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J M L & E OURNAL OF EDIA AW THICS Editor ERIC B. EASTON, PROFESSOR OF LAW University of Baltimore School of Law ______________________________ Editorial Assistant JAMIE ROSE ______________________________ EDITORIAL BOARD MEMBERS BENJAMIN BENNETT-CARPENTER, Special Lecturer, Oakland University (Michigan) WALTER M. BRASCH, Professor of Mass Comm., Bloomsburg University of Pennsylvania L. SUSAN CARTER, Professor, Michigan State University LOUIS A. DAY, Alumni Professor, Louisiana State University ANTHONY FARGO, Associate Professor, Indiana University AMY GAJDA, Assistant Professor, University of Illinois STEVEN MICHAEL HALLOCK, Assistant Professor, Point Park University MARTIN E. HALSTUK, Associate Professor, Pennsylvania State University CHRISTOPHER HANSON, Associate Professor, University of Maryland ELLIOT KING, Professor, Loyola College in Maryland JANE KIRTLEY, Silha Professor of Media Ethics& Law, University of Minnesota NORMAN P. LEWIS, Assistant Professor, University of Florida PAUL S. LIEBER, Assistant Professor, University of South Carolina KAREN M. MARKIN, Director of Research Development, University of Rhode Island KIRSTEN MOGENSEN, Associate Professor, Roskilde University (Denmark) KATHLEEN K. OLSON, Associate Professor, Lehigh University RICHARD J. PELTZ, Professor of Law, University of Arkansas-Little Rock School of Law KEVIN WALL SAUNDERS, Professor of Law, Michigan State University College of Law JAMES LYNN STEWART, Associate Professor, Nicholls State University DOREEN WEISENHAUS, Associate Professor, University of Hong Kong KYU HO YOUM, Jonathan Marshall First Amendment Chair Professor, Univ. of Oregon J M L & E OURNAL OF EDIA AW THICS Volume 1, Numbers 1/2 Winter/Spring 2009 Articles 5 ERIK UGLAND The Aims of Public Scholarship in Media Law and Ethics 27 JEFFREY LAYNE BLEVINS AND SARAH C. BARROW The Political Economy of Free Speech and Network Neutrality: A Critical Analysis 49 DAXTON R. “CHIP” STEWART Managing Conflict over Access: A Typology of Sunshine Law Dispute Resolution Systems 83 MINJEONG KIM AND LENAE VINSON Friends of the First Amendment? Amicus Curiae Briefs in Free Speech/Press Cases During the Warren and Burger Courts 107 LYOMBE EKO Suffer the Virtual Little Children: The European Uni on, the United States, and International Regulation of Online Child Pornography J M L & E OURNAL OF EDIA AW THICS Volume 1, Numbers 3/4 Summer/Fall 2009 Articles 155 AMY KRISTIN SANDERS Defining Defamation: Plaintiff Status in the Age of the Internet 186 JASON M. SHEPARD Bloggers After the Shield: Defining Journalism in Privilege Law 217 AIMEE EDMONDSON Packing Heat: A Gun Battle Between Privacy and Access 241 JASON A. MARTIN Return to the Marketplace:Balancing Anonymous Online Speech and Defamation 265 MICHAEL TODD Do We Still Need Human Dignity: A Comparative Analysis of the Treatment of Hate Speech in the United States and Germany J M L & E OURNAL OF EDIA AW THICS Editor ERIC B. EASTON, PROFESSOR OF LAW University of Baltimore School of Law ______________________________ Editorial Assistant JAMIE ROSE ______________________________ EDITORIAL BOARD MEMBERS BENJAMIN BENNETT-CARPENTER, Special Lecturer, Oakland University (Michigan) WALTER M. BRASCH, Professor of Mass Comm., Bloomsburg University of Pennsylvania L. SUSAN CARTER, Professor, Michigan State University LOUIS A. DAY, Alumni Professor, Louisiana State University ANTHONY FARGO, Associate Professor, Indiana University AMY GAJDA, Assistant Professor, University of Illinois STEVEN MICHAEL HALLOCK, Assistant Professor, Point Park University MARTIN E. HALSTUK, Associate Professor, Pennsylvania State University CHRISTOPHER HANSON, Associate Professor, University of Maryland ELLIOT KING, Professor, Loyola College in Maryland JANE KIRTLEY, Silha Professor of Media Ethics& Law, University of Minnesota NORMAN P. LEWIS, Assistant Professor, University of Florida PAUL S. LIEBER, Assistant Professor, University of South Carolina KAREN M. MARKIN, Director of Research Development, University of Rhode Island KIRSTEN MOGENSEN, Associate Professor, Roskilde University (Denmark) KATHLEEN K. OLSON, Associate Professor, Lehigh University RICHARD J. PELTZ, Professor of Law, University of Arkansas-Little Rock School of Law KEVIN WALL SAUNDERS, Professor of Law, Michigan State University College of Law JAMES LYNN STEWART, Associate Professor, Nicholls State University DOREEN WEISENHAUS, Associate Professor, University of Hong Kong KYU HO YOUM, Jonathan Marshall First Amendment Chair Professor, Univ. of Oregon PREVIEW these new and recent titles at www.MarquetteBooks.com/previewtitles.html Gene Murray, Effective Editing: A Guide for Ralph D. Berenger (ed.), Cybermedia Go to War: Students and Professionals (2009). ISBN: 978-0- Role of Convergent Media Before and During the 922993-39-0 (paper) 2003 Iraq War (2006). ISBN: 0-922993-48-1 (cloth); 0-922993-49-1 (paper) John W. Cones, Introduction to the Motion Picture Industry: A Guide for Filmmakers, Students & Jami Fullerton and Alice Kendrick, Advertising’s Scholars (2009). ISBN: 978-0-922993-90-1 (paper) War on Terrorism: The Story of the Shared Values Initiative (2006). 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ISBN: 0-922993-05-X 922993-46-7 (cloth); 0-922993-47-5 (paper) www.MarquetteBooks.com Copyright © 2009. The authors of each of the articles published in this issue own the copyrights to their works. For permission to reprint, please contact them (see title page for contact information). Journal of Media Law & Ethics (ISSN 1940-9370 print; 1940-9389 online) is a peer-reviewed scientific journal that seeks theoretical and empirical manuscripts and book reviews that advance an understanding of media law and ethics and diversity in society. Submissions may have a legal, historical, psychological, social or cultural orientation but must focus on media and law, ethics or diversity. All theoretical perspectives are welcomed. All manuscripts undergo blind peer review. JMLEis published online and in hard copy form. The online version is open access, which means it is available at no charge to the public. Visit www.MarquetteJournals.org to view the contents of this journal and others. 