Archive | First Amendment

Carolina Law CLE Session: Media Law in the Digital Age

Next Wednesday, May 8, I’ll be presenting a continuing legal education (CLE) session in Wilmington, NC at the New Hanover County Executive Development Center.  The topic will be “Media Law in the Digital Age: Internet Defamation and other Digital Torts.”  Here is the description from the law school’s website:

With the advent of the Internet, everyone is a publisher today. Whether it is a company blog, Twitter or even Facebook, these publishing platforms can open you and your clients up to a potential lawsuit. Professor David S. Ardia will review the most recent case law on this evolving topic and share best practices for limiting liability and responding to claims involving speech on the Internet. UNC School of Law invites you to join Professor Ardia and other Carolina grads for this “lunch and learn” session as we explore the impact the Internet is having on media law, with a particular emphasis on libel, privacy, and other digital torts.

If you are in the Wilmington area, I hope you will come. It starts at noon and (bonus!) includes lunch. To register, go to the law school’s event page.

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UNC Students Presenting Research at AEJMC Southeast Colloquium

UNC School of Journalism and Mass Communication graduate students will present 13 research papers at the AEJMC Southeast Colloquium in Tampa this week. Ph.D. student Liz Woolery, who works in our media law center, will present two papers, one of which won third place in the Law and Policy Division. Both of Liz’s papers are about the rights of journalists and others to gather news.

For this conference, papers go through a process of blind review, and then the best papers are selected to be presented at the conference. Faculty and student authors compete against one another.

This will be the first academic conference for most of the students, but they’re ready. They have polished their papers and rehearsed their presentations.

 

Accepted Law and Policy Division papers include:

“Documenting Fair Use: Has the Statement of Best Practices Loosened the Fair Use Reins for Documentary Filmmakers?” — Jesse Abdenour, first-year doctoral student

“The Advertising Regulation ‘Green Zone’: Analyzing Parallels of Commercial Speech Jurisprudence As It Might Apply to the Growing Issue of Medicinal Marijuana Advertising, Using the Denver Advertising Ban as an

Illustrative Example” — Joseph Cabosky, first-year doctoral student

“Hazelwood’s Footnote Seven” — Ryan N. Comfort, first-year master’s student

“Consumer Protection Challenges on the Social Web: How the FTC Regulates Consumer-Generated Media as Endorsements and Testimonials in Advertising” — Emily A. Graban, first-year master’s student

“Abortion Informed Consent Laws: How Have Courts Considered First Amendment Challenges?” — Jaya Mathur, first-year master’s student

“How the FTC Has Enforced Its Deception Jurisdiction in Cases Involving an Ill, and Therefore, Vulnerable Audience” — Emery Rogers, first-year master’s student

“A Decade of True Threats Decisions Since Virginia v. Black: The Digital Age Demands Supreme Court Attention to True Threats Definition and Doctrine” — Lynn Marshele Waddell, first-year master’s student

“The Press, the Public, and Capital Punishment: California First Amendment Coalition and the Development of a First Amendment Right to Witness Executions” — Elizabeth Woolery, second-year doctoral student

“When News(Gathering) Isn’t Enough: The Right to Gather Information in Public Places” — Elizabeth Woolery, second-year doctoral student

 

Accepted Newspaper and Online Division papers include:

“Three Days a Week: Has a New Production Cycle Altered The Times-Picayune’s News Coverage?” — David Bockino, first-year doctoral student

 

Accepted Open Division papers include:

“The Creepiness Factor: Explaining Conflicting Audience Attitudes toward Tailored Media Content” — Lisa Barnard, second-year doctoral student

“What Motivates People to Pass on Anti-brand Rumors Online?” — Hyosun Kim, second-year doctoral student

“What Sports Journalists Need to Know: Four Areas of Student-athlete Privacy Invasion” — Sada Reed, first-year doctoral student

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Next Stop: Transit Advertising and the First Amendment

About a month ago I went out of my way to take a photo of an advertisement in one of the Chapel Hill town buses. Normally I glance at these interior ad placards and give them little thought. This time was different. I had been searching for this advertisement for weeks and finally found it. I already knew what the ad looked like. It had appeared in the local news as one of the images symbolizing a free speech debate being waged in Chapel Hill. The ad had prominent pictures of a Palestinian man and child and an Israeli man and child and the words, “Join with us. Build peace with justice and equality. End U.S. military aid to Israel.”

