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| RJ Peltz-Steele with Google Gemini CC0 1.0 |
Students in my spring seminars, in
Freedom of Information Law and in
Free Press and Film, did outstanding work, and I am indebted both to them and to colleagues who joined my classes for teaching me and enriching my intellectual life.
Recently I spoke on the telephone to a long-time friend in academics, a professor at another university, many miles away. We shared strikingly similar stories of well paid administrators, whose numbers on campus seems to grow faster than the wealth gap, even while they lament cuts of not-nearly-as-well-paid staff and faculty positions to keep us within budget.
Well, the similarity would be striking if we were not accustomed to it. Universities in the United States combating financial exigency now seem to me like the nation of Oceania in George Orwell's 1984. They are forever locked in conflict with one or another enemy that is not in fact the greatest existential threat. Rather, the government itself perpetuates a state of emergency so that apparatchiks (administrators) can consume the fruits of labor while the masses (faculty and students) abide oppressive regulation and a diminishing standard of living.
My friend suggested that I propose and apply for a new university office, perhaps a Vice Chancellor of Financial Exigency. That sounds ironically lucrative. As they say, "when in Rome"; if the empire is falling, grab all the grapes you can.
Our conversation devolved, as it invariably does, into why we put up with it all. Coming in a very close second to paying the mortgage is an answer that I fear is both cliché and self-condemnatory: We are gratified when our students learn and excel.
Faculty Seminar Contributors
In the spring, I had the privilege to teach two seminars, one my recurring offering in freedom-of-information (FOI) law, the other a one-off, a course on free press and film. The FOI class coincided with the conclusion of my term on the federal Freedom of Information Act (FOIA) Advisory Committee, which service afforded me an opportunity to expose my students to leading-edge issues in the field.
The free-press-and-film class allowed me and the class to sink our teeth into the captivating book,
featured at The Savory Tort in 2024,
Filming the First: Cinematic Portrayals of Freedom of the Press (Lexington Books 2025), by my friend and colleague
Helen J. Knowles-Gardner, formerly a political science professor and now
research director at the
Institute for Free Speech (IFS), and co-authors Professor Emeritus
Bruce E. Altschuler, retired from political science at SUNY Oswego, and Professor
Brandon T. Metroka, faculty in political science at the University of the Incarnate Word (UIW).
(Photos: Knowles-Gardner, from IFS; Altschuler, 2017, by Jim Russel, SUNY Oswego '83, Metroka, from UIW).My classes were enriched by colleagues who gave generously of their time and energy. Professor Knowles-Gardner joined us in person in Free Press and Film to discuss the book's treatment of the films
Denial (2016) and
Deliberate Intent (2000) (and to give a
campus lecture). Professor Altschuler joined us for three classes, discussing his first three chapters of the book and the films
Citizen Kane (1941),
RKO 281 (1999),
All the President's Men (1976),
The Post (2017),
Network (1976), and
The Social Network (2010). Attorney
Dan Greenberg, of the Cato Institute, joined Free Press and Film to discuss his documentary film,
American Libel (2025),
featured at The Savory Tort last year.
(Photo: Dan Greenberg, from Cato.)My FOI class welcomed attorney and information practice Professor Jason Baron, University of Maryland (U. Md.), and a fellow member of the FOIA Advisory Committee; Arkansas investigative journalist Brandon Howard; independent filmmaker and journalism and mass communication Professor Natalie Pattillo, and a university student leader and student journalist; Professor Robert Steinbuch, featured recently here at The Savory Tort, Bowen Law School, University of Arkansas, Little Rock (UALR); attorney and adjunct professor Gregory V. Sullivan, president of Malloy & Sullivan and president of the New England First Amendment Coalition; and journalism and media studies Professor A.Jay Wagner, Diederich College of Communication, Marquette University, a past member of the FOIA Advisory Committee.
