Volume 2008, Issue 11

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NEWS

FCC, DOJ Appeal Janet Jackson To Supreme Court
Broadcasting & Cable, John Eggerton, 11.21.2008

Sex Slaves Being Bought, Sold In South Fla.
WPBF News 25, 11.19.2008

Holder and Obscenity Prosecutions
Reason, Jacob Sullum, 11.19.2008

Porn prosecutors seek recusal of entire 9th Circuit
How Appealing, Howard J. Bashman, 11.17.2008

South Carolina Investigators: Strip Club In Chester County Front For Prostitution
WSOCTV, 11.15.2008

Australian web filter to block 10,000 internet sites
Herald-Sun, Jennifer Dudley-Nicholson, 11.13.2008

Investigation reveals child sex slave trade in Oregon
KGW, Wayne Havrelly, 11.11.2008

Human Trafficking in Wisconsin
NBC 15, Dana Brueck, 11.11.2008

Social Conservatives in America would do well to consider recent events in the U.K.
Public Discourse, John Haldane, 11.07.2008

Craigslist agrees to crack down on erotic ads
Reuters, Martha Graybow, 11.06.2008

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LAW REVIEWS

(Abstracts excerpted from articles, citations omitted)

Taming Cyberspace: Broadcasting as a Model for Regulating the Internet
Lauren L. Hackett, 14 Widener L. Rev. 265 (2008)

Online pornography has still prospered, despite Congress’s efforts to devise legislation protecting children. This article focuses on the similarities of the Internet and broadcasting medium, which receives the most limited First Amendment protection, and why these similarities justify more limited First Amendment protection on the Internet. Part II reviews First Amendment jurisprudence dealing with obscenity and indecency and how these standards have been applied to various mediums of communication. Part III analyzes how these judicial doctrines have been applied to the Internet by discussing the Supreme Court’s decisions in Reno and COPA V.

Part IV argues that the Court erred when determining the standard of review in the CDA cases because the similarities between the Internet and broadcasting mediums justify the lowest level of judicial scrutiny for analyzing online content. This article then illustrates how COPA failed constitutional review when judged under strict scrutiny, because any alternative is less restrictive than Miller’s “community standards” language as applied to the Internet. Finally, this article uses the broadcasting case FCC v. Pacifica Foundation as a model for content regulation on the Internet and suggests ways in which an administrative agency with expertise in Internet technology would be more likely to implement rules designed to regulate cyber-speech that survive judicial review.

The New Face of Child Pornography: Digital Imaging Technology and the Law
Gray Mateo, 2008 U. Ill. J.L. Tech. & Pol’y 175

This Note explains how technological advances in digital imaging have been used to both hinder and further attempts to prosecute and prevent the dissemination of child pornography. Most importantly, this Note discusses the ways technological advances have interacted with First Amendment protections. Ultimately, this Note advocates for child-centered legislation that protects the vulnerability of children as victims of sexual exploitation rather than deferring to the “so-called” rights of pornographers and Hollywood film producers.

Neither Realistic nor Constitutionally Sound: The Problem of the FCC’s Community Standard for Broadcast Indecency Determinations
Michael Kaneb, 49 B.C. L. Rev. 1081 (2008)

The Federal Communications Commission exercises the power to regulate the broadcast of constitutionally protected indecent speech under a standard upheld by the U.S. Supreme Court in its 1978 decision in FCC v. Pacifica Foundation. In the thirty years since that decision, however, the FCC has pursued an increasingly idiosyncratic application of the Pacifica test that disposes with local community standards as the legal benchmark of indecency. In doing so, the FCC’s approach rejects the judicial sources that originally legitimized the Pacifica indecency test, conflicts with the statutory authority by which the FCC regulates broadcasting generally, and contradicts the Court’s specific and more recent rulings on indecency in the context of other media. In its upcoming review of Fox Television Stations, Inc. v. FCC, the Court will have an opportunity to correct the anomalies of the FCC’s broadcast indecency regime. The Court should require that the FCC refer to local community standards in making its indecency determinations and bring the Commission’s exercise of this authority into line with governing principles of First Amendment law.

Broadcast Profanity and the “Right to be Let Along”: Can the FCC Regulate Non-Indecent Fleeting Expletives Under a Privacy Model?
Edward L. Carter, R. Trevor Hall, and James C. Phillips, 31 Hastings Comm. & Ent. L.J. 1

The Supreme Court constitutionalized “f –” nearly four decades ago, and so in that sense the current Fox case–stemming from live broadcasts of the term uttered by, respectively, the global rock star Bono at the 2003 Golden Globe awards; the over-the-hill-but-in-denial actress Cher at the 2002 Billboard Awards; and the Simple Life denizen Nicole Richie at the 2003 Billboard Awards –can break no new ground. In fact, the cachet of the word has faded so greatly one wonders why individuals such as Bono, Cher, and Richie even bother to use it. Lexicographers have been wearing out the term since 1598, and even tedious law professors have mind-numbingly exhausted its possibilities in fits of adolescence. In the broadcast context, the late George Carlin forever linked himself with the prank of saying on the radio the “seven dirty words” one is not supposed to say on the radio

Given this history of dubious achievements in profanity, what is left to be at stake in the current appeal before the U.S. Supreme Court? First, it seems relatively clear that the U.S. Court of Appeals for the Second Circuit engaged in some convenient but doctrinally questionable jurisprudence by concluding (in a 2-1 decision) that the FCC had violated the Administrative Procedure Act in adopting a new rule regulating profanity. This portion of the Second Circuit’s opinion, holding that the FCC’s change in course was not “reasoned” in relying on the goal of preventing television consumers from absorbing the “first blow” of fleeting expletives, seems the most obvious candidate for Supreme Court focus. But speculation in the newspapers, at least, runs rampant that the Court will reach the constitutional merits of the profanity issue in what is being billed as “the first case on broadcast decency to go before the Supreme Court in 30 years.” If the Court gets past issues of administrative deference, in the current or a future appeal, then the core questions seem to become (1) what is the meaning of profanity in today’s society?; and (2) assuming profanity can be defined, how far may the FCC go in regulating its use on television?

This article proceeds to examine those questions in four substantive parts. Section II examines the history and contemporary status of profanity in society and law. Section III discusses in detail the rationales behind the First Amendment’s protection of expression, as applied to profanity. Section IV reviews the FCC’s evolution from regulating profanity as indecency to, in its current effort, regulating profanity primarily as profanity. Section V posits that, assuming profanity is expression, its broadcast into the home presents a unique legal posture due to the Supreme Court’s extreme solicitude to the privacy of the home.

Protecting Minors from Online Pornography without Violating the First Amendment: Mandating an Affirmative Choice
Robert A. Gomez, 11 SMU Sci. & Tech. L. Rev. 1 (2007)

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