First Amendment Commons^™

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.

Attacking Brandenburg With History: Does The Long-Term Harm Of Biased Speech Justify A Criminal Statute Suppressing It?, Anuj C. Desai

Federal Communications Law Journal

Book Review: Destructive Messages: How Hate Speech Paves the Way for Harmful Social Movements, Alexander Tsesis, New York: New York University Press, 2002, 246 pages.

A review of Alexander Tsesis's Destructive Messages: How Hate Speech Paves the Way for Harmful Social Movements, New York University Press, 2002. At one level, Alexander Tsesis's thesis is simply one in a long line of arguments about the need to regulate racist speech. Yet on another level, it is fundamentally different from much American literature on "hate speech" because Tsesis draws on a broad historical swath, and because he contends that the United States …

The U.S. Supreme Court Addresses The Child Pornography Prevention Act And Child Online Protection Act In Ashcroft V. Free Speech Coalition And Ashcroft V. American Civil Liberties Union, Sue Ann Mota

Federal Communications Law Journal

Both the Child Pornography Prevention Act ("CPPA") and the Child Online Protection Act ("COPA") were intended by Congress to protect minors. The CPPA was intended to protect minors from the harmful effects of virtual child pornography. The COPA was intended to protect minors from pornography currently available commercially on the World Wide Web. However, in 2002, the U.S. Supreme Court addressed the constitutionality of both statutes: The Court struck down sections of the CPPA as overbroad and unconstitutional in Ashcroft v. Free Speech Coalition. In Ashcroft v. ACLU, the Court upheld some sections of COPA as not unconstitutionally overbroad, but …

Veil Of Secrecy: Public Executions, Limitations On Reporting Capital Punishment, And The Content-Based Nature Of Private Execution Laws, Nicholas Levi

Federal Communications Law Journal

One issue that is often overlooked in the capital punishment debate is the policy to shield the public from the specifics of the application, administration, and resolution of the death sentence. First, this Note provides a brief historical and analytical account of capital punishment in this country, and ultimately argues that this historical backdrop forces courts to characterize regulations as content-based distinctions on free speech. Second, this Note provides a background of the methods of capital punishment from the time of the country's founding through the early parts of the twentieth century. Furthermore, this Note will address the emergence of …

Does Censorship Really Protect Children?, Michael Grossberg

Federal Communications Law Journal

Book Review: Not In Front of the Children, “Indecency,” Censorship, and the Innocence of Youth, Marjorie Heins, New York: Hill and Wang, 2001, 402 pages.

Marjorie Heins spent much of her career as a lawyer battling censorship with the American Civil Liberties Union. Today, she continues the fight as Director of the Free Expression Policy Project of the National Coalition Against Censorship. In an effort to understand the people who work to constrict the free flow of information, she stepped out of the trenches and into the library to do some research. Not In Front of the Children is the …

Injunctive Relief In The Internet Age: The Battle Between Free Speech And Trade Secrets, Adam W. Johnson

Federal Communications Law Journal

The information revolution has led to technological innovations in the movement, storage, and dissemination of information. The Internet allows a person, with good or bad intent, to distribute information to millions of people. This ability raises serious implications when trade secret information is the subject of Internet postings. Once a trade secret becomes publicly available, it loses its legal secrecy, and special legal protection. Additionally, competitors and everyone else on the Internet can gain access to the information. For those who rely on trade secret protection to guard their inventions, this presents a growing concern.

This Note will illustrate the …

Smut On The Small Screen: The Future Of Cable-Based Adult Entertainment Following United States V. Playboy Entertainment Group, Bradley A. Skafish

Federal Communications Law Journal

This Note argues that the most important aspect of Playboy is the Court's determination that cable television is not analogous to broadcast media. Provided it withstands the test of time, this distinction allows the cable industry to avoid the more stringent regime placed upon broadcast media. The Playboy decision also shows the Court's willingness to invalidate laws even when they serve a compelling interest and impose less restrictions than a complete ban. Members of the Court differed on whether "signal bleed" actually constituted an influence harmful to children. This discrepancy evinces a significant disagreement on where lines should be drawn …

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 …

Communications Media And The First Amendment: A Viewpoint-Neutral Fcc Is Not Too Much To Ask For, Helgi Walker

Federal Communications Law Journal

In the "new economy" driven by the telecommunications industry, the FCC is a busy agency. Given the myriad legal issues faced daily by agency decisionmakers and the lack of perfect clarity in major communications legislation, a few legal missteps here and there by the FCC might be expected. In one area, however, the public can and should demand a first-rate agency record: regulation of communications media without regard to the viewpoint expressed via that media, as the First Amendment requires. This Article offers two case studies in which the FCC arguably took viewpoint-discriminatory actions with regard to regulated broadcasters, and …

Computer Code Vs. Legal Code: Setting The Rules In Cyberspace, Mark S. Nadel

Federal Communications Law Journal

Book Review: Code and Other Laws of Cyberspace, by Lawrence Lessig, Basic Books, 1999, 230 pages.