When the Presbyterian Church of Reconciliation placed the advertisements in 98 buses this past summer, opponents of the church’s message quickly organized and voiced their disagreement at several recent town council meetings. There were plenty of supporters of the message who attended these meetings as well. And then there were others, like myself, who observed quietly by the side, curious as to how this charming, quintessentially southern town would resolve this tense and upsetting free speech debate.

Chapel Hill isn’t alone in this experience. There are similar debates happening across the country. Subway ads likening Muslim radicals to savages caused an uproar in New York City, and Washington, D.C.’s Metro system was recently told by the U.S. District Court for the District of Columbia to accept that very same ad. The Sixth Circuit U.S. Court of Appeals found that Detroit’s regional transit agency did not violate the First Amendment when it refused an advertisement reading, “Fatwa on your head? Leaving Islam? Got questions? Get answers!”

The U.S. Supreme Court addressed the transit ad issue once, in Lehman v. Shaker Heights (1974). The Court found a ban on political candidate ads constitutional because the city had not created a public forum and had “limited access to its transit system advertising space in order to minimize chances of abuse, the appearance of favoritism, and the risk of imposing upon a captive audience.”

In Chapel Hill, debate over the Church of Reconciliation ads reached a fever pitch by mid-October. The town hosted a public forum on the matter and released a statement clarifying its policy on issue, religious, and political advertisements, noting that all such ads were accepted so long as the advertisers included contact information in the ads. Discussion then turned to whether the town should change its policy to prohibit ads like those posted by the Church of Reconciliation. The nearby city of Raleigh has a policy in place that bans political candidate and political issue advertisements on its buses. Should this be the model for Chapel Hill as well?

Then the town held a business meeting to discuss the transit policy. But here’s where things start to fall apart. As it turns out, the town’s policy permitting issue, religious, and political ads isn’t actually the town’s policy. Somewhere along the line there was a mix-up, and the policy the town had been enforcing was not the policy that was approved; it was a draft of the approved policy. In fact, the approved policy did ban “religious” and “political and social issue” ads. In late October the ACLU of North Carolina entered the debate with a letter to town attorney Ralph Karpinos. In its letter the ACLU contended that Chapel Hill’s acceptance of political ads classifies the bus ad placards as a public forum. The ACLU added that the town has operated under a “laissez-faire” advertising policy and therefore barring the Church of Reconciliation’s ads would be “fundamentally unfair.” The letter went on to praise the town’s “long-standing tradition of welcoming dialogue, including on its transit system.”

For the moment, the town’s policy has been suspended and no new advertisements are being accepted. The town council will meet again Dec. 3 to discuss whether to re-affirm the policy it actually had adopted, to amend the policy to be what the town thought its policy was, or to adopt a different policy. In the meantime, the question of whether the town should and will accept issue, religious, and political ads remains.

By no means am I a First Amendment absolutist. But it’s hard to ignore the power of ideas and the impact a single advertisement has had on this college town. Those who are opposed to the advertisement have made a compelling case at these public forums, opening up about their relatives who perished during the Holocaust and the pain caused by the Church of Reconciliation’s ad. No free speech supporter can turn his or her back on such emotional and personal appeals. But a transit advertisement policy that accepts controversial ads also has the potential to do so much good – to inspire robust public discussion about U.S. foreign policy, to remind us that there are large communities of people who continue to struggle with the Holocaust every day, and to encourage tolerance.

When I started in the mass communication Ph.D. program at UNC-Chapel Hill just over a year ago, I knew I was at the best place to study media law. I spend my days knee-deep in the First Amendment, lucky enough to take courses with some of the best media law scholars and join them for workshops and lunches. But events and classes can’t begin to rival the First Amendment in action. This transit advertising debate has captivated me, and it’s captivated this town. This is what the First Amendment is all about. The policy itself is interesting enough, but to go to the town council meetings and see the town turn out to talk about free speech – wow! Many who are engaged in this debate aren’t familiar with strict or intermediate scrutiny, they don’t know Shaker Heights, and forum analysis is of little interest. They just care about exercising their First Amendment rights, and right now they are exercising them like never before.

