First Amendment Day 2018

The University of North Carolina at Chapel Hill will celebrate its tenth-annual First Amendment Day on Tuesday, Sept. 25. This campus-wide, daylong event is designed to both celebrate the First Amendment and explore its role in the lives of Carolina students. Students and other members of the university community will read from banned books and discuss the public university’s special role as a marketplace of ideas and the need to be tolerant when others exercise their rights.

The 2018 First Amendment Day Keynote speaker will be Siva Vaidhyanathan, the Robertson Professor of Media Studies and director of the Center for Media and Citizenship at the University of Virginia. Vaidhyanathan will talk about his new book Antisocial Media: How Facebook Disconnects Us and Undermines Democracy (Oxford University Press, 2018). After five years as a professional journalist, he earned a Ph.D. in American Studies from the University of Texas at Austin. Vaidhyanathan has also taught at Wesleyan University, the University of Wisconsin at Madison, Columbia University, New York University, McMaster University, and the University of Amsterdam. He is a fellow at the New York Institute for the Humanities and a Faculty Associate of the Berkman Center for Internet and Society at Harvard University. Vaidhyanathan will speak at 7:00 P.M. in 111 Carroll Hall. The event is free and open to the public.

There will also be other events all over campus, ranging from a panel discussion on Public Art, Public Memorials, and the First Amendment to readings from Banned Books conducted by faculty and students at the School of Information and Library Science.

You can check out all of the day’s events here: https://medialaw.unc.edu/first-amendment-day/

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Facial Recognition, Student Free Speech, and Suing the President: Emerging Scholarship in Media Law and Policy (9/18 Update)

This blog post is the very first in a new weekly series examining some of the latest academic scholarship in media law-adjacent fields! Stay tuned for weekly updates.

In “Suing the President for First Amendment Violations,” 71 Okla. L. Rev. 321 (2018), Professor Sonja West at the University of Georgia School of Law explores whether individuals or organizations subjected to threats or punishments by President Trump have a viable claim (and the potential problems involved in bringing such a claim) against the President for violating their First Amendment rights.  From her abstract:

On any given day, it seems, President Donald Trump can be found attacking, threatening, or punishing the press and other individuals whose speech he dislikes. His actions, moreover, inevitably raise the question: Do any of these individuals or organizations (or any future ones) have a viable claim against the President for violating their First Amendment rights? One might think that the ability to sue the President for violation of the First Amendment would be relatively settled. The answer, however, is not quite that straightforward. Due to several unique qualities about the First Amendment and the presidency, it is not entirely clear if or how citizens can hold the President responsible for violating their expressive rights. This Essay explores some of the potential obstacles facing a person or organization bringing a First Amendment lawsuit against the President such as whether the President can violate the First Amendment at all and how a plaintiff might recover for that violation. It concludes by suggesting a few possible approaches to this problem that could help clarify and secure the rights of all Americans to seek justice—even against the President—if their freedoms of speech and press are violated.

Professors Neal Hutchens from the University of Mississippi and Frank Fernandez from the University of Houston offer a fascinating look at the exploding tension between “free speech zones” on college campuses, the right of a university to determine the terms of speech on their grounds, and state legislatures eager to dictate speech on campus. Their article, “Searching for Balance with Student Free Speech: Campus Speech Zones, Institutional Authority, and Legislative Prerogatives,” can be found in 5 Belmont L. Rev. 103 (2018). From the abstract:

In the essay, the authors examine the permissibility of student speech zones under the First Amendment. Related to this discussion, the essay also considers recent state legislative efforts to prohibit public colleges and universities from enforcing such campus speech zones. The authors are supportive of legislative measures related to speech zones, but several provisions in proposed state laws and model legislation go beyond this issue and would potentially undercut student free speech rights and unduly interfere with institutional autonomy to manage and respond to issues involving speech and expression on campus. Instead, legislators should exercise restraint when it comes to campus speech laws and not become overly intrusive in how public colleges and universities manage and respond to speech issues on campus, such as when disciplinary measures are warranted for disruption of a campus speaker by a student or when campus leaders make public comments on behalf of the institution in response to a controversial issue on campus. Before considering legal standards and debates related to the (im)permissibility of speech zones for students in open campus areas, the authors in Part I first discuss several factors that influence our positionality in how we approach current debates, legal and otherwise, over free speech issues in higher education. Next, Part II provides overall context regarding key legal standards that courts have used to define student speech rights and institutional authority in relation to open campus areas. As discussed in this section, courts have often turned to forum analysis to provide the legal standards applicable to open campus spaces and student speech. The section considers how courts have not always been consistent regarding how to define the type of forum at issue and the accompanying legal standards. As covered in Part III, legal decisions reveal multiple courts are skeptical of institutional speech regulations deemed overly restrictive as to student speech in open campus areas. Part IV discusses how student speech cases provide an additional legal lens to evaluate student speech rights in open campus areas in addition to forum standards. Even as courts sort out college students’ First Amendment rights to access open campus areas, as considered in Part V, multiple states have moved to enact laws to prohibit them. In conclusion, the final Part of the essay contends that trends against the use of speech zones in relation to students represent a salutary development that pushes institutions to live up to their intellectual commitments to students’ free speech. Even so, other trends, such as proposals to force public colleges and universities to punish students who disrupt the speech of others, are too intrusive on institutional autonomy.

