(2022). Editor’s Note: A Vision for Communication Law & Policy in the Digital Age. Communication Law and Policy: Vol. 27, No. 1, pp. 1-2.

Abstract Espionage has emerged as a leading national security threat for the digital age. Far from traditional wartime spy tactics, espionage now includes actors—including journalists—accessing and publishing sensitive information online to a global audience. This threat must be addressed; however, overbroad espionage laws have the capacity to criminalize legitimate journalism and chill free expression

Abstract State law is often the principal determinant of case outcomes in areas of communication law such as access to information, defamation, invasion of privacy, and protection of news sources. Little is known, however, about the sources of state-to-state variation in communication law. The research presented in this article tests the hypothesis that a state’s level of policy liberalism—the extent

Abstract Viral content on the internet has become part of our everyday lives. It has even made its way into defamation litigation. This article explores how viral content is changing the legal definition of limited-purpose and involuntary public figures. The article argues that courts should not consider having access to social media alone as having “access to media” under the test for deciding when

In 2014, the highest court of appeals for Mauritius overturned the conviction of a journalist for scandalizing the court in an article that was sharply critical of that country’s chief justice. In 2020, a well-known attorney was convicted of scandalizing the court in India for tweets that were critical of that country’s chief justice. While in Victoria, Australia, three government ministers narrowly

Throughout its history, the Supreme Court of the United States has allowed members of the press access to oral arguments and decision releases in its courtroom. However, it took nearly eighty years to formally codify a process by which members of the press were officially credentialed to cover the Court, a pass giving them access to the courtroom beyond the bar, access to walk the halls freely, to

At the European Court of Human Rights (ECtHR), responding governments often argue that the right to “Freedom of expression” (Article 10) does not apply to cases because of journalists’ controversial methods of information gathering (such as wiretapping, secret recording, the use of aliases, and other methods). This article examines how the ECtHR’s international adjudication is a test of the boundaries

The philosopher Alexander Meiklejohn ranks among the most renowned First Amendment theorists. In Free Speech and Its Relation to Self-Government, published in 1948, he lays out four propositions: The First Amendment is intended to facilitate political discourse; its principal concern is the rights of listeners rather than those of speakers; the government has an affirmative obligation to improve the

The decision of the Federal Communications Commission to repeal net neutrality regulations in 2018 was met with legal challenges arguing that the Commission did not have authority under administrative law to make such sweeping policy changes. In light of the net neutrality court battles, this historical analysis of FCC cases examines the way the Supreme Court of the United States has evaluated the

At a time when many U.S. newspapers find themselves at the edge of a financial precipice, The Salt Lake Tribune’s recent transformation into a 501(c)(3) public charity presents a potentially promising route to economic safety for other daily newspapers. Although the nonprofit, tax-exempt model has been an increasingly popular one for new media outlets, the IRS’s bestowal of such status on a major daily

Since World War II, U.S. citizens have reported overwhelming agreement that freedom of expression is a basic right. But, like the law on free expression, public opinion shows that citizen rights to free expression are not absolute or unidimensional, but conditional. To better understand the extent of citizen rights to free expression according to the U.S. public, this study examines data from an online

One mission of the institutional media, recognized by journalists and judges alike, is to uncover the government’s secrets. This mission often involves obtaining information from sources who would face perils if identified. Journalists have historically risked legal penalties to protect sources’ identities, but now surveillance technology allows investigators to unmask leakers through their communication

As traditional news organizations have struggled to adapt their content and financial models to networked information environments, and community journalism startups have begun to test a variety of new business and organization models, the line between journalistic and commercial expression has become opaque. This article examines the challenges emerging, twenty-first-century media organizations pose

Scientists are increasingly involved in defamation claims. Sometimes they are defendants in disputes over the accuracy of articles published in peer-reviewed scientific journals. In other instances, scientists are plaintiffs, filing suits against those who have attacked them in the popular media, harming their reputations. Both situations represent efforts to quell scientists’ speech, generally because

Although the Supreme Court of the United States has described academic freedom as a “special concern,” the Court has never recognized a First Amendment right of academic freedom reserved for the professoriate. Legal disputes involving scholarship and classroom speech have overwhelmingly favored institutions over individual academics. However, the lack of uniformity and inconsistent application of the

Politics have a profound influence on the design and administration of nearly all government laws and policies. And the executive branch, a highly political institution, is given significant latitude in shaping the primary mechanism for accessing government information, the Freedom of Information Act. This article explores the political nature of the FOIA by examining legislative history, party messaging

(2021). Author Index. Communication Law and Policy: Vol. 26, No. 1, pp. 103-132.

(2021). Subject Index. Communication Law and Policy: Vol. 26, No. 1, pp. 133-160.

