Volume 60 | June, 2008 | Number 3
ARTICLES
By Catherine J.K. Sandoval......................................407
This Article explores whether the language of a broadcaster’s program appropriately defines an antitrust market, consistent with First Amendment and antitrust principles. In its evaluation of the 2008 private equity buyout of Clear Channel Communications, the Department of Justice (“DOJ”) defined the antitrust market by the language of the broadcast, as it had done for the 2003 merger of Univision and Hispanic Broadcasting Corporation. This Article uses social science research on Spanish and English-language radio and television to evaluate that decision. It argues that the distinct content and messages that characterize Spanish and English-language programming show that market definition is content-based and subject to strict constitutional scrutiny; however, that distinctiveness alone is insufficient to establish a separate antitrust market. Through an examination of advertiser and audience “substitution” between program languages, advertiser alternatives if faced with a price increase by merging parties, and a “supply-side” antitrust analysis of broadcaster “entry” between languages, the Article concludes that broadcast markets are not rigidly divided by language, but operate as one marketplace of ideas, with audience and advertiser loyalty contestable between languages.
The Terrorist Is A Star!: Regulating Media Coverage of Publicity-Seeking Crimes
By Michelle Ward Ghetti............................................481
Publicity-seeking crimes, including terrorism, almost by definition depend on the media for their effectiveness. Twenty-five years ago, when the bulk of this article was written, critics both within and outside the news industry had begun to voice an awareness, if not a concern, for the ease with which such criminals obtained publicity on both a national and international platform and it looked as if something might be done within the media establishments to thwart this manipulation of the press. Today, it is possible to look back and see that, in fact, nothing has been done and, so, individuals such as Osama Bin Laden and Seung-Hui Cho now use media establishments directly to spread their messages of hate, violence, and intimidation. This Article explores the psychology of terrorism and why it can hardly exist without the media, then turns to the American mass media, and discusses why it needs titillating crimes for its existence. It then identifies and discusses the four main effects or harms of media coverage of publicity-seeking crimes and the media’s answers to these harms. Finally, it suggests solutions and the effect the First Amendment to the United States’ Constitution has on those solutions.
ESSAY
Performing Art: National Endowment for the Arts v. Finley
By Randall P. Bezanson............................................535
In this modified version of a chapter in his forthcoming book, ART AND FREEDOM OF SPEECH (Univ. of Illinois Press, 2008-09), Professor Bezanson begins to probe the nature of art and its relation to the first amendment free speech guarantee. The essay uses the Finley v. NEA case, and specifically its discussion of Finley’s performance art, to critique the Supreme Court’s very approach to the Finley case, and to view the issues from the perspective of art, artistic freedom, and the Supreme Court’s role in fashioning constitutional protection for art as art, and not simply as cognitive speech.
NOTES
When the Flock Ignores the Shepherd —Corralling the Undisclosed Use of Video News Releases
By Jeffrey Peabody.....................................................577
Every time you sit down to watch the evening news, you see not only locally produced stories, but also pre-packaged, corporate-sponsored “video news releases” (“VNRs”) that are nothing more than commercials in disguise. Unlike political advertising, which must comply with strict sponsorship identification rules, these VNRs remain unregulated. This Note discusses the failed “Truth in Advertising Act,” and proposes mandatory disclosure and beefed-up enforcement as necessary steps in stemming the growing use of these “fake news” spots.
The Newest Way to Screen Job Applicants: A Social Networker’s Nightmare
By Carly Brandenburg.................................................597
Social networking is an easy way to share information with friends, family, and the company that just offered you an interview. Employers are utilizing all of the tools available to them as they strive to hire the right people, and this means that social networkers may need to self censor in order to protect their information from falling into the wrong hands. This Note questions whether social networkers can legally expect or enjoy any right to privacy with respect to their online postings.
BOOK REVIEW
By Russell P. Hanser...................................................627
Two recent books focus attention on the role of regulation in the modern economy and the reasons why efforts at deregulation succeed or fail. Clifford Winston’s Government Failure Versus Market Failure: Microeconomics Policy Research and Government Performance reviews empirical studies of regulation and its alternatives, arguing that economic regulation has quite often done more harm than good. In Creating Competitive Markets: The Politics of Regulatory Reform, editors Mark K. Landy, Martin A. Levin and Martin Shapiro collect essays addressing the political dangers faced by those pursuing market liberalization, both before and (especially) after reform is enacted. Read together, these books help to explain the sometimes perplexing legacy of the Telecommunications Act of 1996, which embodied ambitiously deregulatory goals but has resulted in an increasingly complex regulatory framework. They also offer critical guidance to those who will craft and implement future telecommunications legislation, urging such decisionmakers to focus not only on policy but also on politics if they hope to enact durable reform.
