Communications Law in the Digital Age 2010

Practising Law Institute
New York, NY
Nov 11-12, 2010

Day One: 8:45 a.m. - 5:15 p.m.

Morning Session: 8:45 a.m. - 12:00 p.m.

8:45 Electronic Media Regulation

How will the FCC proceed with its plan to re-allocate part of the broadcast spectrum to broadband services? Will the initiative be entirely voluntary?
What will be the outcome of the FCC's latest media ownership proceeding, and how will the Third Circuit's review impact it?
What will be the outcome of the FCC's broad-ranging "Future of Media" proceeding? Are more regulations in the works for broadcasters?
Will the FCC, Congress, or the Supreme Court alter the current must-carry/retransmission consent regime?
Speaker: Helgi C. Walker
Moderator: Bruce P. Keller
Panel: Rick Chessen, Jane E. Mago, Sherrese M. Smith, Gigi B. Sohn

10:15 Networking Break

10:30 Developments in First Amendment Jurisprudence

• What are the implications of the Supreme Court's rejection in United States v. Stevens of a federal law criminalizing distribution of films showing infliction of harm to animals?
• Will the Supreme Court, despite Stevens, reverse course and uphold a content-based ban on distribution of violent video games to minors?
• Where is the Court going on campaign finance restrictions a year after Citizens United?
• Will there be an impact on the media if the Court holds that it is constitutional to impose tort liability on extremists who picket military funerals to protest the recognition of gay rights?

Speaker: Paul M. Smith
Moderator: Lee Levine
Panel: Floyd Abrams, RonNell Andersen Jones, Adam Liptak, Jack M. Weiss

12:00 Lunch

Afternoon Session: 2:00 p.m. - 5:15 p.m.

2:00 Privacy Protection, Safety and Security

• What are the standards, legislative or otherwise, governing the privacy of text messages?
• Is there a reasonable expectation of privacy by employees who use company computers?
• Social networking: When are service providers and advertisers liable for violating users' privacy?
• Data protection: Will the FTC actively enforce data security standards? Will states continue to pass laws imposing liability for lax data protection?
• Are proposed laws attempting to curb cyber-bullying and other forms of electronic harassment constitutional?

Speaker: Jane E. Kirtley
Moderator: Bruce P. Keller
Panel: David Bender, Dale M. Cohen, Maneesha Mithal, Nicole Wong

3:30 Networking Break

3:45 Reporters Privilege and Anonymous Speech

• What does the Obama Administration's subpoena to James Risen portend for the use of confidential sources in reporting about national security?
• The Federal Shield Law: What is the appropriate role of Congress in protecting the press from subpoenas in federal court?
• Has the media reached a consensus on whether to fight to protect the rights of Internet posters to do so anonymously?
• Does the reporters privilege provide viable protection against the compelled disclosure of confidential sources in defamation cases?
• What does the Chevron subpoena say about the efficacy of a reporters privilege protecting nonconfidential but unpublished information?

Speaker: George Freeman
Moderator: Lee Levine
Panel: Eve B. Burton, James C. Goodale, Paul Alan Levy, Kurt A. Wimmer

5:15 Adjourn

Day Two: 9:00 a.m. - 5:00 p.m.

Morning Session: 9:00 a.m. - 12:15 p.m.

9:00 Defamation, Invasion of Privacy and Related Claims

• Catsouras v. California Highway Patrol: Are the California courts reformulating the law of privacy yet again?
• Libel reform in the U.K. and Canada: Is it real and should American lawyers care?
• Are there cracks in the armor of Section 230?
• Has reality television breathed new life into the false light and private facts torts?
• Have Iqbal and Twombly had a significant impact on the litigation of libel and privacy claims?
• How has the Internet affected the legal definitions of "public figure" plaintiffs and "media" defendants?

Speaker: Kelli L. Sager
Moderator: Lee Levine
Panel: Kevin T. Baine, Sandra S. Baron,
Slade R. Metcalf, Honorable Robert D. Sack

10:30 Networking Break

10:45 Intellectual Property

• File sharing: Have enforcement efforts worked? Do users of peer-to-peer services have any anonymous speech or fair use defenses left? Are statutory damages constitutional?
• Digital licensing: When does a licensee "own" digital content?
• Copyright class actions: Will the Supreme Court's Muchnick decision affect other cases? How will it affect the Google Books litigation?
• Has trademark enforcement on the Internet essentially become a "notice-and-takedown" regime?
• What is the continuing impact of eBay on injunctive relief?
• Assessing the International Anti-Counterfeiting Trade Agreement: What is it, and where is it going?

Speaker: Mary Snapp
Moderator: Bruce P. Keller
Panel: Andrew P. Bridges, Jeffrey P. Cunard, John G. Palfrey, Jennifer L. Pariser

12:15 Lunch

Afternoon Session: 1:45 p.m. - 5:00 p.m.

1:45 Newsgathering Liability

• Can Gizmodo and other Internet-based media invoke the Privacy Protection Act to prevent and seek redress from search warrants?
• What does Boring v. Google mean for the right to gather news and information in public places?
• What are the implications of CNN v. Paisola for iReporters and user-generated content?
• Does Frederick v. Biography Channel change the rules governing "ride-alongs"?

Speaker: Thomas S. Leatherbury
Moderator: Lee Levine
Panel: Stephanie S. Abrutyn, Barbara W. Wall, John W. Zucker

2:45 Access

• NYCLU v. NYC Transit Authority: Is the constitutional right of access taking root beyond the courthouse?
• How is the Obama Administration handling the "state secrets" privilege - did the 2008 election change anything?
• Assessing the impact of Bloomberg v. Board of Governors: What is "third party" information and when can it be withheld under FOIA as "private" or "commercially sensitive"?
• Can a government sponsor license the exclusive rights to access and report on a public event to a private company?

Speaker: David A. Schulz
Moderator: Lee Levine
Panel: Lucy A. Dalglish, Joseph D. Steinfield, David H. Tomlin

3:45 Networking Break

4:00 Advertising, Commercial Speech, and Corporate Expression

• Does advertising on social networks trigger the right of publicity?
• Regulating advertising in print media: Can Nevada restrict the advertising of prostitution? Can Virginia prevent college newspapers from publishing alcohol advertisements?
• Will the Second Circuit's Alexander decision encourage challenges to other states' laws regulating attorney advertising?
• What does the Supreme Court's decision in Milavetz tell us about the viability of the Zauderer test in the context of mandatory disclosures?

Speaker: Steven G. Brody
Moderator: Bruce P. Keller
Panel: Ayala Deutsch, Bruce E. H. Johnson, Thomas R. Julin

5:00 Adjourn