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Can Laws Protect The Public From The Media?

Here are some of the sources I collected for this paper - didn't end up using them all but could have if I kept going!
Here are some of the sources I collected for this paper – didn’t end up using them all but could have if I kept going!

I turned in my final paper for Media Organization Regulations last night. It was already a lot longer than it needed to be for the assignment, but I would have kept writing more if I had more time, right or wrong!

 I am not an attorney or law student. Edit 12-22-20 – I found and fixed a couple of typo-type errors in the Works Cited section.

After seeing my grade, I did ok on this paper but I didn’t do great. I want it to be great. My professor left me some comments about things she thinks I should have included. It is possible that I will publish a revised version of this paper incorporating the professor’s suggestions. When/if I do that I will have to double-check how to give proper credit for that sort of thing in an academic paper in the MLA format because I’m being trained in academic writing and academic integrity as I go as well as in course material. Before starting this degree in 2019 I hadn’t written an academic paper since 1993. What you will read below is unedited from when I submitted it except for two typos in the credits section. When/if I revise it further I’ll make that clear in the proper format.

At the end I have links to sources, and after that links to other posts on this blog that are on related topics in case you think the subject is interesting and want to read more. I’ll also link to the Pinterest board I use to help collect and organize sources I might use. Enjoy!

Carolyn Hasenfratz Winkelmann
Geri L. Dreiling, J.D.
MEDC 5350: Media Organization Regulations
20 December 2020

Can Laws Protect The Public From The Media?

Physical abuse of women in history has been mostly allowed to go on without consistent punishment until the 1990s.  Hundreds of years of beliefs that abuse victims deserve it, that the perpetrators who are punished are the real victims, or that abuse victims must be lying will likely take generations to diffuse because they were validated by hundreds of years of attitudes as well as the lack of prohibitive laws.  Another obstacle abuse victims have to face is a lack of enforcement even when there were applicable laws on the books (Bancroft 321).

In our culture, physical violence against domestic partners is slowly becoming less acceptable.  It is not as common as it used to be for family members, neighbors, or bystanders to look the other way when they witness abuse.  Some schools even teach children that they are entitled to safety from family members in their home instead of only strangers outside of it when they are teaching them how to call 911 for help (Bancroft 293).

Even though emotional and economic abuse can inflict severe harm, there are not as many legal preventive measures or remedies available for mental abuse as there are for physical violence (Bancroft 293).  It is difficult to promote awareness of the seriousness of emotional abuse when physical abuse has only been taken seriously in very recent history (Bancroft 321).

Negligent infliction of emotional distress, or NIED, is a tort that can be used in a suit against someone who carelessly caused emotional harm to another person (Trager et al 184).  A plaintiff hoping to win such a suit must be able to prove the following facts (Trager et al 184):

  • The defendant had a duty to use due care in interactions with the plaintiff.
  • The defendant acted negligently while failing to use due care.
  • The plaintiff has suffered injury.
  • The injury can be proven to be caused by the plaintiff’s negligent actions.

Attempts have been made to bring NIED lawsuits against the media as well as individual abusers, but they usually are not successful (Trager et al 185).  It is difficult for the plaintiff to prove proximate cause, that is, a reasonable finding that the defendant’s actions were directly to blame for the plaintiff’s injury (Trager et al 184).  It is theoretically much easier to prove that a media plaintiff was negligent because there are ample studies showing how media members should behave if they care about the public’s well-being, but negligence alone is not enough to win a suit (Trager et al 184-185).

If the behavior of the media defendant is so outrageous that “a civilized society” would consider it “intolerable and beyond all bounds of decency” then the potential tort might rise to the level of intentional infliction of emotional distress, or IIED (Trager et al 179).  The plaintiff must still prove direct causation (Trager et al 179).  In addition, if the plaintiff is a public figure, the defendant must be proven to have acted with actual malice, that is “publishing with knowledge of falsity or a reckless disregard for the truth” (Trager et al 181).  Even actual malice is sometimes not actionable if the courts interpret the defendant’s actions as satire or parody, or if the subject of the offending speech is about a matter of “public concern” (Trager et al 184).

One reason the media has so much latitude is because the founders of our country considered a free press and freedom of speech to be so important that they specified those rights in the First Amendment (Baran and Davis 30).  When members of the media are criticized for having harmful effects on our culture, they argue that they are not that influential, that they reflect society but don’t have the power to shape it.  At the same time, the media tells advertisers they can give them a good return on their investment and if an organization is of any significant size, be it government, nonprofit, or business, they spend money and resources on maintaining a public relations department (Baran and Davis 30).  A belief that media IS very influential is apparently coming from somewhere.

There has been disagreement among theorists, academics, government officials, media companies and the public about how legally free from restraint the media should be ever since there was such a thing as media (Baran and Davis 62-63).  The idea of technocratic control was considered and debated in the United States but ultimately rejected, at least if it was framed as control by the government.  Technocratic control is “direct regulation of the media” by technocrats, people considered to possess the correct values and skills to regulate media for the welfare of the public (Baran and Davis 62).  One of the reasons government technocratic control was rejected in the United States in the 20th century was because there was no consensus on who was qualified to have that power (Baran and Davis 62-63).  Regulations that applied in certain situations that passed First Amendment tests have been enacted over the years and are sometimes thrown out by the courts when re-tested.  The limits are renegotiated constantly from both the direction of greater freedom and the direction of more control (Baran and Davis 63).

Part of my incentive in choosing in this paper to examine parallels between domestic abusers and media abusers is the observation that both groups have the characteristic of constantly testing limits, like predators looking for weaknesses and loopholes to see what their targets and society will let them get away with.  Awareness and legislation often lag behind the latest technological developments and technocracy strategies.  Another reason is that abusers and media utilize many of the same manipulative techniques.  Does the media share some of the same motivations as domestic abusers?  Neither group can be trusted to be forthcoming about their intentions because of course they are more effective when their tactics are opaque – one can only judge by observing patterns of behavior.

There is another parallel between domestic abuse and media behavior that could be examined from a regulatory perspective.  In considering the pattern of legal intervention in abuse, physical harm was an obvious effect of abuse to be considered worthy of attention by the law.  When consumer products began to be subject to regulation in the United States, the danger of physical harm to the public was also an issue addressed early on.

Consumer protection laws began to be enacted in some US states as early as the mid-1800s to protect the public from adulterated food and drugs (Pride and Ferrell 78).  The federal Food and Drug Administration (FDA) was created to assume responsibility, formerly handled by the Department of Agriculture, for testing agricultural products (“The History of FDA’s…”).  The 1906 Pure Food and Drugs Act was a continuation this public safety work as the regulatory body evolved into what we know as the FDA by the 1930s (“The History of FDA’s…”).  There was a further push for increased legislation designed to reduce physical harm from products, their advertising, and labeling in the 1960s and 1970s (Pride and Ferrell 78).  Today there are several additional federal agencies created to help protect consumers.  Some of the major ones are the Federal Trade Commission (FTC), the Consumer Product Safety Commission (CPSC), the Federal Communications Commission (FCC), and the Environmental Protection Agency (EPA) (Pride and Ferrell 80).

Ideas are also products – they can be sold using a lot of the same strategies as tangible goods.  By the 1930s, the notion of regulating harmful ideas was part of the discussion and remains so to the present day (Baran and Davis 68).  An influential compendium of the state of scholarship on media effects, The Effects of Mass Communications, was published by Joseph Klapper in 1960.  Klapper’s opinion was that media was more of a reinforcer than a dictator of current culture because there were mitigating social institutions in peoples’ lives such as churches, families and schools (Baran and Davis 114).  If media actors with self-serving and destructive intentions wanted a strategy for how to break down society to bend more people to their will, it was made readily available to them, however unintentionally, by Klapper and other theorists.

Consumer protection laws of a sort directed at media and advertising do currently exist under the auspices of agencies like the FTC and the FCC.  Normally these laws don’t deal much with physical harm unless the issues are safety related.  Physical injury is however sometimes considered as part of the negligent infliction of emotional distress tort in some states.  It is acknowledged in some jurisdictions that physical assault can cause emotional distress, and severe emotional distress can cause harmful physical symptoms and disease (Trager et al 185).  If the link between the media and emotional abuse is better studied and acknowledged, and the link between emotional distress and physical disease is likewise given due consideration, a pathway to further regulation of media to protect consumers might be blazed through studies of the physical sufferings of those harmed when media abuse goes too far.

The FCC is permitted to regulate broadcast media to an extent because the airwaves are considered the property of the people.  Broadcast stations are thought to have a responsibility to the public due to the people’s ownership of the airwaves (Trager et al 402-403).  It is less clear who, if anyone, “owns” the internet, but it was originally partially developed by US taxpayer-supported institutions (Press).  As of 2015 the amount of foreign ownership of US communications companies was capped at 25% with the then-current FCC commissioner proposing to raise the cap on foreign investment or eliminating it entirely (Traeger et al 404).  The policy that foreign companies would be allowed to own anything that US citizens own or paid to develop is something the FCC could reconsider by following their normal procedures for a change of policy (Traeger et al 401).  Any corporation, association or individual affected by FCC regulations has the legal right to a challenge in Federal appellate court (Traeger et al 402).  Foreign exploitation via international internet scams is rampant all over the world but we still allow access to our citizens by criminals from foreign countries who don’t participate in international anti-fraud measures (“Report international scams…”).  Economic exploitation tips the power balance in the abuser’s favor (Bancroft 156).

Tactics Employed by Domestic Abusers

Here are some of the techniques that abusers use to gain control over their victims (Bancroft 74, 145-146, 213-214, Dwyer 55-56).

  • Ridicule, name calling, insults, put-downs, and sarcasm
  • Distorting what was said
  • Accusing you of doing what they do, or thinking the way they think (projection)
  • Using a tone of absolute certainty and final authority – “defining reality”
  • Turning your grievances around to use against you
  • Criticism that is harsh, undeserved, or frequent
  • Provoking inappropriate guilt
  • Playing the victim
  • Swearing
  • Threatening to harm you
  • Discrediting, spreading rumors
  • Silencing
  • Getting other people to put pressure on you
  • Spreading confidential information (doxxing)
  • Presenting one face in public and another in private to gain credibility and trust
  • Using events from the past or situations that can’t be changed as a reason a person should accept poor treatment
  • Collective punishment
  • Separating the target from sources of support

It is not easy sometimes for us to imagine that our entertainment providers would knowingly set out to abuse us, the consumers.  People often feel warm emotions toward celebrities and providers of entertainment.  A paper by Eduard Sioe-Hao Tan suggests why that might be the case (Tan 45).  “A lay person’s understanding of what it means to entertain somebody involves being amusing or giving pleasure, activities associated with being a good host to a guest.”  The entertainer may be considered responsible for voluntarily rendering a personal service to the viewer (Tan 45).

One trap that is easy for consumers to fall into is to forget that we are not really the ultimate customers for most entertainment products – the advertisers and sponsors are.  We may be the audience, but we are not the customer.  When considered in that light, it is a little more understandable why entertainment and media companies would be willing to actively abuse us, or at least not care if we become collateral damage.

In an article for Psychology Today, Dr. Jim Taylor proposed that what we now call “popular culture” is no longer a reflection of the genuine culture of the people, but an artificial, media-cultivated corporate culture that he names “synth culture” (Taylor “Popular Culture…”).  Cultivation Analysis is the theory that the media present a view that does not necessarily reflect reality, but because people believe it does, reality changes to conform to the media (Baran and Davis 287).  As early as the 1950’s, architects were creating buildings and landscapes to conform to movie and television versions of reality.  The cultural landscape known as Disneyland, for example, was the product of a media corporation and was not merely appealing to existing media-cultivated tastes but actively implanting them (Hine 150-152).

If the culture we have is not based on the genuine culture of the people but is deliberately planted there by the media, I postulate that if we don’t already have it, we will end up with a government that is no longer “of the people, by the people, and for the people,” but is of the self-appointed media technocracy whose primary interest is in exploiting us (Taylor “Popular Culture…”).  It’s obvious which political direction the technocracy wants us to go.  If we ask why, the large media corporations have the power to remove questions from public debate through moderating content and banning users with certain views even though they claim immunity under Section 230 of the Communications Decency Act (“Does Section 230’s…”).

