Communications Law Commons^™

The Everyday First Amendment, Leonard M. Niehoff, Thomas Sullivan

Articles

On June 26 and June 27, 2019, some twenty contenders for the Democratic nomination for President of the United States participated in two evenings of political debate. The outsized group included Rep. Tulsi Gabbard of Hawaii, who was struggling to gain traction with voters. Shortly after the debate, while many viewers were conducting online searches to learn more about the candidates, Google temporarily suspended her campaign’s advertising account.

Google claimed that the interruption occurred because an automated system flagged unusual activity on the account. But Gabbard did not accept this explanation; she believed that Google deliberately had tried to undermine …

Masthead, Lead Article Editor

Catholic University Journal of Law and Technology

No abstract provided.

Table Of Contents, Lead Article Editor

Catholic University Journal of Law and Technology

No abstract provided.

À La Carte Cable: A Regulatory Solution To The Misinformation Subsidy, Christopher R. Terry, Eliezer J. Silberberg, Stephen Schmitz, John Stack, Eve Sando

Catholic University Journal of Law and Technology

Although “fake news” is as old as mass media itself, concerns over disinformation have reached a fever pitch in our current media environment. Online media outlets’ heavy reliance on user-generated content has altered the traditional gatekeeping functions and professional standards associated with traditional news organizations. The idea of objectivity-focused informational content has primarily been substituted for a realist acceptance of the power and popularity of opinion-driven “news.” This shift is starkly visible now: mainstream news media outlets knowingly spread hoaxes, conspiracy theories, and the like.

This current state of affairs is not some freak accident. The Supreme Court’s First Amendment …

Ships Passing In The Night: The Communications Act And The Convergence On Broadband, Stuart Minor Benjamin

Faculty Scholarship

The Communications Act of 1934 and its amendments (the “Act”), and the regulations implementing them, have been enormously important to traditional telephony, broadcasting, and multichannel video. Meanwhile, the internet is barely mentioned in the Act. It thus might seem reasonable to conclude that the Act stands as a colossus and that the argument for overhauling it has grown much stronger as the Telecommunications Act of 1996 (the “1996 Act”) becomes ever more outdated. In this Article I suggest otherwise. Specifically, I make three claims—one descriptive, one a bit speculative, and one normative. The descriptive claim is that significant portions of …

Representation Without Elections: Civil Society Participation As A Remedy For The Democratic Deficits Of Online Speech Governance, Brenda Dvoskin

Scholarship@WashULaw

Giant social media companies wield oversized power over what gets communicated online. Yet, it remains unclear how to hold that power accountable to the public. In democracies, governments are limited in how much they can regulate speech directly, creating an obstacle for efforts to make online speech governance more democratic. Corporations are touting civil society consultations to try to regain trust in how they write their rules. Scholars and lawmakers, too, are looking to mandate increased reliance on civil society participation as a means to democratize private governance without involving governmental bodies.

These proposals often make two assumptions. One is …

Media Consolidation & Political Polarization: Reviewing The National Television Ownership Rule, Mary R. Hornak

Fordham Law Review

Local television plays an important role in the democratic society. The medium is viewed as being trustworthy, and it is accessible and uniquely situated to report on matters of local interest. Among other roles, the Federal Communications Commission (FCC) regulates firms’ ownership interests in the media through regulations that permit a certain degree of consolidation at both the local and national levels. Since 1996, Congress has mandated that the FCC regularly review broadcast media ownership regulations. Originally, this requirement mandated biennial review. In 2004, however, Congress revised the mandate, requiring review on a quadrennial basis and excluding from such review …

Taking Exception To Assessments Of American Exceptionalism: Why The United States Isn’T Such An Outlier On Free Speech, Evelyn Mary Aswad

Dickinson Law Review (2017-Present)

One of the most significant challenges to human freedom in the digital age involves the sheer power of private companies over speech and the fact that power is untethered to existing free speech principles. Heated debates are ongoing about what standards social media companies should adopt to regulate speech on their platforms. Some have argued that global social media companies, such as Facebook and Twitter, should align their speech codes with the international human rights law standards of the United Nations (“U.N.”). Others have countered that U.S.-based companies should apply First Amendment standards. Much of this debate is premised on …

When Free Speech And Privacy Collide: Why Strict Scrutiny Is A Poor Fit For Nonconsensual Pornography Laws, Leah S. Murphy

Cardozo Law Review

No abstract provided.