Volume 60 | March, 2008 | Number 2
ARTICLES
By Clay Calvert......................................................167
This Article argues that legislators today that want to suppress First Amendment-protected images of sexual and violent conduct conveyed on a specific medium face a steep two-step evidentiary burden. First, they must prove actual harm caused by the speech in question as it is conveyed on a specific medium—not the aggregate injury from viewing all media generally—that is sufficient to overcome free-speech rights. Second, even if sufficient harm from viewing violent or sexual content on a particular medium is proven by social science research, the government then must prove that its legislative remedy—its censorship of the harmful expression conveyed via a specific medium—actually causes the problem to be ameliorated in a significant way. This Article concentrates on the under-explored implications of the second step (proving efficacy of the remedy) and, specifically, on the key problem of underinclusiveness that courts increasingly identify with medium-specific remedies. In addition, the Article analyzes the puzzle of precisely how much (and what kind of) evidence must be demonstrated in order to satisfy courts that the problems medium-specific laws are designed to address are, in fact, materially remedied.
The Colonel’s Finest Campaign: Robert R. McCormick and Near v. Minnesota
By Eric B. Easton....................................................193
Media corporations and their professional and trade associations, as well as organizations such as Reporters Committee for Freedom of the Press and the American Civil Liberties Union, regularly monitor litigation that implicates First Amendment values and decide whether, when, and how to intervene. But that was not always the case. While media companies have always lobbied and litigated in support of their business interests—antitrust, copyright, postal rates, taxes—litigation by the institutional press to create or avoid doctrinal precedent under the First Amendment began only in the late 1920s. Once the United States Supreme Court recognized the incorporation of the First Amendment through the Due Process Clause of the Fourteenth Amendment to protect the rights of the press from abridgment by state law, the way was clear for the press to engage in strategic litigation to support the collection and reporting of news. But it was not until Col. Robert R. McCormick of the Chicago Tribune took charge of the historic case of Near v. Minnesota that the institutional press mobilized to take advantage of the opportunity the Court provided. Through extensive use of the Tribune Archives and its day-to-day coverage of the Near case, this Article shows how McCormick’s personal and financial commitment to freedom of the press in general, and the Near case in particular, ultimately persuaded the institutional press to pursue doctrinal litigation not only in their narrow commercial interests but also in pursuit of their most fundamental rights to gather and publish the news.
By Nancy J. King.....................................................239
Advertisers are poised to deliver advertising to cell phones in the U.S. This emerging advertising context is called mobile advertising. It will generate a host of privacy and personal data issues for consumers and for mobile advertisers, mobile phone manufacturers, and mobile carriers. This Article focuses on the existing federal regulatory environment applicable to mobile advertising and consumer privacy, the role of federal administrative agencies that enforce consumer privacy regulation, and the potential for industry self-regulation, particularly privacy policies, to enhance consumer privacy. It assesses the adequacy of the existing federal consumer privacy regulation as well as potential consumer remedies under contract theories and privacy tort laws. Concluding that meaningful disclosure of privacy practices and obtaining adequate consumer consent are essential privacy concerns in mobile advertising, the Article identifies weaknesses in the current regulatory system and offers simple suggestions for regulatory improvements to bolster consumers’ privacy protections.
Skating Toward Deregulation: Canadian Developments
By Timothy J. Brennan..............................................335
Canada had recently undertaken significant steps to forbear from regulating the last regulated offering in the telecommunications sector, local exchange service. Tests that Canada’s telecommunications regulatory agency had imposed were overturned by order from the Canadian Cabinet Ministers. Notably, competitors to the incumbent local exchange carriers ("ILECs"), primary cable systems offering voice over Internet protocol ("VoIP") service, argued for the retention of regulation to prevent the ILECs from cutting price to customers who had switched to cable VoIP or were most likely to do so. We review here both the institutional developments leading to the forbearance decision and a number of economic issues presented during the course of the policy debate.
NOTES
Reassessing Turner and Litigating the Must-Carry Law Beyond a Facial Challenge
By R. Matthew Warner...............................................369
In recent decades, the must-carry rules have had a troubled constitutional history. After two sets of rules were struck down by the D.C. Circuit for violating the First Amendment rights of both cable programmers and operators, Congress revised the must-carry rules in the 1992 Cable Act. In 1997, the Supreme Court, in a 5-4 decision, determined that the congressional must-carry law was facially constitutional. However, does the Turner II decision preclude further First Amendment challenges to the must-carry law? This Note argues that the answer is no and that the time is drawing near for new challenges.
