Archive | First Amendment

Media Law Center Welcomes Prof. Papandrea and a new Ph.D. Student

By on August 24, 2015 in First Amendment, Journalism

A senior scholar and a new Ph.D. student have joined UNC’s community of media law scholars.  The Center for Media Law and Policy is happy to welcome Professor Mary-Rose Papandrea and Ph.D. student Shao Chengyuan.

ProfPapandrea3Mary-Rose Papandrea came to the UNC School of Law this summer from Boston College Law School. Her teaching and research interests include constitutional law, media law, torts, civil procedure, and national security and civil liberties.

After graduating from Yale College and the University of Chicago Law School, Professor Papandrea clerked for U.S. Supreme Court Justice David H. Souter as well as Hon. Douglas H. Ginsburg of the U.S. Court of Appeals for the D.C. Circuit and Hon. John G. Koeltl of the U.S. District Court for the Southern District of New York. She then worked as an associate at Williams & Connolly LLP in Washington, D.C., where she specialized in First Amendment and media law litigation. In addition to spending over a decade at Boston College Law School, Professor Papandrea taught as a visiting professor at the University of Connecticut School of Law, Fordham Law School, Wake Forest Law School, and the University of Paris (Nanterre).

Co-author of the casebook Media and the Law (LexisNexis, 2nd ed. 2014) (with Lee Levine, David Ardia & Dale Cohen), Professor Papandrea has written extensively about government secrecy and national security leaks, the reporter’s privilege, student speech rights, the First Amendment rights of public employees, and the U.S. Supreme Court and technology.

Professor Papandrea has also served as the chair of the American Association of Law School’s Mass Media Law and National Security Law sections and remains on the executive committee of both sections. She is currently a member of the editorial board for the Journal of National Security Law & Policy. In addition, she has served on the board of directors for the American Civil Liberties Union of Massachusetts.

ShaoShao Chengyuan came to the UNC School of Media and Journalism from Beijing, China. She earned a master’s in communication from Beijing Foreign Studies University and a bachelor’s in English from China Agricultural University in Beijing. She has been studying media law issues in China, specifically new media-related legislation and the legal boundaries of online free speech. She also has worked as a television news producer for Spanish TV Etib’s Beijing Bureau. Her research interests include Internet policy and governance, freedom of expression, online anonymity, and government information publicity. She is planning to conduct comparative media law research.

 

 

 

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United States Supreme Court decides Facebook true threats case

By on June 1, 2015 in First Amendment

The Supreme Court has issued its long-awaited opinion in Elonis v. United States, the Facebook threats case. In a narrow opinion by Chief Justice John Roberts, the Court overturned the conviction of Anthony Elonis, who allegedly threatened his ex-wife and federal law enforcement agents through rap lyrics he posted to his Facebook page under personal hip-hop moniker “Tone Dougie.”

The government closed oral argument by emphasizing that “what [Elonis] thinks doesn’t matter.” The Supreme Court, on the other hand, said it does. Specifically, the Court held that in order to successfully prosecute a defendant under the federal interstate threats statute, 18 U.S.C. 875(c), the government must show that the defendant acted with a criminally culpable mental state beyond mere negligence. The Court rejected the notion that a criminal threats conviction could rest solely on proof that a hypothetical reasonable person would find that a statement amounted to a true threat.

The trouble with the opinion issued by the Court in Elonis — and with the current landscape of federal law on true threats — is that it remains unclear exactly what state of mind the law requires. The majority in Elonis expressly declined to decide whether recklessness is sufficient. Furthermore, section 18 U.S.C. 875(c) does not explicitly set forth a requisite mental state, so Elonis could trigger a legislative response by Congress. Lawmakers could shore up the language in 875(c) and explicitly define the mental state greater required for criminal threats convictions. The ball is in Capitol Hill’s court.

So what about the First Amendment?

The Court declined to address the First Amendment argument made by Elonis at trial and on appeal — that the Constitution requires the government to prove that the defendant specifically intended to threaten an identifiable person or group of persons when he communicated the threat. Justices Alito and Thomas chastised the majority for avoiding the constitutional question, but we saw this coming. When the Court granted certiorari in Elonis, it asked the parties to brief and argue the statutory interpretation question even though Elonis appealed solely on First Amendment grounds.

If there is anything we can infer about free speech jurisprudence from the Supreme Court’s holding in Elonis, it is that courts must look beyond the mere content of the purported threat and scrutinize the defendant’s behaviors for indicia of a criminal state of mind. Under Elonis, the hypothetical reasonable person may no longer be the sole arbiter of criminal speech determinations under 875(c). This standard provides some additional breathing space for threatening speech and heightens the importance of context. Nevertheless, artists, lawyers, and scholars are left wondering whether the First Amendment protects violence-laden speech uttered recklessly and without regard for foreseeable emotional and psychological harms to victims.

