{"title":"SLAPPS and Social Activism: The Wonderland v. Grey2K Case","authors":"J. Black","doi":"10.1080/08997225.2002.10556284","DOIUrl":"https://doi.org/10.1080/08997225.2002.10556284","url":null,"abstract":"The early morning hours of November 8, 2000 marked the unsuccessful end of a two-year campaign to ban greyhound racing in Massachusetts. The referendum movement was led by Greyhound Racing Ends Year 2000 (Grey2K) and was opposed by the racetrack corporation Wonderland Park (Eidinger 1). After the campaign advertisements ceased, the votes were tallied and the political smoke had cleared, it turned out that Grey2K’s initiative, Question 3, failed by less than 2% of the voting population – a narrow margin for a referendum (Eidinger 2). What remains vital for academic study is not the loss itself, but how Wonderland Park was able to silence Grey2K. Though marred by a host of legal issues, accusations of defamation, and finger pointing, Grey2K’s grassroots campaign failed – not on its merits or due to its legal ills – but by a strategy employed to chill the free speech of ordinary citizens participating in activities for social change. Wonderland Park used the Strategic Lawsuit Against Public Participation (SLAPP) to stifle Grey2K’s voice from a communicative and public relations standpoint, though not through legal standing. In fact, Grey2K fought successfully for dismissal of the SLAPP, but by the time the court turned its attention to the motion to dismiss, the publicity of the SLAPP charges had already left a mark on the campaign to end the plight of racing greyhounds; most significantly, the 2000 election was over. The SLAPP arose with the advent of increased public activism during the 1960s and gained academic attention in the late 1980s when legal scholars George Pring and Penelope Canan began combating this genre of cases designed to limit the public’s right to free speech (see Beder). According to Pring and Canan, SLAPPs remain one of the most vicious and devious ways that governmental agencies and corporations squelch the individual or social movement voice. They write, “A new breed of lawsuits is stalking America. Like some new strain of virus, these court cases carry dire consequences for individuals, communities, and the body politic. Americans by the thousands are being sued, simply for exercising one of our most cherished rights: the right to communicate our views to our government officials, to ‘speak out’ on public issues” (Pring and Canan 23). The implications of this litigious strategy are disastrous for individual expression and the public’s right to involve itself in civic affairs and political change. Mark Jackson concurs, noting “these suits are aimed not at rectifying truly defamatory statements made by defendants, but rather, at intimidating them from voicing their public concerns. Moreover, corporations use SLAPPs to discourage involvement not only by the named defendants, but also by their neighbors and the remaining community” (Jackson 493).","PeriodicalId":439135,"journal":{"name":"Free Speech Yearbook","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128165605","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Freedom of Expression Under Hong Kong's Second Post-Handover Administration: A Comparison with a Pre-Handover Study","authors":"J. Clarke, T. Hamlett","doi":"10.1080/08997225.2002.10556285","DOIUrl":"https://doi.org/10.1080/08997225.2002.10556285","url":null,"abstract":"Hong Kong’s transition from British to Chinese rule took place without incident on the rainy night of 30 June-1 July 1997, thirteen years after the signing of the Joint Declaration on Hong Kong by the two nations. Fears for the fate of the rather high level of freedom of expression, nurtured in the final years of the British administration, were common. Beijing’s wrath at the speedy establishment of a more or less directly elected Legislative Council in the early and mid-1990s by the last British governor, Chris Patten, led to the post-handover installation of a temporary appointed legislative body for a year, before new but restricted elections. The job of updating the many long-unused laws with repressive potential was not completed, partly because of lack of time but largely because of opposition from the Chinese government and its supporters, who were concerned that the effort was designed to allow the maintenance of a British power base in Hong Kong. The overarching threat was of direct Chinese interference. Reporters from the territory had been arrested in China in the years before the handover on official secrets charges that wouldn’t have been valid in Hong Kong. In the territory itself, Beijing officials had made pronouncements on what Hong Kong journalists should and should not do, most specifically warning them not to advocate independence for Tibet and Taiwan, but without indicating what would constitute such advocacy. This gave rise to suggestions that the Hong Kong press was reacting by practicing self-censorship, especially on matters concerning the Chinese government and such sensitive issues as Taiwan and Tibet. In 1995, we wrote an account of these matters in the Free Speech Yearbook, Vol. 33 (Clarke and Hamlett), summing up the prospects for freedom of expression as “pessimistic but not hopeless.” In this article we look at the situation eight years later under the second posthandover administration of Chief Executive (CE) Tung Chee-hwa and