• “Despite threats, search goes on” (Jan. 24, Bradenton Herald)
  Baldwin explained that legislation regarding online threats is long overdue. Fletcher Baldwin, a law professor at the University of Florida who specializes in cyber crime, said a law specifically dealing with online threats is long overdue. “We turned the corner long ago. You have to have different focus when dealing with online threats. Invasion of privacy is not the issue here. You put yourself out in the public arena and you threaten people’s lives. That’s not right,” he said.

Free-market environmentalists argue that the answer is through creating markets and making better property rights.

“We get the problem of a lack of demand for environmental goods and services, we have poorly specified or absent property rights in common resources that allow misuse of it, we have the failure of the legal system to apply standard doctrines of property, tort and contract to solve these problems and we have an absence of market,” said Andrew Morriss, a professor at the University of Illinois College of Law. “If we correct those problems, we will in fact correct many environmental problems.”

Morriss is also a fellow with the Property and Environment Research Center (PERC), an institute dedicated to improving environmental quality through markets and property rights. The Federalist Society sponsored his presentation on Wednesday.

A main cause of environmental problems comes from people and businesses freely dumping waste into the air and the water and thus polluting a common resource, Morriss said. Fixing this problem through incentives would help improve the environment, Morriss argued.

“If you’re going to take a market approach, you have to somehow solve the problem of people using this common resource for free and somehow get their incentives lined up with the costs they impose,” he said.

Morriss told the story of the red-cockaded woodpecker as an example of how free markets can help the environment. The red-cockaded woodpecker has been endangered since the 1970s as its habitat changed around it. International Paper agreed to use some of its land for conserving this woodpecker, eventually selling woodpecker credits and importing them.

The conservation plan was wildly successful, and it led to International Paper being able to profit off of the land in other ways, including by selling hunting rights. According to Morriss, International Paper started making more money from the conservation land than they would have had it been used for paper.

Alyson Flournoy, UF director of UF Law’s Environmental & Land Use Law Program, said there are four things to keep in mind when discussing free market environmentalism.

First, property rights and markets are not magic, she said. They’re not a substitute for thought and judgment. Also, someone has to decide the structure of creating a new market, which leads us back to government, she said.

“As with any tool, if you don’t use a tool correctly, it can bite you,” Flournoy said. “You need to know where it’s appropriate to use, what its limitations and its strengths are.”

Second, markets can be seriously flawed, Flournoy said.

“It’s easy to think these models are a perfect explanation of the world and therefore if we adopt markets, the world will follow the models,” she said. “There are some cases where it does, and some of the empirical examples that Professor Morriss gave you are those. But beware generalizing and assuming that in every case the theory will work perfectly.”

Third, Flournoy argued that the choice isn’t simply government regulation or free markets. This is because markets and current regulatory schemes can have different goals.

“[Markets] are geared to achieve one goal and one goal only: efficiency. That is what we can achieve and that’s a really valuable goal, but existing environmental policies are designed to achieve a lot more than efficiency,” she said. “They may be achieving protection of public health notwithstanding if you are rich or poor. It may not be an efficient result but we may care about that.”

Finally, Flournoy said markets do not just spring up out of nowhere by magic. The government would have to make choices about which regulations to replace with markets and allocate rights which would be a difficult process, she said.

Morriss said he knows markets would not arise overnight but the process would be worth it for the environment.

“We think markets are an answer,” Morriss said. “We think markets are a process, they’re not an answer in the sense that they’ll tell you who gets what. It’s a process by which we think solutions will emerge. They’re not magic, but the term we use is spontaneous order…They do arise without any central planning; they do arise without central direction.”

The main topic of the discussion was a local story that has been hard to miss this year. Last July, Dove World Outreach Center posted a sign near the church declaring, “Islam is of the devil.” The sign raised the ire of many in town, but the story became national news when students wore t-shirts with the same message on them to their first day of school. The students were sent home for violating the dress code, and an argument about the First Amendment and schools has been raging since.

The children then approached the ACLU, which had already declined requests from its members to advocate against the church when the sign was first put up. The ACLU took on the case, but Standly made a clear distinction between her personal opinion and what she believes the First Amendment allows.

“We thought, as individuals, as human beings, that this was a message of religious intolerance,’ she said. “This was a message that many of us disagreed with, but we don’t take cases based on our personal opinions, we take cases based on the Constitution and the Bill of Rights.”

Standly said the organization took on the case because they firmly believed it met the Tinker standard, created in the 1969 case of Tinker v. Des Moines Independent Community School District. In that case, the Supreme Court ruled that it was an unconstitutional limitation on free speech when students were disciplined for wearing armbands to school to protest the Vietnam War. That decision hinged on the court’s finding that the speech did not substantially interfere with the educational environment, and the ACLU’s ability to win this case will likely require such a finding.