The Rewards of Being Abusive

Above I have listed some of abuser’s techniques – now I’ll provide some of the possible incentives that motivate people to abuse other people.  Abusers enjoy the following advantages and privileges in life (Bancroft 43, 152, 153-158):

  • Abuse victims change their behavior and work to bolster the abuser’s self-esteem to win approval or tolerance.
  • Abusers gain the freedom to behave as they desire without restraint while getting lots of attention.
  • After being catered to, they get praise for being a great person and improve their public image when they act decent.
  • The comforts, privileges, and financial advantages of being catered to are too attractive to give up.
  • The thrill of having power is a seductive feeling.
  • The abuser can pick and choose low-stakes situations to act altruistic so that they can cultivate a positive image without making any actual sacrifices.
  • Abusing others can give the abuser temporary relief of frustration at life’s annoyances.
  • Others can be coerced into performing unwanted tasks or giving up resources, resulting in better quality of life or gratification for the abuser.
  • When people are deprived of financial resources or financial autonomy, they are much easier to control.
  • The abuser’s goals are prioritized while others are diminished. The abuser escapes consequences while others who would dare to engage in the same behavior are held accountable.
  • The abuser receives peer approval from the surrounding culture.
  • Disunity among a group gives the abuser more power by directing attention into fighting among themselves rather than holding the abuser accountable.

Abuse Examples and Comparisons

Here are a few examples of how members of the media have used abuse techniques to advance their agenda while disregarding the harm to individuals and society.

Abuse Example 1

Abuse benefits:  Abuse victims change their behavior and bolster the abuser’s self-esteem to win approval or tolerance.  Others can be coerced into performing unwanted tasks or giving up resources, resulting in better quality of life or gratification for the abuser.  Financial resources are often something abusers work on transferring from their targets to themselves (Bancroft 155-156).

Abuse tactic:  Using a tone of absolute certainty and final authority – “defining reality”.

Media example:  The highest status people in our culture tend to be doctors, lawyers, professors, executives, politicians, sports figures and entertainers (Dwyer 19).  Some of these people are at least well-educated, but many have no more knowledge or ability about most issues than we do.  When people are catered to as though they are of a higher status than the common person, they often feel entitled to treat us as inferior and expect us to defer to their authority (Dwyer 19).

News content producers can be an example of media using their sense of entitlement and branding skills to claim authority they have not really earned.  Before the 1970s, news programs were offered as a public service and run at a loss to the station in exchange for the right to use bandwidth on the limited public airwaves.  Released from that obligation, many news programs still claim the image of public service while earning large profits by featuring “sensational, sentimental or dramatic” stories that will attract mass audiences for their advertisers (Silverblatt et al 119).  In return for their airwaves generating profits for media companies, the public gains at best only low-quality entertainment disguised as news, and possibly manipulation, abuse and ill health.

Some prominent social media companies have recently declared themselves to be authorities on objective truth, supposedly in the service of their users, who they see as not as qualified to judge as their own self-declared technocracy.  They employ “fact checkers” to distinguish between beneficial and harmful content.  A couple of the areas they recently claim special authority on are Constitutional law and medicine (Lucas, “Does Section 230’s…”).  When a technocracy was originally considered for the United States in the 20th century, sufficiently wise people, such as social scientists, religious leaders, the military, the police, Congress and the FTC were considered as members (Baran and Davis 62-63).  Investigative journalists have been trying to investigate today’s new technocracy.  In documenting the harsh working conditions of Facebook content moderators, journalist Casey Newton found that most of Facebook’s content moderators are employees of outside contractors.  At one facility in Phoenix, content moderators are paid $28,800 per year as compared to the average Facebook employee compensation of $240,000 (Newton).  Facebook periodically audits the contract workers for accuracy, with accuracy defined as what Facebook decides it is.  It is unclear what the educational qualifications are to be a contracted content moderator or a Facebook employed auditor (Newton).

Abuse Example 2:

Abuse benefit:  The abuser receives peer approval from the surrounding culture.

Abuse tactic:  Provoking inappropriate guilt.

Media example:  Netflix aired a documentary showing walruses falling to their deaths from a cliff, claiming the deaths were caused by climate change.  In actuality, the falling walruses were chased by polar bears, and possibly were even frightened by the film crew’s disturbing presence in the area and noisy equipment (Foster).  Netflix gained the benefit of appearing to be socially responsible while directing attention away from their own possible culpability.  As professor of space architecture and author Larry Bell commented in Forbes, phenomena that we used to be taught were natural, such as earthquakes, “hurricanes, droughts, floods, blizzard cold weather conditions and such” are now our fault and we are pressured to feel guilty (Bell).

Many celebrities have shared mis-identified fire photos on social media, claiming they are current and from the Amazon rain forest, when they were sometimes not current and taken somewhere else (Richardson).  Perhaps they feel less guilty about their lifestyles for spreading these often unverified messages, while at the same time enjoying social approval from their peers without having to actually sacrifice anything.  One of the privileges abusers regularly enjoy is to feel better while others around them feel worse (Bancroft 31).

What is the cost to mental health of this constant bombardment of what some affix the label “tragedy porn”?  Therapy for eco-anxiety is a prominent field of mental health with over 120 practitioners known as far back as 2008 (Bell).  Sufferers of eco-anxiety have reported shoulder pain, fibromyalgia, fatigue, overeating, bulimia, depression and alcoholism (Bell).  96% of respondents of one study on relatively affluent Americans claimed that eco-anxiety changed their ideas about having children, 6% even going so far as to regret the ones they already have (Carrington).  What is it like for a child to grow up as a regret?  In one case a seven-month old baby is going to have to find out what it’s like to live through a gunshot wound in the chest as the only survivor of an Argentinian family killed in a murder-suicide pact apparently precipitated by eco-anxiety (Sacks).

Children and adults alike have been taunted with threats that important cultural traditions like Thanksgiving and Christmas will be ruined or cancelled because of climate change (Watts).  This could be interpreted as doubling down on the effort to induce poor mental health in viewers because religion is one of the well-known weapons against depression, anxiety, substance use disorder, suicidal behavior and poor physical health (Whitley).  Thanksgiving is a secular holiday, not a religious one, but gratitude is something both atheists and theists alike can embrace. However, too much gratitude is not good for the advertising business.  If people get too satisfied with what they already have, they won’t buy as many new things.  The idea that products should constantly be updated in appearance to make old versions obsolete or deliberately made not to last very long became mainstream by the middle of the 20th century in the United States (Hine 66).  The media likes to encourage us to buy unnecessary products  while at the same time promoting guilt in us because excess consumption is bad for the environment.  That behavior results in a triple win for the media/entertainment industry and their advertising clients – they sell more products, appear to be socially responsible for infiltrating our entertainment with guilt messages, and evade accountability for their own environmental misdeeds.

Abuse Example 3:

Abuse benefit:  The abuser’s goals are prioritized while others are diminished. The abuser escapes consequences while others who would dare to engage in the same behavior are held accountable.

Abuse tactics: Getting other people to pressure you, discrediting, spreading rumors, ridicule, name calling, insults, put-downs and sarcasm.

Media example:  Because they claim immunity under Section 230 of the Communications Decency Act, social media corporations such as Facebook and Twitter maintain they are not liable for the actions of their users (“Does Section 230’s…”).  At the same time, they can allow content they approve of and ban content they don’t approve of, boost content they favor and restrict content they disfavor, and promote or suppress users in an equivalent manner.  In that way they can discredit, spread rumors, bully, harass or otherwise pressure whoever they choose by selectively enforcing speech, while avoiding proposed regulation of this privilege by manipulating public opinion to vote for whoever is unlikely to impose regulations that would reduce their technocratic control (“Does Section 230’s…”).

Sophisticated advertisers know what anxieties, fears and insecurities their target audiences are prone to, and they know how to trigger them at will and then offer products and ideas as solutions to the uncomfortable feelings that result (Silverblatt et al 291).  Facebook ran a test in 2012 to see if they could go beyond mere curation and actually prompt the type of content users post on their platform by manipulating people’s moods (Meyer).  They succeeded, and if there was ever any doubt, everyone now knows that they have the power to recruit their users into unconsciously propagating the media’s agendas and those of their advertisers.  Fear and anxiety have been known to be aids to selling products for a long time (Packard 48, 58-59, 221-223).  When Vance Packard published his book The Hidden Persuaders in 1957, the techniques advertisers studied to appeal to our fears and anxieties were still new to the public (Hine 28).  Even though the methods are no longer new, they still work as the Facebook experiment demonstrates (Meyer).  There are a number of possible health related side effects resulting from induced fear and anxiety, including fevers, vomiting, impotence, diarrhea, increased heart rate, fatigue, nausea, sleep problems, reduced ability to fight infections, heart disease, inflammation, irritable bowel syndrome, substance abuse, social dysfunction and suicidal thoughts (Dyer 33, 197-198, Leonard).

Even with the available legal remedies, there is a limited amount that can be done for a victim of physical or mental abuse unless they decide to stop accepting the abuse and take action to use what help is available to assist in freeing themselves.  Many of the harmful mental and physical effects of media can be overcome if individuals make the decision to reclaim their agency and follow up with suitable action.  Abused individuals and abused media viewers are groomed in a similar manner with deceptive seductive techniques that hide the true intent of the abuser.  Abuse and grooming gradually break down the resistance and health of the target to make the target less able to fight and break free from bondage.

Dangerous and addictive products that are regulated as “vice” products perhaps provide a precedent for the legal system and government agencies to regulate abusive media in a similar manner.  “Vice” products are related to activities that are not considered healthy or moral and whose use is controlled to some extent by age-related or other restrictions (Trager 547).  Categories of “vice” products currently include alcohol, tobacco, hookahs, e-cigarettes, drugs, gambling, sexually explicit material, firearms and marijuana (Trager 547, 550).  In the past some of the methods of combating the harm caused by the misuse of these products has taken the form of public service messages and warning labels.  The battle lines which government agencies and commercial interests navigate as they both attempt to advance their opposing goals is constantly in flux, with states and local jurisdictions having a lot of leeway to tighten or loosen regulations on vice products (Trager et al 542-555).  If the media is going to intentionally or negligently affect our health, I think a case can be made for providing media literacy information content on their channels in lieu of labeling on media products in exchange for the benefits their corporate owners enjoy at the public’s expense.

Some forms of media regulation have been allowed by Federal government agencies and the courts in the past to promote the ability of citizens to make informed choices about their health, welfare and the consumption of products and ideas.  Here are a few examples of past attempts by the FCC.

From 1949-1989 the Fairness Doctrine required broadcast stations to provide programming that presented diverse views on controversial topics of public importance (Trager et al 408).

The personal attack rule required broadcasters to provide a rebuttal forum for the subjects of an-air attacks on their “integrity, honesty, or character”.  Because the personal attack rule did not apply to public officials, it had limited power to limit one-sided attacks.  Even that protection for private individuals was eliminated in 2000 (Trager et al 409).

Under the political editorial rule, private broadcasters were required to allow legally qualified candidates for public office rebuttal time in response to editorials aired either against the candidate or in favor of a rival.  The political editorial rule also ended in 2000 (Trager et al 409).  Public broadcasters are not allowed to endorse a candidate but can editorialize on public issues (Trager et al 409), some of which could affect the livelihoods of those who work for public broadcasters and in that case could be one-sided and self-serving.  The taxpayers who fund a portion of public broadcasting involuntarily are afforded no opportunity to rebut (Trager et al 417).

Net neutrality was the requirement for internet service providers to treat all internet traffic equally and not set up paid priority service for preferred content (Traeger et al 423).  Net neutrality was repealed in 2018 (Morton). Some states have started to create their own net neutrality legislation since it no longer exists at the Federal level (Morton).

There was a time when the four above regulations were considered acceptable under the First Amendment.  The First Amendment has not yet changed – not the text of it anyway.  I suggest that as a country we consider bringing some regulations back, as they are possible hedges against the technocracy gaining further power over us and increasing their ability to abuse.

Works Cited

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Baran, Stanley J. and Dennis K. Davis. Mass Communication Theory: Foundations, Ferment, and Future. Seventh Edition. CENGAGE Learning, 2015.

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—. “Popular Culture: We Are What We Consume.” Psychology Today, 2009, www.psychologytoday.com/us/blog/the-power-prime/200912/popular-culture-we-are-what-we-consume. Accessed 15 December 2020.

“The History of FDA’s Fight for Consumer Protection and Public Health.” Food and Drug Administration, 2018, www.fda.gov/about-fda/history-fdas-fight-consumer-protection-and-public-health. Accessed 19 December 2020.

