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Abstract:
In the 1972 case of Branzburg v. Hayes, the Supreme Court held that the First Amendment does not protect journalists who refuse to reveal their confidential sources or news gathering product in response to a federal grand jury subpoena. That decision has remained vital for 35 years and has reverberated through a number of recent high-profile cases. Despite some form of protection in nearly every state court, reporters haled before a federal judge may have no recourse save prison. Devastating as Branzburg has been for the so-called journalist's privilege, its negative impact has been far broader. Branzburg is one of Supreme Court's earliest news gathering decisions and arguably the most influential.

While the press has been very successful in persuading the courts to find First Amendment protection for its editorial product, it has been far less successful with regard to protection for news gathering. The Branzburg precedent epitomizes the frustration of the press in attempting to secure First Amendment, or even statutory, protection for news gathering, and this article explores one of the primary reasons for that failure: the inability of the diverse elements that comprise the press to agree on the appropriate scope of such protection. In particular, the article tells the little-known story of the dispute between the New York Times and its reporter, Earl Caldwell, whose pursuit of a testimonial privilege ultimately led to the Branzburg decision.

First Amendment, freedom of the press, Branzburg v. Hayes, Supreme Court, confidential sources, New York Times, news gathering

Abstract:
On September 30, 1996, nineteen lawyers, law professors and judges from the People's Republic of China began a six-week program of classroom study, practical experience, and scholarly exchange that focused on the American system of protecting intellectual property rights through civil litigation. The program was funded by a $107,000 grant from the United States Information Agency's Office of Citizen Exchange Programs to the University of Baltimore's Center for International and Comparative Law, in cooperation with the Maryland Department of Business and Economic Development.

The initial, two-week phase of the program included field trips to the U.S. Copyright Office, the Patent and Trademark Office, three federal courts, and one congressional committee involved in intellectual property rights. Participants were introduced to the American case method approach to legal education and given the opportunity to meet with American practitioners in copyright, patent, and trademark law. In the second, three-week phase of the program, each of the Chinese participants was placed with an American law firm or other intellectual property-related organization to gain some first-hand exposure to the practice of intellectual property law in this country. The final, week-long symposium phase of the program gave Chinese and American participants the opportunity to share their views on various aspects of intellectual property law.

law professors, China, intellectual property rights, civil litigation, legal education, case method, copyright law, patent law, trademark law

Abstract:
This essay is a personal inquiry into the nature of media technology, law, and ethics in an era marked by the convergence of media that have been largely separate-print, broadcast, cable, satellite, and the Internet-and by the consolidation of ownership in all of these media. What inventions, practices, and norms must emerge to enable us to take advantage of this vast new information-based world, while preserving such important professional values as diversity, objectivity, reliability, and independence?

The right to know belongs not only to individuals, but to the public at large, it can (or, perhaps, must) be vindicated by government intervention when private interests threaten to stifle the free flow of information. And that, or so the theory goes, is precisely what is happening today. Through mergers and acquisitions, private media companies have so consolidated their hold on the mainstream media that they have effectively frozen out dissenting or unorthodox voices and compromised editorial integrity in the quest for the almighty dollar. We do not need to be told that convergence and consolidation jeopardizes our most deeply held values. If the right to know is enforceable without reference to any speaker, then it can provide a powerful tool for protecting the public interest in the free flow of information by preventing the government from granting intellectual property rights that would have the opposite effect.

media, technology, law, ethics, broadcast, cable, satellite, Internet, right to know, private interests, government intervention, free flow of information

Abstract:
Today, media corporations and their professional and trade associations, along with organizations like Reporters Committee for Freedom of the Press and the American Civil Liberties Union, carefully monitor litigation that implicates First Amendment values and decide whether, when, and how to intervene. It was not always so. Litigation by an institutional press to avoid or create doctrinal precedent under the First Amendment really began with the appointment of Col. Robert R. McCormick to head the ANPA's Committee on Freedom of the Press in the spring of 1928 and his involvement in Near v. Minnesota beginning that fall. Because of McCormick's intervention, Near's holding that prior restraints are anathema to the Constitution has been a bulwark of our legal system ever since.

Part I of this article briefly outlines the background of the Near case, while Part II discusses the role of incorporation in making a First Amendment challenge feasible. Part III traces McCormick's efforts to draw the institutional press into the Near litigation. Part IV covers the proceedings before the Supreme Court, while Part V describes the landmark opinion itself. Finally, Part VI discusses the aftermath of Near v. Minnesota and the mobilization of the institutional press.

Near v. Minnesota, Supreme Court, First Amendment, newspapers, media, freedom of the press, Fourteenth Amendment

Abstract:
There can be little doubt that the institutional press is an interest group to be reckoned with in the Supreme Court, its aversion to such a designation notwithstanding. Over the past century, and especially since 1964, the press has secured for itself the greatest legal protection available anywhere in the world. While some of that protection has come from Congress, by far the greatest share has come from the Supreme Court's expansive interpretation of the First Amendment's Press Clause.