Brooks Fuller is a 3rd-Year Ph.D. student in the UNC School of Journalism and Mass Communication.

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Student Thesis Examines Aereo Case

By on May 4, 2015 in First Amendment

aereo_antenna_array1-640x425This semester I completed my master’s thesis, which was titled “Aereo, the Public Performance Right, and the Future of Broadcasting.”  As the title suggests, in the thesis I evaluated the Supreme Court’s recent decision in American Broadcasting Cos. v. Aereo, Inc., and reflected on how the decision stood to impact the future of copyright law and broadcasting.   

If you are unfamiliar, the dispute at the heart of the case started after a company called Aereo began transmitting broadcast content, without a license, over the Internet to paying subscribers.  Not surprisingly, a group of television broadcasters were quick to assert that Aereo’s conduct violated their right to perform copyrighted works publicly, one of the exclusive rights granted to copyright holders under the Copyright Act.  The broadcasters were concerned about Aereo because Aereo stood to impact their ability to earn revenue from retransmission consent agreements, which are agreements under which cable and satellite providers compensate broadcasters for the right to retransmit their signals.     

Aereo defended its actions by claiming it developed a system that permitted it to transmit broadcast content without violating the public performance right.  Under the system, Aereo used dime-sized antennas to capture and then save unique copies of television programs that were personal to each subscriber.  Because Aereo never transmitted copies of broadcast programs to more than one subscriber, Aereo contended it was transmitting private—not public—performances.  The company accordingly asserted that it did not violate the public performance right when it transmitted broadcast content over the Internet. 

The Supreme Court disagreed.  In a 6-3 decision written by Justice Breyer, the Court essentially held that Aereo performed works publicly because its system resembled cable systems, which “do perform publicly.”  In reaching its decision, the Court relied on the Copyright Act’s legislative history.  The term “legislative history” refers to the supporting documents Congress creates when enacting a piece of legislation to help explain the legislation. 

In the thesis, I wrote that the Court ultimately reached the correct outcome.  I, however, criticized the Court for overly relying on the Copyright Act’s legislative history.  As I asserted in the thesis, the Court could have reached the same outcome by clearly interpreting the text of the Copyright Act.  Doing so would have benefited the lower courts by providing them with increased guidance when facing questions regarding the public performance right in the future. 

In the thesis, I also analyzed Justice Scalia’s dissenting opinion.  Justice Scalia contended that the case should have been decided on the basis of secondary copyright liability.  Under such an approach, the question for the Court would have been whether Aereo violated copyright law by aiding its subscribers, who would be viewed as the direct infringers, in violating the law.  

I enjoyed writing about and dissecting the Court’s decision in American Broadcasting Cos. v. Aereo, Inc.  It was a challenging, but certainly worthwhile, topic for a thesis.  I am grateful for the help my committee members—Dr. Cathy Packer, Dr. Michael Hoefges, and Professor Deborah Gerhardt—provided throughout the process.

Kevin Delaney

Dual-degree student (master’s in mass communication/J.D.)

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FAA Releases Proposed Drone Regulations; North Carolina Proposes Exemption for Government Agencies

By on April 5, 2015 in First Amendment, Journalism, Privacy

drone-regulationsOn Feb. 15, 2015, the Federal Aviation Administration (FAA) released proposed regulations for the use of drones. The proposal requires UAS (Unmanned Aircraft System(s)) pilots to be at least 17 years old, to take an initial aeronautical knowledge test followed by a new test every 24 months, and to pass a TSA screening. The FAA also aims to regulate the speed, timing, and height of drone flights. UAS must avoid spectators, fly no faster than 100 miles per hour and no higher than 500 feet, and fly only during the day. Perhaps most importantly, the drones must remain within sight of the pilots at all times. These rules are for UAS of less than 50 pounds. The proposal discusses the possibility of a more flexible law for UAS of less than 4.4 pounds. The FAA is supposed to finalize the rules by September 2015, but it seems unlikely that the agency will meet the deadline. The FAA proposal is open for comments for 60 days before it moves forward.

Until formal regulations are in place, most commercial entities—including news organizations—may not operate drones. However, private and government entities are anxious to begin using drones and do not want to wait for the FAA to finalize the regulations. The FAA has allowed some news organizations to test drones for newsgathering. The FAA granted CNN, the New York Times, the Washington Post, and NBCUniversal permission to “conduct controlled safety testing of a series of real-life scenarios where the news media could use small U.A.S. technology to gather the news.” CNN has further permission to test camera-equipped drones.