Trager, Robert Susan Dente Ross and Amy Reynolds. The law of journalism and mass communication. Sixth Edition. SAGE Publications, Inc. 2018.

Watts, Anthony. “Future Holiday Hell – A Repeating Pattern of Climate Change Doomerism.” The Heartland Institute, 2020, climaterealism.com/2020/11/future-holiday-hell-a-repeating-pattern-of-climate-change-doomerism/. Accessed 17 December 2020.

Whitley, Dr. Rob, “Religion and Mental Health: What Is the Link?” Psychology Today, 2017, www.psychologytoday.com/us/blog/talking-about-men/201712/religion-and-mental-health-what-is-the-link. Accessed 18 December 2020.

Pinterest Board I Use To Collect Sources for Advertising and Marketing Degree Work

Media Analysis – lots and lots and lots and lots of sources on related topics. Some of which I have used, some of which I haven’t.

Blog Posts I Have Written On Related Topics

Winkelmann, Carolyn Hasenfratz. “Freedom of Expression in The Age Of Powerful Technology Corporations”. Carolyn Hasenfratz Design, 2020, www.chasenfratz.com/wp/4051-2/.

—. “The Snapchat Indecency Lawsuit”. Carolyn Hasenfratz Design, 2020, www.chasenfratz.com/wp/snapchat-indecency-lawsuit/.

—. “Attempting to Protect the Vulnerable from Violence”. Carolyn Hasenfratz Design, 2019, www.chasenfratz.com/wp/attempting-protect-vulnerable-violence/.

—. “How do we decide which media sources we can trust?”. Carolyn Hasenfratz Design, 2019, www.chasenfratz.com/wp/3534-2/.

—. “Media Literacy and Interpreting Political Messages”. Carolyn Hasenfratz Design, 2019, www.chasenfratz.com/wp/political-ads-about-political-ads-and-trolling/.

—. “Pride & Prejudice: Light Holiday Entertainment?”. Carolyn Hasenfratz Design, 2019, www.chasenfratz.com/wp/pride-prejudice-light-holiday-entertainment/.

—. “The Spiral of Silence Theory”. Carolyn Hasenfratz Design, 2019, www.chasenfratz.com/wp/the-spiral-of-silence-theory/.

—. “Self-help techniques for depression”. Carolyn Hasenfratz Design, 2018, www.chasenfratz.com/wp/2758-2/.

—. “A Comparison Between Emotional Abuse and Saul Alinsky’s ‘Rules for Radicals’.” Carolyn Hasenfratz Design, 2017, www.chasenfratz.com/wp/a-comparison-between-emotional-abuse-and-saul-alinskys-rules-for-radicals/.

—. “My New Planner Layout”. Carolyn Hasenfratz Design, 2017, www.chasenfratz.com/wp/my-new-planner-layout/.

—. “Book Review: “Surviving a Shark Attack (On Land) – Overcoming Betrayal and Dealing With Revenge” by Dr. Laura Schlessinger”. Carolyn Hasenfratz Design, 2016, www.chasenfratz.com/wp/book-review-by-dr-laura-schlessinger/.

—. “Book Review: ‘Why Does He Do That? Inside the Minds of Angry and Controlling Men’”. Carolyn Hasenfratz Design, 2016, www.chasenfratz.com/wp/why-does-he-do-that-inside-the-minds-of-angry-and-controlling-men/.

—. “Creative Arts Fellowship at DaySpring School of the Arts”. Carolyn Hasenfratz Design, 2016, www.chasenfratz.com/wp/creative-arts-fellowship-at-dayspring-school-of-the-arts/.

—. “A plea for the humane treatment of Wiggles the pet starling”. Carolyn Hasenfratz Design, 2014, www.chasenfratz.com/wp/a-plea-for-the-humane-treatment-of-wiggles-the-pet-starling/.

Dealing with Deceptive and Unfair Messages

Here is another one of my homework assignments for Media Organization and Regulations class. Please read it if you are interested in preventing financial abuse to yourself or others. Some of this information you probably know but it never hurts to have a refresher on such a critical issue. This paper has been graded but I haven’t changed anything since turning it in yet. I’ll update these comments if I do so later.

Carolyn Hasenfratz Winkelmann
Geri L. Dreiling, J.D.
MEDC 5350: Media Organization Regulations
13 December 2020

Dealing with Deceptive and Unfair Messages

The Federal Trade Commission, or FTC, has the authority based on Section 5(a) of the FTC Act to protect citizens from unfair or deceptive commercial messages.  A message is considered deceptive if it is likely to mislead a reasonable consumer (“A Brief Overview…”).  An unfair practice is one that causes or is likely to cause “substantial injury” which consumers cannot reasonably avoid and there are no “countervailing benefits” to justify it (“A Brief Overview…”).

The first line of defense for consumers is information.  The FTC provides a web page with information to help consumers recognize deceptive messages as well as tips on what actions to take if they receive such a message (“How to Recognize…”).  Blocking and reporting messages are recommended strategies.  The FTC recommends reporting SPAM messages to the app the consumer is using, as well as to the FTC.  The FTC investigates complaints and if unlawful activities are found, the FTC will take administrative or judicial action which may eventually result in civil penalties (“A Brief Overview…”).

An example of one case brought by the FTC to get justice and relief for victimized consumers is Federal Trade Commission vs. Ecommerce Merchants, LLC and Cresta Pillsbury, Jan-Paul Diaz, Joshua Brewer and Daniel Stanitski  (Federal Trade Commission… 1).  The FTC alleged that the defendants were guilty of sending 30 million unwanted SPAM messages that were not only unwanted but deceptive (Federal Trade Commission… 5-6).  Just receiving the unwanted messages was financially damaging to the consumers who according to their service contracts possibly had to pay or use credits to receive the messages (Federal Trade Commission… 7).  Monies that the deceptive messages generated for the defendants was deemed by the FTC to be unfair and the defendants likely to continue to offend (Federal Trade Commission… 9).

The FTC petitioned for the following actions (Federal Trade Commission… 9-10):

  1. That the activity cease while the case is pending, the assets preserved and accounting performed.
  2. The defendants be permanently banned from sending these messages.
  3. The injured consumers be released from contracts, be paid restitution and refunds, and fraudulently obtained monies be confiscated from the defendants.
  4. Repayment of court costs and other expenses deemed necessary by the court by the defendants to the plaintiff.

If implemented, it is my opinion that the above should adequately punish the offenders and repay the consumers if the victims are allowed to collect not only for the dollar value of what they lost but other expenses such as the time they spent dealing with and documenting the problem.  The consumers should also be made whole if they had to pay late fees, have their credit score damaged or other such losses that can occur when a financial problem starts snowballing.

A weakness in this kind of enforcement is apparent when consumers are victimized by international scams.  An organization called econsumer.gov, an initiative of the International Consumer Protection and Enforcement Network (ICPEN), attempts to unite consumer protection agencies from around the world to fight international scams.  With only 40 countries participating, obviously there are many countries that do not cooperate.  I think we should consider not allowing messages from countries that don’t participate in this or some similar international anti-fraud program to be sent to US-based text or email addresses.

 

Works Cited

“About Us.” International Consumer Protection and Enforcement Network (ICPEN), 2020, econsumer.gov/en/Home/About/3#crnt. Accessed 13 December 2020.

“A Brief Overview of the Federal Trade Commission’s Investigative, Law Enforcement, and Rulemaking Authority.” Federal Trade Commission, 2019, www.ftc.gov/about-ftc/what-we-do/enforcement-authority. Accessed 13 December 2020.

Federal Trade Commission vs. Ecommerce Merchants, LLC and Defendants. 1:13-cv-01534. 2013. www.ftc.gov/sites/default/files/documents/cases/2013/03/130307superiorcmpt.pdf. Accessed 13 December 2020.

“How to Recognize and Report Spam Text Messages.” Federal Trade Commission Consumer Information, 2020, www.consumer.ftc.gov/articles/how-recognize-and-report-spam-text-messages. Accessed 13 December 2020.

Trager, Robert Susan Dente Ross and Amy Reynolds. The law of journalism and mass communication. Sixth Edition. SAGE Publications, Inc. 2018.

The Snapchat Indecency Lawsuit

Everyone I know is probably getting tired of me saying that we have to be wary of the communication technology we use. A lot of it looks like it has a beneficial purpose on the surface but is something else when you dig into it a little deeper. I am a heavy user of social media and technology for marketing purposes so rather than stop using it I’m trying to be more careful about the amount of exposure I have and the type of exposure. I have never used Snapchat. For my homework I had to write about an indecency lawsuit against Snapchat so had to quickly read about how it works and what it does. It is widely believed in some circles that large segments of leaders in media, culture and business are constantly looking for ways to groom minor children for sexual exploitation. Do you agree or disagree?  This paper has been graded but I didn’t change anything before publishing. I am not an attorney or law student, I am a Marketing and Advertising Communications major.

Carolyn Hasenfratz Winkelmann
Geri L. Dreiling, J.D.
MEDC 5350: Media Organization Regulations
29 November 2020

The Snapchat Indecency Lawsuit

Snapchat is a messaging app that also features paid advertising and content reformatted and republished from other information providers, known as Discovery partners.  When Discover first launched, Snapchat stated on its blog that the Discover partners would be editors and artists who are “world-class leaders” providing “important” content, superior to social media which shows only what is “most recent or most popular” (Team Snapchat).

The Discover feature of Snapchat generated a lot of criticism when it was new.  Among other complaints, a lot of users disliked the Discover content being featured prominently in the display and being difficult to ignore if one was using the app for other purposes such as chatting or photo sharing (Dredge).  Complaints about sexually offensive material being pushed to minors led to a class action lawsuit against Snapchat citing violations of Sections 230 and 231 of the Communications Decency Act of 1996 in addition to other violations of State consumer law (Doe, John vs. Snapchat, Inc.).  Here is a listing of the five causes of action in the complaint (Doe, John vs. Snapchat, Inc.):

  1. Violations of Unfair Business Practices Act [Cal. Bus. & Prof.Code § 17200]
  2. Negligence
  3. Violations of 47 U.S.C. §230
  4. Unjust Enrichment
  5. Injunctive Relief

At the time of the lawsuit, around 23 percent of users of Snapchat were between the ages of 13-17 (Doe, John vs. Snapchat, Inc.).  Snapchat was not accused of singling out underage users to push sexually oriented content to, rather the lawsuit was based on failing to warn users about content that was inappropriate for minors and failing to provide a way to filter out unwanted adult-oriented sexual content (Doe, John vs. Snapchat, Inc.).

Here are some titles of sampled “important” articles that “world class” editors and artists selected for their users that were alleged by the plaintiffs to violate decency and consumer laws:

  • “10 Things He Thinks When He Can’t Make You Orgasm”
  • “F#ck Buddies Talk About How They Kept It Casual”
  • “23 Pictures That Are Too Real If You’ve Ever Had Sex With A Penis”

In the past, marketers have been criticized for using cute animal mascots to make beer brands more appealing to minors while claiming that they are only marketing to people who are old enough to legally consume the product (Andrews, Newman).  It was alleged in the Snapchat lawsuit that some of the images accompanying the offending articles appealed to kids by showing Disney characters paired with sexually suggestive captions and an illustration showing two dolls in a dollhouse engaging in sexual intercourse (Doe, John vs. Snapchat, Inc.).  In the opinion of the plaintiffs, such images appear to be “directly marketed to minors based on the use of cartoons, childhood relatable images, and very young looking models” (Doe, John vs. Snapchat, Inc.).

Indecent material can be defined in different ways.  The Supreme Court considers indecent material to be “nonconformance with accepted standards of morality” (Trager et al 457).  To the FCC, indecency consists of “sexual expression and expletives” that are deemed harmful to children and therefore prohibited on broadcast television and radio at times of the day when children are likely to be exposed (Trager et al 442, 456).

By selecting and curating content, it could be argued that Snapchat took on the role of information content provider.  A Snapchat spokesperson said that “Our Discover partners have editorial independence…” (Gardner).  Snapchat may want to give the impression that the discover partners are truly independent but they can be de-platformed instantly if the CEO does not like the content they provided, as former Discover partner Yahoo found out (Flynn).