examine developments in the areas where freedom of expression seemed vulnerable before the handover.","PeriodicalId":439135,"journal":{"name":"Free Speech Yearbook","volume":"154 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127582106","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Supreme Court and Freedom of Expression (the 2002–2003 Term)","authors":"P. Siegel","doi":"10.1080/08997225.2002.10556290","DOIUrl":"https://doi.org/10.1080/08997225.2002.10556290","url":null,"abstract":"The Supreme Court’s 2002–2003 term included a fair number of First Amendment cases. There were a few surprises among the Court’s decisions (and at least one “non-decision”). The term represented the first time the Court has approved a law restricting access to Internet pornography (U.S. v. American Library Association 2003).2 The Court also permitted the state of Virginia to punish cross-burning (Virginia v. Black),3 a decision seemingly at odds with a Precedent (R.A.V. v. St. Paul 1992)4 the Court tried to distinguish. The Court opened the door to its landmark decision in McConnell v. Federal Elections Commission (2003)5-an earlydecided 2003–2004 case the fuller explication of which will await the next volume of the Yearbook-by upholding prohibitions against even nonprofit associations making contributions to most federal candidates (Federal Elections Commission v. Beaumont).6 The term also included a case involving citizens’ referenda, but since the only mention of First Amendment issues was in dicta, we do not offer a detailed explication of the case in this essay.7 While not at all a surprise, the Court’s ruling in Eldred v. Ashcroft (2003),8 upholding Congress’ extension of copyright yet another 20 years, will surely have a huge impact on the system of freedom of expression. Rounding out the slew of First Amendment cases was a decision upholding restrictions on visitations in a public housing project (Virginia v. Hicks)9 and in a state prison (Overton v. Bazzetta)10, clarifying the notion of “dilution” in trademark law (Moseley v. V. Secret Catalogue)11 and the scope of actionably fraudulent assertions on the part of telemarketers (Madigan v. Telemarketing Associates).12","PeriodicalId":439135,"journal":{"name":"Free Speech Yearbook","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127248208","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Globalization and the European Union: Freedom of Expression Law Resources","authors":"S. Drucker","doi":"10.1080/08997225.2002.10556291","DOIUrl":"https://doi.org/10.1080/08997225.2002.10556291","url":null,"abstract":"We hear about the global economy, global security, global environment, global culture, global media and global law. We hear this is an age of globalization but there is no uniform definition of globalization, no agreement on whether in fact it is even a worldwide trend. There is a growing body of literature that recognizes that globalization is a process “impacting many areas, causing a fundamental change in society.” Indicators of globalization range from the Disneyfication of entertainment to the McDonaldization of worldwide cuisine. It is manifested in international trade, mobility, multinational and international organization, the growing usage of the English language and the spread of telecommunications. Globalization is more than an economic issue. Globalization is about power. It takes power away from the nation-state and moves it into the global arena. In his remarks at the International Association of Media Communication Researchers in Barcelona in July 2002, Anthony Giddens argued that globalization creates a new dynamic in which the power of the nation-state is redistributed into 1) global power and 2) local power. He asserted that in the global era the nation-state is too small to be very important because it is too small to deal with the big problems and too large to solve the small problems (Giddens 2002). Historically, communicative rights and freedoms were matters of local (i.e. national) concern. Traditionally, the welfare of the community was a dominating reason for regulation. It was assumed that there was to be a strong link between a specific location and the media that served that location. Thus, the assignment of radio frequencies was made on that premise – that community was to be served by a radio station directly connected to a geographical site. Theoretically, in the United States, the FCC assigned a license for a period of time to be renewed if the “public interest, convenience, and necessity” was met and could be demonstrated. But community (as a geographically contiguous site) is irrelevant to the technology of the Internet. Although local interest and power is not a relic of the past, its new forms must adapt. There is no body of “global media law” but a variety of international regulation and a range of multi-or bi-lateral treaties, pacts and agreements. Globalization forces a revision of what nation states are in terms of their significance in the realm of media regulation and governance increasingly international in nature. (For example, the nation as member of ICANN, the nation as signatory of copyright treaty, the nation’s involvement in the World Trade Organization, the nationas member of regional entity such as the European Union). At the forefront of the regulation of the new economic and media landscape is growing European Union. The following are offered as an introduction to