Pub Date : 2023-01-02DOI: 10.1080/10811680.2023.2189813
Amy Kristin Sanders
{"title":"Editor’s Note: The Importance of Our Strong Scholarly Community","authors":"Amy Kristin Sanders","doi":"10.1080/10811680.2023.2189813","DOIUrl":"https://doi.org/10.1080/10811680.2023.2189813","url":null,"abstract":"","PeriodicalId":42622,"journal":{"name":"Communication Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46749863","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-02DOI: 10.1080/10811680.2023.2180271
Evan Ringel, Amanda Reid
Abstract This article examines the patchwork of regulatory approaches policymakers have used to govern use of facial recognition technology (FRT). Without comprehensive federal legislation, state and local policymakers are left to fill the regulatory gap. The purpose of this article is twofold. First, it creates a taxonomy of the existing regulatory schemata governing uses of FRT. The authors’ systematic analysis of FRT regulatory approaches identified five main categories of policymaking options: (1) agents of use; (2) limitations on use; (3) accountability of use; (4) evaluation of use; and (5) enforcement of permitted use. Second, the authors analyze whether First Amendment protection of information as speech may serve as a barrier to any regulatory aspect of FRT. Building on the novel empirical framework of regulatory options, the authors examine which types of FRT regulations would likely survive a First Amendment challenge. Thus, this taxonomy of regulatory approaches, coupled with a First Amendment analysis, offers valuable insights for policymakers and scholars.
{"title":"Regulating Facial Recognition Technology: A Taxonomy of Regulatory Schemata and First Amendment Challenges","authors":"Evan Ringel, Amanda Reid","doi":"10.1080/10811680.2023.2180271","DOIUrl":"https://doi.org/10.1080/10811680.2023.2180271","url":null,"abstract":"Abstract This article examines the patchwork of regulatory approaches policymakers have used to govern use of facial recognition technology (FRT). Without comprehensive federal legislation, state and local policymakers are left to fill the regulatory gap. The purpose of this article is twofold. First, it creates a taxonomy of the existing regulatory schemata governing uses of FRT. The authors’ systematic analysis of FRT regulatory approaches identified five main categories of policymaking options: (1) agents of use; (2) limitations on use; (3) accountability of use; (4) evaluation of use; and (5) enforcement of permitted use. Second, the authors analyze whether First Amendment protection of information as speech may serve as a barrier to any regulatory aspect of FRT. Building on the novel empirical framework of regulatory options, the authors examine which types of FRT regulations would likely survive a First Amendment challenge. Thus, this taxonomy of regulatory approaches, coupled with a First Amendment analysis, offers valuable insights for policymakers and scholars.","PeriodicalId":42622,"journal":{"name":"Communication Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46010308","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-02DOI: 10.1080/10811680.2023.2179877
Amy Sindik
Abstract One area of antitrust law in which many Big Tech organizations fight antitrust lawsuits is tying arrangements. Tying arrangements, which occur when a seller requires the sale one product to be tied to the purchase of another product, are subject to the partial per se analysis introduced in Jefferson Parish Hospital District No. 2 v. Hyde. Partial per se does not automatically assume that a tying arrangement is illegal, but rather sets conditions to determine when a tie between two products is an antitrust violation. However, criticism of the partial per se standard has existed for decades. This article argues that proposed changes to antitrust laws should include changing the standard used to evaluate tying arrangements to a consistent rule-of-reason approach.