Section 230 of the Communications Decency Act of 1996 puts most of the burden for avoiding offensive non-broadcast content on the end user, or the parents or guardians of the end user if the person is a minor (47 U.S. Code…).  The law distinguishes between an interactive computer service, which is a passive tool for users to publish and consume the content they choose, and an information content provider that selects material for distribution (47 U.S. Code…).

However, I think a case can be made that Snapchat had a duty to warn.  Section 230 subsection D, Obligations of interactive computer service, states (47 U.S. Code…):

“A provider of interactive computer service shall, at the time of entering an agreement with a customer for the provision of interactive computer service and in a manner deemed appropriate by the provider, notify such customer that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors. Such notice shall identify, or provide the customer with access to information identifying, current providers of such protections.”

Snapchat does not allow users under the age of 13, and asks for birth dates during the signup process, so they knew that minors were using their app (Doe, John vs. Snapchat, Inc.).  In that light, I think it could be argued that Snapchat was at best negligent because of their following actions:

  • Deliberately choosing brands such as Cosmopolitan, MTV, Comedy Central and Vice to provide content
  • Pushing the content headlines by making them part of the user interface so that everyone sees them without seeking them out
  • Pushing the content headlines unfiltered by age
  • Combining sexual content with images that appeal to children
  • Dishonesty about their editorial goals and standards for the Discover content

Works Cited

Andrews, Robert M. “Teetotaler Thurmond Raps Spuds MacKenzie Beer Promotion.” The Associated Press, 1987, apnews.com/article/03e7a81bdc59e057aa34abefeaa82cce. Accessed 29 November 2020.

Doe, John vs. Snapchat, Inc. 2:16-cv-04955. 2016. www.scribd.com/document/317726589/Snapchat-lawsuit. Accessed 28 November 2020.

Dredge, Stuart. “Snapchat redesign promotes Discover – but some users are unhappy”. Guardian News & Media Limited, 2015, www.theguardian.com/technology/2015/jul/14/snapchat-redesign-discover-partners-stories. Accessed 29 November 2020.

Flynn, Kerry. “Snapchat Discover One Year Later: How 23 Media Companies Are Building Stories For Evan Spiegel.”  IBTimes LLC., 2016,
www.ibtimes.com/snapchat-discover-one-year-later-how-23-media-companies-are-building-stories-evan-2281851. Accessed 29 November 2020.

“47 U.S. Code § 230 – Protection for private blocking and screening of offensive material.” Legal Information Institute, 2020, www.law.cornell.edu/uscode/text/47/230. Accessed 29 November 2020.

Gardner, Eriq. “Snapchat Sued for Exposing Kids to Media Partners’ ‘Sexually Offensive Content’.” The Hollywood Reporter, 2016, www.hollywoodreporter.com/thr-esq/snapchat-sued-exposing-kids-media-909096. Accessed 28 November 2020.

Newman, Andrew Adam. “Youngsters Enjoy Beer Ads, Arousing Industry’s Critics.” The New York Times Company, 2006, www.nytimes.com/2006/02/13/business/media/youngsters-enjoy-beer-ads-arousing-industrys-critics.html. Accessed 29 November 2020.

Team Snapchat, “Introducing Discover.” Snap Inc., 2015, www.snap.com/en-US/news/post/introducing-discover/. Accessed 29 November 2020.

Trager, Robert Susan Dente Ross and Amy Reynolds. The law of journalism and mass communication. Sixth Edition. SAGE Publications, Inc. 2018.

Contracts and Shared Economy Applications

Here is another homework assignment for my Media Organization Regulations class. Technology opens up new ways of trying to make an income, and new legislation of various kinds often follows after the effects on society and other businesses become manifest. If you are interested in exploring the “gig economy”, “side hustles” or income streams based on assets that you share such as Uber, Airbnb and similar services, you might find this material interesting. I am not a law student or attorney, I am an Advertising and Marketing Communications major. This homework has been graded but I didn’t change anything except an instance of repetitive wording before publishing.

“Carolyn Hasenfratz Winkelmann
Geri L. Dreiling, J.D.
MEDC 5350: Media Organization Regulations
22 November 2020

Contracts and Shared Economy Applications

A contract must include the following elements (“Contract”):

  • Mutual assent – an offer has been made by one party and the other has accepted it.
  • Adequate consideration – there is an agreement to a payment or compensation of some kind for performing the work.
  • Capacity – do the parties meet the legal requirements for being eligible for entering into contracts?
  • Legality – is the purpose of the contract within the law?

Laws of the different states in the U.S. might have different interpretations of some of the elements of the above categories, with allowance for different remedies if a party is in breach of a contract (“Contract”).

A digital contract is a contract in which no paper is used.  The technology used to indicate acceptance of the contract does vary, and there are some types of contracts that cannot legally be executed digitally (O’Connell).  In order for some digital contracts to be valid and enforceable, measures having to do with security and consent must be taken that are unique to digital contracts (O’Connell).  These additional steps don’t have to do with the basic elements of a contract, however – the elements have to be present whether the contract is verbal, digital or written on paper.

In New York City, building owners, called “hosts” in this context, have to follow a strict set of regulations if they want to offer their property for short-term rentals on shared economy web sites such as Airbnb (“How to Navigate…”).  Other cities in the United States have adopted similar restrictions (“How to Navigate…”).

Proponents of these regulations in New York City say they are intended to hold down housing costs, make it more difficult for property owners to dodge taxes, prevent residential buildings from being turned into hotels and to increase property owner compliance with safety regulations (“How to Navigate…”, Kerr).

Those who want more freedom for hosts in managing their own property are concerned that the legislation is designed to help the hotel industry and unions at others’ expense (“How to Navigate…”).

In Brentwood, MO where I own a condominium, if I were to contemplate using it for short-term rentals, I would be subject to any applicable regulations set by the condo complex, the municipality, the county and the state (Capes Sokol).  A quick search shows that city regulations in Brentwood prohibit any rentals of less than 30 days duration in the interests of reserving residential areas for long-term living (Miner).  If I were to attempt to defy the law and create a listing for my condo on a short-term rental shared economy web site, any contract I might enter with a potential customer would be invalid because the purpose of the contract would not be within the law (“Contract”).  Missouri law is silent on shared economy rentals so smaller government entities within Missouri are free to make their own regulations (Capes Sokol).

I’m generally in favor of more freedom rather than less, especially when making decisions about what to do with one’s own property. However, living close to other people does necessitate consideration for neighbors and we already accept a lot of laws that enforce some concessions from members of the community that they might not offer voluntarily. Condominiums and apartments have additional special considerations that detached single family homes don’t have.  I can understand the concerns of someone who thought they were buying a home but find themselves inadvertently living in a hotel.

New York City has taken the additional step of making just creating a shared economy listing for an ineligible property illegal, and punishable by substantial fines (Fishman).  Airbnb is currently challenging this law on free speech grounds and until the issue is resolved New York City is refraining from enforcing it.  At first I thought the city might be going too far, so I decided to look at how they handle advertising for another service that is illegal – prostitution.  In New York law, just to offer the service is illegal (FindLaw), so that seems consistent with the ban on advertising short-term rental listings where they are not allowed.”

Works Cited

Capes Sokol. “Important Considerations for Short-Term Property Rental Hosts in Missouri.”

Capes Sokol, 2016, www.capessokol.com/insights/considerations-short-term-property-rental-hosts-missouri/. Accessed 22 November 2020.

“Contract.” Legal Information Institute, 2020, www.law.cornell.edu/wex/contract. Accessed 19 November 2020.

FindLaw, “New York Prostitution Laws.” Thomson Reuters, 2018, statelaws.findlaw.com/new-york-law/new-york-prostitution-laws.html. Accessed 22 November 2020.

Fishman, Steven. “How to Airbnb in New York City.” Nolo, 2020, www.nolo.com/legal-encyclopedia/overview-airbnb-law-new-york-city.html. Accessed 22 November 2020.

“How to Navigate the NYC Airbnb Law.” Shared Economy, 2019, sharedeconomycpa.com/blog/nyc-airbnb-law/. Accessed 22 November 2020.

Kerr, Dara. “NYC fines Airbnb hosts for ‘illegal’ home rentals.” CNET, 2017, www.cnet.com/news/airbnb-nyc-law-hosts-fined-for-illegal-home-rentals/. Accessed 22 November 2020.

Miner, Doug. “Brentwood clarifies law: no to short term rentals.” 40 South News, 2018, 40southnews.com/brentwood-officials-pass-bill-to-prohibit-short-term-rentals/. Accessed 22 November 2020.

O’Connell, Ann. “Electronic Signatures and Online Contracts.” Nolo, 2020, www.nolo.com/legal-encyclopedia/electronic-signatures-online-contracts-29495.html. Accessed 22 November 2020.

The Right to Privacy

The new season of the Netflix series “The Crown” is out. Around this time last year I wrote a homework assignment paper about the production elements in the show for Media and Culture class. As I start to view the new Season 4, I’m recalling our studies last week in Media Organization Regulations class on the legal aspects of privacy. How does what we learned illuminate how entertainment companies depict real people in a fictionalized drama? Here is an amalagamation of a couple of last week’s homework assignments. If you like to watch “The Crown” or other dramas based on historic events and real people, you might find some of the legal considerations involved interesting. In the series are also depictions of emotional abuse and mental illness, topics I’ve written about before and which again came up in last week’s homework. Abuse takes many forms and some of them are perfectly legal. These selections have been graded by my professor but I didn’t make any changes before publishing. Please keep in mind I am not an attorney or law student, I’m an Advertising and Marketing Communications major. Enjoy!

The Right to Privacy

The theory of a right to privacy developed in US law over about the last 130 years, derived from the 3rd, 4th, 5th and 14th amendments (Trager et al 234). The right to privacy is defined as “1) The right not to have one’s personal matters disclosed or publicized; the right to be left alone. 2) The right against undue government intrusion into fundamental personal issues and decisions” (Legal Information Institute “Right to privacy”).

A tort is a transgression by one person or entity on another’s rights, resulting in an injury (Trager et al 234). Law school dean William Prosser described four torts in the following categories; “false light, appropriation, intrusion and private facts” (Trager et al 235). Commercialization and the right to publicity are sub-categories under appropriation (Trager et al 235). The right to publicity “prevents the unauthorized commercial use of an individual’s name, likeness, or other recognizable aspects of one’s persona. It gives an individual the exclusive right to license the use of their identity for commercial promotion” (Legal Information Institute “Publicity”). Besides being a subset of the right to privacy, the right to publicity differs in that it prevents unauthorized commercial exploitation of an individual rather than addressing non-commercial violations of rights.

right_to_privacy_diagram

False light, intrusion and private facts only apply to living persons (Trager et al 235). The appropriation tort is broader. It applies to living persons and in addition the deceased, businesses, non-profits and associations (Trager et al 235). The states vary a great deal in which torts they recognize – many only recognize single categories or subsets and not necessarily the same ones (Trager et al 235).

Celebrities don’t forfeit their right to privacy by being celebrities, but since people want to know about them many of their activities could be considered newsworthy (Trager et al 246). That doesn’t mean people are entitled to know facts about a celebrity that are not determined to be in the public interest (Trager et al 260, 262). A person’s notoriety might make them the licit subject of a satirical, artistic or transformative work that stops short of commercial use (Trager et al 248-249), which would interfere with the celebrity’s right to publicity.

Appropriation, Commercialization and Political Speech

Appropriation torts are recognized by 46 states, the District of Columbia, the U.S. Virgin Islands, and Puerto Rico (Trager 235).  The remaining four states have yet to rule on appropriation (Trager 241).  Commercialization and the right to publicity are the two torts included in the privacy law category of appropriation (Trager 235).  Commercialization, also known as misappropriation, is the act of using the likeness or name of a living or dead person in advertising or for commercial purposes without seeking permission from the individual in question or that of the heirs (Trager 236, 241).

The commercialization prohibition is less likely to be applied to a deceased person than right of publicity because it is intended to prevent emotional distress to an individual by upholding the person’s dignity in preserving their personal right to privacy.  As a personal right, it is not usually thought by the courts to apply after death, unlike the right to publicity which deals with the monetary value of one’s identity a form of property that can be transferred or inherited (Trager 242).