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Hazelwood: Some Remaining Questions

As our great keynote speaker, panelists, and audience members discussed the 25-year history of Hazelwood v. Kuhlmeier last week, it became clear that there still is scholarly work that needs to be done in this important area of law.  Here are a few of the interesting questions raised at the conference:

What are the connections between school culture, student free expression, and civic engagement?

Are public school journalism programs being cut due to overall budget cuts?

What are the academic backgrounds of school media advisers, and do they matter?  Is a media adviser with a background in the humanities more likely to support student free expression than an adviser with a background in math or science? One audience member asked whether social studies teachers, who should care about civic engagement, should work with student journalists. Another person observed that teachers too often don’t work outside their subject-specific silos.

How are charter schools regulating the expressive activities of their students?  One of our panelists observed that charter schools are public schools that want to operate like private schools.  She said there are many examples of censorship by charter schools and of charter schools with no student media at all.  California has enacted a statute to prevent charter schools from denying their students’ constitutional rights.

What has been the impact of the nation’s political polarization on student free expression?

What, if anything, is left of Tinker?

What is online student speech, and what is offline student speech?  (Or, more eloquently, where is the schoolhouse gate?) How do and should courts differentiate between the two?

Keynote speaker Erwin Chemerinsky said the Supreme Court treats schools as authoritarian institutions – like prisons.  To what extent is the Court correct?  What does that mean for student free expression?

If you have other questions to share, please post a comment.  Thanks for the great conference, everyone!

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Hazelwood’s Sheep

University of Arizona’s David Cuillier told us yesterday that “we’re raising a generation of sheep” in the wake of Hazelwood v. Kuhlmeier, the U.S. Supreme Court case that curtailed the First Amendment rights of students. The Media Law & Policy Center has been holding an eye-opening two-day conference on the 25th anniversary of the decision and the state of student speech more generally.

David’s comments hit me hard as a teacher of college students but especially as the mother of a 9-year-old.

Though the U.S. Supreme Court told us in Tinker v. Des Moines that students’ free speech rights don’t stop at the schoolhouse gate, we may want to think about having parents and educators check their helicopter propellers there. I work hard to check mine every morning, but as I look around, I see many of us, including teachers, swooping in at the first sign of struggle with our children and with our students. Our effect on student speech environments is significant, and it is fundamentally changing how we think about free speech and how we think about regulating it.

Our tendency toward the “helicopter response” is showing up in our classrooms, and it makes talking about controversial topics just that much tougher every year I teach.

On Wednesday I decided to reserve time in my journalism media law class for discussion of the presidential election. At first, students were hesitant to talk, as usual, for fear of judgment and disagreement. I did my usual teeth-pulling. Finally, I was told that they were sick of the social media cacophony they were witnessing by those who had “won” and those who were “ready to pray every day to save America.”  Like the four-year-old whose plea for the election to be over went viral, my students were ready to stop talking about the election.

But the truth is they never really started. The truth is that many of them have stayed inside the sheep pen. And we let that happen.

Critical pedagogy theorists like Mina Shaughnessy, Paulo Friere and Henry Giroux have been urging us for years to allow our students to struggle, fail and debate, and then guide their journey toward greater learning. They have been urging us to stop the robotic testing, skilling and drilling, and demands for perfection in academic performance. They urged us to urge them to talk about the difficult stuff – not the stuff I usually wind up talking to them about: test scores and cover letters.

The First Amendment has always recognized the struggle inherent in granting protections for free speech. But in raising our students to be good performers and genuinely nice people, we have taught them that failure and conflict are bad and are to be avoided. We have taught them to be quiet about controversy and about their own failures. And we have hidden our failures as educators along the way.

Not all students are like this, obviously, but in ten years of teaching, I will say that many are. And many more are potentially headed in that direction.

What will it take to change that approach? I’ll take that up in my next post, but welcome your thoughts here.

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