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Amicus Curiae Briefs in Free Speech/Press Cases During the Warren and Burger Courts 107 LYOMBE EKO Suffer the Virtual Little Children: The European Uni on, the United States, and International Regulation of Online Child Pornography Journal of Media Law & Ethics, Volume 1, Numbers 1/2 (Winter/Spring 2009) 4 THE AIMS OF PUBLIC SCHOLARSHIP IN MEDIA LAW AND ETHICS ERIK UGLAND This essay urges scholars in media law and ethics to reevaluate the extent and utility of their public-scholar efforts and to consider ways that they can transfer research-based knowledge to public audiences while also playing a more deliberate role in holding media and government institutions accountable. It suggests that the devolution of standards in mass communication, the increasing encroachments on media autonomy, and the broader collapse of power into fewer hands make this a particularly urgent moment for scholars to reengage the public and to abandon their feckless neutrality on public issues. The overarching aim of public scholars ought to be to serve as bulwarks against the unrelenting and asocial exercise of institutional power, and this essay suggests that media law and ethics scholars, because of the normative emphasis within their fields, are uniquely situated to serve that goal. Keywords: public scholarship, law, ethics, transference, accountability I. INTRODUCTION O ne of the occupational hazards of life in the academy is that as faculty advance their research agendas, their attentions inevitably focus on narrower and narrower targets and on increasingly esoteric questions. Scholars are prone, as the old saying goes, to studying more and more about less and less until they know everything about nothing. Those who do work in mass communication, and particularly those studying media law and ethics, should feel fortunate, however, that relative to their colleagues in other fields, their efforts are more clearly bound to the exigent questions of the day (indeed, they are often undertaken because of those linkages) and are more capable of being meaningfully translated to non-experts. Media law and ethics scholars have opportunities to nourish and redirect public dialogue on contemporary controversies that are unavailable or impractical for scholars in other fields. _______________ Erik Ugland is an assistant professor in the College of Communication at Marquette University ([email protected]). Journal of Media Law & Ethics, Volume 1, Numbers 1/2 (Winter/Spring 2009) 5 Erik Ugland The Aims of Public Scholarship in Media Law and Ethics Still, too few faculty take seriously the public-scholar role,1 and the overall yield of those efforts is hard to discern. Polls show profound public ignorance about the most fundamental First Amendment principles,2 and about the ethical canons of journalism, advertising and public relations.3 Journalists and media organizations continue to be usurped and intimidated by government officials without triggering significant public outcry.4 And professional practices in mass communication have deteriorated to the point that these are now among the least trusted American institutions.5 1 There are many definitions of public scholarship, but the following statement adopted by the faculty of the Department of Communication at the University of Washington provides a representative outline: “Scholarship and citizenship go hand in hand. Although scholars in higher education ultimately work on behalf of their communities, their nations and the world, much of their scholarship stays within the traditional research process …. Scholars also directly engage the world beyond the academy, drawing on scholarship developed in the rigor of disciplinary tradition. Productive efforts of this kind, herein called public scholarship, may take many forms, such as popularization of research-based ideas in a variety of media and formats, facilitation of deliberation about such social values as equality, justice and freedom, and explanation or appreciation of texts, concepts, values or events. Such efforts can promote constructive dialogue with and among students, citizens, diverse communities, and political and cultural leaders.” Faculty Statement on Public Scholarship, Department of Communication, University of Washington (2004), http://www.com.washington.edu/program/publicscholarship/index.html. 2 FREEDOM FORUM, STATE OF THE FIRST AMENDMENT 2007 (2007). In this annual survey, 37 percent of respondents disagreed that “newspapers should be allowed to freely criticize the U.S. military about its strategy and performance.” Id. at 4. (Emphasis added). And 61 percent agreed that the “government should be allowed to require newspapers to offer an equal allotment of time to conservative and liberal commentators.” Id. at 10. (Emphasis added). 3 Both scholars and the public can be forgiven for some of this misapprehension, given the pace at which media practitioners are adjusting the moral guideposts of their professions. See infra, Part V. 4 In its 2007 World Press Freedom Index, Reporters Without Borders ranked the United States 48th out of 169 countries, citing, among other things, the decline in access to information and the surge of cases in which reporters have been subpoenaed. Reporters Without Borders, World Press Freedom Index 2007, http://www.rsf.org/article.php3?id_article=24025. 5 A 2006 Harris Poll shows that the public has more confidence in “Wall Street” than they do in “The Press,” and more confidence in “The White House” than in “TV News.” Overall Confidence in Leaders of Major Institutions Remains Steady, Harris Interactive, March 2, 2006, http://www.harrisinteractive.com/harris_poll/index.asp?PID=646. Journal of Media Law & Ethics, Volume 1, Numbers 1/2 (Winter/Spring 2009) 6
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