Pub Date : 2020-07-02DOI: 10.1080/10811680.2020.1766896
A. Kenyon
One of Thomas Emerson’s lasting contributions to understanding free speech is his emphasis on the system of freedom of expression, as his well-known book is titled. Free speech needs broad analysis that pays attention to supports for, as well as limitations of, speech; the freedom encompasses practices, principles and institutions as well as rights; and it is the structures underlying speech that should concern legal scholarship. The point is frequently recognized — scholarly references to a system of free speech following Emerson are common — but the positive or affirmative dimensions of Emerson’s approach are not always brought out. (The literature uses many terms for these aspects of the freedom; here I use both “affirmative,” after Emerson, and “positive,” which has currency across relevant disciplines.) While positive dimensions are evident in much of his work, they are encapsulated in “The Affirmative Side of the First Amendment.” The article is now somewhat poignant, for at least two reasons. The first is the confidence it displays in U.S. constitutional law developing and better supporting the system of public speech. While Emerson recognizes that U.S. affirmative doctrine is relatively inchoate, he sees the courts as moving toward clarifying and strengthening it: “[T]he courts are on a one-way road: to the extent that they are willing to act, the result can only be an expansion, not a restriction, of the system of freedom of expression.” In many ways, U.S. courts have not acted since then and such development has not (yet) come to pass, even as the environment in which public speech occurs has transformed. Second, the article
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Pub Date : 2020-07-02DOI: 10.1080/10811680.2020.1765615
Derigan A. Silver, Dan V. Kozlowski
Started in 1995, Communication Law and Policy is a premier outlet for peer-reviewed research on communication law and policy. But what other outlets are there for research on communication law and policy topics? In particular, which non-law, peer-reviewed journals are publishing articles on communication law and policy? And what topics do these journals cover? The purpose of this essay is to examine communication law and policy research that is being published in non-law, peer-reviewed journals. Examining the past ten years of publications in thirty-six journals, the essay documents the journals that have published research on communication law and policy topics and attempts to analyze these articles to provide a snap shot of the state of research in these journals. Finally, the essay attempts — albeit briefly — to address the direction in which communication law and policy research seems to be progressing in this set of journals and to detail some of the trends we see.
{"title":"Communication Law and Policy Research in Non-Law Peer-Reviewed Journals, 2010-2019: Trends and Observations","authors":"Derigan A. Silver, Dan V. Kozlowski","doi":"10.1080/10811680.2020.1765615","DOIUrl":"https://doi.org/10.1080/10811680.2020.1765615","url":null,"abstract":"Started in 1995, Communication Law and Policy is a premier outlet for peer-reviewed research on communication law and policy. But what other outlets are there for research on communication law and policy topics? In particular, which non-law, peer-reviewed journals are publishing articles on communication law and policy? And what topics do these journals cover? The purpose of this essay is to examine communication law and policy research that is being published in non-law, peer-reviewed journals. Examining the past ten years of publications in thirty-six journals, the essay documents the journals that have published research on communication law and policy topics and attempts to analyze these articles to provide a snap shot of the state of research in these journals. Finally, the essay attempts — albeit briefly — to address the direction in which communication law and policy research seems to be progressing in this set of journals and to detail some of the trends we see.","PeriodicalId":42622,"journal":{"name":"Communication Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2020-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/10811680.2020.1765615","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43533720","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 : 2020-04-02DOI: 10.1080/10811680.2020.1735191
Lyombe Eko
International controversies involving mass-mediated caricatures and parodies of religion provided an opportunity to compare and contrast how courts in the United States and France manage the tensions between advertising parody of religion, defamation, and freedom of expression. This article carried out a comparative analysis of the regulation of advertising parodies of religion under American and French law, using as a comparative case study two landmark cases, Hustler Magazine v. Falwell, and Association Croyances et Libértés v. Marithé et François Girbaud, decided by the Supreme Courts of the United States and France. Advertising parodies of religious icons are permissible under the copyright and free speech regimes of both countries. However, parody is not always a laughing matter. Although the legal systems of the United States and France are different in a number of respects, the outcomes of the legal disputes over advertising parodies of religion demonstrate a “similarity in difference” comparative model that explains the workings of both systems and is useful for promoting freedom of expression at the international level.