{"title":"Big Tech and Tying Arrangements: Are Antitrust Revisions Needed?","authors":"Amy Sindik","doi":"10.1080/10811680.2023.2179877","DOIUrl":"https://doi.org/10.1080/10811680.2023.2179877","url":null,"abstract":"Abstract One area of antitrust law in which many Big Tech organizations fight antitrust lawsuits is tying arrangements. Tying arrangements, which occur when a seller requires the sale one product to be tied to the purchase of another product, are subject to the partial per se analysis introduced in Jefferson Parish Hospital District No. 2 v. Hyde. Partial per se does not automatically assume that a tying arrangement is illegal, but rather sets conditions to determine when a tie between two products is an antitrust violation. However, criticism of the partial per se standard has existed for decades. This article argues that proposed changes to antitrust laws should include changing the standard used to evaluate tying arrangements to a consistent rule-of-reason approach.","PeriodicalId":42622,"journal":{"name":"Communication Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"59637197","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-10-02DOI: 10.1080/10811680.2023.2182106
Amy Kristin Sanders
{"title":"Communication Law and Policy Editor’s Note","authors":"Amy Kristin Sanders","doi":"10.1080/10811680.2023.2182106","DOIUrl":"https://doi.org/10.1080/10811680.2023.2182106","url":null,"abstract":"","PeriodicalId":42622,"journal":{"name":"Communication Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2022-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49089489","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-10-02DOI: 10.1080/10811680.2022.2136472
Aram Sinnreich, Mariana Sanchez-Santos, Neil Perry, P. Aufderheide
Abstract This study analyzes 84 pieces of legislation between 1996 and January 20, 2021 proposing to modify “Section 230,” the clause in the Communications Act that protects Internet platforms from third-party liability for its users’ actions. Patterns in that legislation align with media coverage of Section 230. The study shows that in recent years, such legislation has shifted from bipartisan, policy-focused law to Republican partisan bills intended as a gesture of support for President Trump, who had attacked the clause believing that it permitted platforms to moderate against his interests. Thus, legislation was often designed not only as a “messaging bill,” but as a message to a particular person, whom legislators believed held the keys to their own electoral futures.
{"title":"Performative Media Policy: Section 230’s Evolution from Regulatory Statute to Loyalty Oath","authors":"Aram Sinnreich, Mariana Sanchez-Santos, Neil Perry, P. Aufderheide","doi":"10.1080/10811680.2022.2136472","DOIUrl":"https://doi.org/10.1080/10811680.2022.2136472","url":null,"abstract":"Abstract This study analyzes 84 pieces of legislation between 1996 and January 20, 2021 proposing to modify “Section 230,” the clause in the Communications Act that protects Internet platforms from third-party liability for its users’ actions. Patterns in that legislation align with media coverage of Section 230. The study shows that in recent years, such legislation has shifted from bipartisan, policy-focused law to Republican partisan bills intended as a gesture of support for President Trump, who had attacked the clause believing that it permitted platforms to moderate against his interests. Thus, legislation was often designed not only as a “messaging bill,” but as a message to a particular person, whom legislators believed held the keys to their own electoral futures.","PeriodicalId":42622,"journal":{"name":"Communication Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2022-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41440475","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-10-02DOI: 10.1080/10811680.2022.2136442
K. Montalbano
Abstract This article draws from surveys about the experiences of users with Yik Yak and other anonymous social media platforms to consider how digital intermediaries encourage civility and minimize hateful speech in their communities—given the protections from liability that Section 230 of the Communications Decency Act (CDA) affords them. It then turns to debates over Section 230 of the Communications Decency Act by congressional and Federal Communications Commission (FCC) leadership from 2017 and 2021. In so doing, it considers how hoped-for changes from both the Republican and Democratic parties may conflict with the First Amendment in their proposals to reform Section 230. The article argues that human content moderation is particularly important to maintain as part of the regulatory process on digital platforms given (1) the disconnected discourse emanating from the left and the right about what kind of online expression is problematic, and (2) the parallel disconnected discourse among users of anonymous platforms where online expression wields the least amount of individual accountability.