Standly spent much of her time addressing questions from students, but students were not the only ones in attendance. Saeed Khan, a professor at the UF College of Medicine and past president of the Muslim Association of North Central Florida, also attended. Khan has been outspoken regarding these events, and wanted to make it clear that Muslims were not the only ones offended by this message. “When there was a protest outside the church,” he said. “Eighty percent of the 110 people there were Christians and Jews.”

By taking the case, Standly said the ACLU has outraged some of its members. She described getting dozens of calls from members who wanted to cancel their memberships, some of whom compared the situation to what happened in Skokie, Illinois more than 30 years ago. In that case, neo-Nazis were facing opposition from the town of Skokie in response to their plans to hold a march. Then, too, the ACLU stood in, fighting for the rights of the neo-Nazis.

Standly said that they do their best to stand by their principles, even if it doesn’t always win them much support.

“Our guiding posts are always going to be the Constitution and the Bill of Rights,” she said, “which is often very unpopular.”

More than 110 guests attended the seminar on Jan. 22 in the Chesterfield Smith Ceremonial classroom at the UF College of Law, and hundreds more watched the online broadcast. It featured a panel of legal and other professionals and experts, including Jon L. Mills, founding and current director of the Center for Governmental Responsibility, professor of law and dean emeritus of UF Law; Lyrissa Lidsky, UF Stephen C. O’Connell chair and professor of law; Susan Blair, UF chief privacy officer; Barbara Wingo, UF associate vice president and first deputy general counsel; Paula Fussell, UF vice president of human resource services; and Jane Adams, UF vice president for university relations.

“We are indeed lucky to have panel with this breadth of experience and expertise,” Mills said.

A common theme was though social media provides many benefits, it also has repercussions that may be costly to a person’s privacy, safety and employment opportunities.

Mills began the seminar with discussion of four specific aspects at the crux of the social media debate — the concept of gossip, wide dissemination of information due to the technology, the issue of public records, and personal carelessness. He focused on importance of understanding the technology that gives social media its power.

“The future is difficult because the law and policy have not caught up, even remotely, with technology. And the prospects of it catching up are not good,” Mills said. “We just have to understand the reality of what we are doing — that even if you think the law protects you, it may not, and that abuses and negligence are the things that are beyond technology, the law and policy.”

As an admitted avid user of social media, Lidsky noted the ability of the social media to sponsor a vested community.

“One of the beauties of Facebook is the sense of responsiveness it engenders,” Lidsky said. “You are serving your constituents when you are available to them on Facebook, perhaps to answer questions, or to deal with common policy issues that arise. And one of the best things about Facebook is the immense interactivity, which fosters a sense of community.”

She also described the specific rights that Web site or page administrators have to edit or remove material and communications posted on the site based on the type of fora — whether public forum, non-public or outlet for government speech — that has been created. In a public university setting, the Facebook page should be set up as a non-public forum to allow for some control of postings while facilitating the largely free exchange of ideas.

As UF’s chief privacy officer, Blair provided helpful tips on how to avoid making specific privacy violations that could occur under such laws as the Health Insurance Portability and Accountability Act (HIPAA) or the Family Educational Rights and Privacy Act (FERPA), citing awareness of the requirements of these laws as key to preventing privacy violations.

With the broad array of legal topics on which she is versed, Wingo’s presentation touched on several aspects of using social media and networking Web sites, from copyright and trademark law to open meetings laws, and when posting to social media must be considered of public record. She noted the marked lack of policies prepared by universities on the appropriate and effective use of social media — the lack of which was one reason behind UF’s decision to host the seminar.

“It is actually very surprising how few universities have formulated policies on these social media. And the few that are out there, that are public, are probably as confused as we are as to where we should go with this whole issue,” Wingo said. “We are actually formulating a disclaimer, something that you can post on your Facebook pages, that we think will take a middle ground,” she said.

At the heart of Fussell’s presentation were the long-term implications that the sharing of inappropriate and non-professional photos and postings can have on current and potential employment opportunities.

There is something about social media that enables us to post things online we would not publish in a newspaper or say out loud to someone’s face, Fussell said.

In wrapping up the presentation, Adams discussed the power and potential of social media to connect individuals and allow for increased engagement on topics of specific interest to viewers and users. She noted that UF was a leader in the use of social media for business purposes, and reviewed a number of UF sites.

In all, the panel seemed united on the idea that stopping and thinking a little more before sharing those comments and photos could save us from many of the costly retributions, and instead, allow us to enjoy the promises of social media rather than its pitfalls.

“We all understand the complexity and the contradictory nature of social networks,” said Mills. “It’s a great opportunity to be able to share ourselves and to share information with others. We just have to understand the reality of what we are doing.”

