Journal of Media Law and Ethics
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UNIVERSITY OF BALTIMORE SCHOOL OF LAW JOURNAL OF MEDIA LAW & ETHICS Editor ERIC B. EASTON, PROFESSOR OF LAW University of Baltimore School of Law EDITORIAL BOARD MEMBERS BENJAMIN BENNETT-CARPENTER, Special Lecturer, Oakland Univ. (Michigan) WALTER M. BRASCH, Professor of Mass Comm., Bloomsburg Univ. of Pa. L. SUSAN CARTER, Professor, Michigan State University LOUIS A. DAY, Alumni Professor, Louisiana State University ANTHONY FARGO, Associate Professor, Indiana University AMY GAJDA, Assistant Professor, University of Illinois STEVEN MICHAEL HALLOCK, Assistant Professor, Point Park University MARTIN E. HALSTUK, Associate Professor, Pennsylvania State University CHRISTOPHER HANSON, Associate Professor, University of Maryland ELLIOT KING, Professor, Loyola University Maryland JANE KIRTLEY, Silha Professor of Media Ethics & Law, University of Minnesota NORMAN P. LEWIS, Assistant Professor, University of Florida PAUL S. LIEBER, Assistant Professor, University of South Carolina KAREN M. MARKIN, Dir. of Research Development, University of Rhode Island KIRSTEN MOGENSEN, Associate Professor, Roskilde University (Denmark) KATHLEEN K. OLSON, Associate Professor, Lehigh University RICHARD J. PELTZ-STEELE, Professor of Law, Univ. of Mass. School of Law KEVIN WALL SAUNDERS, Professor of Law, Michigan State Univ. College of Law JAMES LYNN STEWART, Associate Professor, Nicholls State University DOREEN WEISENHAUS, Associate Professor, University of Hong Kong KYU HO YOUM, Jonathan Marshall First Amend. Chair Prof., Univ. of Oregon Letter from the Editor Dear Reader: Welcome to the first issue of the Journal of Media Law & Ethics to be published under the imprimatur of the University of Baltimore School of Law. We are proud to launch the new University of Baltimore Journal of Media Law & Ethics with five outstanding articles by established scholars and scholars-in-the- making. We pledge to maintain this high standard in the issues to come. We would like to acknowledge the foresight and imagination of David Demers of Marquette Books, the founding publisher of JMLE, and convey our gratitude for his confidence in the University of Baltimore School of Law as his successor in this venture. I am personally grateful to Dean Michael Higginbotham for his willingness to take on this responsibility, and to my colleagues at the School of Law for their encouragement. As always, we would like to thank the members of our editorial advisory board for their review of the articles in this issue and the many helpful suggestions they offered. Thanks, too, to Lesley Oswin, for helping us get the JMLE up on the web site. And for her work on this issue, a special thank you to my research assistant, Katherine Dorian, who is moving on to become the next editor in chief of the University of Baltimore Law Review. In the coming months, we will be transitioning to a new web design and hope to add such features as book reviews, news summaries, and a blog. We will be taking steps to optimize the visibility of the journal through the legal, social science, and humanities databases and scholarly search engines. We will also begin seeking sponsorship for a print edition. All of this will take time, and we ask you to bear with us as we grow. Above all, we ask that you continue submitting the fruits of your own scholarship to JMLE for publication. Whether you teach or study in a law school or journalism school, we welcome your manuscripts and promise a thorough and objective review by members of our editorial board and other distinguished scholars. Thank you. Sincerely, Eric B. Easton, J.D., Ph.D. Professor of Law and Editor, JMLE Submissions The University of Baltimore Journal of Media Law & Ethics (ISSN1940-9389) is an on-line, peer-reviewed journal published quarterly by the University of Baltimore School of Law. JMLE seeks theoretical and analytical manuscripts that advance the understanding of media law and ethics in society. Submissions may have a legal, historical, or social science orientation, but must focus on media law or ethics. All theoretical perspectives are welcome. All manuscripts undergo blind peer review. Access to JMLE is available to the public at no charge. Exclusivity: All manuscripts must be original and must not be under consideration at other journals. Peer Review: All manuscripts will undergo blind peer review. The normal review period is three months or less. Submissions: The ideal length for submitted papers is 20-30 double-spaced pages (6,000 to 8,000 words using 12-point Times Roman or equivalent type), including footnotes, tables, and figures. Longer manuscripts will be considered when space is available. The submission and review process will be electronic; all manuscripts should be prepared