Professor Baron discussed the science of artificial intelligence and how advancements in the era will change the practice of FOI law for both requesters and record officers. Journalist Howard joined the class to talk about his past newspaper reporting and ongoing pro se FOI litigation to access a cold murder investigation case file in northwest Arkansas (see, e.g., The Weekly Vista; see also breaking news). Professor Steinbuch discussed his ongoing transparency advocacy in Arkansas and opinion writing for The Arkansas Democrat-Gazette. Attorney Sullivan discussed his remarkable record of high-profile access litigation and appellate argument on behalf of New England journalists. Professor Wagner discussed his recent work on statutory citizenship requirements to block state access to public records and the ongoing debate over the constitutionality of the laws.
Professor Pattillo and her student, whose identity I am protecting just in case, discussed contemporary challenges facing campus journalists, including recalcitrant administrators. Professor Pattillo's teaching contract at UMass Dartmouth was not renewed this academic year (e.g., LinkedIn, New Bedford Light, Boston Globe (paywall)).
(Photos: Jason Baron, from U. Md.; Brandon Howard, from LinkedIn; Natalie Pattillo, from the Center for Independent Documentary; Robert Steinbuch, from UALR; Gregory V. Sullivan, from Malloy & Sullivan; A.Jay Wagner, from Marquette University.)
Student Seminar Contributors
Students in both seminars produced a range of thought-provoking papers built upon insightful research and analysis. I am here honored to share selected titles and abstract, with authors' permission. I thank these stars for their work and for their collaborative spirit in learning with and from each other, and I anticipate with great pleasure their shining future contributions to the legal profession.
—in Freedom of Information Law
Jeremy Aylward, Retaining Transparency in the Digital Age: Retention of Electronic Records Under Federal and State Freedom of Information Laws. The proliferation of electronic records and digital communications has fundamentally challenged the legal frameworks governing government transparency and public accountability. While the federal Freedom of Information Act (FOIA) and Federal Records Act (FRA) establish baseline obligations for the retention and disclosure of electronic records, the enforceability of those obligations remains structurally compromised. This paper analyzes and synthesizes the legal frameworks governing the retention and disclosure of electronic records and messages under federal law and the open records statutes of California, Colorado, and Virginia, with particular attention to how those frameworks can be meaningfully enforced. Drawing on statutory text, agency guidance, and judicial interpretation, this paper examines how each jurisdiction defines "electronic records," what retention schedules apply, how personal device and third-party platform use by public officials is treated, and critically, what mechanisms exist to compel compliance, sanction violations, and remedy the destruction or concealment of covered records. The paper argues that across all four jurisdictions, electronic records retention law suffers from a common structural deficiency: obligations are broad in theory but weak in enforcement. This leaves agencies largely self-policing in an environment where the incentives to retain records often conflict with the incentives to delete them. While California's content-focused judicial approach offers the most expansive access framework, and Colorado and Virginia provide more structured but still under-enforced retention regimes, none of the examined frameworks provides a reliably enforceable mechanism for preventing loss of electronic records at the point of creation or ensuring accountability after the fact. The paper concludes by identifying the enforcement gaps that most critically undermine the transparency purposes of freedom of information law and by synthesizing lessons across jurisdictions for legislative and judicial reform. (Image: RJ Peltz-Steele with Google Gemini CC0 1.0.)
,
The Public Records Law Battles with State University Athletic Programs. Universities have taken advantage of state public record exemptions to skirt disclosures of their spending. To combat the skirting of disclosures and to provide more transparency, the NCAA mandates budget disclosures. Public records law exemptions still apply to the schools, but the NCAA mandates force the schools to disclose certain financial information anyway. These mandatory budget disclosures have their own limitations that allow schools to avoid full disclosure. They open the door to what money goes where, but withhold important information, such as who donates, how much they donate, and how the fundraising is organized. There are different structures for how athletic departments operate, but most use private or semi-private entities. Schools use privatization to avoid full disclosure after they meet the NCAA mandate. Different states have different laws that allow universities to avoid full disclosure. The University of Arkansas utilizes a private foundation, multiple universities in Florida utilize direct support organizations, and the University of Georgia utilizes disclosure time extensions. The laws are used to circumvent the public records law, which was enacted to hold public bodies accountable and provide transparency. The universities argue that they should have privacy on financials, as this allows them to keep a competitive advantage over other universities. This argument is met with the public interest in how the government spends money and whether this is done with transparency. There should be statutory change to prevent this circumvention of disclosure. Statutory change would entail eliminating exemption for direct support organizations, standardization of the function equivalent test, and the elimination of time extensions.
