Showing papers in "Communication Law and Policy in 1999"

The journalist as citizen activist: The ethical limits of free speech

Abstract: In recent years some journalists have become aggressive and outspoken in challenging corporate policies that restrict a reporter's off‐duty political activities, particularly when they are unrelated to the reporter's primary job assignment. This dispute is beginning to spawn litigation that constitutes a direct assault on the journalistic canon of objectivity and the media's right to establish their own ethical benchmarks. This article explores the legal implications of conflict of interest codes and concludes that the public's interest in news media—unencumbered as to their standards of editorial integrity—should trump the individual free speech rights of journalists.

Of public interest: How courts handle rape victims' privacy suits

Abstract: In spite of a string of unfavorable court decisions, rape victims continue to bring privacy suits against news organizations that identify the victims. Based on case history, journalists have little to fear from such privacy suits because appellate courts usually find victims' names add credibility to stories and, therefore, are of public interest. Most judges seem to believe that they cannot logically rule a basic fact, such as a name, to be private in one set of circumstances and not in others. A ruling in rape victims' favor may create a slippery slope that erodes the press' First Amendment freedoms. However, the courts' limited opinions provide victims with the possibility that in some circumstance a court may rule against the press on this issue. From a journalist's perspective, a broader ruling is needed to discourage rape victims from bringing suits that, while destined to be unsuccessful, are nonetheless costly to defend.

Playing by the rules: Impact and implementation of children's educational television regulations among local broadcasters

Abstract: This study explores the institutional process involved in the implementation of the 1997 Federal Communications Commission regulations regarding educational programs for children. Through open‐ended interviews with representatives from twenty‐eight stations, this study assessed local broadcasters' reactions to these new rules in the early stages of policy implementation, examining their understanding of the new regulations; the implementation strategies and structural constraints that guide the selection of educational programs and the implications of these strategies for the success of the rules in achieving their goals as stated explicitly by the FCC. All respondents indicated that they would comply with the regulations by providing the minimum three hours of educational programming per week, along with other reporting and public file obligations. However, the ultimate effectiveness of these rules in ensuring better television for children seems complicated by the institutional constraints on local broa...

The journalist's privilege for nonconfidential information in states with shield laws

Abstract: Most scholarship on journalistic privilege has been devoted to the issues affecting the right of journalists to refuse to reveal the identities of sources to whom confidentiality has been promised. The only United States Supreme Court case and almost all activity in lower courts and legislatures on the question are aimed at resolving the problem of whether or under what circumstances journalists should be compelled to identify confidential sources. Almost all of the increasing numbers of subpoenas issued to journalists, however, are aimed at journalists' nonconfidential information. This article analyzes state shield laws and their adjudication, concluding that the state of the law is divided on whether and to what extent journalists attempting to protect nonconfidential information should enjoy a constitutional, common‐law or statutory privilege.

From a tool for national cohesion to a manifestation of national conflict: The evolution of cable television policy in Israel, 1986–98

Abstract: The rapidity of the changes in cable television policy in Israel can only be matched by the speediness of the adoption of cable television technology by Israeli consumers. More than 70 percent of Israeli households now subscribe to cable television whose first franchises were awarded in 1989. Still, within this time period the government has embarked on three different policy programs without waiting to evaluate the outcome of each predecessor. This study claims that these swift changes are an outcome of the perceived power of television and a dramatic shift in the power structure of Israeli politics. Presenting in detail the changes in policy through reports, parliamentary debates, drafts, laws and regulations, the study demonstrates what cultural goals were intended and whom they were intended to serve.

The politics and policies of enhancing trustworthiness for information systems

Abstract: This article describes how the integration of computing and communications complicates policy choices for protecting information systems. The technical challenge in the aggregate can be labeled “trustworthiness.” Its dimensions include information security, privacy of personal data and system safety and reliability. Although a holistic technical approach is promising, forging a consistent policy solution is another matter. Proposals for new institutions recur, while calls for public‐private partnership are a new theme. Yet industry signals growing discomfort with government programs associated with national security and law enforcement, fueling conflict and controversy over cryptography policy. Meanwhile, more federal agencies are addressing relevant issues, and more private sector organizations have entered the advocacy game. The article describes multiple policy legacies, key players and perspectives and policy trends. It outlines issues that shape the context for policy that responds to dependence on n...