The seminar grew out of the work of the University of Florida Strategic Communications Planning Committee, chaired by UF Law Communications Director Debra Amirin. For more information or to view the archived video, visit http://strategiccommunications.law.ufl.edu

Sarah Perez’s five easy steps to stay safe (and private!) on Facebook

Jon Mills’ tips for using social media:

• Define your goals and the audience with which you want to network
• Understand the law as it relates to your goals and audiences
• Understand how technology and reality impact implementation of your goals

Susan Blair’s privacy considerations for faculty members:

• Model appropriate behavior
• Do not share confidential or restricted information online
• Avoid unprofessional behavior violates university policy
• Do not post risky pictures
• Beware of “meat puppets” – individuals posting to your page with ulterior motives
• Consider and implement all privacy protections available to you
• Understand the terms and conditions of Facebook

For more information on the university’s privacy policies and procedures, visit the UF Privacy Office Web site at http://privacy.ufl.edu/pandp.html.

Barbara Wingo’s Tips

• Assume that nothing is private, everything is public
• Assume that existing laws apply to social media

For more information about the university’s regulations and policies regarding acceptable use and intellectual property policies, visit the UF Office of the Vice President and General Counsel’s Web site at www.generalcounsel.ufl.edu/regulations/.

Over a dozen prominent players in the sports world were on hand Friday for the Entertainment and Sports Law Society’s 2010 Sports Law Symposium. Many spoke about the future of sports and three panels spoke about the expiring collective bargaining agreements (CBAs) in Major League Baseball, the National Basketball Association and the National Football League.

Harvey W. Schiller, keynote speaker, talked about his vision for the future of sports, a somewhat gloomy forecast. Schiller has worked for Turner Sports, Turner Broadcasting System, and YankeeNets, which launched the YES regional sports network. He has also been the executive director of the United States Olympic Committee and the commissioner of the Southeastern Conference from 1986-90.

Schiller said many issues are going to plague sports in the future, including current teenagers being too tied to technology, immigrants bringing their own sports preferences and most importantly energy woes affecting the sports world. He predicted that energy to get to sports events could have a big negative effect on parts of sports.

“Take the Texas Rangers,” he said. “The Texas Rangers play in a stadium between Fort Worth and Dallas; to get there you have to drive. That new electric car may take you there but you may have to plug it in to get back home. I think that kind of stadium is going to be challenged. The Yankee Stadiums, Citi Field – they’ll survive – large metropolitan centers with lots of public transportation and support systems.”

Schiller told the story of how he became the SEC commissioner right out of the Air Force. Schiller, a longshot for the job to Roy Kramer, thought his interview was going poorly when University of Mississippi Chancellor R. Gerald Turner asked him why they should want a military mind running the often-troubled SEC.

“I stood up and I said, ‘I don’t think it’s so bad for a conference like yours that has been cheating its entire existence to pick someone from an institution where you don’t lie, you don’t cheat, you don’t steal and you certainly don’t tolerate it,” Schiller said. “Have a nice day.’ And then I walked out.”

Michael McCann, an associate professor of law at Vermont Law School and a legal analyst for Sports Illustrated, gave an introduction about what collective bargaining agreements are in the NBA panel. Basically, they dictate the terms and policies for teams and players and how the league is run.

“Often people say, ‘Why don’t teams just unilaterally impose rules on players? Wouldn’t it be easier if we just avoided any kind of bargaining?’ McCann said. “If teams were to do that, those rules would be subject to section one of the Sherman Act, which prevents anti-competitive behavior by management.”

By going through the collective bargaining process, the Sherman Act does not come into play. If the players’ union and owners do not come to an agreement, either the owners can lock the players out or the players can strike.

The NBA’s CBA expires at the end of the 2010-2011 season, but the league can extend it to 2011-2012 if it chooses. McCann does not see the league agreeing to an extension and he sees a lockout looming.

A couple of issues for the NBA are the percentages of revenue going to players and owners. One of the biggest issues is where revenues go. Right now, 57 percent goes to players and 43 percent goes to owners, but the owners want closer to 50 percent, McCann said.

McCann sees how long the players can go without pay as a determining issue if the owners lock the players out. Sports litigator Alan C. Milstein also predicts a lockout but thinks the players not getting paid will be too big an issue for them.

“The information I have is there will be a lockout, but I think it will last a very, very short period of time. The players will fold,” he said.

Andrew Brandt, who has worked in management with the Green Bay Packers and as an agent and now writes for Nationalfootballpost.com, said there are a few issues that will be up for negotiation in the NFL’s collective bargaining. Eventually, though, it all comes down to money, he said.

“I think we’re going to hear a lot of issues in the press,” he said. “There will be a lot of issues about the rookies. Everyone loves to talk about the rookies and the [Matthew] Stafford deal and how it’s ruining mankind that these rookies make so much money,” he said. “We’re going to hear about conduct, we’re going to hear about drug testing. But ultimately those are all ancillary. The obvious big issue is how much. How much do players get, how much do managers get, and how much of what?”