涉及大规模传播的讽刺和恶搞宗教的国际争议提供了一个比较和对比美国和法国法院如何处理广告恶搞宗教、诽谤和言论自由之间的紧张关系的机会。本文以美国和法国最高法院判决的两起具有里程碑意义的案件——《好色客杂志诉福尔韦尔案》和“协会Croyances et libsamrtsams诉marith et franois Girbaud”为案例，对美国和法国法律对宗教广告恶搞的监管进行了比较分析。在两国的版权和言论自由制度下，模仿宗教偶像的广告是允许的。然而，模仿并不总是一件好笑的事情。尽管美国和法国的法律制度在许多方面有所不同，但有关广告恶搞宗教的法律纠纷的结果显示出一种“差异中的相似”比较模式，这种模式解释了两种制度的运作方式，并有助于在国际层面上促进言论自由。
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Pub Date : 2020-04-02DOI: 10.1080/10811680.2020.1735184
K. Youm, A. Sanders
Freedom of speech and the press have become increasingly international and comparative for communication law scholars and practitioners. For those of us who have witnessed the internet revolution o...
{"title":"International and Comparative Law as a Reverse Perspective on Communication Law","authors":"K. Youm, A. Sanders","doi":"10.1080/10811680.2020.1735184","DOIUrl":"https://doi.org/10.1080/10811680.2020.1735184","url":null,"abstract":"Freedom of speech and the press have become increasingly international and comparative for communication law scholars and practitioners. For those of us who have witnessed the internet revolution o...","PeriodicalId":42622,"journal":{"name":"Communication Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2020-04-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/10811680.2020.1735184","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41924788","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 : 2020-04-02DOI: 10.1080/10811680.2020.1735188
Edward L. Carter, Rosalie C. Westenskow
Contemporary attacks of various types have prompted calls for stronger public support and legal protections for journalism. Around the world, journalism faces not only government regulation that affects editorial content but also economic and corporate pressures as well as lack of public understanding of its societal functions. In the United States, courts and even journalism organizations have been reluctant to define journalism or single it out for special protection. But international human rights law presents a possible solution. This article discusses the international human rights law provisions that protect individuals engaged in journalism. The United Nations Human Rights Committee has laid groundwork to define and protect journalism’s unique functions within the larger international law framework for freedom of expression. This groundwork includes the possibility for individual journalism rights to be distinguished from institutional media or press rights. The article contends that such a distinction has become increasingly important. The international law proportionality test could resolve concerns about defining journalism as a stand-alone fundamental right.
{"title":"Freedom of Journalism in International Human Rights Law","authors":"Edward L. Carter, Rosalie C. Westenskow","doi":"10.1080/10811680.2020.1735188","DOIUrl":"https://doi.org/10.1080/10811680.2020.1735188","url":null,"abstract":"Contemporary attacks of various types have prompted calls for stronger public support and legal protections for journalism. Around the world, journalism faces not only government regulation that affects editorial content but also economic and corporate pressures as well as lack of public understanding of its societal functions. In the United States, courts and even journalism organizations have been reluctant to define journalism or single it out for special protection. But international human rights law presents a possible solution. This article discusses the international human rights law provisions that protect individuals engaged in journalism. The United Nations Human Rights Committee has laid groundwork to define and protect journalism’s unique functions within the larger international law framework for freedom of expression. This groundwork includes the possibility for individual journalism rights to be distinguished from institutional media or press rights. The article contends that such a distinction has become increasingly important. The international law proportionality test could resolve concerns about defining journalism as a stand-alone fundamental right.","PeriodicalId":42622,"journal":{"name":"Communication Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2020-04-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/10811680.2020.1735188","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45627897","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 : 2020-04-02DOI: 10.1080/10811680.2020.1735194
Alex Rochefort
High-profile scandals related to electoral interference, fake news and misinformation, violations of data privacy, and suppression of political activism by anti-democratic regimes have cast a cloud over the social media industry in recent years. The question is not if, but when and how, reform will be undertaken and with what consequences. Against this backdrop, the purpose of this article is to conduct a comparative analysis of competing alternatives for social media platform regulation. Its focus is international, encompassing not only proposals advanced by different groups within the United States, but also selected major developments abroad. The goal of such a comparison is to improve understanding of limited as well as more comprehensive strategies of intervention while evaluating their appeal for addressing the controversy that surrounds the social media industry based on policy effectiveness and other technical and normative criteria.