Limiting Tort Liability For Online Third-Party Content Under Section 230 Of The Communications Act, Jonathan A. Friedman, Francis M. Buono

Federal Communications Law Journal

Section 230 of the Communications Act provides online service providers (OSPs) with immunity from liability for harms arising from third-party content that is made available through an OSP's services. Some courts have recently held that section 230 immunity covers not only defamation but any tort claim that would make an OSP liable for information originating from the OSP's users or commercial partners. This Article argues that section 230 has been properly interpreted by the courts and that, contrary to the claims of critics, those decisions have not created a disincentive for OSPs aggressively to monitor their sites for defamatory or …

Editorial Rights Of Public Broadcasting Stations Vs. Access For Minor Political Candidates To Television Debates, Kyu Ho Youm

Federal Communications Law Journal

In Arkansas Education Television Commission v. Forbes, the Supreme Court of the United States held that a state-owned public station did not violate the First Amendment in excluding a third-party candidate from a political debate organized and broadcast by the television station because the debate was a nonpublic forum. In this Article, Professor Youm examines the constitutional and statutory framework on the access for political candidates to TV debates, the judicial interpretations of the political candidates' claim for access to public television debates, and the Supreme Court's balancing in Forbes of the conflicts between the candidates' access rights and the …

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

Federal Communications Law Journal

No abstract provided.

The Path Of American Religious Liberty: From The Original Theology To Formal Neutrality And An Uncertain Future, Daniel O. Conkle

Indiana Law Journal

Symposium: Religious Liberty at the Dawn of a New Millennium held at Indiana University School of Law-Bloomington on April 9, 1999.

Blooming Confusion: Madison's Mixed Legacy, Steven D. Smith

Indiana Law Journal

Symposium: Religious Liberty at the Dawn of a New Millennium held at Indiana University School of Law-Bloomington on April 9, 1999.

The Normalized Free Exercise Clause: Three Abnormalities, Fredrick Mark Gedicks

Indiana Law Journal

Symposium: Religious Liberty at the Dawn of a New Millennium held at Indiana University School of Law-Bloomington on April 9, 1999.

Religion And Education: Whither The Establishment Clause?, Martha Mccarthy

Indiana Law Journal

Symposium: Religious Liberty at the Dawn of a New Millennium held at Indiana University School of Law-Bloomington on April 9, 1999.

What Is The Matter With Equality?: An Assessment Of The Equal Treatment Of Religion And Nonreligion In First Amendment Jurisprudence, William P. Marshall

Indiana Law Journal

Symposium: Religious Liberty at the Dawn of a New Millennium held at Indiana University School of Law-Bloomington on April 9, 1999.

Freedom Of Religion In The United States: Fin De Siècle Sketches, Michael J. Perry

Indiana Law Journal

Symposium: Religious Liberty at the Dawn of a New Millennium held at Indiana University School of Law-Bloomington on April 9, 1999.

American-Arab -- Getting The Balance Wrong -- Again!, John A. Scanlan

Articles by Maurer Faculty

No abstract provided.

Religion/Religions In The United States: Changing Perspectives And Prospects, Stephen J. Stein

Indiana Law Journal

Symposium: Religious Liberty at the Dawn of a New Millennium held at Indiana University School of Law-Bloomington on April 9, 1999.

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 …

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 …

Equality In The Information Age, William E. Kennard

Federal Communications Law Journal

Forum: New Approaches to Minority Media Ownership, Columbia Institute for Tele-Information, Columbia University.

The Copyright Dilemma Involving Online Service Providers: Problem Solved . . . For Now, Christian C.M. Beams

Federal Communications Law Journal

The Internet environment has presented copyright law with a development unlike any other this century. The illegal trading of copyrighted works has become easier than ever. Until recently, it was possible to hold online service providers strictly liable for the infringing actions of their users, regardless of whether the provider had knowledge of any infringing activity. While promoting the policy of copyright law, upholding such a standard had the potential to limit Internet speech and retard its growth. Seeing this, Congress began to debate on legislation that would protect innocent service providers from this liability. This Note argues that with …

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 …