Volume 60; 2007-2008 • Issue 2

Editor’s Note

Articles

The Two-Step Evidentiary and Causation Quandary for Medium-Specific Laws Targeting Sexual and Violent Content: First Proving Harm and Injury to Silence Speech, then Proving Redress and Rehabilitation Through Censorship
by Clay Calvert

This Article argues that legislators today that want to suppress First Amendment-protected images of sexual and violent conduct conveyed on a specific medium face a steep two-step evidentiary burden. First, they must prove actual harm caused by the speech in question as it is conveyed on a specific medium—not the aggregate injury from viewing all media generally—that is sufficient to overcome free-speech rights. Second, even if sufficient harm from viewing violent or sexual content on a particular medium is proven by social science research, the government then must prove that its legislative remedy—its censorship of the harmful expression conveyed via a specific medium—actually causes the problem to be ameliorated in a significant way. This Article concentrates on the under-explored implications of the second step (proving efficacy of the remedy) and, specifically, on the key problem of underinclusiveness that courts increasingly identify with medium-specific remedies. In addition, the Article analyzes the puzzle of precisely how much (and what kind of) evidence must be demonstrated in order to satisfy courts that the problems medium-specific laws are designed to address are, in fact, materially remedied.

The Colonel’s Finest Campaign: Robert R. McCormick and Near v. Minnesota
by Eric B. Easton

Media corporations and their professional and trade associations, as well as organizations such as Reporters Committee for Freedom of the Press and the American Civil Liberties Union, regularly monitor litigation that implicates First Amendment values and decide whether, when, and how to intervene. But that was not always the case. While media companies have always lobbied and litigated in support of their business interests—antitrust, copyright, postal rates, taxes—litigation by the institutional press to create or avoid doctrinal precedent under the First Amendment began only in the late 1920s. Once the United States Supreme Court recognized the incorporation of the First Amendment through the Due Process Clause of the Fourteenth Amendment to protect the rights of the press from abridgment by state law, the way was clear for the press to engage in strategic litigation to support the collection and reporting of news. But it was not until Col. Robert R. McCormick of the Chicago Tribune took charge of the historic case of Near v. Minnesota that the institutional press mobilized to take advantage of the opportunity the Court provided. Through extensive use of the Tribune Archives and its day-to-day coverage of the Near case, this Article shows how McCormick’s personal and financial commitment to freedom of the press in general, and the Near case in particular, ultimately persuaded the institutional press to pursue doctrinal litigation not only in their narrow commercial interests but also in pursuit of their most fundamental rights to gather and publish the news.

Direct Marketing, Mobile Phones, and Consumer Privacy: Ensuring Adequate Disclosure and Consent Mechanisms for Emerging Mobile Advertising Practices
by Nancy J. King

Advertisers are poised to deliver advertising to cell phones in the U.S. This emerging advertising context is called mobile advertising. It will generate a host of privacy and personal data issues for consumers and for mobile advertisers, mobile phone manufacturers, and mobile carriers. This Article focuses on the existing federal regulatory environment applicable to mobile advertising and consumer privacy, the role of federal administrative agencies that enforce consumer privacy regulation, and the potential for industry self-regulation, particularly privacy policies, to enhance consumer privacy. It assesses the adequacy of the existing federal consumer privacy regulation as well as potential consumer remedies under contract theories and privacy tort laws. Concluding that meaningful disclosure of privacy practices and obtaining adequate consumer consent are essential privacy concerns in mobile advertising, the Article identifies weaknesses in the current regulatory system and offers simple suggestions for regulatory improvements to bolster consumers’ privacy protections.

Skating Toward Deregulation: Canadian Developments
by Timothy J. Brennan

Canada had recently undertaken significant steps to forbear from regulating the last regulated offering in the telecommunications sector, local exchange service. Tests that Canada’s telecommunications regulatory agency had imposed were overturned by order from the Canadian Cabinet Ministers. Notably, competitors to the incumbent local exchange carriers (“ILECs”), primary cable systems offering voice over Internet protocol (“VoIP”) service, argued for the retention of regulation to prevent the ILECs from cutting price to customers who had switched to cable VoIP or were most likely to do so. We review here both the institutional developments leading to the forbearance decision and a number of economic issues presented during the course of the policy debate.

Notes

Reassessing Turner and Litigating the Must-Carry Law Beyond a Facial Challenge
by R. Matthew Warner

In recent decades, the must-carry rules have had a troubled constitutional history. After two sets of rules were struck down by the D.C. Circuit for violating the First Amendment rights of both cable programmers and operators, Congress revised the must-carry rules in the 1992 Cable Act. In 1997, the Supreme Court, in a 5-4 decision, determined that the congressional must-carry law was facially constitutional. However, does the Turner II decision preclude further First Amendment challenges to the must-carry law? This Note argues that the answer is no and that the time is drawing near for new challenges.

Book Review

Carl Ramey’s Mass Media Unleashed
by Henry Geller

This superb book treats an important issue: the proper regulatory policy for broadcasting in the twenty-first century. In it, Carl Ramey critiques the Federal Communications Commission’s public trustee and deregulatory market policies and suggests that to meet the dynamic market and technological changes of this new century we should, among other things, free commercial broadcasters completely from public trustee requirements and eliminate FCC enforcement of its ownership and related rules. Based on the long experience of a communications lawyer who knows so well how the present policy has failed, this book is a most commendable effort and a great blueprint for reform.

Forum

Sex and Violence in the Media: Some Thoughts on the Importance of Underinclusion as a Barrier to Medium Specific Regulation
by David Kohler

The Decline of Medium-Specific Content and the End of Medium-Specific Content Regulation: A Response to Professor Calvert
by Matthew C. Holohan

Direct Marketing, Mobile Phones, and Consumer Privacy
by James Nehf