Blurred vision: How supreme court FOIA opinions on invasion of privacy have missed the target of legislative intent

Abstract: The framers of the Freedom of Information Act believed that in order to make informed decisions concerning self‐rule in the democracy, citizens needed access to government information. However, the law also acknowledges the importance of protecting privacy—two of the FOIA's exemptions allow federal agencies to withhold information that would invade the privacy of individuals. The purpose of this article is to explore the legal conflict between an individual's right to privacy and the public interest in disclosure of government information. In an examination of seven United States Supreme Court decisions on this subject, this article questions whether the Court has fairly balanced the conflicting values of access and privacy within the guidelines established by Congress in the FOIA.

Link law: The emerging law of internet hyperlinks

Abstract: Although Internet enthusiasts often claim a right of on‐line associations, that is, a right freely to link to other content on the Internet, evolving case law demonstrates that there is no absolute right to associate or link on the Internet. Rather, business law at times imposes limits and penalties on linking. As business grows on the Internet, litigants are likely to use creative theories based on unfair competition and intellectual property law to seek limits on linking. This article examines the first waves of Internet link law cases, how the legal positions have been framed and the principles with which those cases have been resolved. The article reviews the basics of the legal theories used (and likely to be used in the future) to challenge links. The article then reviews key linking cases involving, among other issues, direct links, “framing” and “inlining,” hidden metalinks and contributory infringement through links and mirror sites. The article concludes that, contrary to the original ethos of I...

Video dialtone reconsidered: Prospects for competition in the wake of the telecommunications act of 1996

Abstract: This study provides a context for exploring implications of greater merger activity facilitated by the Telecommunications Act of 1996. Drawing from parallel experiences with the 1984 and 1992 cable acts, this article examines the extent to which the 1996 act can deliver on the promise of lower rates via intensified competition in United States telecommunication markets. Prospects for longer term competition also are explored, drawing from recent trends in industry consolidation. A review of industry concentration suggests that concentration of ownership in cable exhibition is accelerating rapidly, and now approaches levels traditionally deemed to be excessive under Justice Department guidelines.

First Amendment influence in argentine republic law and jurisprudence

Abstract: The First Amendment to the United States Constitution has influenced the development of freedom of expression in a number of countries, including the Argentine Republic. This article focuses on law as it came to affect mass media beginning with assumptions from the 16th century, when Argentina was under Spanish domination, and continues through the 1853–60 constitutional conventions that marked the initiation of First Amendment influence in Argentine law and jurisprudence. The article explains how the de facto governments that ruled Argentina from 1862 to 1983 gave direction to law and court decisions affecting the mass media, including film censorship, press penal responsibility, prior restraint, state of siege and the right to reply. The article concludes by analyzing how these laws and court decisions have influenced media and Argentine society, especially in fostering self‐censorship.

Merging law and ethics: Discourse legal theory and freedom of expression in Hurley

Abstract: This article, analyzing and building on the work of Jurgen Habermas, demonstrates how discourse legal theory disavows a separation between law and ethics. The article suggests that discourse theory puts forward a more political theory of law that promotes the normative goal of creating a more just society through discursive practices. A critique of the United States Supreme Court's decision in Hurley v. Irish‐American Gay, Lesbian and Bisexual Group of Boston shows how the Court overvalued the private function of speech and undervalued its public, discursive function. The article argues that discourse theory provides a more protective access standard for disempowered groups, especially when public fora are used for the expression of ideas.

Lessons learned: A lawsuit's impact on journalistic behavior

Abstract: Forty‐two journalists who had been sued for invasion of privacy were asked to describe the impact of the lawsuits on their professional lives. Findings indicate that most of the journalists felt changed by the experience—despite nearly all of them prevailing in formal legal proceedings. The changes they described were categorized as “defensive” (adjusting routines to minimize the likelihood of a similar suit) far more often than “instructive” (changing fundamental journalistic practice), and there was little evidence of a chilling effect from the suits, but the journalists clearly felt some degree of sting from the litigation. Just as the Iowa libel study discovered ten years earlier from the plaintiffs' perspective, this study has found from the defendants' perspective that litigation against the media—court outcomes notwithstanding—is by no means futile.