Julian R. Murphy, Human Rights Fellow and LL.M candidate at Columbia University, examines a potential consequence of the recent push for police body cameras in “Chilling: The Constitutional Implications of Body-Worn Cameras and Facial Recognition Technology at Public Protests.” 75 Wash. & Lee L. Rev. Online. 1 (2018). From the article’s abstract:

In recent years body-worn cameras have been championed by community groups, scholars and the courts as a potential check on police misconduct. Such has been the enthusiasm for body-worn cameras that, in a relatively short time, they have been rolled out to police departments across the country. Perhaps because of the optimism surrounding these devices there has been little consideration of the Fourth Amendment issues they pose, especially when they are coupled with facial recognition technology (FRT). There is one particular context in which police use of FRT equipped body-worn cameras is especially concerning: public protests. This Comment constitutes the first scholarly treatment of this issue. Far from a purely academic exercise, the police use of FRT equipped body-worn cameras at public protests is sure to confront the courts soon. Many police departments have, or will soon have, body-worn cameras equipped with real time FRT and a number of police departments do not prohibit their members from recording public protests. Although primarily descriptive – exploring the state of current Fourth Amendment doctrine by predicting its application to a hypothetical scenario – this Comment has a normative subtext; namely, suggesting that First Amendment values can strengthen the Fourth Amendment’s protections against the tide of technologically enhanced mass surveillance.

Come back next week for another update!

Research graphic by Nick Youngson licensed under CC BY-SA 3.0 from Alpha Stock Images.

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UNC Media Law Ph.D. Students Win Top Awards at AEJMC 2018

Our media law graduate students made an unprecedented showing at the nation’s premier journalism educators conference in Washington, D.C., in August.

Dr. Brooks Fuller, a 2018 Ph.D. graduate of the UNC School of Media and Journalism, and now an assistant professor at Louisiana State University, won the Nafziger-White-Salwen Dissertation Award at the 2018 Association for Education in Journalism and Mass Communication (AEJMC) Annual Conference. Fourth-year Ph.D. students Shao Chengyuan and Kriste Patrow won First Place Student Paper awards in the AEJMC Mass Communication & Society and Law & Policy Divisions, respectively.

The Nafziger-White-Salwen Dissertation Award is the highest honor bestowed on student scholarship, recognizing the “best dissertation in the field of mass communication research” as judged by AEJMC’s Research Committee and top scholars. This is not the first time that our media law graduates have received this prestigious award. In 2012, our former Ph.D. graduate Dr. Dean Smith, now an assistant professor at High Point University, also won the award. Both dissertations were chaired by Dr. Cathy Packer, former co-director of the UNC Center for Media Law and Policy.

Brooks Fuller headshotFuller’s dissertation titled, “Words, Wounds, and Relationships: a Mixed-Method Study of Free Speech and Harm in High-Conflict Environments,” uses qualitative field methods to examine high-conflict political protests, such as abortion clinic protests, where free speech is truly tested. Fuller’s ethnographic field project highlights core First Amendment doctrines such as true threats and incitement and how they are applied by federal courts. Instead of purported threats, harassment, and violence, Fuller’s research revealed a complex web of social relationships at the clinics, largely influenced by how different stakeholders interpreted speech in these high-conflict environments. His work was designed to help inform courts as these harmful speech doctrines develop. UNC Media and Journalism School faculty Dr. Michael Hoefges and Dr. Tori Smith Ekstrand also served on Fuller’s committee, as well as Dr. George Noblit from the UNC Department of Sociology and Professor Bill Marshall from the UNC School of Law.

Fourth-year Ph.D .student and Park Fellow Kriste Patrow won the First Place Student Paper Award from the Media Law and Policy Division of AEJMC for her paper, “‘Walk’ This Way, Talk This Way: How Do We Know When the Government is Speaking After Walker v. Texas?” Patrow’s paper examines confusion surrounding the government speech doctrine. She analyzed six U.S. Supreme Court cases in which the Court was tasked with determining when a reasonable person would understand a message to be from the government. The analysis revealed ways to anchor the reasonable observer prong of the test, by requiring that there be a main cognizable message and that the government self-identify as speaker.