Dan Frazier is a retailer and activist who sells left-wing themed political merchandise and other products through his company Lifeweaver LLC (Lifeweaver LLC, team@lifeweaver.com).  In the first decade of the 2000s he started selling anti Iraq war t-shirts with the names of U.S. soldiers who had thus far died in the war as part of the design in small print.  Enough families of the deceased soldiers were outraged by their family members names being used to make money for Frazier that laws were passed in several states making the sale of merchandise that appropriated soldiers names or likenesses without permission illegal (Fischer, “Mom Wants Dead…”).  Frazier’s home state Arizona was one of those passing such a law (Fischer).  Frazier, represented by the ACLU in a case heard in a federal court in Phoenix, was able to stop state and local officials from prosecuting him, citing First Amendment rights to freedom of speech.  The federal court declined to strike the Arizona law from the books and decided to let future similar cases be decided on their own merits (Fischer).  The defenses against appropriation are newsworthiness, the appropriated material being in the public domain, freedom of speech under the First Amendment, incidental use, self promotional ads for the mass media, and consent (Trager 245). How would these defenses possibly apply to Frazier’s case and any future cases that are similar?

Newsworthiness

The U.S. Supreme Court has decided an appropriation case based on newsworthiness before, in hearing whether a news station deprived stuntman Hugo Zacchini of his rights to make a profit from his human cannonball act by airing the entire act as part of a news broadcast.  The court found in Zacchini’s favor, giving his right to publicity more weight than the news station’s First Amendment right to free speech (Trager 247).  In Frazier’s case, newsworthiness is obliquely mentioned in the complaint (Frazier CV07-8040-PCT-NVW) but not as a factor in the decision (Frazier 07-CV-8040-PHX-NVW) though perhaps it could have been.  Deaths in war are news, and courts have previously found that newsworthiness is a defense even though news content is sometimes sold (Trager 246).  Dan Frazier presents his company as a retailer of products as opposed to a news organization (“Campaign Finance Report…”, team@lifeweaver.com).

Public Domain

The names of those killed in war are public information, as again obliquely mentioned in the complaint (Frazier CV07-8040-PCT-NVW), and in my opinion would qualify as factual information that is in the public domain (Trager 248).

First Amendment

Most prominent in the complaint and the court’s findings are issues concerning free speech under the First Amendment. Cited in the decision was a U.S. Supreme Court case, Riley v. National Federation of the Blind, which ruled that if speech is a blend of commercial and some other purpose, the two purposes cannot be parsed out and must be considered together. Given this finding, Frazier’s t-shirts were determined to be protected by First Amendment rights as any other type of political speech would be (Frazier 07-CV-8040-PHX-NVW).

Ads for the Media

Mass media may use names and likenesses of public figures in advertisements for products if the identity-related elements are part of the original content (Trager 251).  The court in Frazier’s case considered but declined to evaluate separately the legality of the t-shirt products themselves and catalog pictures of the t-shirts with close ups showing some of the soldier’s names.  Perhaps the court did not feel it necessary to comment on whether it mattered in this context whether the names were of private or public figures since it had already found that pictures of the merchandise were “inextricably intertwined with otherwise fully protected speech” (Frazier 07-CV-8040-PHX-NVW).

Consent

Frazier made no pretense to claiming consent.  His web site included a statement reading, in part, “I have no plans to remove any names or discontinue any of these products, no matter how many requests I receive” (Watters).  He and his legal team believed they did not need it, and were eventually found to be correct in the legal sense (Frazier 07-CV-8040-PHX-NVW).  Frazier’s personal code of ethics did not preclude him from acting in a way that caused some families of the fallen soldiers listed on the t-shirts to experience what they categorized, but were unable to prove in a Tennessee court, as negligent and intentional “infliction of emotional distress” (Read).

Incidental Use

Frazier did not need to invoke the defense of incidental use to justify the soldier’s names on the t-shirts, but in my opinion incidental use would have applied (Trager 252).  An individual soldier’s name was not the main focus of the shirt design and was in a font small enough to only be legible at close viewing (Frazier CV07-8040-PCT-NVW).

Lanham Act

In my opinion the commercial appropriation issues invoked by the t-shirt design are not in the “zone of interest” of the Lanham Act of 1938, which is concerned with false or misleading advertising (Trager 556).

Works Cited

“Campaign Finance Report 2010 March/May Regular Election.” City of Flagstaff, Arizona, 2010, www.flagstaff.az.gov/DocumentCenter/View/10843/Dan-Frazier. Accessed 15 November 2020.

Fischer, Howard, “Antiwar T-shirts win protection.” Capitol Media Services, 2008, azdailysun.com/news/antiwar-t-shirts-win-protection/article_d0dd0588-d6dc-5b28-acfe-70771736099a.html. Accessed 15 November 2020.

Frazier, Dan vs. Defendants. CV07-8040-PCT-NVW. 2008. Print.
—. 07-CV-8040-PHX-NVW. 2008. Print.

Legal Information Institute. “Right to privacy.” Cornell Law School, 2020, www.law.cornell.edu/wex/right_to_privacy. Accessed 12 November 2020.
—. “Publicity”. Cornell Law School, 2020, www.law.cornell.edu/wex/publicity. Accessed 12 November 2020.

“Lifeweaver LLC.” Bizapedia.com, 2019, www.bizapedia.com/nm/lifeweaver-llc.html. Accessed 15 November 2020.

“Mom Wants Dead Son Off Anti-War Shirt.” CBS Interactive Inc., 2008, www.cbsnews.com/news/mom-wants-dead-son-off-anti-war-shirt/. Accessed 15 November 2020.

Read, Robin, et al v. Lifeweaver, LLC et al. 2:08-CV-116. 2010. www.leagle.com/decision/infdco20100506b78. Accessed 15 November 2020.

team@lifeweaver.com, “Lifeweaver LLC.” 2020, lifeweaver.com. Accessed 15 November 2020.

Trager, Robert Susan Dente Ross and Amy Reynolds. The law of journalism and mass communication. Sixth Edition. SAGE Publications, Inc. 2018.

Watters, Jesse “Confronting Frazier.” BillOReilly.com, 2006, www.billoreilly.com/b/Confronting-Frazier/-643011088989176289.html. Accessed 15 November 2020.

 

What does it mean to be considered “libel-proof”?

Here is a homework assignment for my Media Organization Regulations class at Webster University. Each week we have a legal question to answer in the form of a short paper, as well as other writing assignments. Every once in a while I like to put one of the more interesting pieces here on my blog. Please keep in mind I am not an attorney or law student, I’m an Advertising and Marketing Communications major. Enjoy!

Carolyn Hasenfratz Winkelmann
Geri L. Dreiling, J.D.
MEDC 5350: Media Organization Regulations
7 November 2020

What does it mean to be considered “libel-proof”?

In order to win a libel case, a plaintiff must prove that a contested statement fulfills all of the elements of libel (Trager et al 149-166).

  1. The statement must purport to be a fact, that is, according to a dictionary, “a piece of information presented as having objective reality”, not an opinion statement (Trager et al 150).
  2. The statement must have been published, which consists of posting to the internet, printing in a periodical publication, or broadcasting over airwaves. Publishing includes mass media, but it not limited to only mass media. It is only necessary for one other person besides the subject and source to have seen the information in one of the above media channels in order for it to be considered published (Trager et al 150).
  3. The plaintiff must be identifiable as an individual or possibly in some cases a member of a small group. Identification is not necessarily limited to just using the person’s name (Trager et al 155).
  4. The content must defame the plaintiff, that is cause damage to their reputation (Trager et al 156).
  5. The plaintiff must prove that the allegation is false (Trager et al 160).
  6. The plaintiff must be able to show actual damage or harm (Trager et al 150).
  7. The defendant must be found to be at fault either by actual malice in defaming a public figure or the lower standard of negligence if the target of the defamatory statement is a private figure (Trager et al 163).

In most cases, libel law is presumed to help people protect their own good reputation, but in cases where the plaintiff’s reputation is already significantly damaged, the libel-proof plaintiff doctrine might be invoked in order to deny the plaintiff a finding of libel (Hudson 14-15).  For example, the Tennessee Court of Appeals ruled in one such case that if someone is a convicted murderer, they have been “judicially declared to be evil” and cannot be further damaged by aspersions upon their character (Hudson 15).  The libel-proof doctrine was further invoked in the same jurisdiction in order to negate the claims of the convicted assassin of Martin Luther King Jr., James Earl Ray, when he sought redress from the court for being portrayed in Time magazine as a thief and a drug dealer (Hudson 16).

Beyond Tennessee, Penthouse publisher Bob Guccione objected to being labeled as an adulterer even though he was openly a pornagrapher, but lost his case due to the libel-proof doctrine (Hudson 16), as did former MLB player Lenny Dykstra when he sued a publisher for portraying him as a racist in a ghost-written memoir by a former teammate (Dykstra 4, 18-19).

In Dykstra’s case, it was not his profession that reflected badly on his reputation, but his history of personal behavior.  Evidence was produced to show that he had long been considered “unsportsmanlike”, “shitty”, a “criminal”, a thief, a drug abuser, “racist”, “hateful”, an extortionist, “violent”, “abusive”, misogynistic, a “homophobe”, treacherous, a “sexual predator” and “one of baseball’s all-time thugs” (Dykstra 2-4, 6).

In finding against Dykstra’s claim, the defense invoked a couple of other points of libel law.  Firstly, the statements in question were “substantially true”.  In addition, the defense argued that the plaintiff cannot claim incremental harm because Dykstra’s reputation would likely be unchanged even if the allegations in the published book were demonstrated to be false.

If one considers the elements of a finding of libel, in the Dykstra case, the plaintiff lost because he was not able to prove that the statements about him were false, that his reputation was capable of being damaged and that he suffered actual harm (Dykstra 5).

 

Works Cited

Dykstra, Lenny vs. St. Martin’s Press LLC. 153676-2019. 2020. Print.

Hudson Jr., David L. “Shady Character.” Tennessee Bar Journal, vol. 52, no. 7, July 2016, pp. 14–17. EBSCOhost, search.ebscohost.com/login.aspx?direct=true&db=aph&AN=116345329&site=ehost-live&scope=site. Accessed 5 November 2020.

Trager, Robert Susan Dente Ross and Amy Reynolds. The law of journalism and mass communication. Sixth Edition. SAGE Publications, Inc. 2018.

The Holiday Inn Brand and Trademark Concepts

The following is an assignment for my class MEDC 5350: Media Organization Regulations at Webster University.   This one has some pictures in it, so I thought it might be a nice change from the walls of text I’ve been publishing lately!  The only thing I changed since turning it in is rewording some references to graphics because it’s formatted slightly differently.  It’s also available as a Word document here:
“The Holiday Inn Brand and Trademark Concepts” Word Document.

The Holiday Inn Brand and Trademark Concepts

The Holiday Inn brand is a fertile source of imagery for examining legal issues concerning trademark tacking and trademark infringement. The book “American Signs: Form and Meaning on Route 66” by Lisa Mahar examines the motel signage along the historic highway US Route 66 from 1938 to the 1970s in order to explain the economies and cultures behind the forms and themes of motel advertising signs of the time period (Mahar 10). The Holiday Inn lodging chain was founded during this era and the imagery associated with the Holiday Inn brand was influenced by and in turn influenced trends in the motel industry throughout the whole country (Mahar 122, 127).

Credit: “American Signs: Form and Meaning on Route 66” by Lisa Mahar, 2002. Excerpt from page 134.
Credit: “American Signs: Form and Meaning on Route 66” by Lisa Mahar, 2002. Excerpt from page 134.

The diagram above (Mahar 134), demonstrates minor differences in the Holiday Inn logo and signage from 1952-1957. The use of a star and a certain script lettering style is consistent even though the arrangement and number of elements is slightly different.

The following examples show how Holiday Inn added and subtracted elements and slogans to go along with its earlier trademarked elements. The Holiday Inn logo, both one-line and two-line, are registered. The Holiday Inn sign is registered with the US Patent Office, as is the colonial mascot figure that showed up on some advertising pieces and then was later dropped again. The slogans “The Nation’s Inkeeper”, “The World’s Inkeeper” and “Your Host from Coast to Coast” were all registered. The brand’s use of the colors green, yellow and white are consistent in these samples, mostly from the 1970s.

Various Holiday Inn trademarks, mostly from the 1970s.
Various Holiday Inn trademarks, mostly from the 1970s.

