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Abstract:
This Article, written for a 2006 symposium at the University of Miami School of Law on the Terri Schiavo case, looks at the media coverage of the Schiavo controversy as a way of addressing standards for assessing media coverage of highly charged social disputes. Observing that both the liberal and conservative criticism of media coverage at the time was in fact grounded on substantive and partisan positions regarding the underlying facts, the Article warns that wholesale ideological critiques of the media can pose a danger to the credibility of the press and its ability (and desire) to perform its most significant social and democratic roles. Thus, the piece suggests that polarized and factional criticism of the media is a factor that contributes to diminishing the modern press (along with the more commonly-criticized economic forces constructing the current consolidated media environment). In response, the Article calls for testing media performance by reference to journalistic standards. Recognizing that developments in the media environment - such as changes in media structure, the rise of "news as catfight" and a new definition of balance, the increasing role of blogs in the world of news and opinion, the press' changing notions of privacy, the increasing organization and unlikely alliances of conservative interest groups, the rise of religious broadcasters, the 24-hour news cycle and the much-remarked blurring of the distinction between news and opinion and news and entertainment - are all factors likely to influence the application and evolution of journalistic standards, the Article nevertheless claims that relatively policy-neutral metrics for judging press performance are preferable to partisan media-bashing. In addition to suggesting reinvigorated attention to the fundamental elements of journalism (albeit in its evolving state), the Article identifies some possible counterweights to the identified pressures on modern journalism. Specifically, it calls for enhancing press accountability by promoting journalistic standards-based media criticism from within and without news organs, inducing transparency about news processes and disclosure-enhancing mechanisms to shore up press independence, focusing on media literacy to educate the public, and promoting structural industry developments likely to enhance press independence and compliance with journalistic standards.

Schiavo, media, journalism, disclosure

Abstract:
This First Report, a document prepared at the request of the First Amendment Center, is an account of the FCC's recent shifts in its approach to the regulation of indecency on the broadcast medium. Principally designed to be descriptive and geared to policy-making as well as legal audiences, the Report carefully maps both the procedural and substantive changes in the FCC's indecency enforcement process. In addition, the Report addresses the First Amendment issues raised by the Commission's actions and inquires whether the agency's aggressive enforcement of its indecency rules can viably be extended both to non-broadcast electronic media (such as cable) and to violent programming on the air.

Administrative law, law and culture, law and society

Abstract:
These remarks were prepared for the Future of Copyright Conference on October 12, 2007 at the University of South Carolina. They focus on three interesting new developments affecting copyright: 1) voluntary adoption of 'free' access models by commercial copyright owning entities experimenting with different business models; 2) some copyright owners' apparent acquiescence in a 'permitted until prohibited' or 'tolerated use' culture; and 3) developments permitting a shift in the copyright rhetoric from 'property vs. the commons' to 'property vs. property.' The remarks then address three questions raised by these developments. The first is the 'unintended consequences' question: Should we be worried about the potential consequences of some copyright industries' exploration of a 'free with advertising' model on freedom of expression and the richness of the expressive domain overall? The second is the 'burden of policing' question: Even if the copyright industries have been engaging in more tolerated use and copyright law now permits what is effectively a 'permitted until prohibited' regime on the web, are these really stable developments on which users can rely? Does the current information landscape raise more complex questions about the various players' interests in the protection of content and does burden-shifting to police copyright adequately address the issues raised? Finally, the recent developments raise the 'new rhetoric' question: Given the extent to which property rhetoric has trumped commons rhetoric in the first generation of copyright expansion, do recent developments support a 'property vs. property' rhetoric displacing the 'property vs. the commons' rhetoric? If so, are dueling property interests anything more than a useful rhetorical device in lobbying discourse? Although both sides can now appropriate some of the cultural value of property rhetoric - and this defangs the presumptive property trump - this development is more important as a way of refocusing the conversation (to the policy interests on both sides and the choices that we have to make regulatorily). Just as in communications law, key issues here that merit attention are interoperability rules, industry structure, market failures and the effects of consolidation.

copyright, communications

Abstract:
This Essay is an invited on-line response to FCC Chairman Kevin Martin's comments during a debate on Expansion of Indecency Regulation published in the most recent issue of the Federal Communications Law Journal. The essay makes the following three principal points. 1) While Chairman Martin's remarks suggest that the Commission is simply enforcing existing indecency rules, in reality the broadcast indecency regime has been extensively strengthened during his chairmanship. 2) Chairman Martin asserts a popular mandate for regulation on the basis of ambiguous and under-analyzed public complaint data without addressing either the changes in the ways in which the Commission counts such complaints or the fact that virtually all the complaints are generated by the Parents Television Council. 3) Chairman Martin's call for a changed business model for cable (under which cable channels would be marketed - la carte rather than in bundles) in order to reduce indecent cable content is an attempt to end-run regulatory and constitutional limits and fails to address the potentially significant consequences of such a change for diversity of programming overall. Chairman Martin's description of the Commission as a reluctant regulator responding modestly to increasing public concern about an intolerable media landscape is thus in fact an argument for virtually plenary regulatory power for the FCC.

Abstract:
This Article was written for a 2007 Symposium on media reform entitled Reclaiming the First Amendment at Hofstra Law School. My approach to media reform focuses on ways to strengthen journalistic standards and professionalism against commercial pressures; to keep government out of journalistic autonomy and editorial decisions in a direct fashion while providing incentives for certain kinds of journalism; to enhance the availability of diverse discourses across all media; and to seek ways to empower the audience. The Article proposes a two-pronged, multi-factor approach to electronic media reform in the hope of promoting the electronic press's roles as educator and watchdog. The first prong is directed to the information market as a whole and concerns itself with ways of promoting media pluralism. The notion behind this aspect is to create an overall balance in which mainstream commercial media, non-profit public media, and alternative media can flourish and enrich one another and compensate for one another's weaknesses. The second prong of the reform proposal is internal to the context of broadcasting. The Article suggests experimenting with the following: structural regulations designed to promote journalistic values; a requirement that broadcasters spend a certain percentage of their gross advertising revenues on news and public affairs production and programming; different options for constructing a requirement that broadcasters devote a percentage of their advertising time to advocacy advertising, for which they would be allowed to be paid a premium over their ordinary commercial rates; and audience empowerment, including disclosure-oriented requirements designed to foster audience activism and strategies to engage an audience whose attention is claimed by an unprecedented abundance of content.

Abstract:
This Article addresses both the constitutionality and the efficacy of the FCC’s current rules that require broadcasters to air children’s educational programming. It argues that, even though the rules would probably pass muster under the First Amendment, they should nevertheless be substantially revised. Empirical studies show mixed results, with substantial amounts of educationally insufficient programming. This is predictable - attributable to broadcaster incentives, limits on the FCC’s enforcement capacities, and audience factors. Instead, the Article advises a turn away from programming mandates. It proposes a 'pay or play' approach that allows broadcasters to pay a fee to a fund for high-quality public television children’s programming, or to air such programming themselves, or to choose a combination of the two. The Article details some specific suggestions designed to limit both broadcaster game-playing and FCC content-intrusiveness under such a scheme. Ultimately, however, it calls for a ventilation of 'pay or play' models in a public rulemaking proceeding. Such an inquiry might well result in a negotiated compromise. In time, its efficacy could be assessed by comparing the resulting programming to what was aired under the more traditional regulatory approach of the past decade.