About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

29 Comm. Law. 1 (2012-2013)

handle is hein.journals/comlaw29 and id is 1 raw text is: Communiculions Publication of te Forum on Communications Law American Bar Association Volume 29, Number 1, June 2012 THE - OUAL MI IN OR MAI1 A-Nt I COMMIIONS LAW In this issue COVER STORY Inside SCOTUS ...................... 1 The evolution of modem libel law post- Sullivan was a hard fought battle at the Supreme Court with Justice Brennan playing a central role, often behind the scenes. Desny Rides Again ................ 4 Much uncertainty still remains in deter- mining the measure of damages in idea submission cases, if liability is estab- lished. Desny provides some guidance but no definitive standards. Beyond Net Neutrality ......... 12 A new law sets requirements for dis- ability accessibility of IP video and electronic devices, but the FCC regula- tions leave many issues up in the air. Bad Year for Hot News ........ 18 The aggregation of hot news should be called exactly what it is: unfair com- petition. But some journalism companies are trying out a new model to protect their original work from aggregators. Moral Integrity .................... 25 The Australian courts' approach to pro- tecting the moral integrity of all artists may spell potential trouble for copyright owners and licensees. But I Saw It in Google .......... 29 A new EU regulation on privacy sug- gests that U.S. media companies will have to operate with the understanding that strong First Amendment rights may no longer be applicable in a global online world. The Making of Modern Libel Law: A Glimpse Behind the Scenes LEE LEVINE AND STEPHEN WERMIEL The contours of modern libel law are well defined, and its path from New York Times Co. v. Sullivan' is highly visible and well known to practitio- ners. Not so well known and almost invisible is the series of hard-fought, behind-the-scenes battles and deep divisions that took place inside the U.S. Supreme Court to shape that body of law into its current form. Before the ink was dry on Sullivan, the Court was deeply divided over its meaning and ramifications in Garri- son v. Louisiana,2 and the struggles to define the constitutional dimensions of libel law continued in subsequent decades through Gertz v. Robert Welch, Inc. 3 to Hustler Magazine, Inc. v. Falwell4 and Milkovich v. Lorain Journal Co.5 At the center of these struggles was Justice William J. Brennan Jr., who, as the author of the Court's opinion in Sullivan, naturally assumed the role of defender of the faith. Appointed in 1956 and serving until his retirement in 1990, Brennan often found himself in the center of a libel sparring ring, fighting to save the basic principle of free and open debate and criticism in a democratic society that he had articulated for the Court in Sullivan while searching for ways to refine and extend those First Amendment prin- ciples about which he cared so deeply. Exactly why Brennan became the ardent proponent of a First Amend- ment overlay on state defamation laws remains something of a mys- tery. Throughout his career, he was an avid newspaper reader, believing in the need to stay well informed about the world around him. But as a young man, he watched newspapers pub- lish harsh criticism of his father, the police commissioner of Newark in the 1920s, and he saw the harm that resulted from press coverage of Sena- tor Joseph McCarthy's attacks in the 1950s. He could have easily adopted a hostile view of the press from these experiences. As discussed in the book Justice Brennan.- Liberal Champion, he nevertheless developed a con- stitutional vision of the profound continued on page 38 Lee Levine is a partner at Levine Sullivan Koch & Schulz, LLP in Washington, D. C; an adjunct professor at the Georgetown University Law Center and a past chair of the Forum on Communications Law. He is co-author of Newsgathering and the Law and Media and the Law and argued both Harte-Hanks Communications, Inc. v. Connaughton and Bartnicki v. Vopper in the U S Supreme Court. Stephen Wermiel teaches constitutional law at American University Washington College of Law. He is co-author of Justice Brennan: Liberal Champion (2010), a former Supreme Court correspondent for the Wall Street Journal, and chair-elect of the ABA Section of Individual Rights and Responsibilities. The authors wish to thank Abby Duggan, a student at American University Washington College of Law; Jill Golden at the Hoover Institution Archives, William H. Rehnquist Papers, Stanford University; Jeff Flannery at the Manuscript Division of the Library of Congress; and John Jacob at Lewis F Powell Jr. Archives, Washington and Lee University Law Library, for their invaluable assistance in the preparation of this article. June 2012 0i Communications Lawyer l 1

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most