(Image: RJ Peltz-Steele with Google Gemini CC0 1.0.)
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Tryon P. Woods, Prison Conditions and Public Access Or 1(st Am.) + 5(th Am.) + 8(th Am.) + 14(th Am.) < 0—Public Access Math. This paper examines the ongoing problem of prison conditions and the public’s access to information about what goes on inside prisons. I approach the topic as a twin problem in which access and conditions are opposite sides of the same coin. The correlation between access restrictions and the unconstitutional treatment of prisoners has a long history and nation-wide scope. Tracking the aftermath of the seminal case of the Attica Prison uprising in 1971 through several lawsuits arising from institutional failures in Arizona, California, Massachusetts, and NYC, this paper argues that in a "total institution" such as a prison or jail, visibility is the leverage on which control hinges. This relationship between the public’s access to information about prison conditions and the constitutional violations suffered by prisoners is refracted in the Court’s First, Fifth, Eighth, and Fourteenth Amendment jurisprudence on prisons since the passage of FOIA in 1966. Despite the Court’s best efforts, together with prison administrators, the relational reality of law remains undeniable: the undoing of legal personhood for people inside serves as the precondition for inventing the human outside. (When not appearing in class as a law student to sate his insatiable appetite for learning, Professor Woods also is a gifted faculty colleague in crime and justice studies at UMass Dartmouth.—RJPS) (Image: Attica Correctional Facility, 2007, by Bronayur via Wikimedia Commons CC BY-SA 3.0.)
—in Free Press and Film
Bryce Mayo,
"A Victim of the Modern Age": Soft Law, Private Suppression, and the Gap in First Amendment Theory. Film:
A Clockwork Orange (1971). The First Amendment limits government suppression of speech but does not restrict decisions by private actors. Constitutional doctrine therefore provides little guidance when expression is constrained through private pressures, market incentives, or self-censorship. These forms of non-governmental suppression rarely enter the public consciousness until controversy surrounding particular works expose gaps in the protection of free expression. Stanley Kubrick’s decision to withdraw
A Clockwork Orange from circulation in the United Kingdom illustrates this limitation. Although the film was not subject to a nationwide legal prohibition, public controversy, media criticism, and local regulatory pressures preceded Kubrick’s nearly three-decade self-removal. The film thus remained legally protected yet practically inaccessible within the United Kingdom. This incident provides an example of how expressive works may be limited without formal government censorship. This paper examines Kubrick’s withdrawal through a United States constitutional framework. It focuses on the distinction between state restriction and private control over distribution and argues that the quasi-ban of
A Clockwork Orange reveals a structural gap in First Amendment theory: while speech is protected from government censorship, it may nonetheless be suppressed through "soft law" mechanisms that operate outside formal doctrine. By separating the concept of legal protection from the reality of circulation, the paper clarifies how expression may be constrained outside traditional censorship models. Recognizing this distinction clarifies the practical limits of First Amendment protections and refines how free speech is understood in modern media environments shaped by market forces, rating systems, and distribution controls.
Amanda McKim,
Speech is Free, But Lies You (Should) Have to Pay For: Alex Jones as a Case Study for the Inefficacies of Defamation Remedies. Film:
The Truth vs. Alex Jones (2024). The First Amendment to the United States Constitution protects against government-imposed limitations on freedom of speech and the press. However, the First Amendment does not protect false, defamatory statements. The intersection of these two areas of law has been analyzed at length, but changes in the way society communicates raises new and more dangerous problems regarding the ways in which courts address the impacts of defamation. With the continually expanding use of smart phones, access to endless perspectives in media, and few ways to definitively “fact-check” sources, misinformation is rampant, and defamation remedies provide increasingly less meaningful relief to victims. Alex Jones, a prominent radio show host, was sued in two states and has three judgments against him for defaming victims’ families in the 2012 Sandy Hook school shooting. The complaints were filed in 2018 and resulted in final judgements in 2022 of $1.5 billion dollars in damages. Jones has since filed for bankruptcy, has yet to pay the victims. He continues to disparage the proceedings to his audience of 30 million daily listeners. The plaintiffs’ inability to recover and Jones’s continuing perpetuation of harmful rhetoric exemplify the ineffectiveness of current remedies to meaningfully address serious speech-based harms. Despite legal scholars’ critiques of equitable remedies in defamation cases, equity might be the best way to address previous harm, prevent future harm, and provide victims with the most appropriate relief.
