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Volume 63; 2010-2011 • Issue 3

FCBA Distinguished Speaker Series

The Roberts Court and Freedom of Speech
by Erwin Chemerinsky

This speech was given by Dean Erwin Chemerinsky in December 2010 as part of the FCBA’s Distinguished Speaker Series. In the speech, Dean Chemerinsky offers his perspectives on and analysis of the Supreme Court’s position on freedom of speech in recent years. He highlights important recent freedom of speech decisions made by the Roberts Court, and gives some projections as to where the court is heading in the years to come, given its current makeup. Dean Chemerinsky observes the frequency with which Justice Kennedy–the Justice whose vote determines the majority in numerous decisions–sides with the conservatively minded Justices. Given that frequency, Dean Chemerinsky expects the Court to continue to take a relatively conservative stance on freedom of speech in the near future.


How Elevation of Corporate Free Speech Rights Affects Legality of Network Neutrality
by Barbara A. Cherry

In Citizens United v. Federal Election Commission (2010), the U.S. Supreme Court overruled a century of precedent to hold that corporations must be treated identically to natural persons with regard to political speech. This Article describes how the Court’s decision is a radical departure from history that mirrors the FCC’s flawed analysis in its classification of broadband Internet access services as an information service with no separable telecommunications component subject to common carriage regulation. Overall, the combinatorial effect of Citizens United and the FCC’s classification of broadband access service as an information service is to elevate the constitutional free speech rights of corporations, and thereby diminish the federal government’s ability to protect consumer interests with regard to network neutrality.

A Policy Framework for Spectrum Allocation in Mobile Communications
by T. Randolph Beard, George S. Ford, Lawrence J. Spiwak, and Michael Stern

With the National Broadband Plan’s promise of an additional 500 MHz of spectrum for commercial purposes, the question of how to allocate those resources among competing uses and users will dominate the communications policy debate over the coming years. In this Article, the Authors provide a theoretical analysis of some of the relevant tradeoffs involved in allocating spectrum among service providers, with a particular focus on incumbentexclusion rules such as spectrum caps. Two key assumptions center the analysis: (i) more firms implies lower prices (i.e., Cournot competition); and (ii) more spectrum permits more advanced services due to greater capacity and throughput. The derived theoretical tradeoff is straightforward: In a setting with many firms with little spectrum, there are low prices but relatively less advanced services; however, in a setting with fewer firms with larger allotments of spectrum, there may be higher prices but also more advanced services. The Authors’ analysis highlights several key components of the spectrum allocation decision. First, an incumbent-exclusion rule is not “proentry,” but instead seeks to select one form (price cutting) of entry over another (quality improving). Second, given the existing number of firms, the potential for sizeable competitive price effects is low. Third, the economic benefits of advanced wireless services are likely to be very high. Fourth, access to spectrum resources does not necessarily convey financial success, as spectrum is but one of many inputs necessary to provide service. In all, the Authors believe these facts, interpreted in the context of the theory, suggest incumbentexclusion rules are not welfare enhancing, at least in the United States.

WikiLeaks Would Not Qualify to Claim Federal Reporter’s Privilege in Any Form
by Jonathan Peters

This Article addresses whether WikiLeaks could claim a federal reporter’s privilege if the U.S. government or a U.S. entity tried to compel one of the site’s staff members to disclose the source(s) of any documents it has released. After exploring the origins of the First Amendment-based privilege, the Author argues that WikiLeaks would not be able to claim it. First, the website does not engage in investigative reporting. Second, it has not taken steps consistently to minimize harm. He also discusses congressional attempts to pass a federal shield law, paying special attention to H.R. 985 and S. 448, the two most recent shield bills. The Author argues that WikiLeaks was an ill fit for their definitions of “covered person.” For these reasons, the Author concludes that WikiLeaks would not qualify to claim a federal reporter’s privilege in any form.


It’s a Mad, Mad Internet: Globalization and the Challenges Presented by Internet Censorship
by Jessica E. Bauml

The advent of the Internet has brought tremendous technological advancements and growth to the world. However, it has also become a source of conflict, particularly when different countries attempt to regulate this very ubiquitous and amorphous medium. The most notable controversy has arisen in China— home to the world’s most advanced system of Internet censorship, which levies harsh penalties on those who violate the country’s strict censorship laws. China’s “Great Firewall” has raised many eyebrows and is garnishing substantial criticism in response to the human rights abuses that result from the jailing and reported torture of Chinese dissidents. Yet the situation has grown even more complicated as American Internet Content Providers (ICPs) have been linked to these abuses through their operations in China, causing these companies to be the target of fierce criticism from human rights groups, the European Union, and the United States government. This Note explores issues of corporate complicity when companies like Yahoo!, Google, and Microsoft operate in Internet-censoring countries like China and then discusses the various solutions that have already been put on the table to address the problem. Ultimately, this Note explains why these current proposals are inadequate to sufficiently address the real issue and concludes by arguing that removing these ICPs from the Chinese market would do more harm than good in the quest to increase Internet freedom in China.

Overwhelmed by Big Consolidation: Bringing Back Regulation to Increase Diversity in Programming That Serves Minority Audiences
by Caridad Austin

This Note addresses diversity in the media and the need for regulation that will enhance programming so that it is inclusive of minority audiences. It begins by analyzing the historical development of diversity in the media through landmark cases, such as Metro Broadcasting, Inc. v. Federal Communications Commission, and it addresses the consolidating effects of the Telecommunications Act of 1996 and the FCC’s 2003 Report and Order. It argues that despite technological growth, the FCC’s open market regulatory approach of the last three decades has resulted in a lack of diverse perspectives in the media and that the FCC needs to bring back regulation that continues minority ownership policies and introduces standards that require broadcasters to ascertain the needs of the communities they serve so that advertisers are not the sole determiners of programming.

Book Review

International Media Law Reform and First Amendment Agnosticism: Review of Lee Bollinger’s Uninhibited, Robust, and Wide-Open: A Free Press for a New Century
by Enrique Armijo

Lee Bollinger’s Uninhibited, Robust, and Wide-Open argues that in an increasingly globalized world, the United States must seek to export First Amendment free press principles to other countries. His project, however, is belied by the fact that media law is a product of context and history as much as legalism. His proposals for reconceptualizing our own animating vision for a free press here in the States are also in many important respects inconsistent with the First Amendment itself.