuses on the complex questions public libraries face when filtering material, usually of a sexually explicit nature, from the public using filtering software. This Article contends that public libraries require a unique …

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May The Child Online Protection Act Rely On Community Standards To Identify Material That Is Harmful To Minors?, Susanna Frederick Fischer

Scholarly Articles

The Communications Decency Act, the government's previous attempt to protect minors from online pornography, was struck down in 1997 on the grounds that it required Internet content to be judged by the standards of the community most likely to be offended by it. Now the Court has agreed to review the constitutionality of the new Child Online Protection Act, which seeks to address the Court's free-speech concerns by regulating Web communications in a manner similar to existing laws restricting minors' access to print pornography.

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"Merchants Of Discontent": An Exploration Of The Psychology Of Advertising, Addiction, And The Implications For Commercial Speech, Tamara R. Piety

Seattle University Law Review

In this paper, I attempt to draw parallels between the psychology of commercial advertising and marketing and the psychology of addiction. Both appear to be characterized by denial, escapism, narcissism, isolation, insatiability, impatience, and diminished sensitivity. Advertising appeals to these impulses and addiction is marked by them. In what follows, I explore these parallels in general and then explore the potential consequences or side effects in three specific contexts: the advertising of addictive products, advertising and children, and advertising and women. In these three areas, there is some evidence that advertising may be contributing to negative social phenomena in a …

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Open Access And The First Amendment: A Critique Of Comcast Cablevision Of Broward County, Inc. V. Broward County, David Wolitz

Georgetown Law Faculty Publications and Other Works

To what extent does the Free Speech Clause of the First Amendment bar the adoption of “open access” regulations? Open access (or “net neutrality”) refers to a policy that would require broadband Internet providers, such as cable and phone companies, to allow competitive Internet Service Providers (ISPs) onto their broadband lines at nondiscriminatory rates. A federal district court in Florida recently held Broward County’s open access ordinance unconstitutional on the grounds that it would force speech – in the form of Internet content – on to the local cable company. If the district court’s analysis is correct, then open access …

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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 …

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Private Property Rights And Telecommunications Policy: Hearing Before The H. Comm. On The Judiciary, 106th Cong., Mar. 21, 2000 (Statement Of Viet D. Dinh, Prof. Of Law, Geo. U. L. Center), Viet D. Dinh

Testimony Before Congress

No abstract provided.

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Who’S Taking Whom: Some Comments And Evidence On The Constitutionality Of Telric, David Gabel, David I. Rosenbaum

Federal Communications Law Journal

The FCC requires that the price of unbundled network elements be equal to the total element long-run incremental cost of production plus a reasonable contribution to common and joint costs. This pricing standard has the potential of making the telecommunications market more competitive. TELRIC prices, however, are set independently of historic costs and therefore may not compensate investors for incurred costs. Hence, incumbent local exchange carriers have been fighting its implementation. In all probability, the U.S. Supreme Court will become involved in the debate over its adoption. The Supreme Court has looked at changes in valuation methods in the past. …

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Parental Liability And The Criminal Misconduct Of Children In The Wake Of An Unregulated Internet: Who Should Pay?, Katherine R. Richardson

Cardozo Journal of Equal Rights & Social Justice

The note examines the legal and practical challenges of holding parents accountable for their children's criminal acts, particularly when influenced by internet content. It questions the effectiveness of parental liability laws and highlights the tension between child protection, parental rights, and internet regulation. While acknowledging the complexity of these issues, the note suggests that parental liability should only apply when a clear causal link exists between negligence and harm, though proving such a link is legally challenging. Ultimately, the analysis advocates for a nuanced approach to balancing these competing interests.