How Should We Regulate The Internet? A Proposal, Natalie Petruzelli

The Review: A Journal of Undergraduate Student Research

With the invention of the internet providing newfangled methods of spreading information around the world, misinformation has also found home in these pathways, disrupting the general public’s ability to discern fact from fiction and creating divides in society. Regulation must be enacted to stop the effects of misinformation, but the efforts of technology companies and the general public have been insufficient thus far. Regulatory control of the internet and its content should be the responsibility of the government, based on their constitutional right to intervene under certain circumstances and the fact that previous efforts by other parties to mitigate misinformation …

Deeply Fake, Deeply Disturbing, Deeply Constitutional: Why The First Amendment Likely Protects The Creation Of Pornographic Deepfakes, Bradley Waldstreicher

Cardozo Law Review

No abstract provided.

Digital Gatekeepers, Thomas E. Kadri

Articles

If in William Blackstone's time we might have thought of a person's home as their castle, in Mark Zuckerberg's time we might say that their website is too.  Under cyber-trespass laws like the Computer Fraud and Abuse Act, courts have treated online platforms as digital gatekeepers--as property owners that may permit and restrict access to websites much like landowners may do with private land in the real world. If platforms withhold their consent through words or inference, cyber-trespass laws let them enforce their preferences about who may access their services and gather information from the internet. Concerned about reputations and …

Privileging Opinion, Denigrating Discourse: How The Law Of Defamation Incentivizes News Talk-Show Hyperbole, Clay Calvert

Pepperdine Law Review

This Article examines how defamation law promotes a culture of hyperbole and exaggeration on television news talk shows at the expense of more meaningful dialogue and discourse. The Article uses the 2020 federal court rulings in McDougal v. Fox News Network, LLC and Herring Networks, Inc. v. Maddow as analytical springboards to address this problem. In both cases, judges dismissed defamation claims stemming from comments made by well-known talk-show hosts—Fox News’s Tucker Carlson in McDougal and MSNBC’s Rachel Maddow in Herring Networks—on the ground that their remarks would not be understood by viewers as factual assertions. In concluding that Carlson’s …

The U.S. Supreme Court’S Characterizations Of The Press: An Empirical Study, Ronnell Anderson Jones, Sonja R. West

Utah Law Faculty Scholarship

The erosion of constitutional norms in the United States is at the center of an urgent national debate. Among the most crucial of these issues is the fragile and deteriorating relationship between the press and the government. While scholars have responded with sophisticated examinations of legislators’ and the President’s characterizations of the news media, one branch of government has received little scrutiny—the U.S. Supreme Court. This gap in the scholarship is remarkable in light of the Court’s role as the very institution entrusted with safeguarding the rights of the press. This paper presents the findings of the first comprehensive empirical …

The New Editors: Refining First Amendment Protections For Internet Platforms, Mailyn Fidler

Law Faculty Scholarship

This Article envisions what it would look like to tailor the First Amendment editorial privilege to the multifaceted nature of the internet, just as courts have done with media in the offline world. It reviews the law of editorial judgment offline, where protections for editorial judgment are strong but not absolute, and its nascent application online. It then analyzes whether the diversity of internet platforms and their functions alter how the Constitution should be applied in this new setting. First Amendment editorial privilege, as applied to internet platforms, is often treated by courts and platforms themselves as monolithic and equally …

Masthead, Editor-In- Chief

Catholic University Journal of Law and Technology

No abstract provided.

Seeing (Platforms) Like A State: Digital Legibility And Lessons For Platform Governance, Neil Chilson

Catholic University Journal of Law and Technology

The growing backlash against Big Tech companies is a symptom of digital technology increasing the world’s legibility. James C. Scott’s book, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed, explores how past governments responded to increased legibility – for good and for ill. This article shows how Scott’s historical lessons can guide governments and tech platforms as they seek to improve the human condition online.

Hybrid Ip Rights For Software, Apis, And Guis: Understanding Copyright's Paradigm Shift, Howard Skaist

Catholic University Journal of Law and Technology

The non-literal scope of protection for software is intricate legally and is intricate technical. Thus, despite literally decades of court decisions and a mountain of legal scholar written on the subject in that time, it appears that there is still no consistent agreement about it, as evidenced by the Google v. Oracle which has percolated in the courts for nearly a decade and is now being heard by the US Supreme Court (oral argument was on October 7, 2020). However, the thesis of this article that a legal construct is capable of being formulated that is analytically consistent and that …

Table Of Contents, Editor-In- Chief

Catholic University Journal of Law and Technology

No abstract provided.