Holiday Inn marks demonstrate how “words, designs, colors and other devices” were used to distinguish its services from other lodgers from the 1950s through the 1970s (Trager 523). Trademark tacking is the practice of making changes to a trademark without relinquishing the old marks (Trager 519). The Holiday Inn samples shown above illustrate trademark tacking as the color scheme and script font were used over a long period of time, with other elements such as the stars and colonial mascot added and subtracted.
Following are some examples of motel signs from the classic Route 66 era that are similar to the Holiday Inn sign, to varying degrees. By looking at the dates and contexts of these signs, it seems apparent that the first Holiday Inn sign from 1952 incorporated some elements in signage that were already in use, but as the chain in turn became popular other signs for independent motels were more directly influenced by the Holiday Inn chain (Mahar 126-127).

sign_influence

Did the independent motels with signage similar to Holiday Inn engage in trademark infringement? The use of stars, the sign elements and shapes, the name “Holiday” and the color green were all used in various ways as a result of Holiday Inn’s influence (Mahar 127).

Credit: “American Signs: Form and Meaning on Route 66” by Lisa Mahar, 2002. Diagram from page 127.
Credit: “American Signs: Form and Meaning on Route 66” by Lisa Mahar, 2002. Diagram from page 127.

The law uses the likelihood of consumers becoming confused as one of the criteria to determine whether or not there is infringement (Trager 518). It is not enough for the marks just to be similar (Trager 519). The combination of sign elements with Holiday Inn’s colors and name recognition seems to be distinctive enough to avoid confusion with other brands who might have used a subset of the elements used by Holiday Inn but not all of them combined together.

Works Cited

Advertisement for Holiday Inn. Inkeeker’s Supply Company, Memphis, TN. Circa 1970s. Author’s personal collection.
—. Stationery sheet. Holiday Press, Circa 1970s. Author’s personal collection. 
—. Business reply letterhead. Holiday Inn Lake of Ozarks, Lake Ozark, MO. Circa 1970s. Author’s personal collection.
—. Rate sheet. Holiday Inn Lake of Ozarks, Lake Ozark, MO. Circa 1970s. Author’s personal collection.
—. IMART, Memphis, TN. Circa 1970s. Author’s personal collection.
—. Back of business reply envelope. Holiday Inn Lake of Ozarks, Lake Ozark, MO. Circa 1970s. Author’s personal collection.

“American Signs: Form and Meaning on Route 66” by Lisa Mahar, 2002.
“Motel Sign to Get Face Lift.” Between Friends, Vol 2, Issue 2, Fall 2003, pp. 1.

Rest Haven Court. DePew Advertising, Reeds Spring, MO. Postcard. Author’s personal
collection.

Trager, Robert Susan Dente Ross and Amy Reynolds. The law of journalism and mass
communication. Sixth Edition. SAGE Publications, Inc. 2018.

Winkelmann, Carolyn Hasenfratz. Photograph of Munger Moss Motel. 2006. Author’s personal collection.
—. Photograph of the Gardenway Motel. April 2000. Author’s personal collection.
—. Photograph of Vernelle’s Motel. April 2000, Author’s personal collection.

Freedom of Expression in The Age Of Powerful Technology Corporations

The following paper was turned in last night for my Media Organization Regulations class at Webster University. It is not graded yet. Enjoy!

Carolyn Hasenfratz Winkelmann
Geri L. Dreiling, J.D.
MEDC 5350: Media Organization Regulations
1 November 2020

Freedom of Expression in The Age Of Powerful Technology Corporations

Freedom of expression is the right to disagree, to assemble in protest of laws and to publish and disseminate opinions, ideas and beliefs (Baran and Davis, 64-65).  Freedom of expression is considered central to democratic self-government and is therefore described, though not in those exact words (“Bill of Rights…”), in the Bill of Rights (Baran and Davis, 64-65).  In 1927, the Supreme Court found against the plaintiff in the case Whitney v. California, a ruling that was overturned in 1969 (Belpedio).  This case was heard to decide whether or not the arrest and conviction of a Communist political activist in 1919 was in violation of the 14th Amendment of the U.S. Constitution (Legal Information Institute).  Part of the written opinion of Justice Louis Brandeis caused some to question why he voted against the plaintiff in Whitney v. California since his defense of freedom of expression was eloquent and widely influential (Belpedio).  Justice Brandeis’ words have been interpreted as a “virtual declaration of absolute free speech” (Belpedio).

A present-day issue that Justice Brandeis illuminated in his prescient comments from 1927 is the regulation of speech by corporations that are popularly known as “Big Tech” (“Does Section 230’s…”). On October 28, 2020, the United States Senate Committee on Commerce, Science, and Transportation held a hearing on current internet law and whether or not it is sufficient in the present day to ensure the free exchange of ideas in the online environment controlled by Google, Twitter and Facebook (“Does Section 230’s…”).

A study by the Pew Research Center found that as of 2018, social media had surpassed print newspapers as a source of news, accounting for 20% of the news audience (Shearer).  The study also reports that 33% of adults in the U.S. consume news content from online web sites (Shearer).  Since Google is the largest provider of internet search results, with a nearly 88% market share in the United States (StatCounter), having influence over potentially nearly 43% of all news content puts these three big tech companies in powerful positions.  In a 2016 TED talk, referring to the platforms Twitter, Facebook and YouTube, internet freedom activist Rebecca MacKinnon stated “… we do know that journalism, activism and public debate are being silenced in the effort to stamp out extremist speech.  So with these companies having so much power over the public discourse, they need to be held accountable” (MacKinnon). YouTube is owned by Google LLC (YouTube).

Concerns about the freedom of expression in search results and within social media platforms in the face of this power have been growing in recent history.  On its web page “Digital Bill of Rights”, the stance of Adbusters, a nonprofit network of artists and activists declare that “It is high time that digital citizens, in the face of rampant techno-tyranny, openly mount a resistance to take back our mental space by force” (Adbusters “Digital Bill of Rights”).  73% of U.S. adults now suspect that social media companies intentionally block political content that they don’t want users to see (Vogels et al).

The Big Tech companies that the Senate investigated on October 28, 2020 are not legally required to allow their users rights as described in the First Amendment, which restrains government action only (Rosen).  The law that the recent Senate hearing choose to focus on is Section 230 of Communications Decency Act (DCA) of 1996 (“Does Section 230’s…”).  Section 230 does not address whether or not the platforms can legally restrict political opinions – it addresses immunity from lawsuits on other matters such as libel, because the platforms claim they do not influence content (Trager 210).  It appears that it could be argued Section 230 immunity should not be applied to Facebook, Google and Twitter because they do “interact directly with content” in an attempt to cultivate attitudes to make the culture of the United States more like Europe (Rosen, Trager 210).  In Europe, safety and propriety are valued more than freedom (Rosen) while the culture of the United States accepts more risks.  In the words of Justice Brandeis, “Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary.  They valued liberty both as an end and as a means.  They believed liberty to be the secret of happiness and courage to be the secret of liberty” (Baran and Davis 65).

Users who are attracted by the promise of free speech have been turning to alternative platforms that are perceived to be less restrictive than the three tech companies that the Senate Hearing examined.  Parler appeals to unhappy Twitter users by claiming to offer an environment with more freedom and corporate accountability (Parler).  Articles suggesting alternatives to Google and Facebook describe platforms that users concerned about data mining and privacy issues can try out (Broida, Taylor).

The movie industry’s voluntary Hays Code, which was in effect from 1934-1965 was intended to reduce public outrage and stave off possible future government regulation of motion picture content (Hays Code).  The power of the medium of television and its effect on violence in children led to the threat of possible increased government regulation and in turn self-regulation by the industry in the late 1960s and early 1970s (Baran and Davis 166-167).  The Big Tech companies might choose in the future to follow the lead of the movie and television industries that proceeded them and do more self-policing in order to better align their European-inspired standards to the expectations of the American public.

Works Cited

Adbusters. “Digital Bill of Rights”. 1989-2020, www.adbusters.org/articles-coded/digital-bill-of-rights, Accessed 1 November 2020.

—. “Mind Journey #11”. 1989-2020, featured.adbusters.org/mindjourney/011/, Accessed 1 November 2020.

—. “‘The Social Dilemma’ director hopes to spark a movement” 1989-2020, www.adbusters.org/the-pulse/the-social-dilemma-director-hopes-to-spark-a-movement, Accessed 1 November 2020.

Baran, Stanley J. and Dennis K. Davis. Mass Communication Theory: Foundations, Ferment, and Future. Seventh Edition. CENGAGE Learning, 2015.

Belpedio, James. “Whitney v. California (1927)”. The First Amendment Encyclopedia, 2009, mtsu.edu/first-amendment/article/263/whitney-v-california, Accessed 1 November 2020.

“Bill of Rights of the United States of America (1791).” Bill of Rights Institute, 2020, billofrightsinstitute.org/founding-documents/bill-of-rights/. Accessed 26 October 2020.

Broida, Rick. “Social-media alternatives to Facebook.” CNET, 2018, www.cnet.com/how-to/social-media-alternatives-to-facebook/. Accessed 1 November 2020.

“Does Section 230’s Sweeping Immunity Enable Big Tech Bad Behavior?”. U.S. Senate Committee on Commerce, Science & Transportation, 2020, www.commerce.senate.gov/2020/10/does-section-230-s-sweeping-immunity-enable-big-tech-bad-behavior, Accessed 1 November 2020.

Greenwald, Glenn. “Article on Joe and Hunter Biden Censored By The Intercept”. Glenn Greenwald, 2020, greenwald.substack.com/p/article-on-joe-and-hunter-biden-censored, Accessed 1 November 2020.

“Hays code.” Siteseen Limited, 2017-2018, www.american-historama.org/1929-1945-depression-ww2-era/hays-code.htm. Accessed 14 September 2019.

Legal Information Institute. “WHITNEY v. PEOPLE OF STATE OF CALIFORNIA”. Cornell Law School, 2020, www.law.cornell.edu/supremecourt/text/274/357, Accessed 1 November 2020.

MacKinnon, Rebecca. “We can fight terror without sacrificing our rights.” TED Conferences, LLC., June 2016, www.ted.com/talks/rebecca_mackinnon_we_can_fight_terror_without_sacrificing_our_rights/transcript. Accessed 1 November 2020.

“Parler”. Parler, Inc., 2020, www.parler.com/auth/access. Accessed 1 November 2020.

Rosen, Jeffrey. “The Deciders: The Future of Free Speech in a Digital World”. Harvard Kennedy School Shorestien Center on Media, Politics and Public Policy. 2016, shorensteincenter.org/jeffrey-rosen-future-of-free-speech-in-a-digital-world/, Accessed 1 November 2020.

Shearer, Elisa. “Social media outpaces print newspapers in the U.S. as a news source”. Pew Research Center, 2018, www.pewresearch.org/fact-tank/2018/12/10/social-media-outpaces-print-newspapers-in-the-u-s-as-a-news-source/, Accessed 1 November 2020.

StatCounter. “Search Engine Market Share in United States Of America Sept 2019 – Sept 2020”. October 2020, gs.statcounter.com/search-engine-market-share/all/united-states-of-america, Accessed 1 November 2020.

Taylor, Sven. “Alternatives to Google Products”. Restore Privacy, LLC, 2019, restoreprivacy.com/google-alternatives/. Accessed 1 November 2020.

Trager, Robert Susan Dente Ross and Amy Reynolds. The law of journalism and mass communication. Sixth Edition. SAGE Publications, Inc. 2018.

Vogels, Emily A., Andrew Perrin and Monica Anderson. “Most Americans Think Social Media Sites Censor Political Viewpoints”. Pew Research Center, 2020, www.pewresearch.org/internet/2020/08/19/most-americans-think-social-media-sites-censor-political-viewpoints/, Accessed 1 November 2020.

YouTube, 2020, www.youtube.com/. Accessed 1 November 2020.

 

If you want to delve deeper into this and related topics, I have links to a lot more resources on a Pinterest Board: Media Analysis: Communications and the Law

First Amendment and Bill of Rights Refresher

I’m currently in Media Organization Regulations class. That means I’m going to be writing about where media communications and the law intersect. As I have been doing since I started graduate school, if there is anything I think my blog readers might enjoy or find useful I’ll be publishing some of my assignments here. In our first assignment for this class, we were tasked to write about the First Amendment to the US Constitution. I needed some refresher reading on the First Amendment in order to write this, as I haven’t studied this kind of material in school for a LONG time.

The Bill Of Rights was added to the US Constitution immediately after ratification as a sort of compromise to reassure those who feared that a stronger central government would lead to the infringement of individual liberties. There were those who believed these rights were protected sufficiently in the individual state constitutions and therefore didn’t need to written out, and others who feared that writing them out would imply that the list was exclusive and implying there were no other rights (Thernstrom 177-178).