If the law of invasion of privacy is the child of the seminal Samuel Warren and Louis Brandeis law review article of 1890, 1 then the modern newsgathering and privacy law in Larissa Lidsky’s 1998 a...

Cyberlaw taught us everything, actually. The year was 1999 and undergraduate media law professors across the country were hearing what was initially an astounding claim from their students: Illegally sharing and downloading music online were acts of free expression. For seasoned instructors at the time, the statement was initially a source of amusement. For those of us entering the academy, the claim

Imagining an America in which officials in the highest positions of federal government support laws that criminalize the speech of their critics is not difficult. Not only were such laws passed in 1798 and 1917-18, assaults on First Amendment culture have extended into the twenty-first century. To punish his critics, for example, then-candidate Donald Trump pledged to “open up” libel laws. The ruling

In selecting my article, I pivoted at decision time from an article that was influential in my development as a scholar to one that has recently begun to strike me as particularly relevant to ongoing policy debates about social media platforms, despite falling a bit out of favor over the years. With that brief preface, I’ll begin my revisiting of Lee Bollinger’s 1976 article, and attempt to make the

Professor Vincent Blasi in The Checking Value in First Amendment Theory demonstrated not only his insightful knowledge of the Constitution, history and law, he also revealed his keen understanding of the power of rhetoric: “To become a vital part of the living Constitution, a value must have more than a strong historical and analytical foundation. The value must also succeed at the level of rhetoric;

Scholarship often traces American privacy law to Samuel D. Warren and Louis D. Brandeis’s influential 1890 Harvard Law Review article. The Warren and Brandeis article argues judges ought to protect a person’s thoughts, sensations and emotions against invasions by the press, photographers, distributors of portraits, and publishers of gossip. Warren and Brandeis connected the right of privacy to personal

In 2011 and 2012, when I was a Ph.D. student, I conducted an interview series about free expression issues for the Harvard Law & Policy Review. I talked with lawyers and scholars who had made indelible marks on how people thought about the First Amendment’s promise and limits. One of them was Jack M. Balkin, the Knight Professor of Constitutional Law and the First Amendment at Yale Law School. I asked

In Branzburg v. Hayes, 1 the Supreme Court of the United States determined that the First Amendment to the Constitution 2 does not protect privileged relationships between journalists and their sou...

In 1990, Pierre Leval, who had served as a federal trial judge in New York for twelve years, wrote a twenty-nine-page commentary in the highly influential Harvard Law Review. The essay addressed the interpretation of the copyright doctrine of fair use, or the right to reuse copyrighted material without permission or payment under some circumstances. In it, he argued that in the absence of a clear bright-line

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

When Newton N. Minow addressed the National Association of Broadcasters annual conference in May 1961, he introduced a new phrase into our lexicon – “vast wasteland.” This summarized in two vivid w...

John Hart Ely taught me how to be a legal scholar. I first encountered Ely in the late 1980s as an undergrad assigned his brilliant book on judicial interpretation, Democracy and Distrust. 1 I didn...

Copyright law is under constant pressure to evolve. Since the Copyright Act of 1790, which protected only maps, charts and books from unauthorized copying, the law has grown to cover dramatic and audiovisual works, music, choreography, pictures, graphics, sculptures, architecture and more. As emerging technologies have created opportunities for new modes of creative expression and distribution, copyright

To the extent that Judge Robert Bork lives on in the American consciousness, it is too often as a caricature. Many on the right lionize Bork as an ideological visionary, a cultural warrior, an archetypical Reagan Republican, the grand poohbah of judicial conservatism, and as the preeminent martyr in the partisan battle for control of the judiciary, which was fully joined in 1987 when Senate Democrats

Scholarship related to First Amendment, communications and media law has changed dramatically in the last twenty-five years. This article analyzes how the changes have impacted that scholarship. In the process, it focuses on the rise and leadership of female law professors in these fields over the past several decades. The views of more than a half-dozen of these women about the importance of this

Australian citizen Julian Assange is still locked up in Britain’s most notorious prison at the behest of the United States government with no end in sight. He faces no criminal charges in Britain, Australia or Sweden, but awaits a decision on whether he will be extradited to the United States on charges of espionage. He is held in solitary confinement twenty-three hours a day. He cannot contact family

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

I have probably referred to Thomas I. Emerson’s “Toward a General Theory of the First Amendment” more often than any other article. Emerson’s theory – which covers the values served by the First Amendment, the problems with maintaining a system of freedom of expression, the role of law and legal institutions in this effort, and the formulation of legal doctrine – remains remarkably apt as a framework

When considering cases involving the First Amendment, the Communications Commission Acts of 1934 or 1996, and Federal Communications Commission orders, one should begin by considering three overarching related questions: When interpreting cases, what do judges do, and what should they do?With respect to the First Amendment, how do or should judges determine the meaning of “speech,” “press,” “assemble

