29 Comm. Law. 1 (2012-2013)

handle is hein.journals/comlaw29 and id is 1 raw text is: 

                       Publication of te Forum
                       on Communications Law
                       American Bar Association
                Volume 29, Number 1, June 2012

In this issue

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

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

The Making of Modern Libel Law:

A Glimpse Behind the Scenes

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

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