“Censorship liberally administered”: Press, U.S. military relations in the Spanish‐American War

Abstract: This study is a reappraisal of press censorship during the Spanish‐American War of 1898. The accounts of censors and correspondents written during or shortly after the war are compared to answer three questions: How did the censorship system work? What factors caused its effectiveness to vary? How did the press respond? The study argues that the war's most effective censors were the correspondents, who mostly competed for stories that did not pose risks to military security. The conflicting priorities of military and political leaders often blocked the censors, who reviewed newspaper dispatches as much to gain information as to protect secrets.

International human rights and the collegiation of journalists: The case of Costa Rica

Abstract: This article examines the controversial Latin American practice of requiring colegio membership for journalists. The focus is a ruling by the Costa Rica Supreme Court that declared the obligatory‐membership requirement of the Costa Rica College of Journalists—one of Latin America's strongest colegios—to be unconstitutional because it violated the free expression clause of the American Convention on Human Rights. The courts incorporation of the American Convention's standard of press freedom is considered for its reliance on a provision of the Costa Rica Constitution that requires human rights protections of international treaties be held superior to national laws. The rationale's significance for the entire region—where 13 countries have colegio laws—is weighed by analyzing comparable clauses in the constitutions of other Latin American countries.

Copyright and the creative use of visual artworks in the 1990s

Abstract: This article analyzes the legal conflicts during the 1990s over the extent of copyright limitations on the use of a visual artwork within another creative work in three types of media: postmodern art, publications and movies and television. The authors conclude that if a visual work is incorporated into a film or television program such that the presence of the visual work is scarcely perceptible, such a use might be considered so insignificant that copyright law will not forbid the use. Perceptibility depends on how closely, how long and how clearly the artwork is shown. The authors also express concern over the application of copyright law to postmodern art, arguing that freedom of expression would be better served if courts and Congress recognized the broad category of satire as a type of fair use.

Triggering the first Amendment: Newsgathering torts and press freedom

Abstract: The recent Food Lion case highlights attempts by those suing the press to short‐circuit First Amendment protections by attacking how news is gathered rather than its publication. This article examines recent cases illustrative of this trend, which may have been accelerated by unfortunate statements in a 1991 United States Supreme Court case, Cohen v. Cowles Media Co. Next, the article analyzes and critiques the current state of the law, with particular attention to the somewhat ambiguous issue of when First Amendment scrutiny is triggered. Finally, the article suggests a new analytical framework that provides heightened protection for the press as it goes about the vital process of gathering news

Media recognition and access to the presidential primary ballot

Abstract: Legislatures in nearly a third of the states that conduct presidential preference primaries have given the media a statutory role in deciding who gets on that ballot. In these states, a candidate may qualify for placement on the ballot by being recognized by the media as a serious contender for the office of president. The constitutionality of these statutes has been upheld on the ground that they provide additional access to the ballot. This article argues, however, that the statutes are poor public policy because they contravene democratic principles, they compromise the press in its role as institutional watchdog and they fail to meet the essential goals of the candidate nominating process in a democracy. The article concludes by recommending that these so‐called media recognition statutes be repealed.

Freedom of information versus the National Security Council: Obscuring the focus of the “sole‐function” test

Abstract: After years of litigation in the federal court system, investigator Scott Armstrong lost in his attempt to gain access to documents held by the National Security Council, which successfully argued that it was not an “agency” required by the Freedom of In formation Act to produce records. The effect of such a finding is profound, as “nonagencies” are not only categorically exempt from all FOIA requirements but also freed from obligations by other statutory demands for accountability. This article uses the NSC litigation to demonstrate how the test to determine whether an entity should be classified as an agency, commonly referred to as the “sole‐function” test, has been altered in fundamental ways by recent court opinions. This changing focus makes it easier for many other entities, particularly those in the Executive Office of the President where many of the most important domestic and international decisions are made, to avoid agency status and escape the obligations imposed by Congress regarding disclos...

The role of standardization and interoperability in copyright protection of computer software

Abstract: Copyright protection for computer software often presents a contradiction between law and the desired public policy that is the law's inspiration. The law provides incentives to individuals to create intellectual property by protecting authors through monopolistic controls on copying and distributing the authors' work. Conferring too much protection, however, may reduce incentives to create competitive products in the same market, defeating the law's constitutional purpose of encouraging the “Progress of Science and the useful Arts.” Two characteristics of computer software, technical standards and interoperability, compound this contradiction. Using economic literature on standards and the recent line of Lotus v. Borland cases, this article examines the role of standardization and interoperability in copyright protection of computer software, and suggests a part for the fair‐use defense in such cases.