BOOK REVIEW
Carl Ramey’s Mass Media Unleashed
By Henry Geller...........................................................401
This superb book treats an important issue: the proper regulatory policy for broadcasting in the twenty-first century. In it, Carl Ramey critiques the Federal Communications Commission's public trustee and deregulatory market policies and suggests that to meet the dynamic market and technological changes of this new century we should, among other things, free commercial broadcasters completely from public trustee requirements and eliminate FCC enforcement of its ownership and related rules. Based on the long experience of a communications lawyer who knows so well how the present policy has failed, this book is a most commendable effort and a great blueprint for reform.
Volume 60 | December, 2007 | Number 1
COMMENTARY
Expansion of Indecency Regulation
Hon. Kevin J. Martin, Adam G. Ciongoli,
Robert W. Peters, Roger Pilon,
& Hon. David B. Sentelle................................................................1
This is a transcript of the November 10, 2005, panel discussion at the National Lawyer's Convention presented by the Federalist Society's Telecommunications Practice Group. The panelists debate and discuss the Federal Communications Commission's ("FCC") regulation of indecent content.
ARTICLES
By John C. Quale & Malcolm J. Tuesley..................................37
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 deliver programming to consumers, does share some similarities with broadcasters. Although the Supreme Court has not considered the issue, we believe that the nature of the DBS service more closely resembles cable television than broadcasting. Assuming that the FCC has statutory authority to regulate indecency on DBS (which is itself doubtful), Supreme Court precedent regarding the regulation of content on cable and the Internet strongly suggests that any restriction on DBS indecency would contravene the First Amendment.
In the Dark: A Consumer Perspective on FCC Broadcast Indecency Denials
By Genelle I Belmas, Gail D. Love,
& Brian C. Foy................................................................................69
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 Federal Communications Commission's (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 what they perceive to be indecent programming? The authors obtained indecency complaints about broadcast programming received and denied by the FCC in 2004 through a Freedom of Information Act request. The nature of the complaint, geographic area, and FCC response were examined from the standpoint of the consumer. The authors make several suggestions to improve the FCC's handling of its increasing load of indecency complaints and its correspondence with the complainants. The authors also take a critical look at activist groups and their effect on the complaint process.
NOTES
Deal or No Deal: Re-interpreting the FCC's Foreign Ownership Rules for a Fair Game
By Cindy Cho................................................................................112
With the changing racial and linguistic composition of the American market and the emerging strength of the Mexican market, American broadcast companies are facing a new competitive playing field. Section 310 of the Communications Act of 1934 ("Act") establishes the guidelines for when a foreign national is eligible to apply for a broadcast license from the FCC. The FCC currently interprets these limits on foreign ownership very leniently, favoring a policy of deregulation in an attempt to further open up the United States market. This Note argues that once foreign nationals have cleared the hurdle of Section 310's foreign ownership requirements, the licensing standards under Sections 301 and 307 are weakened, allowing foreign applicants to engage in anticompetitive behavior in order to obtain broadcast licenses over domestic applicants.
By Jim Shanahan..........................................................................136
The recent decision in Craigslist signals a drastic reduction in the effectiveness of the prohibition on discriminatory housing advertisements under the Fair Housing Act ("FHA"). Section 230 of the Communications Decency Act gives blanket immunity to Internet Content Providers from publisher liability for content originating from third parties. One of the effects of this immunity is the creation of a monopoly for discriminatory advertisements otherwise proscribed by the FHA. This Note argues that the simplest solution for Congress is to adjust the language of Section 230 by adding the FHA to the list of exceptions to statutory immunity.
BOOK REVIEW
By Victoria F. Phillips..................................................................158
Philip Napoli's "Media Diversity and Localism: Meaning and Metrics" is a thoughtful and first of its kind compilation of some of the ongoing research and scholarship examining the concepts of diversity and localism underlying the Federal Communications Commission's public interest standard in broadcasting. The collection of essays addresses these fundamental goals from a variety of disciplines beyond the law, including political science, communications policy, sociology, and economics. The essays explore the values associated with these two goals, apply performance metrics to assess existing regulatory policies intended to preserve and promote these goals, and reflect on their meaning in the new media landscape and for current communications policy and decision-making. The volume provides a scholarly foundation for assessing some of the central questions in the ongoing media policy debates.
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