using Microsoft Word or converted to that format. One electronic copy should be e-mailed to the editor, Eric B. Easton, [email protected]. Manuscript Preparation: All footnotes should be in Bluebook form. All text must be double-spaced except tables and figures, which must be "camera-ready." Microsoft Word is the required software program for formatting manuscripts. The title page should include the title of the manuscript, names and affiliations of all authors, as well as their addresses, phone numbers, and e-mail addresses. Five key words for referencing the document in electronic databases are also required. Only the title page should contain identifying information. The second page should include the manuscript title and an abstract of 150 to 250 words. All figures and tables must be formatted to 5.5 inches in width and no more than 7.5 inches in height. Copyright and Production Notes: All works submitted must be original and must not have been published elsewhere. Authors of works that are selected for publication shall retain the copyright in their works. However, authors should give the Journal of Media Law & Ethics and the University of Baltimore School of Law a nonexclusive right to publish the work in journals, books, or any other collections that it may publish at the same time or in the future. Authors shall be given credit in such works and will continue to control the copyright in their own works. After a manuscript is accepted for publication, the author or authors are expected to proofread and edit the page proofs when they are provided. Permissions: Authors are responsible for obtaining permission from copyright owners to use lengthy quotations (450 words or more) or to reprint or adapt a table or figure that has been published elsewhere. Authors should write to the original copyright holder requesting nonexclusive permission to reproduce the material in this journal and in future publications of the University of Baltimore School of Law. UNIVERSITY OF BALTIMORE SCHOOL OF LAW JOURNAL OF MEDIA LAW & ETHICS Volume 3, Number 1/2 Winter/Spring 2012 Articles 1 DAN V. KOZLOWSKI Unchecked Deference: Hazelwood‘s Too Broad and Too Loose Application in the Circuit Courts 63 STEPHEN BATES Regulating Gatekeepers of Information: The Associated Press as a Common Carrier 112 AMY KRISTIN SANDERS Defining Defamation: Evaluating Harm in the Age of the Internet 136 DEAN C. SMITH Journalist Privilege in 1929: The Quest for a Federal Shield Law Begins 171 AMBER WESTCOTT-BAKER, REBEKAH PURE & CHRISTOPHER SEAMAN Implications of Copyright in the Context of User- Generated Content and Social Media UNCHECKED DEFERENCE: HAZELWOOD’S TOO BROAD AND TOO LOOSE APPLICATION IN THE CIRCUIT COURTS DAN V. KOZLOWSKI In the more than two decades since the U.S. Supreme Court decided Hazelwood School District v. Kuhlmeier, the decision has been analyzed widely and related issues litigated frequently. Yet unanswered questions remain about when the precedent should be applied and what amounts to a ―legitimate pedagogical concern‖ justifying censorship. This article systematically analyzes circuit court cases that have applied Hazelwood and evaluated whether a school‘s proffered pedagogical concern is legitimate. Analysis shows that circuit courts have broadened Hazelwood‘s scope and expansively interpreted the ―legitimate pedagogical concerns‖ standard, showing generally unchecked deference to schools. The article proposes renewed rigor in deciding when Hazelwood should apply along with an approach to the ―legitimate pedagogical concerns‖ standard that would more closely scrutinize schools‘ speech restrictions while still respecting the deference to educators that the Hazelwood opinion so clearly showed. Keywords: First Amendment, student speech, Supreme Court, Hazelwood v. Kuhlmeier I. Introduction In February 2005, student journalists working for The Tattler, the student newspaper of Ithaca High School, wanted to publish a cartoon that criticized their school‘s sex education curriculum. The cartoon depicted a doorway with the phrase ―Health 101‖ written over the door. Inside, a teacher pointed to a blackboard that displayed stick figures in various sexual positions, with the phrase ―Test on Monday‖ written underneath the drawings.1 The cartoon would have appeared alongside an article headlined ―How is Sex Being Taught in Our Health Class?‖2 – an article that a federal district court labeled ―a serious exam- ination of health education in the [school].‖3 The political cartoon was meant to be satirical, but the paper‘s adviser and the school‘s principal were not amused. They permitted the story, but they refused to let the students print the cartoon. 1 R.O. v. Ithaca City Sch. Dist., 645 F.3d 533, 536 (2nd Cir. 2011). 2 Id. at 537. 3 R.O. v. Ithaca City Sch. Dist., 2009 U.S. Dist.