{"title":"Regulating Social Media Platforms: A Comparative Policy Analysis","authors":"Alex Rochefort","doi":"10.1080/10811680.2020.1735194","DOIUrl":"https://doi.org/10.1080/10811680.2020.1735194","url":null,"abstract":"High-profile scandals related to electoral interference, fake news and misinformation, violations of data privacy, and suppression of political activism by anti-democratic regimes have cast a cloud over the social media industry in recent years. The question is not if, but when and how, reform will be undertaken and with what consequences. Against this backdrop, the purpose of this article is to conduct a comparative analysis of competing alternatives for social media platform regulation. Its focus is international, encompassing not only proposals advanced by different groups within the United States, but also selected major developments abroad. The goal of such a comparison is to improve understanding of limited as well as more comprehensive strategies of intervention while evaluating their appeal for addressing the controversy that surrounds the social media industry based on policy effectiveness and other technical and normative criteria.","PeriodicalId":42622,"journal":{"name":"Communication Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2020-04-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/10811680.2020.1735194","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43607512","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 : 2020-04-02DOI: 10.1080/10811680.2020.1735192
Benjamin W. Cramer
The Freedom of Information Act in the United States was a relatively rare access-to-information, or ATI, statute when passed in 1966, but it inspired many similar statutes in nations around the world. This article conducts a comparative study focused on Central Europe, with Poland, Hungary and Czech Republic selected as nations that illustrate ATI philosophy and enforcement in that region. These nations have important similarities but also interesting differences caused by current political trends and local concerns that make each unique in its own right. Ultimately, this study seeks to determine whether these nations have adopted not just the text but also the spirit of transparency embodied in FOIA, with a particular focus on that region’s much different legal and political structures as compared to the United States and Western Europe.
{"title":"Crossing the Danube: A Comparative Study of Central European and American Access-to-Information Laws","authors":"Benjamin W. Cramer","doi":"10.1080/10811680.2020.1735192","DOIUrl":"https://doi.org/10.1080/10811680.2020.1735192","url":null,"abstract":"The Freedom of Information Act in the United States was a relatively rare access-to-information, or ATI, statute when passed in 1966, but it inspired many similar statutes in nations around the world. This article conducts a comparative study focused on Central Europe, with Poland, Hungary and Czech Republic selected as nations that illustrate ATI philosophy and enforcement in that region. These nations have important similarities but also interesting differences caused by current political trends and local concerns that make each unique in its own right. Ultimately, this study seeks to determine whether these nations have adopted not just the text but also the spirit of transparency embodied in FOIA, with a particular focus on that region’s much different legal and political structures as compared to the United States and Western Europe.","PeriodicalId":42622,"journal":{"name":"Communication Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2020-04-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/10811680.2020.1735192","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45346829","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 : 2020-01-02DOI: 10.1080/10811680.2020.1690330
Jenny S. Lee
In the wake of Big Tech’s growing power, much attention has been directed to the Federal Trade Commission as the regulatory force for monitoring the technology industry. But scholars are largely divided on the issue of whether privacy exists within the scope of antitrust law. Using the 2008 acquisition of DoubleClick by Google as a case study, this article argues that privacy is an antitrust issue and should have been considered in the FTC’s merger review process for the ways it affected both competition and consumer welfare. The article examines the role of consumer data in fortifying Google’s barriers to entry, squashing innovation, and reducing choice in the marketplace, and considers the invasion of data privacy as an issue of consumer protection. The article argues that the foundation for evaluating privacy within the merger review already exists, as Section 5 of the FTC Act gives the Commission special responsibility to uphold these values and interpret its review process in order to keep up with a changing market structure. More than a decade later, these lessons remain relevant, as antitrust law experiences a resurgence in the United States.