Meanwhile, state and local jurisdictions have considered and enacted laws that regulate drone use by individuals, commercial entities, and law enforcement. As mentioned in the December blog post, North Carolina’s 2014 budget included new UAS regulations. Some of these regulations outlined licensing guidelines for the commercial operation of UAS within North Carolina. To obtain a license, an applicant must be at least 18 years old, have a valid driver’s license, and pass a yet-to-be-created “knowledge and skills test.” The law charged the Division of Aviation of the N.C. Department of Transportation with developing and administering this test. Lawmakers also instructed the Division of Aviation to develop a commercial UAS program that included the following: a UAS classification system, a fee structure, technological guidelines, limitations for commercial operation, limitations on data collection, and a variety of other criteria.

The regulations in the 2014 budget also stipulated that no government agency could fly a UAS without taking the test outlined above. However, on Jan. 28, 2015, a bill was filed with the General Assembly that would grant a licensing exception to government agencies. House Bill 4 would allow governmental agencies to begin using UAS before the Division of Aviation releases the UAS “knowledge and skills” test. Under the proposed law, government agencies could obtain and operate UAS if the state chief information officer approved the request. The Division of Aviation must have a test ready for government UAS pilots by May 31, 2015.

Any regulation that the state develops is subject to change when the FAA releases its formal guidelines. Until the FAA publishes the guidelines, it is impossible to know if or how much North Carolina’s UAS laws will change. Currently, if House Bill 4 does pass, governmental agencies still would need permission from the FAA to fly UAS. Before government UAS can take flight in North Carolina, the FAA must grant the agency a Certificate of Waiver or Authorization (COA). The COA is a permit that allows government agencies to operate aircraft for a limited amount of time in a particular area for a specific purpose.

For now, North Carolina law and the proposed bill seem in line with public opinion. A recent Reuters’ poll showed that while 42 percent of those surveyed opposed private ownership of UAS, 68 percent approved of law enforcement using UAS to solve crimes, and 62 percent supported using UAS to prevent crime.

Kristen Patrow
Ph.D. Student
UNC School of Journalism and Mass Communication

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Job opportunities in media law at your fingertips

By on February 16, 2015 in Copyright, FCC, First Amendment, Internet, Journalism, Privacy, Transparency

FIND JOBIt’s never too early – or too late – to start looking for the internship, fellowship, or job that is right for you.  However, the process of sifting through hundreds of postings looking for what you want can be daunting.  That is why the UNC Center for Media Law and Policy created its Job Center.  It’s a centralized place to find opportunities to work in the field of media law and policy.

We Bring Our Network to You

The UNC Center for Media Law and Policy has a large (and growing) network of media law and policy minded folks who are often looking for people just like you.  Here is just one example: The multidisciplinary project Privacy Tools For Sharing Research Data at Harvard is looking for undergraduates, law students, graduate students, postdocs, and visiting scholars to join its efforts to help enable the collection, analysis, and sharing of sensitive data while providing robust privacy protections.  If you are willing to live in Boston for the summer (and who wouldn’t?), this could be a great summer gig.

Easy to Use

You can easily find the perfect job for you by using our advanced search feature to search by location, keyword, or practice area.  Also, try browsing by job type or category for a more expansive look at what we have to offer.  Just like that, opportunities for internships, fellowships, and academic teaching positions (Academic – Journalism and Academic – Law) are at your fingertips.

Wide Variety of Jobs

The job opportunities in our database are endless.  If it pertains to media law, we have it.  Our categories include: IP, Copyright, Photo Journalism, Broadcast, FTC listings, Cyber Law, and Trademark.  It’s a one-stop shop for media law jobs.  Here is a list of some of my favorite recent postings:

  • Internship – NPR, Office of the General Counsel: A 10-week program that provides legal interns with an opportunity to work on diverse assignments and a wide range of legal issues, including First Amendment and intellectual property.
  • The ITS Global Policy Fellowship Program: A 4-week program in Brazil that provides fellows from around the world who are interested in internet and technology policy with an opportunity to deepen their knowledge about the Brazilian technology industry.
  • Free Press Public Interest Summer Associate: A 10-12-week program that provides summer associates with an opportunity to work on projects that focus on Net Neutrality, media ownership rules, antitrust law, the use of spectrum, wireless consumer protections and cable television policy.

The Time is Now

If you are currently a student, there are still opportunities for you to find the perfect summer position after on campus interviews are over.  Recent graduates and experienced job seekers, employers’ needs are ever changing, so it pays to be persistent with your job search.  Remember our Job Center is available year-round.  Use it, along with other UNC Center for Media Law and Policy resources, to land your dream job.

  • Join the UNC Center for Media Law and Policy group on LinkedIn!
  • Read about UNC dual degree student Natasha Duarte’s summer internship experience at the Electronic Privacy Information Center here.
  • Read about UNC dual degree student Kevin Delaney’s summer internship experience at the Reporters Committee for Freedom of the Press here.

Chanda Marlowe is a 2L at the University of North Carolina School of Law

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