Although the role of the press in American politics has been studied extensively for nearly two centuries, the role of the press as a powerful interest group has yet to be examined in full. This quantitative study examines 100 U.S. Supreme Court decisions in which the mainstream media was a party litigant or amicus curiae. Among other findings, the study demonstrates that the press has been extremely successful in cases involving content regulation, but far less so in cases involving news gathering.

interest groups, media, Supreme Court, press

Abstract:
This article asserts that newspapers' quest for copyright protection was an early step onto a slippery slope toward a property-based, rather than service-based, ethos, and that removing that protection may at the least mark a first, symbolic step back from the abyss. Part I examines the state of contemporary journalism, particularly with respect to the propertization of news. Part II traces the history of copyright protection for news from its origins in censorship to the American copyright regime today, with emphasis on the run up to the 1909 amendments that first codified protection for newspapers. Part III advocates the moral rights of attribution and integrity and the removal of copyright protection for all printed and broadcast news, imposing only a twenty-four hour embargo on republication or rebroadcasting. It also deals with real or imagined problems with this approach and suggests ways of dealing with them, including defining news, curtailing free riders, and preserving quality journalism.

The copyright system, though constitutional, is broken. It effectively and perpetually protects nearly all material that anyone would want to cite or use. That is not what the framers envisioned, and it's not in the public interest. Copyright protection for journalism should be replaced by a highly circumscribed variant of the much-criticized misappropriation tort, coupled with authorial rights of attribution and integrity that supersede the American work-made-for-hire doctrine. Transformative uses of the journalism work product, i.e., new products in the same market, or the same product in different markets, should be encouraged - the better to serve the Framers' objective of promoting knowledge - and the duration of any protection available should be severely limited.

copyright protection, news media, journalism, intellectual property, rights of attribution

Abstract:
The impetus behind the Intelligence Reform Act was to prevent another terrorist attack on American soil. The statute completely overhauled the United States intelligence apparatus, largely by amending the National Security Act of 1947, which created the CIA and established the Director of Central Intelligence (DCI) as its head. The purpose of this article is to demonstrate that by renovating the fifty-seven-year-old National Security Act to create a modern intelligence infrastructure, Congress has also paved the way for a new intelligence-information paradigm. For the last two decades, near-blanket CIA secrecy has gone largely unchecked, principally because of the Court's ruling in CIA v. Sims.The authors believe that Sims was wrongly decided in 1985, but this article asserts that, right or wrong, Sims is no longer controlling precedent when viewed in light of the Intelligence Reform Act. This Article asserts that the CIA's ability to deny FOIA requests should be sharply circumscribed in accordance with a new information paradigm of maximum dissemination as established in the Act.

Part I discusses the FOIA, its statutory exemptions and its legislative history. Part II examines the Sims decision and argues that the Court's ruling contravened Congress's intent to require the fullest disclosure possible under the FOIA. Part III summarizes the changes established by the Intelligence Reform Act and examines the legislative history of the Act to clarify the plain meaning of its text. This Article concludes that the Intelligence Reform Act offers a new intelligence information policy that recognizes that carte blanche CIA secrecy has been outmoded and acknowledges that this nation has experienced a profound shift in terms of what the public has come to expect to know about what their government is doing in their name.

CIA, Central Intelligence Agency, Intelligence Reform Act, FOIA, Freedom of Information Act

Abstract:
In Cohen v. Cowles Media Co., Justice Byron R. White wrote that the First Amendment offers no protection from the enforcement of "generally applicable laws" against newsgatherers and that First Amendment protection applies only to information that has been "lawfully acquired." This Article shows that these doctrines are not only false, but have already done serious damage to First Amendment interests. It surveys lower court decisions from around the country to demonstrate the doctrines' pernicious influence, then it evaluates alternative solutions to the problem. The article concludes that the most effective, if least likely, solution would be a rule that tracks the New York Times Co. v. Sullivan "actual malice" standard, redefined as "bad faith" or "outrageous behavior" when applied to newsgathering torts.

This article examines these doctrines with a view toward exposing their role in obstructing the natural evolution of a constitutional rule that ensures First Amendment values are taken into account when tort liability for reporters' conduct in gathering news is alleged. Part II discusses what little the Supreme Court has already told us about First Amendment protection for newsgathering and places that in the context of other press clause jurisprudence, including New York Times Co. v. Sullivan and Hustler Magazine, Inc. v. Falwell. Part III examines the Cohen case in detail, dissecting and debunking the two major doctrines that now effectively deprive newsgathering of constitutional protection. Part IV reviews the damage those flawed doctrines have already done in trial and appellate courts around the country. And Part V discusses alternative approaches toward a new constitutional rule that might evolve, indeed that might have already evolved, in the absence of the Cohen "maledicta."

This article concludes that, although the First Amendment confers no immunity upon the press to violate laws of general applicability or to commit tortious or unlawful acts in pursuit of the news, neither do such violations relieve the courts of responsibility to consider the First Amendment values at stake, weigh them against the other societal values represented by the laws in question, and, where appropriate, adjust those laws to accommodate any higher values they may find.