On the baseball front, former MLB Players’ Association head Donald Fehr predicted less turmoil. He led baseball’s very strong player’s union through a strike in 1994 and now is a consultant for the NHL Players’ Association.

“The next round of negotiations in at least three of the sports – baseball being the exception – I think the likelihood of a labor strike or a lockout is fairly significant, by no means certain; we hope it doesn’t happen and that they work it out, but the stars don’t align that well,” Fehr said in the symposium’s closing address.

One major theme of Fehr’s speech was how different labor issues are in professional sports than in other industries. One reason is because the players and owners are so wealthy that they don’t get desperate to settle quickly.

He gave the 2004-05 NHL lockout as an example of something that could only happen in sports. Basically, the owners wanted a salary cap and the players did not. The owners broke the players and got them to agree after a full season off, Fehr said. In any other industry the players could have played for a competitor.

In the NFL, the CBA expires at the end of the 2010 season. Agent Paul Healy, UF alum, said a lockout could happen and he is trying to prepare his clients for it.

“A year away? You hope not, but it might get to that though,” Healy said. “The NFL is an $8 billion plus a year business and I’d hate to think that everybody can’t get together and agree on something. As the saying goes, pigs get fat and hogs get slaughtered. Everybody just gets too greedy.”

Members of the winning team include Dana DiSano (awarded Best Advocate), Dan Hogan, Kevin Sharbaugh and Melissa Welch. Also competing from the team were Wayne Atkinson, Allison Kirkwood, Jamie Stephens and Kara Wick. Others integral to the team’s success were James Baley, Rhett Parker, Tania Alavi and Nick Zissimopulos.

“This truly was a team effort,” DiSano said. “Since late October, we spent nearly every free moment preparing for this competition. Throughout the process, everyone on the team was focused, determined and selfless. We all appreciate the dedication of our two coaches, Nick Zissimopulos and Tania Alavi, who spent countless hours helping us improve our advocacy skills in the months leading up to this competition.”

On Feb. 5 at 11 a.m., Hovenkamp, the Ben and Dorothy Willie Chair at the University of Iowa College of Law and the recipient of the 2008 John Sherman Award from the Antitrust Division of the Department of Justice, will discuss the Federal Trade Commission and the Sherman Antitrust Act. The act, passed by Congress in 1890, authorizes the federal government to enforce federal policy against the anticompetitive practices of cartels and monopolies. The free lecture will be held in the College of Law’s Chesterfield Smith Ceremonial Classroom (room 180).

“I feel extremely honored to be the first speaker for the Bayard Wickliffe Heath Memorial Lecture Series on U.S. Antitrust Policy,” Hovenkamp said. “The University of Florida College of Law, together with UF’s economics department, has one of the strongest antitrust faculties in the United States, and this lecture series will only enhance that reputation.”

The lecture series was made possible by a gift from Inez Heath, Ph.D., widow of Bayard “Wick” Heath, to honor his professional accomplishments as a lifetime antitrust litigator. Before his death in 2008, Heath was the senior competition consultant with Gainesville, Fla.-based Info Tech, a firm specializing in statistical and econometric consulting, expert witness testimony and antitrust law. Prior to joining Info Tech, Heath spent 14 years as a prosecuting attorney, including 11 years devoted to the investigation of bid-rigging conspiracies. Heath also served as the assistant attorney general for the Florida Attorney General’s Office, Antitrust Section, and worked as an assistant attorney general for the Dade County State Attorney’s Office. Heath earned his bachelor’s degree in political science at Washington & Jefferson College and his juris doctorate from Suffolk University.

Inez Heath said she hopes the lecture series will inspire law students to learn more about antitrust law.

“These lectures will ensure that UF law students have access to the best and brightest minds in antitrust law,” Heath said. “It is a fitting tribute to Wick to have his name associated with other scholars who have devoted their careers to antitrust law. I’m looking forward to hearing Professor Hovenkamp give the first Bayard Wickliffe Heath Memorial Lecture on U.S. Antitrust Policy.”

William Page, UF College of Law senior associate dean and the Marshall M. Criser Eminent Scholar in Electronic Communications and Administrative Law, said those interested in antitrust law will not be disappointed in Hovenkamp’s lecture.

“Herb Hovenkamp is one of the most influential and creative antitrust scholars of the present century,” Page said. “We’re fortunate he has agreed to be our inaugural Heath lecturer. His analysis of the relationship between the Federal Trade Commission and the Sherman Act should be interesting to a broad legal and business audience.”

For more information on the Bayard Wickliffe Heath Memorial Lecture Series on U.S. Antitrust Policy, contact William Page at (352) 273-0610 or page@law.ufl.edu.