useful international media law resources, particularly emanating from the European Union.","PeriodicalId":439135,"journal":{"name":"Free Speech Yearbook","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132363143","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Edited Obscenity: The FCC's attack on a socially void Eminem","authors":"David J. Airne","doi":"10.1080/08997225.2002.10556286","DOIUrl":"https://doi.org/10.1080/08997225.2002.10556286","url":null,"abstract":"Until September 11, 2001, many people looked to athletes, singers and actors as the heroes of our time. While there has been a large discussion about how the members of the New York fire department, police department, and port authority along with our military officials are the true everyday heroes, many still look to the famous as heroes and role models. Famous people may not be the best place to find role models since there are countless stories about the problems in their lives as they make the same types of errors as any other person in society. Proper or not, many still look to the famous as role models. As a result, we must understand the image that is portrayed by the famous. One potentially negative role model is the musical artist Eminem. He has sold more than 8 million of copies of The Marshall Mathers LP and was nominated for four Grammy awards in 2001 (Goodman 14). While he has had commercial success, selling 1.7 million copies in the disc’s debut week, and some critical acclaim, there are many who object to the message in his music (Wazir 5). Multiple interest groups from women’s rights groups and gay and lesbian groups have attacked him. Even fellow musicians and artists like Christina Aguilera, Everlast and Moby have critiqued him for the content of his lyrics. His response to many who criticize him has been to speak with candor and sometimes venom. Despite the attacks, he still sells millions of discs, won multiple Grammy awards, has won an Academy Award, and has starred in a movie partially based on his life. There appear to be very few locations in the media that one may turn to without finding Eminem. One location Eminem lost was his time on the radio after the FCC ruled against a Colorado station for playing his music. The FCC claimed the station violated obscenity law by broadcasting his music. What makes this attack important? The station played the “edited” version of his song “The Real Slim Shady.” This paper will examine the implications of the FCC’s ruling that the “edited” version of Eminem’s song still was considered obscene. This examination will begin with a discussion of the history of the case, followed by a brief discussion of the standards used to evaluate obscenity and gender criticism. Next I will discuss how the FCC ignored the “community standards” of hegemonic masculinity contained within Eminem’s lyrics. Finally, I conclude with the implications of the FCC’s ruling of obscenity for edited speech and masculinity.","PeriodicalId":439135,"journal":{"name":"Free Speech Yearbook","volume":"265 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133317613","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Supreme Court and Freedom of Speech, 2001–2002","authors":"P. Siegel","doi":"10.1080/08997225.2002.10556289","DOIUrl":"https://doi.org/10.1080/08997225.2002.10556289","url":null,"abstract":"The 2001-2002 Term was a busy one from the perspective of Free Speech Yearbook readers. This article thus reviews seven separate decisions. 1 The Court issued two rulings in the area of Internet pornography: Ashcroft v. ACLU, 122 S.Ct. 170","PeriodicalId":439135,"journal":{"name":"Free Speech Yearbook","volume":"33 5","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132870680","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Bartnicki v. Vopper: Landmark or Question Mark","authors":"W. Self, Minabere Ibelema","doi":"10.1080/08997225.2002.10556281","DOIUrl":"https://doi.org/10.1080/08997225.2002.10556281","url":null,"abstract":"On May 21, 2001 the United States Supreme Court decided Bartnicki v. Vopper, a case that should be of great interest to media scholars and practitioners. The day after the opinion was handed down Tony Mauro and Shannon Duffy reported that it was “the first major press freedom case in a decade” (Mauro and Duffy 1). William P. Murphy, writing for the Pennsylvania Law Weekly, claimed the Bartnicki decision was “perhaps the most significant free press case in a decade” (Murphy 20). Bartnicki “raised the novel question concerning what degree of protection the First Amendment provides to intercepted wireless communications” about matters of public concern (First Amendment Protects 1). In addition to the question being of interest to journalists, the outcome was widely interpreted as positive for the news media. Evan P. Schultz said the Bartnicki case “was a major victory for the press” (Schultz 1). Approximately one week later James C. Goodale used the same words to describe the case. Thomas B. Kelley noted that “Although the Bartnicki decision is unquestionably a victory for freedom of the press and for the First Amendment generally, the full import of the decision must await determination in future litigation” (Kelley C20). It is likely that many First Amendment enthusiasts and proponents of vibrant privacy rights are troubled with the holding and/or its rationale. This may be true because rights granted from the First Amendment won and lost in