Indecency Four Years After Fox Television Stations: From Big Papi to a Porn Star, An Egregious Mess at the FCC Continues

Indecency Four Years After Fox Television Stations: From Big Papi to a Porn Star, An Egregious Mess at the FCC Continues

Clay Calvert*

Minch Minchin**

Kéran Billaud***

Kevin Bruckenstein****

Tershone Phillips*****

In March 2015, the Federal Communications Commission  (FCC or Commission) proposed fining a Roanoke, Virginia, television station a whopping $325,000 for briefly broadcasting extremely graphic and explicit sexual material, specifically, a video image of a hand stroking an erect penis. The offending content aired for three seconds on WDBJ Channel 7 during a 6:00PM news segment about a former female porn star turned local volunteer rescue squad member.

At first blush, the FCC‘s proposed indecency fine seems like a legal slam dunk. As media attorney Harry Cole wryly writes, “[e]rect penises (and the manipulation thereof) are well outside the range of conventional prime-time acceptability.”

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* Professor & Brechner Eminent Scholar in Mass Communication; Director of the Marion B. Brechner First Amendment Project at the University of Florida, Gainesville. Ph.D., 1996, Stanford University; J.D., 1991, McGeorge School of Law, University of the Pacific; B.A., 1987, Stanford University.

** Graduate Research Fellow, Marion B. Brechner First Amendment Project. M.A., 2014, University of Florida; B.S., 2011, University of Florida.

*** Graduate Research Fellow, Marion B. Brechner First Amendment Project. M.A., 2014, University of Florida; B.A., 2012, Emory & Henry College.

**** Graduate Research Fellow, Marion B. Brechner First Amendment Project. B.S., 2014, University of Florida.

***** Graduate Research Fellow, Marion B. Brechner First Amendment Project. B.S., 2014, University of Florida.

Indecency Four Years After Fox Television Stations: From Big Papi to a Porn Star, An Egregious Mess at the FCC Continues

Dizzying Gillespie: The Exaggerated Death of the Balancing Approach and the Inescapable Allure of Flexibility in Appellate Jurisdiction

Bryan Lammon*

In Gillespie v. U.S. Steel Corp., the Supreme Court emphasized that the final-judgment rule—the general rule delaying appellate review of a district court decision until the district court reaches a final judgment on the case—must be given a practical rather than technical construction. Gillespie seemed to promise a new approach to federal appellate jurisdiction: a balancing approach that would allow courts of appeals to determine, case-by-case, whether to allow an appeal before a final judgment. But it was not long before the Supreme Court retreated from Gillespie, cabining the decision to its facts, and the Court nowadays adamantly rejects ad hoc balancing in appellate jurisdiction.

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* Assistant Professor, University of Toledo College of Law. My thanks to Pauline Kim, Ken Kilbert (who gets extra thanks and credit for the title), Liz McCuskey, James E. Pfander, and Michael Solimine, and to participants in the Ninth Annual Junior Faculty Federal Courts Workshop, the 2015 Central States Law Schools Scholarship Conference, and the University of Toledo College of Law faculty roundtable. Thanks also to the University of Toledo College of Law for providing summer funding for this project. And special thanks to Nicole Porter.

Indecency Four Years After Fox Television Stations: From Big Papi to a Porn Star, An Egregious Mess at the FCC Continues

The Intersection of Contract Law, Reproductive Technology, and the Market: Families in the Age of ART

Deborah Zalesne*

As rapidly developing reproductive technologies offer new pathways to parenthood, marriage and parenthood have become increasingly separated, and biology and parenthood no longer go hand in hand. With the advent of Assisted Reproductive Technology (ART), providing alternative methods for people to have children when it is otherwise impossible or infeasible for them to do so naturally, a growing number of parents are not actually biologically related to their children, and even when they are, a growing number of parents have had their children with outside medical assistance.

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*Professor of Law, City University of New York School of Law. LL.M., Temple University School of Law; J.D., University of Denver College of Law; B.A., Williams College. A related variation of this article was presented at the 2015 AALS Annual Meeting, Section on Contracts Panel (Mind the Gap: Contracts, Technology, and Legal Gaps). I would like to thank the panel moderator, Nancy Kim, and the other panelists, Eric Goldman, Woodrow Hartzog, Corynne McSherry, and Jane Winn, for their thoughtful remarks about issues presented in the paper. I would also like to thank my fabulous research assistants Adam Dexter, John Guyette, Catherine Austin, Jessica Woodrow-Hogan, Briana Deutsch, Alanna Doherty, and Shaina Low for their invaluable research assistance. Small parts of this article were adapted from my article about the broader topic of the enforceability of family-based contracts. See Deborah Zalesne, The Contractual Family: The Role of the Market in Shaping Family Formulations and Rights, 36 CARDOZO L. REV. 101 (2015).