One thing I and probably others have to keep reminding myself of is that our form of government was founded on the premise that our constitution or government is not giving these rights to us, but is spelling out the rights we already have. That’s a profound difference in attitude than I frequently perceive from some people who are in government, campaigning to be in government, some media institutions and large corporations. What is your opinion on my perception?

“Carolyn Hasenfratz Winkelmann
Geri L. Dreiling, J.D.
MEDC 5350: Media Organization Regulations
25 October 2020

The First Amendment guarantees freedom of religion, assembly, press and speech (Trager et al 9, Silverblatt 30). First Amendment rights to free speech are considered by most historians to have been initially intended to prohibit the restrictions that the American colonists feared would be established under British rule (Trager et al 56-57). Although actual licensing of presses was no longer practiced in the home country, punishment following the publishing or speaking of certain content did appear to be a method that could be used to suppress speech and ideas that those in power considered subversive (Trager et al 56-59). In colonial times up to the present day in the United States, the level of punishment for certain kinds of speech and the level of requirement to promote or allow the diversity of speech or ideas is constantly being tested and litigated (Trager et al 56-61). New technology and forms of media have caused the purpose and philosophy of free speech to be constantly re-evaluated (Trager et al 62-68, Baran and Davis 65).

Other than protecting speakers from unjust punishment, another purpose of the First Amendment was to ensure that the new country would develop in a climate where individuals would hear a diverse selection of ideas and then choose what ideas they found the most beneficial from a free “marketplace” (Silverblatt 129). In the United States, the idea of giving technocratic control of the media to the government was considered but rejected (Baran and Davis 62). With the rise of social media and their use as virtual public forums, corporations are trying now to take on the technocratic control of speech and ideas themselves (Baran and Davis 66). There is precedence in the law that private property used in the manner of a traditional public space can be required in some cases to allow “public gatherings and free expression” (Trager et al 82). What will the courts decide in the future about virtual public space that is owned by a corporation?

There is a distinction between “prior restraint” in which the government must approve the publication of content, and punishment after the fact for harm caused by certain kinds of speech (Trager et al, 57). Even with the First Amendment in place, both kinds of restraint on speech are sometimes allowed, but the necessity for prior restraint is much harder to prove in court (Trager et al, 64-67). Content neutral laws are more likely to withstand scrutiny (Trager et al, 68, 71), as are laws that restrict speech as little as possible in order to achieve what the government’s compelling interest is alleged to be (Trager et al, 71).

Although not intended to, the First Amendment could be seen to help protect individuals from being punished by private organizations and employers in a sense. Some states, cities and territories cite the First Amendment in laws that prohibit discrimination against employees for political speech and activities (Volokh). Usually though it is anti-discrimination laws inspired by the First Amendment that apply to a private employer, not the actual First Amendment (Freedom Of Speech…). Government employees are more directly affected (Freedom Of Speech…).”

I’m going to list here the complete Bill of Rights, according to the Bill of Rights Institute, because I and probably a lot of other people need a refresher (Bill of Rights of…).

1 – “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

2- “A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

3- “No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.”

4- “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

5- “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

6- “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

7- “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.”

8- “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

9- “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

10- “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

Now I’m going to quote extensively from our textbook, “The law of journalism and mass communication” (Trager et al 61). Following is a list of “Core Values of Free Speech”, which are often cited in Supreme Court decisions that have to do with free speech issues. For one of our assignments we had to make predictions about what new Supreme Court cases we might expect to see in the near future that have to do with the First Amendment. I was very impressed with this list of values derived from sources ranging in time from 1698-1996. You no doubt have your own ideas about what cases we can expect to see or what you would like to see. Are these the values you want to court to consider?

  • Individual liberty. The freedom of speech is deeply intertwined with fundamental natural rights. In this sense, free speech is an inalienable right.”
  • Self government. The freedom to discuss political candidates and policies and to render judgements is an essential cornerstone of responsible self-governance. The freedom of speech enables “the people” to pursue “democratic self determination”.”
  • Limited government power. Free speech is an “invaluable bulwark against tyranny.” The free speech of “the people” serves as a “check” on authoritarian rule and a limit to the abuse of power of a few.”
  • Attainment of truth. Free speech advances the “marketplace of ideas” to increase knowledge and the discovery of truth. By challenging “certain truth” and “received wisdom”, open public discussion allows a society to expand understanding.”
  • Safety valve. Free speech allows people to express problems and grievances before they escalate into violence. Except during the “worst of times”, free speech is a mechanism for “letting off steam” and helping to balance social stability and change, compromise and conflict, tolerance and hate.”
  • It’s own end. Free speech, like clean air, or beauty, or justice, is an end in and of itself, a valuable good and a cherished right.”

Works Cited

Baran, Stanley J. and Dennis K. Davis. Mass Communication Theory: Foundations, Ferment, and Future. Seventh Edition. CENGAGE Learning, 2015.

“Bill of Rights of the United States of America (1791).” Bill of Rights Institute, 2020, billofrightsinstitute.org/founding-documents/bill-of-rights/. Accessed 26 October 2020.

“Freedom Of Speech In The Workplace: The First Amendment Revisited.” Thomson Reuters, 2020, corporate.findlaw.com/law-library/freedom-of-speech-in-the-workplace-the-first-amendment-revisited.html. Accessed Day Month 2020.

Silverblatt, Art et al. Media Literacy: Keys to Interpreting Media Messages. Fourth Edition. Praeger, 2014.

Thernstrom, Stephan. A History of the American People: Volume One: To 1877. Harcourt Brace Jovanovich, 1984.

Trager, Robert Susan Dente Ross and Amy Reynolds. The law of journalism and mass communication. Sixth Edition. SAGE Publications, Inc. 2018.

Volokh, Eugene, “Laws Protecting Private Employees’ Speech and Political Activity Against Employer Retaliation: Covering a Wide Range of Speech.” Reason Foundation, 2020, reason.com/2020/07/26/laws-protecting-private-employees-speech-and-political-activity-against-employer-retaliation-covering-a-wide-range-of-speech/. Accessed 25 October 2020.

I’ve started a Pinterest Board for Media and Law references and resources. I will likely cite some of these during this class and read others for background information. Enjoy!
Media Analysis – Communications and the Law

There are some resources I’m not able to link to for whatever reason on Pinterest that I need for my homework. My purpose for putting them in Pinterest is because it’s an easy way to keep my resources in one place. However, for the ones I can’t put there, I’ll start collecting some here so that I know where they are and can get to them fast since I have linked the relevant Pinterest board to this article.

Other First Amendment Related Links

Winston84 – online directory of suppressed content.

Here is a link to the Senate Hearing on Section 230 that we are currently studying in my class.

The Deer Creek Watershed Alliance Campaign to Promote Rainscaping in the St. Louis Missouri Metro Area

Here is my final paper for Strategic Communication Applications. It’s been graded now, but since class is over and I got a score that pleases me I didn’t make any changes here. As you’ll see, I refer to myself in the third person in this paper. That is because I decided to write it as if was an impartial observer. Enjoy!

Carolyn Hasenfratz Winkelmann
Mary Bufe
PBRL 5380: Strategic Communication Applications
16 October 2020

This analysis will examine how public relations campaigns have encouraged the installation of rainscaping and rain gardens in St. Louis County and what were the results when citizens attempted to enact what the campaigns recommended. Rainscaping is a landscaping technique that utilizes green infrastructure including directing excess stormwater runoff into planted bioretention areas, known as rain gardens (Buranen). Some residents of St. Louis County have received cooperation from the county while installing their rainscaping features, while we know of one St. Louis County couple, Tom Winkelmann and Carolyn Hasenfratz Winkelmann, who experienced persecution and harassment from St. Louis County for using the same recommended techniques.

Organization’s history and background

Deer Creek Watershed is an area of St. Louis County that is a sub-watershed of the River Des Peres Watershed. The River Des Peres Watershed is large and complex with portions in both St. Louis City and St. Louis County (EcoWorks Unlimited 6). In 2008, citizens who lived in the Deer Creek Watershed approached Missouri Botanical Garden to explore ways of mitigating destructive water runoff activity in their locality. Missouri Botanical Garden formed an alliance for the purpose of exploring plant-based solutions to stormwater runoff problems with these citizens, along with “Metropolitan St. Louis Sewer District, Washington University, East-West Gateway Council of Governments, American Society of Civil Engineers, Great Rivers Greenway, Missouri Department of Conservation, Missouri Department of Natural Resources, Missouri Stream Teams, River des Peres Watershed Coalition, U.S. Army Corps of Engineers, St. Louis County, local garden clubs” and 21 local municipalities (EcoWorks Unlimited 6, 9).

St. Louis County entered into an agreement with the federal Environmental Protection Agency from 2003-2013 (Sutin) to reduce storm water runoff and pollution, problems that rainscaping helps to fight. Combined sewer overflows, sanitary and stormwater, have been plaguing the St. Louis metro area for years, causing damage and pollution in the area and downstream. As a result the Metropolitan St. Louis Sewer District is required by the EPA and the Missouri Coalition for the Environment to fix the problem in 23 years. The clock started in 2011 (Buranen).

St. Louis County and the Metropolitan Sewer District, hereafter known in this document as STLCO and MSD, have constituencies that overlap. Besides being fellow members of the Deer Creek Watershed Alliance, aka DCWA, these two organizations are logical allies in the fight against stormwater pollution and flooding.

Demonstration projects along with testing and water quality monitoring were performed by alliance members in parts of the affected watershed in order to successfully prove the effectiveness of rainscaping techniques (EcoWorks Unlimited 23-25, Winkelmann “Aquatic Macro Invertebrates…”, Buranen). Since the majority of land within the target watershed is privately owned, it was necessary to enroll citizens in the alliance’s goals and projects (EcoWorks Unlimited 19, 22).

Organization’s Mission, Vision and Brand

In its own words, the mission of DCWA is “facilitating a community-wide effort for over 10 years to protect and improve water quality through plant-based solutions” (The Deer Creek Alliance).

After its inception, DCWA recommended the following public relations efforts to enlist citizen involvement (EcoWorks Unlimited 22).

  1. Rainscaping demonstration projects in schools.
  2. Workshops for area professionals.
  3. Annual public engagement projects led by citizens.
  4. Building a contact list of citizens in the watershed through tables at festivals, networking, presentations utilizing PowerPoint, and media campaigns.
  5. Cultivating the contact list with email newsletters, the web site, and public meetings.
  6. Helping cities communicate about pilot projects, incentives and barrier removal mechanisms.

In 2014, when the Deer Creek Watershed Management Plan Summary was finalized, St. Louis County resident Carolyn Hasenfratz, now known as Carolyn Hasenfratz Winkelmann, was single and living within the Deer Creek Watershed in a condominium in Brentwood. Already an avid gardener, she obtained a permit to garden around her condo unit right after her 2004 move in. Keenly interested in sustainable and eco-friendly gardening, she constantly updated her knowledge and practices with every bit of information she could glean from “green” gatherings and gardening resources. A frequent attendee at events such as Earth Day and the Sustainable Living Expo, she was aware of Project Clear, Operation Clean Stream and other alliance member activities through some of the table promotions mentioned by the DCWA(Winkelmann “Photo of Patches”). Observing water runoff problems around her condo unit, Winkelmann experimented with, to the extent allowed by the condo association guidelines, small scale stormwater control techniques (Winkelmann “Garden Maintenance in…”).

In 2016, Winkelmann successfully completed training and was certified in the St. Louis Master Gardener program, a membership she has retained until the present time (Winkelmann “Mass Communication Final…”). Master Gardener activities include yearly minimum time commitments for volunteer work and continuing education, and consequently brought Winkelmann into closer involvement with Project Clear and the Deer Creek Watershed Alliance, as she personally participated in several of their outreach efforts and projects.

Missouri Stream Teams – Winkelmann became a volunteer at the Litzinger Road Ecology Center immediately after certification as a Master Gardener. LREC is a Missouri Botanical Garden facility and is located right on Deer Creek. Volunteers from Missouri Stream Teams, another DCWA partner organization, conducted a demonstration of surveying macro-invertebrates which is one of their methods of testing the effectiveness of rainscaping techniques (Winkelmann “Aquatic Macro Invertebrates…”). She has volunteered for several years in Operation Clean Stream events, an ongoing cleanup effort of trash along area waterways (Winkelmann “Operation Clean Stream…”).