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

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

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

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

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 of communication since the mid-1990s, this comes as no surprise. As Columbia University President Lee C. Bollinger, a noted First Amendment scholar, observed in 2010: “No longer can we divide the world into

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

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

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

As the most influential theory in modern First Amendment law turns 100, this study integrates in a unified format centric to marketplace of ideas theory an assessment of developments with the potential to reconstruct broad media marketplaces into an array of cocoons, silos and bubbles of fabricated reality. That assessment provides the basis to argue that the most fundamental threat to marketplace-of-ideas

The American college campus is potentially the quintessential marketplace of ideas – the ideal locale for the free and open exchange of concepts and viewpoints, discussion and debate, and the discovery and sharing of knowledge. The setting, however, has not always materialized in that idyllic fashion. Speech freedom on campus, while challenged over time, is being tested by unique influences in the

Federal public access policy requires recipients of federal research grants to place copies of scientific articles they publish based on the awards in a federal repository. Publishers hold the copyrights to these articles, and not all of them permit authors to comply with the policy. This article argues that public access policy infringes on the First Amendment rights of scientist-authors. The Supreme

The 1919 First Amendment opinions of Oliver Wendell Holmes and Louis Brandeis comprise the seminal texts in the cannon that now includes hundreds of decisions by the Supreme Court of the United States interpreting the core of the American free speech tradition. The marketplace of ideas metaphor they developed has been invoked constantly by Supreme Court justices in First Amendment cases. It has achieved

Despite the ongoing legal and regulatory battle over media ownership policy, control of broadcast outlets among racial and ethnic minorities and women has remained at critically low levels. The Federal Communication Commission’s latest proposal, an Incubator program, relies on the idea that new, small entities can be created by incentivizing existing media companies to foster new entrants in exchange

There is no way to overstate the severity of the problems related to social inequality today, and treatment of hate speech in the United States is problematic in light of these escalating tensions. Long-standing arguments that free speech serves as a societal pressure valve and that open speech leads to truth hold little sway when, 200 years later, hatred against groups based on their identities is

Publicly disclosing 911 recordings sometimes sheds light on important matters of public interest. Nonetheless, some state statutes, court opinions, and attorneys general opinions recognize surviving family members’ privacy rights may be harmed by publicly disclosing such recordings when they involve deaths. States take a variety of approaches to balance privacy interests with interests in disclosing

Commentators and justices on the Supreme Court of the United States speculated when the Court delivered its opinion in Reed v. Town of Gilbert in 2015 that the case would dramatically reshape First Amendment law. This article analyzes Reed’s impact to date in the United States Circuit Courts of Appeals. The article demonstrates that, although Reed has been consequential in some circuits, it has not

Journalists’ right to protect the identities of their confidential sources relies on an inconsistent set of court decisions based on constitutional and common law interpretations and state statutes. Efforts to bring some consistency to federal law through the passage of a shield law have stalled while journalists face new threats because of the vulnerability of their communications to discovery and

The changes brought about by the Digital Age have not triggered significant increases in political participation or meaningful reductions in longstanding social power asymmetries, which are now increasingly negotiated in policy contexts that involve mass media (surveillance, big data, net neutrality). At the same time, new technology and communication patterns have opened fissures in public opinion

President Donald Trump has threatened to revoke broadcasters’ licenses for airing what he calls “fake news.” While many dismissed his threat as empty, the FCC does have a news distortion policy and a broadcast hoax rule, either of which might be used to target fake news stories. Both the policy and the rule require elements in addition to the falsity of a story for a violation to have occurred, which

National-anthem-related protests among NFL players have revealed complexities associated with symbolic counter-speech tied to American symbols of patriotism. For public-college officials and coaches, who are bound by the First Amendment, the handling of game-time anthem protests may reverberate beyond the court of public opinion. Because uniformed collegiate student-athletes occupy a constitutional

Courts have recently clarified some aspects of the Digital Millennium Copyright Act safe harbor system, yet other aspects remain hazy. In this haze, ISPs are incentivized to over-block content, and copyright holders are allowed to give a narrow, subjective reading of a user’s fair use. Subjectively, copyright holders can, in good faith, hold objectively unreasonable views about fair use. The asymmetry

In New York Times Co. v. Sullivan, Justice William Brennan famously wrote of “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” “Uninhibited” refers to the lack of government restrictions on debate, and “wide-open” denotes the range of voices participating in that debate. Meanwhile, “robust” is a qualitative adjective that denotes

Courts applying the persona torts – right of publicity, appropriation and false endorsement claims under the Lanham Act – often lack a precise methodology for determining whether a plaintiff has been depicted or identified. A number of courts have accepted the ambiguous notion that a defendant need only appropriate a plaintiff’s “identity.” Moreover, these courts apply an essentially impressionistic