First Amendment Commons^™

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 …

A Soldier's Blog: Balancing Service Members' Personal Rights Vs. National Security Interests, Tatum H. Lytle

Federal Communications Law Journal

This Note examines the competing interests between ensuring military personnel's freedom of speech while protecting national security interests. The Author recognizes the necessity of protecting national security interests but emphasizes that military personnel's rights to free speech must be protected as long as such speech poses no threat to military security. In conclusion, clearer protections must be implemented to protect military personnel's right to free speech.

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 …

Broadcast Technology As Diversity Opportunity: Exchanging Market Power For Multiplexed Signal Set- Asides, Michael M. Epstein

Federal Communications Law Journal

This Article proposes an access system based on a theory of quid pro quo: a bargained.for-exchange in which broadcasters would trade media access for market power. Under this quid pro quo approach, the FCC would administer a scaled metric whereby the greater a media company's audience reach, the more access that company must provide to citizens with diverse and local content. Since digital technology permits broadcasters to "multiplex" their television signal bandwidth into multiple signal programming streams, an opportunity exists for the government to require public access to one or more of these programming streams in return for relaxing caps …

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 …

Toward A Limited Right Of Access To Jury Deliberations, Torrence Lewis

Federal Communications Law Journal

Jury deliberations receive extensive protection from public examination. These protections make jury deliberations much less accessible to the public than most other governmental deliberations. This Comment examines the constitutional, common law, and statutory protections for jury deliberations and the dangers that these protections seek to prevent. The Author argues that a limited post-verdict right of access to jury deliberations could restore public faith in the jury and could eventually improve the quality of jury deliberations. The Author suggests a possible framework that would provide the public with a limited right of access and still address the primary concerns that led …

Discriminatory Filtering: Cipa's Effect On Our Nation's Youth And Why The Supreme Court Erred In Upholding The Constitutionality Of The Children's Internet Protection Act, Katherine A. Miltner

Federal Communications Law Journal

Congress introduced the Children's Internet Protection Act ("CIPA") in order to filter obscene and indecent material in response to a perceived threat to members of the public, specifically minors, who are exposed to pornographic material on the Internet. The provisions of CIPA have provoked tension between two competing interests: protecting minors from cyberpornography, and safeguarding First Amendment rights. This Note argues that the Supreme Court erred by upholding the constitutionality of CIPA. As a result of the Supreme Court's decision, the nation's youth will have restricted access to constitutionally protected information. The Court improperly relied on a provision of the …

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.

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.

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.