Workshops for area professionals – Winkelmann attended a session on green controls for stormwater runoff at Missouri Botanical Garden to learn more about rainscaping (Winkelmann “Photo of Handouts”).

Presentations utilizing PowerPoint – After attending a presentation on Project Clear by an MSD representative, Winkelmann wrote an article for her employer’s newsletter to help disseminate the information to customers (Winkelmann “MSD’s Project Clear…”). MSD has been promoting a long-term campaign called Project Clear, the “planning, design and construction of MSD’s initiative to improve water quality and alleviate many wastewater concerns in the St. Louis region” (Winkelmann “MSD’s Project Clear…”). Project Clear utilizes a three-part classification system to organize projects. The category “Get the Rain Out” is the portion that addresses remedies in which individual citizens and property owners can engage (MSD Project Clear “MSD Project Clear Initiative”). The premise of “Get the Rain Out” is that if we reduce the amount of rainwater that goes into the stormwater management systems at peak times, disasters can be averted and the water quality for our region and those downstream from us will improve. The aforementioned practice of rainscaping is one of the two main initiatives in the “Get the Rain Out” category (MSD Project Clear “Rainscaping”). A prominent incentive touted for rainscaping is monetary grants to property owners who install rainscaping features. (MSD Project Clear “MSD Project Clear Initiative”).

Problem Statement

Carolyn Hasenfratz married Tom Winkelmann in 2018 and moved into the husband’s home in Affton. The couple started installing rainscaping features shortly after becoming engaged since the property had severe existing drainage problems. According to Winkelmann’s blog, the next-door neighbor made false claims to St. Louis County about the effect of the Winkelmann’s rainscaping on her property, resulting in a year of entanglements with the St. Louis County Department of Public Works. The husband, who is the registered property owner, was forced to appear in court under pain of arrest (Winkelmann “Drainage Problems Are…”). After the charges were dismissed in court in July 2019, Winkelmann’s blog reports that harassment of the couple by the St. Louis County Department of Public works resumed in January 2020 and persisted until the end of April 2020 when the couple contacted the County Executive’s office and provided video documentation of the alleged harassment (Winkelmann “St. Louis County…”). The current position of the St. Louis County Department of Public Works is that the rainscaping employed by the Winkelmanns is acceptable and no explanation was offered to explain their previous opposition.

Since St. Louis County is a member of the Deer Creek Watershed Alliance, to have part of the organization undermining the alliance’s goals is confusing and could discourage other St. Louis County residents from adopting rainscaping techniques. The attitude of the St. Louis County Department of Public Works shown to this couple indicates that at least some of the inspectors and supervisor of inspectors are or were either uninformed about rainscaping, hostile to it, or both. Here is a quote from the supervisor of inspectors to Mrs. Winkelmann that seems to indicate skepticism about rainscaping as a concept, and mockery toward the homeowners for employing it. “Should a complaint come in about a public nuisance created by the ditches you’ve dug in your husband’s yard we will be required by law to re-issue the NOV and seek compliance. If you want to create a “rain garden” at some time in the future, and the necessary changes involved with that process are in violation of County ordinances, you will need to seek a special use permit or a zoning variance” (Winkelmann “Drainage Problems Are”). It’s less than precise to judge attitudes solely from written communication, but this supervisor refused to speak to the Winkelmanns on the phone or to visit the site in person despite repeated invitations, so this kind of communication is all the evidence of the department’s attitudes available.

Who is involved or affected? How are they involved or affected and why is this a concern to the organization and its publics?

Events in recent history have made it clear that flooding in St. Louis County is still a serious problem. For example, the River Des Peres flooded in 2019 and 2020, causing pollution and property destruction in South St. Louis (Hignett, Lincoln, Wicentowski). A South St. Louis resident estimated the amount of water in his neighborhood to be equivalent to the historic flood of 1993. 2019 and 2020 are eight and nine years into the 23-year agreement between MSD, the EPA, and Missouri Coalition for the Environment. The 1993 and 2019 flood events that the resident compared are very different in scale in terms of the effects on the entire metro area, so this one event may not mean that MSD is losing the battle and is going to miss their deadline. However, these recent floods could be regarded as evidence that there is still a lot of work to be done.

If the St. Louis County Department of Public Works is going to persecute people who try to be part of the solution, they will discourage property owners from adopting rainscaping techniques and we will all pay the price in higher sewer bills, flood destruction and deteriorated water quality. All subscribers to MSD are affected because of the cost, and every person who lives downstream from the St. Louis metro area is affected by decreased water quality – all the way to the Gulf of Mexico where there is a dead zone at the mouth of the Mississippi that varies in size every year (“Mississippi River…”). This has implications for the health of drinking water downstream, the health of fishing in the Gulf, property loss, decreased tourism, land erosion and possibly other destructive effects (“Mississippi River…”).

Mrs. Winkelmann personally spent over 43.6 hours of labor defending the rainscaping she and her husband installed, representing an economic loss because she is partially self-employed and that is time that she could have spent earning money instead (Winkelmann “St. Louis County…”). The couple spent approximately $300 on security cameras to obtain evidence to stop the harassment, and since they don’t live in the area that offers rebates to homeowners who install rainscaping, all of the property upgrades have been performed at their own personal expense (Winkelmann “St. Louis County…”).

MSD and the other members of the DCWA have invested huge amounts of money and labor into trying to convince the public to install rainscaping features on their own property (Buranen). MSD subscribers have partially paid for this advocacy with their sewer bills and will be paying for many more years. Many people do not have the resources, time, or the interest to fight St. Louis County and could be intimidated out of acting in an environmentally responsible way just because it’s easier and cheaper and keeps them out of court, not because they are indifferent the environment and our fellow Americans downriver.

Anyone who contributes resources to the following partial list of organizations, either voluntarily or through taxation, is potentially having some of their money that was spent on sponsoring the Deer Creek Watershed Alliance wasted: Great Rivers Greenway, Missouri Department of Conservation, US EPA Region 7, Missouri Department of Natural Resources, Missouri Botanical Garden, Washington University, East-West Gateway Council of Governments, American Society of Civil Engineers, Missouri Stream Teams, River des Peres Watershed Coalition, U.S. Army Corps of Engineers, St. Louis County, allied local garden clubs and the 21 affected local municipalities (The Deer Creek Alliance, EcoWorks Unlimited 6, 9). Most of the money for the cost-share grants is derived from private property taxes (Chen).

Continued Advocacy and Outreach by Alliance Members

DCWA members continue to work on the organization’s goals of mitigating pollution, habitat loss and flood damage with the help of plants. The Alliance “Take Action” web page calls for the following activities (Deer Creek Watershed Alliance “Take Action”):

The Rainscaping Cost-Share Program – funded by the “Metropolitan St. Louis Sewer District, Mabel Dorn Reeder Foundation, and US EPA Region 7 through the Missouri Department of Natural Resources (subgrant number G19-NPS-11), under Section 319 of the Clean Water Act”, the cost-share program continues with large and small cost-share grants available, to help out individual homeowners, businesses and institutions (MSD Project Clear “Rainscaping”).

Education – online resources to teach property owners how to rainscape (Deer Creek Watershed Alliance “Rainscaping”, “Rain Gardens”).

Water pollution prevention tips (Deer Creek Watershed Alliance “Reduce Water Pollution”, Winkelmann “Online photo album…”).

Guidelines on conducting a citizen led creek cleanup (Deer Creek Watershed Alliance “Lead a Creek Cleanup”).

News of volunteer activities and opportunities from the Green Keepers, Great Rivers Missouri Master Naturalists, Missouri Stream Teams, Open Space Council and St. Louis Master Gardeners (Deer Creek Watershed Alliance “Webster Groves Green Keepers”). Some of the organizations listed here are official alliance members while others are assumed by this analyst to be allies as their goals and projects often overlap.

Invasive Honeysuckle removal (Deer Creek Watershed Alliance “Root Docking Invasive Honeysuckle”, Winkelmann “Tips for Removing…”).

News about continuing education opportunities (Deer Creek Watershed Alliance “Learning Opportunities”).

Project Clear outreach and educational exhibits in an annex at the new St. Louis Aquarium (Winkelmann “Online photo album…”). In this area visitors can get brochures about Project Clear, play interactive games, use an interactive and educational kiosk, view a demonstration rain garden and engage in other activities that educate about water quality and water conservation.

Evaluation

One result that is easy to see is that The Deer Creek Watershed Alliance did an excellent job getting the word out about the cost-share grants for rainscaping. This analyst found news articles about the availability of the grants from the St. Louis Post-Dispatch (Giegerich, Schuessler), Kirkwood, MO Patch (Greenbaum), St. Louis Public Radio (Chen) and the St. Louis American (“MSD accepting applications…”).

Have property owners been taking advantage of the grants? “In the model [first] round, there were only eight applications. The second [following year] round had sixty-six applications” reported an official in 2018 (Buranen). Two of Project Clear’s pilot rainscaping projects, Old North and Cortex, have been well-received by the public and the educational signage has been observed to attract attention and interest (Buranen). Interest in rain gardens has increased throughout the area even by those, like the Winkelmanns, who are not located in the grant award area (Buranen). For example, an alternate funding source provided the large rain gardens on the Webster University campus in Webster Groves (Buranen). The Deer Creek Watershed Alliance published an infographic in 2018, claiming credit for 364 rainscaping project installations among many other educational and environmental achievements during its first 10 years (Deer Creek Watershed Alliance “Achievements”).

Negative reactions

Since neither the St. Louis County Department of Public Works or the County Executive’s office would provide an explanation to the Winkelmanns about the initial resistance to their rainscaping (Winkelmann “St. Louis County…”), this analyst can only speculate about what the problem might have been. In a search for negative reactions in the St. Louis area to the idea of rainscaping, excepting the reports in the Winkelmann blog, only one example was found by this analyst. Here are a couple of selections from a letter to the editor, published by the St Louis Post-Dispatch in 2013 (Niehaus).

“New gardens may rain dollars” (Jan. 6) reports that homeowners in 14 communities may receive up to $2,000 if they “rainscape” their yards to retain run-off into the Deer Creek watershed.”

Mr. Niehaus put the word “rainscape” in quotes in a mocking way, similar to John L. Geiler, Assistant Chief Residential Inspector of St. Louis County Public Works, who mocked the Winkelmanns “rain garden” in his email without having first accepted an invitation to come to look at it (Winkelmann “Drainage Problems Are…”).

“Funny, I don’t recall voting on a measure that would pass along thousands of dollars to needy homeowners in Ladue, Clayton, Creve Coeur, Frontenac, Kirkwood, Warson Woods, etc.”

From that sentence and the rest of the published letter, it is apparent that there is a lot of information that this citizen did not know. For example, rain gardens put in along Deer Creek reduce flooding and pollution in places like South St. Louis and everywhere downstream from that, including many communities not as affluent as the places he mentioned. Nevertheless, appearing to divert taxpayer money to the benefit of wealthy citizens is not a good impression to create, and it would be helpful for the Deer Creek Watershed Alliance to continue to also promote the rain garden projects in other less advantaged parts of the metro area to raise their profile. With prevalent citizen apathy to government activities (Broom and Sha 362) and a dearth of reporters to create original news coverage (Grieco), a lot of misinformation that gets out into the public remains uncorrected and unexamined.

It’s more surprising that some St. Louis County government employees, who work for an organization that is a Deer Creek Watershed member, seem to be little better informed six to seven years later (Winkelmann “Drainage Problems Are…”, “St. Louis County…”). We know that there are many barriers to successful communication between citizens and government as well as branches of government with each other (Broom and Sha 356-366). In addition to lack of interest by citizens and a shortage of reporters, the scale of the task is overwhelming and there are bureaucratic layers, mistrust, and actors with varying agendas to overcome.

Despite all these challenges, the sources I have found in preparing this analysis seem to indicate that the rainscaping movement in the St. Louis area is not dying out, but rather is gaining momentum. Since the Winkelmanns have been left alone by the Department of Public Works since April 2020 (Winkelmann “St. Louis County…”), at least one more of St. Louis County’s internal publics, the Department of Public Works, seems to have been brought further into co-orientation with the other Deer Creek Watershed Alliance members. That is good news, because as evidenced by recent floods, the need for more green infrastructure in our area has not abated.

Works Cited

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