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The Battle For Portland, Maine, L. Andrew Tollin

Federal Communications Law Journal

In 1985, when the FCC began the competitive process of deciding who would be licensed to provide cellular telephone service to Portland, Maine, chaos and irony reigned. Thirteen years later, after a bitter legal battle among local telephone companies, a provider was finally selected. At one point or another, all three branches of government became involved. The license itself changed hands three times during the case and, in essence, three different telephone systems were constructed. Ultimately, the case was decided on the basis of whether the FCC complied with a preexisting federal law, the Paperwork Reduction Act, in adopting the …

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Cable Internet Unbundling: Local Leadership In The Deployment High Speed Access, Marcus Maher

Federal Communications Law Journal

With the pending merger of TCI and AT&T and their promise of "one-stop" television, Internet, and telephone service, the cable Internet issues move to the forefront. The desire of traditional Internet Service Providers to gain access to new high-speed technologies for Internet access led to requests for unbundling or open access to cable systems. Despite the heated debate on the need for unbundling that has occurred at the federal level, local authorities have taken the lead in requiring open access to cable for competing ISPs. General anticompetitive concerns with cable Internet dominated by the cable company could be alleviated in …

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The Constitutionality Of The Driver’S Privacy Protection Act: A Fork In The Information Access Road, Angela R. Karras

Federal Communications Law Journal

The Driver's Privacy Protection Act, instituted in 1997, regulates the disclosure of personal information in motor vehicle records. New controversy surrounds it today as the U.S. Supreme Court evaluates the arguments presented in November 1999 regarding its constitutionality. A split among circuit courts, coupled with the tremendous growth in technology and subsequent new in-roads for information access, draw increased attention toward the Act. The concern for information access in light of the Act, however, reaches beyond the courts' elucidated concerns about dual sovereignty and the public's right to privacy. This Note argues that there is a forgotten argument: the Act's …

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Strike Two: An Analysis Of The Child Online Protection Act’S Constitutional Failures, Heather L. Miller

Federal Communications Law Journal

Congress's first attempt to regulate minors' access to sexually explicit material via the Internet failed. Congress responded with the Child Online Protection Act, which, despite its narrower scope, cannot withstand constitutional scrutiny. This Notes delves into the constitutionality of Congress's second attempt by addressing the difficulty of applying the vague "harmful to minors" definition to the Internet medium and the economic and technological unavailability of the Act's affirmative defenses. This Note concludes with an explanation as to why legislation is an ineffective mechanism to address the problem of minors' access to online pornography.

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Federal Court Jurisdiction Over Private Tcpa Claims: Why The Federal Courts Of Appeals Got It Right, Kevin N. Tharp

Federal Communications Law Journal

The Telephone Consumer Protection Act of 1991 protects the privacy interests of residential telephone subscribers by placing restrictions on unsolicited, automated telephone calls to the home and facilitates interstate commerce by restricting certain uses of facsimile machines and automatic dialers. Since the statute is silent regarding federal district court jurisdiction over private TCPA claims, federal courts scramble in search for existing law to support their conclusions that the TCPA divests federal district courts of jurisdiction over private TCPA claims. In addition to the reasoning offered by the circuit courts, this Notes discusses the jurisdiction issue and adds an important reason …

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Zoning Speech On The Internet: A Legal And Technical Model, Lawrence Lessig, Paul Resnick

Michigan Law Review

Speech, it is said, divides into three sorts - (1) speech that everyone has a right to (political speech, speech about public affairs); (2) speech that no one has a right to (obscene speech, child porn); and (3) speech that some have a right to but others do not (in the United States, Ginsberg speech, or speech that is "harmful to minors," to which adults have a right but kids do not). Speech-protective regimes, on this view, are those where category (1) speech predominates; speech-repressive regimes are those where categories (2) and (3) prevail. This divide has meaning for speech …

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Szenes V. Broadcasting Authority, Aharon Barak, Eliahu Mazza, Mishael Cheshin

Translated Opinions

Facts: Chana Szenes, born in Budapest, Hungary in 1921, emigrated to Mandatory Palestine alone at the age of 18. In 1943, during World War II, she enlisted in the British army. In June 1944, Chana Szenes parachuted in Yugoslavia, and crossed the border into Hungary with the aid of partisan groups. The German army captured her almost immediately. Chana Szenes was executed by a German firing squad on November 8, 1944. The current petition concerns the play “The Kastner Trial,” written by respondent no. four. The play, based on the true story of the Kastner affair, was intended to be …

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Betting On The Net: An Analysis Of The Government’S Role In Addressing Internet Gambling, Stevie A. Kish

Federal Communications Law Journal

The Internet Gambling Prohibition Act represents the U.S. Senate’s response to the development of a new online industry—Internet gambling. While this ban could arguably reduce the dangers associated with Internet gambling, such as fraud and addiction, it can only do so by exacting a substantial cost on principles of federalism. Rather than enacting this federal prohibition, Congress should instead leave the issue of whether Internet gambling should be legalized to the states.