the final analysis. If the Bartnicki case is a major milestone in free press jurisprudence, it is worthy of scholarly attention and analysis. In the event that it is something less, scholars, media practitioners, and publishers should be made aware of its utility and limitations. This article will provide a complete and searching examination of the Bartnicki case. We are convinced that analyzing the case will only satisfy a portion of our goal. In fact an analysis alone could leave the impression that we are insensitive to the access problems that reporters often confront. Since the Supreme Court was dealing with a legitimate problem that calls for resolution, we will offer an alternative solution that may be more satisfactory to some media scholars and practitioners. To adequately analyze this case it is necessary to thoroughly understand the events that resulted in the litigation and the case’s procedural history. While this is often true when analyzing cases, it is particularly important in this instance because the United States Supreme Court’s majority opinion provided only cryptic recounting of incipient facts and lower court occurrences. It is important to note that there was no trial in the United States District Court. However, the trial court memorandum opinion contained a background section and other factual information. Further operative facts are available from a number of other sources.","PeriodicalId":439135,"journal":{"name":"Free Speech Yearbook","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114171024","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Homelessness As Political Theater: The Community for Creative Non-Violence and Symbolic Speech","authors":"K. Olson","doi":"10.1080/08997225.2002.10556287","DOIUrl":"https://doi.org/10.1080/08997225.2002.10556287","url":null,"abstract":"","PeriodicalId":439135,"journal":{"name":"Free Speech Yearbook","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124567572","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Emergence & Evolution of the Secondary Effects Doctrine: 1976–2002","authors":"T. Flynn","doi":"10.1080/08997225.2002.10556283","DOIUrl":"https://doi.org/10.1080/08997225.2002.10556283","url":null,"abstract":"On April 16, 2002, the United States Supreme Court ruled unconstitutional the Child Pornography Prevention Act of 1996 (CPPA), which banned the distribution and possession of pornography depicting computer-generated children engaged in simulated sexual activity. In a 6-3 decision, the Court held that the law violated the First Amendment because it prohibited materials not deemed obscene under existing law. Writing for the majority, Justice Kennedy wrote that the law was so broad that it could be interpreted to proscribe many books and movies that involve themes of teen-age sexual activity, such as Shakespeare’s “Romeo and Juliet.” Justice Kennedy concluded that the CPPA could not be read to prohibit obscenity, because it lacked the required link between its prohibitions and the affront to community standards prohibited by the legal definition of obscenity (535 U.S. 234). Congress passed the CPPA in 1996, prohibiting the creation and dissemination of any visual depiction that “appears to be” or “conveys the impression” of a minor engaging in sexually explicit conduct. The proposed law sought a paradigm shift in the prosecution of child pornography by extending the definition to include computer-generated images, even if the pictures were generated purely digitally, did not use any real models, or if the “models” for the material were actually adults. In New York v. Ferber (1984), the Supreme Court upheld the constitutionality of child pornography laws under the rationale that they are preventing harm to real children. Child pornography constituted prima facie evidence of the sexual exploitation of the children involved. Proponents of the law argued that “virtual child pornography” presented serious “secondary effects” by creating a market for real child pornography, by desensitizing viewers to the exploitation of children, and by being used to lure children into sexual conduct or promote actual exploitation by molesters. Opponents argued that the CPPA and state laws like it endanger free speech in that other laws could be expanded to punish fictional portrayals of other illegal behavior, under the reasoning that all such portrayals encourage crime. The Court agreed, rejecting the government’s argument that the law was necessitated by technological advances in generating child pornography because it was virtually impossible to distinguish between child pornography using real children and computer-generated images. “The First Amendment is turned upside down by the argument that, because it is difficult to distinguish between images made using real children and those produced by computer imaging, both kinds of images must be prohibited.” Moreover, the majority dismissed the government’s claims that indirect, yet harmful “secondary effects” provided compelling state interest to justify the expansion of federal laws to ban virtual child pornography, finding that the asserted link between virtual and actual child abuse is “contingent and indirect, ”depe","PeriodicalId":439135,"journal":{"name":"Free Speech Yearbook","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123229468","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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