Volume 60; 2007-2008 • Issue 3

Table of Contents

Editor’s Note

Articles

Antitrust Language Barriers: First Amendment Constraints on Defining an Antitrust Market by a Broadcast’s Language, and its Implications for Audiences, Competition, and Democracy
By Catherine J.K. Sandoval
This Article explores whether the language of a broadcaster’s program appropriately defines an antitrust market, consistent with First Amendment and antitrust principles. In its evaluation of the 2008 private equity buyout of Clear Channel Communications, the Department of Justice (“DOJ”) defined the antitrust market by the language of the broadcast, as it had done for the 2003 merger of Univision and Hispanic Broadcasting Corporation. This Article uses social science research on Spanish and English-language radio and television to evaluate that decision. It argues that the distinct content and messages that characterize Spanish and English-language programming show that market definition is content-based and subject to strict constitutional scrutiny; however, that distinctiveness alone is insufficient to establish a separate antitrust market. Through an examination of advertiser and audience “substitution” between program languages, advertiser alternatives if faced with a price increase by merging parties, and a “supply-side” antitrust analysis of broadcaster “entry” between languages, the Article concludes that broadcast markets are not rigidly divided by language, but operate as one marketplace of ideas, with audience and advertiser loyalty contestable between languages.

The Terrorist Is A Star!: Regulating Media Coverage of Publicity-Seeking Crimes
By Michelle Ward Ghetti
Publicity-seeking crimes, including terrorism, almost by definition depend on the media for their effectiveness. Twenty-five years ago, when the bulk of this article was written, critics both within and outside the news industry had begun to voice an awareness, if not a concern, for the ease with which such criminals obtained publicity on both a national and international platform and it looked as if something might be done within the media establishments to thwart this manipulation of the press. Today, it is possible to look back and see that, in fact, nothing has been done and, so, individuals such as Osama Bin Laden and Seung-Hui Cho now use media establishments directly to spread their messages of hate, violence, and intimidation. This Article explores the psychology of terrorism and why it can hardly exist without the media, then turns to the American mass media, and discusses why it needs titillating crimes for its existence. It then identifies and discusses the four main effects or harms of media coverage of publicity-seeking crimes and the media’s answers to these harms. Finally, it suggests solutions and the effect the First Amendment to the United States’ Constitution has on those solutions.

Essay

Performing Art: National Endowment for the Arts v. Finley
By Randall P. Bezanson
In this modified version of a chapter in his forthcoming book, ART AND FREEDOM OF SPEECH (Univ. of Illinois Press, 2008-09), Professor Bezanson begins to probe the nature of art and its relation to the first amendment free speech guarantee. The essay uses the Finley v. NEA case, and specifically its discussion of Finley’s performance art, to critique the Supreme Court’s very approach to the Finley case, and to view the issues from the perspective of art, artistic freedom, and the Supreme Court’s role in fashioning constitutional protection for art as art, and not simply as cognitive speech.

Notes

When the Flock Ignores the Shepherd —Corralling the Undisclosed Use of Video News Releases
By Jeffrey Peabody
Every time you sit down to watch the evening news, you see not only locally produced stories, but also pre-packaged, corporate-sponsored “video news releases” (“VNRs”) that are nothing more than commercials in disguise. Unlike political advertising, which must comply with strict sponsorship identification rules, these VNRs remain unregulated. This Note discusses the failed “Truth in Advertising Act,” and proposes mandatory disclosure and beefed-up enforcement as necessary steps in stemming the growing use of these “fake news” spots.

The Newest Way to Screen Job Applicants: A Social Networker’s Nightmare
By Carly Brandenburg
Social networking is an easy way to share information with friends, family, and the company that just offered you an interview. Employers are utilizing all of the tools available to them as they strive to hire the right people, and this means that social networkers may need to self censor in order to protect their information from falling into the wrong hands. This Note questions whether social networkers can legally expect or enjoy any right to privacy with respect to their online postings.

Book Review

The Politics of Competition: Review of Clifford Winston, Government Failure versus Market Failure: Microeconomics Policy Research and Government Performance and Mark K. Landy, Martin A. Levin & Martin Shapiro, eds., Creating Competitive Markets: The Politics of Regulatory Reform
By Russell P. Hanser
Two recent books focus attention on the role of regulation in the modern economy and the reasons why efforts at deregulation succeed or fail. Clifford Winston’s Government Failure Versus Market Failure: Microeconomics Policy Research and Government Performance reviews empirical studies of regulation and its alternatives, arguing that economic regulation has quite often done more harm than good. In Creating Competitive Markets: The Politics of Regulatory Reform, editors Mark K. Landy, Martin A. Levin and Martin Shapiro collect essays addressing the political dangers faced by those pursuing market liberalization, both before and (especially) after reform is enacted. Read together, these books help to explain the sometimes perplexing legacy of the Telecommunications Act of 1996, which embodied ambitiously deregulatory goals but has resulted in an increasingly complex regulatory framework. They also offer critical guidance to those who will craft and implement future telecommunications legislation, urging such decisionmakers to focus not only on policy but also on politics if they hope to enact durable reform.

Forum

Of Burdens of Proof and Heightened Scrutiny
By James B. Speta

A Response to Professor Catherine J.K. Sandoval’s Antitrust Language Barriers
By Reza Dibadj