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Yet Another Fox In The Hen House: Government Protection Of Artistic Expression Within Privately Owned Public Spaces, David Rudenstine

Cardozo Arts & Entertainment Law Journal

No abstract provided.

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State Sales & Use Tax On Internet Transactions, Sandi Owen

Federal Communications Law Journal

The explosive growth of electronic commerce raises serious questions about the viability of the current state sales and use tax system. Sales via the Internet and other electronic means are changing both the form and substance of consumer transactions, and such sales often do not satisfy the traditional nexus requirement for state taxation because on-line vendors frequently lack physical presence in the purchaser’s home state. The inability to collect taxes on this growing segment of the retail sales market will impair states’ efforts to raise revenues and cause economically similar transactions to be treated differently. Consequently, Congress must act pursuant …

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Challenging Defamatory Opinions As An Alternative To Media Self-Regulation, James F. Ponsoldt

Scholarly Works

This Essay analyzes defamation law as it applies to the media. Part I summarizes the state of defamation law prior to the 1990 Supreme Court decision in Milkovich v. Lorain Journal Co., when opinion was presumed immune from liability. Part II examines the holding in Milkovich, which suggests the potential liability for recklessly defamatory statements couched as or in the context of opinion. Part III reviews post-Milkovich decisions during the 1990's. This Essay concludes that the predictions of Milkovich were accurate in many jurisdictions and could apply to televised allegations during the coverage of the Clinton affair. …

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First Amendment Trump?: The Uncertain Constitutionalization Of Structural Regulation Separating Telephone And Video, Susan Dente Ross

Federal Communications Law Journal

The Cable Act of 1984 contained a "cross-ownership" ban, which prohibited telephone companies from entering the local cable video market. Although the ban was challenged by telephone carriers on numerous grounds, the First Amendment was not the basis of any challenge until the mid-1990s when telephone companies sought to characterize themselves not just as carriers but as content suppliers, or "speakers," who were deprived of their right to speak as a result of common carrier regulations that were intended merely to control the economic structure of the communications industry. Using the First Amendment as a new-found constitutional weapon to challenge …

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Balancing The Scales: The 1996 Telecommunications Act And Eleventh Amendment Immunity, Cynthia L. Bauerly

Federal Communications Law Journal

The Telecommunications Act of 1996 explicitly created a role for federal courts in the interconnection process. However, parties' ability to seek federal review of interconnection agreements is no longer as straightforward as the language of the Act implies. The Supreme Court's unnecessarily novel and narrow reading of Eleventh Amendment immunity in Seminole Tribe v. Florida renders unenforceable the federal review provisions of the Act against state regulatory commissions. While some interconnection agreements may find their way into federal court, for example, where a party seeking to interconnect sues an incumbent provider instead of the state commission, enforcement of a federal …

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Section 253 Of The Telecommunications Act Of 1996: A Permanent Physical Appropriation Of Private Property That Must Be Justly Compensated, Jennifer L. Worstell

Federal Communications Law Journal

Section 253 of the Telecommunications Act of 1996 was promulgated in an effort to remove unnecessary regulation by local governments and open up competition among local phone companies, cable providers, and other telecommunications concerns. However, this provision effectively prohibits local governments from managing their rights-of-way. Furthermore, it violates modern Fifth Amendment takings jurisprudence, Section 253 and the first three FCC and court decisions examining it not only have jeopardized effective municipal management and resource allocation discretion, but also have usurped local governments' property rights without just compensation in explicit violation of the United States Constitution.