(Image: Instagram post by WBRC-TV 6 News, 2025. With characteristic wisdom and compassion, Ms. McKim suggested that the visual element for this post might honor the victims of Sandy Hook, rather than draw further attention to Alex Jones, who doesn't need help with publicity. I could not agree more.—RJPS)
Sean Pillai, Embedded Reporting and Freedom of the Press in Contemporary U.S. Military Operations. Films: Restrepo (2010), Korengal (2014). Embedding journalists with U.S. military combat operations highlights the ongoing struggle to balance democratic transparency with the practical realities of fighting a war. The system of embed reporting was created to give the public a clearer view of what happens on the front lines, but it also has raised continuing legal and ethical questions about how independent reporters truly can be when the military controls their access and movement. This paper looks at those tensions through the perspectives offered in Restrepo (2010) and Korengal (2014), while examining the most recent policy behind U.S. military media policy. The embed system shows why some limits on access are required in combat zones and that journalists must continue to expose themselves to risk both in the legal realm and physically in combat to protect speech.
Carson Powell, From Accessible Knowledge to Smoldering Ashes: How a 1953 Novel Reflects a Growing Current Reality. Film: Fahrenheit 451 (2018). A story created in 1953, in which books are outlawed, and "firemen" burn any that are found, illustrates the censorship of knowledge and literature. In Arkansas, on March 30, 2023, the legislature approved Act 372, which included new standards for individuals selling books, whether that be public libraries or small bookstores. Act 372 in theory was approved to protect minors from stumbling onto books and materials of mature topics, but many librarians disagreed with that sentiment. The librarians of Fayetteville Public Library, joined by many other librarians believed that the act forces libraries and bookstores to segregate novels with "mature subjects" into "adult only" areas, with a risk of criminal prosecution for failing to do so. The Fayetteville Public Library, American Civil Liberties Union of Arkansas, and others filed complaints alleging that Act 372, like outright book banning, violates the First Amendment as overbreadth, vague, and content based. The lawsuit further alleged that the Act was intended to limit access of books and media to individuals who have a constitutional right to the books in question. The Arkansas legislature follows a growing trend around the United States of State’s legislators introducing and implementing acts regarding content-based censorship. Increasing enactments of laws aimed at removing “obscene” materials to protect children effectively discriminates against people of color, underrepresented communities, and members of the LGBTQ+ community. The suppression of media, whether by segregating books in the library or bookstore, or by facilitating their removal smaller institutions having to take the books off the shelves at risk of prosecution, reflects the themes of Ray Bradbury’s Fahrenheit 451.
,
Apocalypse When? Latent Power of 47 U.S.C. § 606. Film:
Apocalypse Now (1979). 47 U.S.C. § 606 ("the Act"), "The War Powers of the President," is an unused emergency provision of the Telecommunications Act that threatens freedom of speech.
Apocalypse Now contains a scene depicting a
Time magazine article reporting inaccurately on the Vietnam War. The movie does not say whether
Time published the article of its own volition or at the direction of the Government. In the "real world," the Act enables the President to seize and control certain media outlets during emergencies, possibly controlling public reception of the emergency. The Act lacks clear definitions or statutory guardrails, conferring power so broadly that it is easily abused.
Apocalypse Now used a prop magazine article to illustrate dishonesty in the media without showing where the lie really came from. Under the Act, a censored message can easily be spread to deceive the public regardless of free speech objections that outlets may raise. This is a threat to free speech.