Fourth-year Ph.D. student Shao Chengyuan received the First Place Student Paper Award from the Mass Communication and Society Division of AEJMC. Her paper, “Asian International Students’ Mass Media Use and Acculturation Strategies,” highlights the important role of mass media use before students relocate. The paper also examines students’ cultural knowledge of American society. The paper is co-authored with doctoral student Lin Li from Michigan State University’s Department of Media and Information.

Congratulations to our Ph.D. students!

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Privacy by Design: A Student Guide for Collecting and Protecting User Data

As we start the new semester at UNC – Chapel Hill, I want to reflect briefly on a class I taught last spring and highlight the great work of some of the students in that class.

For the past six years, I’ve taught a class called Media & Internet Law Practicum.  This is a class I designed shortly after joining the faculty at the UNC School of Law.  My goal was to give students the chance to see what it is like to work in the legal department at a diversified media company. I play the role of  “general counsel” and the students, who are assigned to 3-4 person teams, serve as “associate counsel.” In addition to their classroom work, the teams are embedded in one of several ongoing news-producing projects at the UNC School of Media and Journalism, including Carolina Week (television program), Carolina Connection (radio program), Media Hub (multimedia), and Reese News Lab (startup incubator), where the law students work with undergraduate and graduate student journalists.  Through a combination of in-class simulations and real-world problems arising from their projects, the students gain substantial insight into how in-house lawyers provide legal counseling to media and Internet clients.

At the end of the semester I ask each student team to create a tangible resource/guide that addresses an ongoing legal need for their project.  Over the years, the students have created some fantastic things, including copyright and fair use guides, a primer on FERPA, a pocket summary of a reporter’s legal rights when engaged in newsgathering, fair use training aids, and most recently, a guide titled “Privacy and Security by Design: Best Practices for Collecting and Protecting User Data.” This very useful brochure was created by Amber Lee, David Mansor, and Lauren Russell to help the students in the Reese News Lab avoid legal problems when developing new apps and services. They graciously agreed to allow me to share their work with all of you.

Here is a snippet from the introduction:

No matter what your product is, whether it be an app to inform users on local elections, or a payment service for 20-something drinkers trying to avoid long lines at the bar, you will likely be collecting information from your users. Collecting information about your users allows you to better personalize services and marketing, and sharing the information in an appropriate way could potentially be a revenue stream for your company. Almost all websites—including the Federal Trade Commission’s, the federal agency that polices private companies’ cybersecurity—collect some information on its visitors. But startups should tread carefully. Successful tech companies ranging from Uber to Google to Facebook have gotten into trouble with the FTC and have lost public trust for mishandling user data. It is important to think about users’ privacy throughout your product design and development process.

You can download the entire guide here.  Great work Amber, David, and Lauren!

 

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Announcing the Center’s New Faculty Co-Director: Tori Ekstrand

I’m pleased to announce that Dr. Victoria “Tori” Smith Ekstrand, associate professor at the School of Media and Journalism, has been appointed to serve as a faculty co-director of the UNC Center for Media Law and Policy. Tori replaces Dr. Michael Hoefges, the Center’s dual-degree program advisor, who filled in as interim co-director following Cathy Packer’s retirement in December 2017 (Thank you, Michael!).

Tori has been deeply involved with the Center for many years, most recently serving as the Center’s communications director. Tori teaches media law courses at the School of Media and Journalism and is one of the nation’s leading experts on the “hot news” doctrine. Before coming to Carolina, she was an associate professor in the Bowling Green State University Department of Journalism and Public Relations and an affiliate faculty member of BGSU’s American Cultural Studies department. In 2008, she was awarded BGSU’s Outstanding Young Scholar Award.

Tori’s research explores conflicts between copyright law and the First Amendment, particularly as they arise in journalism and social media. Her work is often grounded in critical legal theory, in which she examines the impact of law and policy on culture and media production. In this vein, she has begun investigating online accessibility for the disabled as a First Amendment issue.  Tori has written two books on the hot news doctrine, a part of unfair competition law that protects the facts of news for a short period. Her revised book on the subject, Hot News in the Age of Big Data: A Legal History of the Hot News Doctrine and Implications for the Digital Age (LFB Scholarly, 2015), looks at the history of the doctrine and its impact on protections for discrete bits of information in the age of Big Data. She has also published articles in Journalism and Mass Communications QuarterlyCardozo Arts & Entertainment Law Journal and Communication Law & Policy. Before teaching, Tori worked for The Associated Press in their New York headquarters for nearly a decade. She served as AP’s director of Corporate Communications, responsible for marketing, public relations and events for the worldwide news agency.

Tori brings remarkable passion to everything she does. I’m thrilled that she is taking on an expanded role at the Center!

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