First Amendment, newsgathering, Cohen v. Cowles Media Co., reporters, tort liability, constitutional protection, New York Times Co. v. Sullivan "actual malice" standard

Abstract:
Articulating a coherent, all-encompassing First Amendment doctrine for freedom of speech and of the press has so far eluded every scholar who has tried, not least because of the variety of analytical approaches and potentially dispositive factors in Supreme Court jurisprudence. For example, the same regulation might be enforceable in one medium, but not another; in one forum, but not another. Enforceability may depend on the regulator's purpose and drafting skill, or not, depending in turn on whether the speech deserves full protection, some protection, or no protection at all. Sometimes enforceability depends on the speaker's intent, or knowledge, or care . . . or none of those factors. Sometimes it depends on the speaker's status or access to alternative communication channels; sometimes it depends on the status or access of one who objects to the speaker's speech.

In a handful of cases, however, the analysis focuses on the speaker's audience - the listener or reader or public in general. Because the rights of the listener are poorly defined, and the power of the public vigorously disputed, consistency is even harder to find in these cases. This article endeavors to bring some coherence to this body of law by identifying its source and surveying its contemporary application. Simply stated, this article argues that the First Amendment's penumbral "right to know" is the source of a "public importance test" that the Supreme Court has reluctantly, but ineluctably, adopted to help mediate between the proprietary claims of private citizens and the reportorial imperatives of the press.

First Amendment, freedom of speech, freedom of the press, enforcability, right to know, news media

Abstract:
This article focuses on the publication ban issued by a Canadian court in a notorious murder trial, and the popular reaction to the publication ban, as a case study of the new global communications environment. Part I reconstructs the factual circumstances that provoked the ban, as well as the responses of the media, the legal establishment, and the public. Part II examines the ban itself, the constitutional challenge mounted by the media, and the landmark Dagenais decision. Part III reflects on the meaning of the entire episode for law, journalism, and national sovereignty.

The Dagenais decision demonstrates the continued independence from American influence of Canadian judicial thinking, even where the two legal regimes have moved closer together. The publication ban in this case, by influencing the Dagenais decision, ultimately increased the constitutional protections afforded the Canadian media. Furthermore, the Internet has proven its capacity to facilitate civil resistance to ill-considered restrictions on free speech even when conventional news media have been legally restrained. In view of this technological change, journalists in both the United States and Canada would do well to reconsider ethical norms that may interfere with their prime imperative to report the news.

law, Canada, United States, publication ban, media, courts, Internet, cyberspace, free speech, Dagenais decision

Abstract:
In United States v. Harvey, the United States Court of Appeals for the Fourth Circuit held that Congress may not constitutionally require convicted racketeers and drug traffickers to forfeit property used to pay legitimate defense attorney fees. To the extent that such forfeitures and related pre-conviction restraints on transfer are authorized by provisions of the Comprehensive Forfeiture Act of 1984 (the Act), those provisions violate an accused's right to counsel of choice as secured by the Sixth Amendment.This article argues that the court's holding in Harvey was more narrowly drawn than necessary, and that as a consequence criminal defense attorney fees now may be more vulnerable to forfeiture.

The Harvey decision discarded a clearly strained statutory interpretation as the basis for exempting legitimate attorney fees from forfeiture under RICO and CCE statutes. Instead, the court predicated such exemptions exclusively on the qualified right to counsel of choice under the sixth amendment. In so doing, the court left the exemptions unnecessarily vulnerable. A stronger constitutional argument for exempting attorney fees could have been made by relying additionally on the Sixth Amendment right to effective assistance of counsel. Moreover, there is ample justification for a statutory interpretation giving trial courts the discretion to exempt attorney fees from forfeiture before conviction. Either approach would have better protected the integrity of our adversarial process from the wholly unnecessary and unwarranted accretion of prosecutorial advantage represented by the actual or even threatened forfeiture of legitimate attorney fees.

criminal law, attorneys' fees, Sixth Amendment, criminal forfeiture, RICO

Abstract:
This article argues for a simple proposition: the First Amendment imposes a presumption against the suppression of speech when suppression would be futile. Suppression is futile when the speech is available to the same audience through some other medium or at some other place. The government can overcome this presumption of futility only when it asserts an important interest that is unrelated to the content of the speech in question, and only when the suppression directly advances that interest.

In Part I, the article explores the role that this unarticulated "futility principle" has played in Supreme Court and other decisions concerning the suppression of core political speech by prior restraint, denial of access, and subsequent punishment. In addition, Part I demonstrates how that principle has often, though not always, been disregarded by the Court in cases involving the regulatory suppression of commercial speech. In Part II, the article more fully articulates the rule developed by the case law and justifies its wider application by reference to the values it supports. Finally, in Part III, the article applies the rule to actual situations involving computer-assisted communications technology, an integral part of the convergent communications environment that will soon be upon us.

futility principle, public information, First Amendment, commercial speech, Internet, media, courts