Corie Scott,
Tried Inside a Story: Pretrial Narrative and the Fragility of the Presumption of Innocence. Film:
When They See Us (2019). Ava DuVernay’s
When They See Us documents what happens when narrative precedes adjudication. The prosecution of the Central Park Five—who now identify as the Exonerated Five—illustrates how media coverage, official statements, and public discourse can converge to construct a story of guilt before evidence is tested in court. That story proved more durable than the convictions it preceded and more resistant to correction than the exonerations that followed. The case is extraordinary in its consequences. The dynamic it reflects is not. This paper examines the tension between First Amendment press freedom and the Sixth Amendment guarantee of a fair trial through doctrinal analysis and a preliminary comparative study of contemporary criminal reporting. Drawing on a close reading of fifteen articles across local news outlets, national publications, tabloid media, and government press releases, the analysis examines patterns in headline labeling, suspect characterization, moral descriptor language, victim framing, contextual background, and the presence or absence of presumption-of-innocence language. The sample is illustrative rather than representative and is offered to surface patterns consistent with the doctrinal concerns the paper identifies. The findings identify patterns that warrant closer legal and empirical attention. Narrative intensity, humanizing context, and presumption-of-innocence framing vary consistently across source types – and, with regularity that raises due process and equal protection concerns, across defendants. White defendants were disproportionately introduced through professional identity and personal context. Black and Latino defendants were more frequently framed through criminal identity and categorical threat language, with government press releases producing the most authoritative and criminalized framing of any source category examined. These patterns point to a structural gap in existing doctrine. First Amendment protections permit the circulation of narratives that assign meaning to accusation. Sixth Amendment safeguards operate within the courtroom to mitigate identifiable prejudice. Neither framework fully addresses how pretrial narratives shape the ground on which guilt is adjudicated. This paper argues that the law’s current approach is incomplete—not because it fails on its own terms, but because it was not designed for an information environment in which narrative formation is rapid, self-reinforcing, and difficult to unwind. The presumption of innocence survives as a formal rule. Whether it survives as a lived condition of adjudication, for all defendants equally, is the question the paper raises—and the one it calls on doctrine and empirical scholarship to more fully answer.
,
Accountability Gaps at The International Criminal Court: How States Get Away with Murder. Film:
A Private War (2018). Women journalists operating in conflict zones are targeted not only because of their reporting, but because of their gender. Sexual violence, intimidation, and physical assault are deployed as deliberate tools to silence women in the press, yet international law has failed to translate its formal protections into meaningful, enforceable accountability. This paper investigates that failure through the legendary war correspondent Marie Colvin. In
Colvin v. Syrian Arab Republic, the United States District Court for the District of Columbia granted a default judgment of $302,511,836.00 against Syria for the deliberate targeting and killing of Marie Colvin during her reporting in Homs in 2012. Syria has never paid. Additionally, the conduct that killed Colvin, a state-directed attack on civilian journalists in armed conflict, falls within the jurisdictional reach of the Rome Statute as a war crime under Article 8, yet no International Criminal Court (ICC) prosecution followed. Syria is not a signatory and the UN Security Council vetoed the referral. Thus, even when liability is established, the absence of enforceable international laws leaves victims without remedies and states without consequences. Colvin's case is not exceptional. It is representative of a systemic pattern in which gender-based violence suppresses journalistic work and states face no meaningful consequences. This paper highlights three structural deficiencies within the International Criminal Court framework revealed by the Colvin case. This paper contends that addressing these gaps necessitates structural reforms beyond the scope of the current system.
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,
A Relic of the Past: It’s Time To Deal With The Equal Time Rule. Film:
Man of the Year (2006). This paper utilizes the 2006 film
Man Of The Year to introduce and illustrate systemic inconsistencies in the Federal Communication Commission’s (FCC) enforcement of the equal time rule. The rule, Section 315(a) of the Communications Act of 1934, requires broadcast licensees providing airtime to a legally qualified candidate must also provide equal air time all opposing candidates. The rule is introduced by examining the absence of discussion and enforcement of it and its requirements throughout the film despite a talk-show host’s presidential campaign. This paper suggests that the omission is illustrative of the inconsistent and arbitrary application of the rule in the real world. Next, the history and origins of the rule are explored beginning with the rule’s origin in the Radio Act of 1927 through present day talk show challenges. Subsequently, the rule’s inconsistent implementation and the question of censorship are investigated with examples in media, case law, and FCC proceedings and notices from the rule’s beginning through present day. Finally, possible remedies such as further defining the rule, post-
Chevron challenges, or repealing the rule are considered.
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