{"title":"The Google-DoubleClick Merger: Lessons From the Federal Trade Commission's Limitations on Protecting Privacy","authors":"Jenny S. Lee","doi":"10.1080/10811680.2020.1690330","DOIUrl":"https://doi.org/10.1080/10811680.2020.1690330","url":null,"abstract":"In the wake of Big Tech’s growing power, much attention has been directed to the Federal Trade Commission as the regulatory force for monitoring the technology industry. But scholars are largely divided on the issue of whether privacy exists within the scope of antitrust law. Using the 2008 acquisition of DoubleClick by Google as a case study, this article argues that privacy is an antitrust issue and should have been considered in the FTC’s merger review process for the ways it affected both competition and consumer welfare. The article examines the role of consumer data in fortifying Google’s barriers to entry, squashing innovation, and reducing choice in the marketplace, and considers the invasion of data privacy as an issue of consumer protection. The article argues that the foundation for evaluating privacy within the merger review already exists, as Section 5 of the FTC Act gives the Commission special responsibility to uphold these values and interpret its review process in order to keep up with a changing market structure. More than a decade later, these lessons remain relevant, as antitrust law experiences a resurgence in the United States.","PeriodicalId":42622,"journal":{"name":"Communication Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/10811680.2020.1690330","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45695845","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 : 2020-01-02DOI: 10.1080/10811680.2019.1660556
S. Memmel
In an era of increased attention to border security and continued technological advances, questions have been raised regarding searches and seizures of electronic devices at U.S. borders, implicating the First and Fourth Amendments. Many of these questions remain unanswered or have been made more complicated by conflicting court rulings, legislation and policies. Meanwhile, journalists continue to be targeted by warrantless searches and seizures. This article seeks to chart the legal landscape by (1) providing key background information, (2) discussing the First Amendment angle of warrantless searches of journalists’ devices, and (3) detailing the split among federal circuit and district courts regarding the Fourth Amendment question of whether border agents need reasonable suspicion to conduct forensic searches of electronic devices. The article argues that because federal courts, executive agencies, and Congress, have failed to adequately address journalists’ and other travelers’ rights at U.S. borders, the Supreme Court of the United States and Congress must provide at least some guidance regarding important Constitutional rights. Ideally, the Court or Congress should also ensure protection for journalists and press freedom at U.S. borders.
{"title":"Crossing Constitutional Boundaries: Searches and Seizures of Electronic Devices at U.S. Borders","authors":"S. Memmel","doi":"10.1080/10811680.2019.1660556","DOIUrl":"https://doi.org/10.1080/10811680.2019.1660556","url":null,"abstract":"In an era of increased attention to border security and continued technological advances, questions have been raised regarding searches and seizures of electronic devices at U.S. borders, implicating the First and Fourth Amendments. Many of these questions remain unanswered or have been made more complicated by conflicting court rulings, legislation and policies. Meanwhile, journalists continue to be targeted by warrantless searches and seizures. This article seeks to chart the legal landscape by (1) providing key background information, (2) discussing the First Amendment angle of warrantless searches of journalists’ devices, and (3) detailing the split among federal circuit and district courts regarding the Fourth Amendment question of whether border agents need reasonable suspicion to conduct forensic searches of electronic devices. The article argues that because federal courts, executive agencies, and Congress, have failed to adequately address journalists’ and other travelers’ rights at U.S. borders, the Supreme Court of the United States and Congress must provide at least some guidance regarding important Constitutional rights. Ideally, the Court or Congress should also ensure protection for journalists and press freedom at U.S. borders.","PeriodicalId":42622,"journal":{"name":"Communication Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/10811680.2019.1660556","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48563758","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 : 2020-01-02DOI: 10.1080/10811680.2020.1690340
K. Olson
Recent copyright reform efforts include legislation in the Congress that would create a copyright claims board to help individual creators and small businesses enforce their copyrights without the expense and complexity of federal court litigation. This article reviews similar tribunals in other countries and examines the proposed board to determine whether it would be effective, both for small claims plaintiffs and in advancing the goals of copyright overall. Test cases involving different types of plaintiffs and defendants are used in order to determine whether the proposed board would in practice level the playing field for individual creators in copyright infringement suits.
{"title":"The Copyright Claims Board and the Individual Creator: Is Real Reform Possible?","authors":"K. Olson","doi":"10.1080/10811680.2020.1690340","DOIUrl":"https://doi.org/10.1080/10811680.2020.1690340","url":null,"abstract":"Recent copyright reform efforts include legislation in the Congress that would create a copyright claims board to help individual creators and small businesses enforce their copyrights without the expense and complexity of federal court litigation. This article reviews similar tribunals in other countries and examines the proposed board to determine whether it would be effective, both for small claims plaintiffs and in advancing the goals of copyright overall. Test cases involving different types of plaintiffs and defendants are used in order to determine whether the proposed board would in practice level the playing field for individual creators in copyright infringement suits.","PeriodicalId":42622,"journal":{"name":"Communication Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/10811680.2020.1690340","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49155381","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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