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Full-Text Articles in Communications Law

Can Police Track Your Wireless Calls? Call Location Information And Privacy Law, Laurie Thomas Lee

Cardozo Arts & Entertainment Law Journal

Contracts Of Convenience: Preventing Employers From Unilaterally Modifying Promises Made In Employee Handbooks, Brian T. Kohn

Cardozo Law Review

The Indecency Of Unsolicited Sexually Explicit Email: A Comment On The Protection Of Free Speech V. The Protection Of Children, Monique Redford

Seattle University Law Review

Law And Information Platforms, Philip J. Weiser

Publications

A Constitutional Crisis In The Digital Age: Why The Fbi's "Carnivore" Does Not Defy The Fourth Amendment, Aaron Y. Strauss

Cardozo Arts & Entertainment Law Journal

Race To The Stars: A Federalism Argument For Leaving The Right Of Publicity In The Hands Of The States, Usha Rodrigues

Scholarly Works

Gur Aryeh V. Second Television And Radio Authority, Aharon Barak, Shlomo Levin, Dalia Dorner

Translated Opinions

The Public Interest Standard: Is It Too Indeterminate To Be Constitutional?, Randolph J. May

Federal Communications Law Journal

Filth, Filtering, And The First Amendment: Ruminations On Public Libraries’ Use Of Internet Filtering Software, Bernard W. Bell

Federal Communications Law Journal

May The Child Online Protection Act Rely On Community Standards To Identify Material That Is Harmful To Minors?, Susanna Frederick Fischer

Scholarly Articles

"Merchants Of Discontent": An Exploration Of The Psychology Of Advertising, Addiction, And The Implications For Commercial Speech, Tamara R. Piety

Seattle University Law Review

Open Access And The First Amendment: A Critique Of Comcast Cablevision Of Broward County, Inc. V. Broward County, David Wolitz

Georgetown Law Faculty Publications and Other Works

Proactive Legislation And The First Amendment, Stuart Minor Benjamin

Michigan Law Review

Private Property Rights And Telecommunications Policy: Hearing Before The H. Comm. On The Judiciary, 106th Cong., Mar. 21, 2000 (Statement Of Viet D. Dinh, Prof. Of Law, Geo. U. L. Center), Viet D. Dinh

Testimony Before Congress

Who’S Taking Whom: Some Comments And Evidence On The Constitutionality Of Telric, David Gabel, David I. Rosenbaum

Federal Communications Law Journal

Parental Liability And The Criminal Misconduct Of Children In The Wake Of An Unregulated Internet: Who Should Pay?, Katherine R. Richardson

Cardozo Journal of Equal Rights & Social Justice

The Battle For Portland, Maine, L. Andrew Tollin

Federal Communications Law Journal

Cable Internet Unbundling: Local Leadership In The Deployment High Speed Access, Marcus Maher

Federal Communications Law Journal

The Constitutionality Of The Driver’S Privacy Protection Act: A Fork In The Information Access Road, Angela R. Karras

Federal Communications Law Journal

Strike Two: An Analysis Of The Child Online Protection Act’S Constitutional Failures, Heather L. Miller

Federal Communications Law Journal

Federal Court Jurisdiction Over Private Tcpa Claims: Why The Federal Courts Of Appeals Got It Right, Kevin N. Tharp

Federal Communications Law Journal

Zoning Speech On The Internet: A Legal And Technical Model, Lawrence Lessig, Paul Resnick

Michigan Law Review

Szenes V. Broadcasting Authority, Aharon Barak, Eliahu Mazza, Mishael Cheshin

Translated Opinions

Betting On The Net: An Analysis Of The Government’S Role In Addressing Internet Gambling, Stevie A. Kish

Federal Communications Law Journal

Yet Another Fox In The Hen House: Government Protection Of Artistic Expression Within Privately Owned Public Spaces, David Rudenstine

Cardozo Arts & Entertainment Law Journal

State Sales & Use Tax On Internet Transactions, Sandi Owen

Federal Communications Law Journal

Challenging Defamatory Opinions As An Alternative To Media Self-Regulation, James F. Ponsoldt

Scholarly Works

First Amendment Trump?: The Uncertain Constitutionalization Of Structural Regulation Separating Telephone And Video, Susan Dente Ross

Federal Communications Law Journal

Balancing The Scales: The 1996 Telecommunications Act And Eleventh Amendment Immunity, Cynthia L. Bauerly

Federal Communications Law Journal

Section 253 Of The Telecommunications Act Of 1996: A Permanent Physical Appropriation Of Private Property That Must Be Justly Compensated, Jennifer L. Worstell

Federal Communications Law Journal