{"title":"Reimagining Section 230 and Content Moderation: Regulating Incivility on Anonymous Digital Platforms","authors":"K. Montalbano","doi":"10.1080/10811680.2022.2136442","DOIUrl":"https://doi.org/10.1080/10811680.2022.2136442","url":null,"abstract":"Abstract This article draws from surveys about the experiences of users with Yik Yak and other anonymous social media platforms to consider how digital intermediaries encourage civility and minimize hateful speech in their communities—given the protections from liability that Section 230 of the Communications Decency Act (CDA) affords them. It then turns to debates over Section 230 of the Communications Decency Act by congressional and Federal Communications Commission (FCC) leadership from 2017 and 2021. In so doing, it considers how hoped-for changes from both the Republican and Democratic parties may conflict with the First Amendment in their proposals to reform Section 230. The article argues that human content moderation is particularly important to maintain as part of the regulatory process on digital platforms given (1) the disconnected discourse emanating from the left and the right about what kind of online expression is problematic, and (2) the parallel disconnected discourse among users of anonymous platforms where online expression wields the least amount of individual accountability.","PeriodicalId":42622,"journal":{"name":"Communication Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2022-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46360884","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-10-02DOI: 10.1080/10811680.2022.2154071
Elena Herrero-Beaumont
Abstract Media capture and disinformation are two problems that exist in all media markets with greater or lesser extent. The current digital context is helping to exacerbate these problems, which represent the two main threats to the public's right to be informed in a constitutional democracy. The current legal-constitutional frameworks to protect the public’s right to information across EU jurisdictions are no longer effective in guaranteeing two elements associated with this fundamental right: the independence of the media and the duty of truthfulness of journalists. As a solution to this problem, a system of transparency of media companies to reinforce these two elements may become a complementary tool to effectively guarantee the right to information. In this context, a number of voluntary transparency systems of news media organizations are emerging in the European Union and the United States to strengthen media independence and editorial credibility. In this article I first describe and compare these systems by using criteria associated with effective transparency policies. Then I identify standards that are common to all the initiatives focusing on news governance and I evaluate how these standards are being already implemented by a sample of five Anglo American media brands that are enjoying the credibility of their users evidenced by the increasing levels of subscription rates.
{"title":"Emerging Transparency Systems for News Governance to Protect Media Independence and Credibility in the Digital Infosphere","authors":"Elena Herrero-Beaumont","doi":"10.1080/10811680.2022.2154071","DOIUrl":"https://doi.org/10.1080/10811680.2022.2154071","url":null,"abstract":"Abstract Media capture and disinformation are two problems that exist in all media markets with greater or lesser extent. The current digital context is helping to exacerbate these problems, which represent the two main threats to the public's right to be informed in a constitutional democracy. The current legal-constitutional frameworks to protect the public’s right to information across EU jurisdictions are no longer effective in guaranteeing two elements associated with this fundamental right: the independence of the media and the duty of truthfulness of journalists. As a solution to this problem, a system of transparency of media companies to reinforce these two elements may become a complementary tool to effectively guarantee the right to information. In this context, a number of voluntary transparency systems of news media organizations are emerging in the European Union and the United States to strengthen media independence and editorial credibility. In this article I first describe and compare these systems by using criteria associated with effective transparency policies. Then I identify standards that are common to all the initiatives focusing on news governance and I evaluate how these standards are being already implemented by a sample of five Anglo American media brands that are enjoying the credibility of their users evidenced by the increasing levels of subscription rates.","PeriodicalId":42622,"journal":{"name":"Communication Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2022-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42232636","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-29DOI: 10.1080/10811680.2022.2075178
D. Pritchard
Abstract This article reports the results of a study of defamation cases in trial court. Robert Post’s conjecture that reputation comprises three distinct concepts forms the basis for the study’s central variable. The study develops and empirically tests a framework for understanding why defamation cases begin and how they end. The results show that the social characteristics of defamation cases, and especially how complainants describe their reputations, reveal predictable patterns of behavior. The study is based on a review of thousands of pages of documents in the trial court files of 337 defamation cases from Wisconsin. The implications of the study for development of the common law of defamation, for renewed attention to criminal defamation, and for teaching students about defamation are discussed.
{"title":"The Social Foundations of Defamation in Trial Court: Why Cases Begin and How They End","authors":"D. Pritchard","doi":"10.1080/10811680.2022.2075178","DOIUrl":"https://doi.org/10.1080/10811680.2022.2075178","url":null,"abstract":"Abstract This article reports the results of a study of defamation cases in trial court. Robert Post’s conjecture that reputation comprises three distinct concepts forms the basis for the study’s central variable. The study develops and empirically tests a framework for understanding why defamation cases begin and how they end. The results show that the social characteristics of defamation cases, and especially how complainants describe their reputations, reveal predictable patterns of behavior. The study is based on a review of thousands of pages of documents in the trial court files of 337 defamation cases from Wisconsin. The implications of the study for development of the common law of defamation, for renewed attention to criminal defamation, and for teaching students about defamation are discussed.","PeriodicalId":42622,"journal":{"name":"Communication Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2022-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43070800","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-01DOI: 10.1080/10811680.2022.2055377
Christopher Terry, S. Schmitz, Eliezer (Lee) Joseph Silberberg
Abstract In Reno v. ACLU and Packingham v. North Carolina, the U.S. Supreme Court ruled that government-enacted restrictions on online speech must pass strict scrutiny review. Even so, efforts to compel and restrict speech appearing in private venues like social media continue to expand in scope and number at both the state and federal level. We first explore Mahanoy Area School District v. B.L. in the context of student speech cases before discussing how the decision destroys the traditional boundary of the schoolhouse gate for the regulation of student speech. It does so despite the fact that the cheerleader’s profane messages would have been protected expression in any nonschool situation. We then argue that Mahanoy, despite being an individual win for the cheerleader, illustrates how the Court continues to wrestle with traditional applications of the First Amendment to internet speech. We argue that the decision has the regulation of internet speech following a path similar to the regulation of broadcast speech.
