With funding from the Geraldine R. Dodge Foundation, we have launched the RIIPL News Law Project. There is a crisis and opportunity in journalism. As established news organizations shrink, new digital ventures are expanding. But these new ventures often lack the in-house legal resources that the larger press organizations enjoy. The RIIPL News Law Project seeks to help fill that gap by providing an FAQ on some of the most common newsgathering questions that journalists face. Rutgers Law students, working under the supervision of Professor Ellen P. Goodman, are providing this guidance, focusing on New Jersey and applicable Third Circuit law. This is not legal advice, but general plain English guidance to help journalists think through risks and rights. In addition to helping journalists, the project trains aspiring lawyers in media law issues so that they are better prepared upon graduation to provide legal assistance in the field. FAQ users are invited to register, share their own experiences, and pose additional questions on the site.
Rutgers Institute for Information Policy and Law is pleased to announce the Lastowka Short-Form Writing Competition. Open to Rutgers students and recent graduates (class of 2015), the award will be given to an entry of 500-1,500 words on a topic of intellectual property or information policy more broadly.
Professor Greg Lastowka (1968-2015) will be remembered for his inquiry into how people innovate, create, and produce cultural capital though playful exploration. His pathbreaking scholarship in the areas of copyright, trademark, cyberproperty, video games, and virtual worlds forged new fields and impacted multiple areas of IP and other law.
The Lastowka Writing Competition, accompanied by a $500 prize, will be awarded to a short piece in the form of a blog post or other related entry that addresses a cutting-edge issue and offers a new, interesting, and well-reasoned perspective on an area of IP or information policy. Entries should use blogpost formatting, including hyperlinks to legal sources, press, and other commentary in lieu of footnotes. Graphics and other visuals are encouraged. Qualifying entries will be posted on the RIIPL blog.
Entries should be sent by March 1, 2016 to ude.sregturnull@lpiir
New Jersey’s four public TV stations are, according to a 10/17/16 FCC release, worth as much as $2.3 billion at the upcoming (March 2016) 600 MHz broadcast spectrum auction. These stations are currently licensed to the New Jersey Public Broadcasting Authority, and operated by WNET, New York as the NJTV network. Two are located in the largest television market, New York (the New Brunswick and Montclair stations) and two are in the fourth largest market, Philadelphia (the Trenton and Camden stations). Even if the stations didn’t sell their frequencies, but simply move down to low VHF channels, thereby freeing up the more valuable UHF frequencies for wireless bidders, they could take in up to $1.7 billion.
||Trenton, NJ (Philadelphia DMA)
||581,433,300 to vacate; 436,074,975 to move to VHF channel
||New Brunswick, NJ (New York DMA)
||475,608,780 to vacate; 277,438,455 to move to VHF channel
||Montclair, NJ (New York DMA)
||775,742,400 to vacate; 581,806,800 to move to VHF channel
||Camden, NJ (Philadelphia DMA)
||501,644,700 to vacate; 376,233,525 to move to VHF channel
Broadcasters have complained that the FCC undervalues their spectrum. Wireless bidder AT&T thinks the numbers are too high. The actual price that broadcasters get will depend on how much spectrum the FCC decides it wants to clear for blanket 4G coverage, how many broadcasters in a market show up for the auction, and how many wireless bidders there are. The numbers that the FCC put out are just the starting bids which, in the reverse auction for broadcast spectrum, will go down.
The clearing price for a New Jersey station will undoubtedly be much lower than the maximum prices the FCC released. But they could still amount to quite a lot of cash. It’s time for public input into what the New Jersey Broadcasting Authority should do, how it should participate in the auction, and what should happen with the proceeds. Even if we are talking about tens of millions of dollars, not billions… even if we are talking about millions of dollars and not tens of millions… these figures could be transformative for New Jersey public media.
This is money that could be used to support digital journalism, civic engagement, arts, and innovation that public media advocates have always wanted and never had the cash to implement. Among the questions that must be answered are: Who should be eligible for these funds? How can they be administered transparently and with accountability? What happens to public media service if the broadcast footprint is reduced?
We have been looking at what’s happening in the Bay Area to municipal regulations that would require warning labels on soda and cell phones. Industry claims that these warning labels violate their First Amendment rights by compelling speech. The cities contend that they are factual and uncontroversial disclosures on commercial speech, and raise only trivial First Amendment issues, easily passing muster under the deferential review of Zauderer.
On September 21, the cities won a big victory, defeating industry’s attempt to enjoin cell phone radiation warnings in Berkeley. Judge Chen of the Northern District of California expressed profound skepticism of industry’s First Amendment claims. He sided with the D.C. Circuit and the First Circuit in holding that Zauderer permissive review of factual commercial speech disclosures applied even when there was no issue of deception.
He went even further. The court suggested that when labels make clear that it’s the government talking, and not the company itself, the government should have even more leeway to communicate with consumers through product labels. Specifically, using a “rational basis with bite” form of review, the Court held that the warning labels satisfied this test even if they were not purely “factual and uncontroversial” as Zauderer review requires. This government speech part of the decision furnished independent grounds for denying CTIA a preliminary injunction, which is a good thing, because I’m not sure that part holds up. It borrows some of the same expansive understanding of government speech as was deployed in the Supreme Court’s Texas license plate decision (Walker v. Texas Division, Sons of Confederate Veterans, Inc.).
Even without this move, Judge Chen was right to find that the warning label survives Zauderer review. CTIA needs to fight its battles in the city council, where it is at no structural disadvantage. As John Coates has written persuasively, corporate deployment of the First Amendment in commercial speech cases is inefficient and incentive-distorting, in addition to diluting First Amendment liberties and democratic legitimacy.