Esica: Securing—Not Compelling—Speech On The “Vast Democratic Forums” Of The Internet, Philip Primeau

Roger Williams University Law Review

No abstract provided.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents and Special Thanks.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Free Speech In The Modern Age, [email protected]

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Constitutive Choices: Section 230 And First Amendment Values Versus Fosta And President Trump's Executive Order, Scott Memmel, Christopher Terry

Cardozo Arts & Entertainment Law Journal

In 2018, the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) produced the first category of speech not provided immunity by Section 230 of the Communications Decency Act. This first cut against Section 230 was followed by President Donald Trump's May 2020 executive order aimed at limiting the legal protections for social media companies. Both of these actions represent a new battle over old ideas about protecting expression. This Article uses Paul Starr's "Constitutive Choices" model to suggest that Section 230 represents a legacy of laws and regulations designed to foster free speech and access to information. …

No Ifs, Ands, Or Juuls About It: Why Influencers Must Be Held Accountable, Krystina Dorta

Catholic University Journal of Law and Technology

This article analyzes how the FTC’s Endorsement Guide regulating the advertising of e-cigarette products should be applied to social media influencers. The struggle to regulate e-cigarettes by the FDA and the FTC has led to different advertising methods, which either comply with or neglect the FTC’s Endorsement Guide. This article evaluates the federal government’s reaction to the e-cigarette health crisis, followed by a review of the FTC’s previous actions addressing Endorsement Guide violations, along with the consequences on other companies’ marketing strategies. Finally, this article reviews influencer liability standards for Endorsement Guide violations and develops recommendations to improve those standards.

The Small-Er Screen: Youtube Vlogging And The Unequipped Child Entertainment Labor Laws, Amanda G. Riggio

Seattle University Law Review

Family vloggers are among the millions of content creators on YouTube. In general, vloggers frequently upload recorded videos of their daily lives. Family vloggers are unique because they focus their content around their familial relationships and the lives of their children. One set of family vloggers, the Ace Family, has recorded their children’s lives from the day they were born and continue to upload videos of each milestone, including “Elle Cries on Her First Rollercoaster Ride” and “Elle and Alaïa Get Caught Doing What!! **Hidden Camera**.” Another vlogging couple, Cole and Savannah LaBrant, post similar content, including videos titled “Baby …

“Ooh It Makes Me Wonder”: Do The Courts Finally Understand The Problems With Copyright Infringement And Pop Music?, Kate Camarata

Seattle University Law Review

The interaction between music and law is unique to copyright litigation. Music is “commonly regarded as a rule-free zone,” whereas the law is structured and, in essence, the “origin for rules.” This Note explores the inherent weaknesses with the substantial similarity test for copyright infringement as it relates to popular music through the lens of the recent Ninth Circuit case, Skidmore v. Led Zeppelin.

Part I of this Note reviews the history and purpose of copyright protection as well as explains the current tests utilized by courts in copyright infringement cases. Additionally, it will also show the difficulties of …

Strategic Lawsuits Against Public Participation In The Age Of Online Speech: The Relevance Of Anti-Slapp And Anti-Cyberslapp Legislation, Lauren Merk

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

Government Tweets, Government Speech: The First Amendment Implications Of Government Trolling, Douglas B. Mckechnie

Seattle University Law Review

President Trump has been accused of using @realDonaldTrump to troll his critics. While the President’s tweets are often attributed to his personal views, they raise important Constitutional questions. This article posits that @realDonaldTrump tweets are government speech and, where they troll government critics, they violate the Free Speech Clause. I begin the article with an exploration of President Trump’s use of @realDonaldTrump from his time as a private citizen to President. The article then chronicles the development of the government speech doctrine and the Supreme Court’s factors that differentiate private speech from government speech. I argue that, based on the …

Enough Is As Good As A Feast, Noah C. Chauvin

Seattle University Law Review

Ipse Dixit, the podcast on legal scholarship, provides a valuable service to the legal community and particularly to the legal academy. The podcast’s hosts skillfully interview guests about their legal and law-related scholarship, helping those guests communicate their ideas clearly and concisely. In this review essay, I argue that Ipse Dixit has made a major contribution to legal scholarship by demonstrating in its interview episodes that law review articles are neither the only nor the best way of communicating scholarly ideas. This contribution should be considered “scholarship,” because one of the primary goals of scholarship is to communicate new ideas.