{"title":"A Cheerleader, a Snapchat, and a Profanity go to Supreme Court but the Punchline in Mahanoy Isn’t Funny","authors":"Christopher Terry, S. Schmitz, Eliezer (Lee) Joseph Silberberg","doi":"10.1080/10811680.2022.2055377","DOIUrl":"https://doi.org/10.1080/10811680.2022.2055377","url":null,"abstract":"Abstract In Reno v. ACLU and Packingham v. North Carolina, the U.S. Supreme Court ruled that government-enacted restrictions on online speech must pass strict scrutiny review. Even so, efforts to compel and restrict speech appearing in private venues like social media continue to expand in scope and number at both the state and federal level. We first explore Mahanoy Area School District v. B.L. in the context of student speech cases before discussing how the decision destroys the traditional boundary of the schoolhouse gate for the regulation of student speech. It does so despite the fact that the cheerleader’s profane messages would have been protected expression in any nonschool situation. We then argue that Mahanoy, despite being an individual win for the cheerleader, illustrates how the Court continues to wrestle with traditional applications of the First Amendment to internet speech. We argue that the decision has the regulation of internet speech following a path similar to the regulation of broadcast speech.","PeriodicalId":42622,"journal":{"name":"Communication Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44776924","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-05-31DOI: 10.1080/10811680.2022.2072030
Erin K. Coyle
Abstract Disclosing sex crime victims’ identities without their consent can harm their autonomy, dignity, equality, and intimacy. This article analyzed how state statutes in the United States may protect sex-crime victims’ privacy interests. Several states have allowed punishing printing, publishing, or broadcasting sex crime victims’ identifying information in instruments of mass communication. Such laws have conflicted with constitutional rights when applied to punish truthful disclosures of matters of public significance lawfully obtained from public records. States, at times, may punish government employees for knowingly or intentionally disclosing victims’ identifying information stored in government records. Fewer constitutional concerns arise when states shield victims’ identities with pseudonyms or confidentiality provisions than when states use swords to punish disclosures in instruments of mass communication. Methods to shield victims’ privacy interests may recognize victims’ privacy rights without unduly limiting constitutionally protected expression rights.
{"title":"Evaluating Methods to Protect Sex Crime Victims’ Privacy: A Legal Analysis of States’ Attempts to Protect Victims’ Identities","authors":"Erin K. Coyle","doi":"10.1080/10811680.2022.2072030","DOIUrl":"https://doi.org/10.1080/10811680.2022.2072030","url":null,"abstract":"Abstract Disclosing sex crime victims’ identities without their consent can harm their autonomy, dignity, equality, and intimacy. This article analyzed how state statutes in the United States may protect sex-crime victims’ privacy interests. Several states have allowed punishing printing, publishing, or broadcasting sex crime victims’ identifying information in instruments of mass communication. Such laws have conflicted with constitutional rights when applied to punish truthful disclosures of matters of public significance lawfully obtained from public records. States, at times, may punish government employees for knowingly or intentionally disclosing victims’ identifying information stored in government records. Fewer constitutional concerns arise when states shield victims’ identities with pseudonyms or confidentiality provisions than when states use swords to punish disclosures in instruments of mass communication. Methods to shield victims’ privacy interests may recognize victims’ privacy rights without unduly limiting constitutionally protected expression rights.","PeriodicalId":42622,"journal":{"name":"Communication Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2022-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47924319","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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