Indecency Four Years After Fox Television Stations: From Big Papi to a Porn Star, An Egregious Mess at the FCC Continues

The Equal Protection Component of Legislative Generality

Evan C. Zoldan* 

The goal of achieving equality under law is deeply rooted in American philosophical traditions and constitutional doctrine. And although there is no universally accepted definition of equality, some applications of the principle are uncontroversial; most conceptions of equality bristle at the notion of particularized legislative treatment of named individuals without adequate justification.

Consider the following example: a well-connected man, a high-ranking government official no less, dies. He truly is part of the one percent, worth $50 million at his death. In its next Continuing Appropriations Act, between provisions about public health and veterans, Congress inserts a section transferring nearly $200,000 to the deceased millionaire‘s widow. The public owes no preexisting legal or financial obligation to the man or his widow the transfer is neither a pension nor a life insurance payout. Ra-
ther, it is a mere gratuity. But, little attention is paid to this provision and it is passed by both chambers of Congress and signed into law by the President. A gratuitous transfer of this kind, of public wealth to a named individual, singles out a particular person for a special benefit that is not available to the population generally. This statute offends widely held conceptions of equality because it accords the official‘s widow a benefit without reference to any service that she provided to the community—and what is perhaps worse—simply because of her family connections.

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*Associate Professor, University of Toledo College of Law. My thanks for the invaluable comments and suggestions of Akhil Reed Amar, Jack M. Balkin, Victoria F. Nourse, Richard Briffault, Peter D. Enrich, Eric Berger, Gregory M. Gilchrist, Ganesh Sitaraman, Rebecca E. Zietlow, and Kirsten Matoy Carlson. I am grateful for the comments from participants in the Yale/Stanford/Harvard Junior Faculty Forum, the Legislation Roundtable at Cardozo Law School, the Association of American Law Schools New Voices in Legislation Workshop, Loyola University Chicago Constitutional Law Colloquium, Central States Law Schools Association Scholarship Conference, Northeastern University‘s Legal Scholarship 4.0 Workshop, and the faculty of Wayne State University Law School. Thanks also to the University of Toledo College of Law for its support for this project.

Indecency Four Years After Fox Television Stations: From Big Papi to a Porn Star, An Egregious Mess at the FCC Continues

COMMENT: Regulating Human Germline Modification in Light of CRISPR

Sarah Ashley Barnett*

Scientific advancement is notorious for pushing legal and ethical boundaries, but never more so than recently. For the first time in history, we have the potential to not only recreate genetic marvels of the past, but also reshape the genetic destiny of future generations. This is due to the development of a new, revolutionary technology in genetic engineering called CRISPR—short for clustered regularly interspaced short palindromic repeats.

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*J.D. Candidate, 2017, University of Richmond School of Law. B.A., 2014, University of North Carolina Wilmington. I wish to thank my parents, Greg and Kim Barnett, for their unwavering love, support, and encouragement in all of my endeavors; my sister, Brittyn Johnson, for her constant motivation and validation; and my cousin, Tiffany Goodman, for being my perpetual source of positivity. I would also like to thank Professor Christopher Corts, who has been an inspiration throughout law school and was an invaluable resource throughout this writing process. Finally, I express my gratitude to the University of Richmond Law Review editors and staff for their hard work on this comment.

Indecency Four Years After Fox Television Stations: From Big Papi to a Porn Star, An Egregious Mess at the FCC Continues

COMMENT: Uniform Rules: Addressing the Disparate Rules that Deny Student-Athletes the Opportunity to Participate in Sports According to Gender Identity

Chelsea Shrader*

Grade-school and college playing fields have long been segregated on the basis of sex. For decades, male and female students were afforded the opportunity to participate in interscholastic athletic competitions on teams determined by their biological gender. Recently, an increasing number of high school and college-aged [students are publicly] identifying as transgender (or trans), meaning that their internal sense of their gender identity is different from the gender they were assigned at birth. The emergence of openly transgender students in grade schools and colleges, in general, has resulted in vastly disparate rules promulgated by school districts to address how transgender individuals fit into the traditional operation of the education system.

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*J.D. Candidate 2017, University of Richmond School of Law. B.S., B.A. 2012, University of Richmond. I would like to thank the University of Richmond Law Review staff and editors, especially my final editor, Stephanie Serhan, for their assistance in preparing this article for publication. I would also like to thank my parents, Jack and PJ Shrader, for inspiring my love of sports and instilling in me respect for people of all walks of life, and my sisters, Meghan Papineau and Jackie Shrader, for their unconditional love and support.

 

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