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EXAM NUMBER: #### BBE
BLUEBOOK EXERCISE
(Leave blank or add more text boxes to the explanations, as you require)
Directions: Double click in the Exam Number field above, replace #### with your exam
number, close on the header and save the document, naming it your exam number
followed by the letters BBE (for BlueBook Exercise). Your document should be named
something like: “5213 BBE.doc.” Supply the rules and explanations below and complete
the Preference Sheet. When you are done, attach the document to an email, and send it to
BlueBook@bc.edu. The email’s subject line should be your exam number plus BBE (i.e.,
5213 BBE). Good luck.
Author’s Original:
See Abigail Robertson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442
(N.Y. 1902). See also Giovanna Shay, The Case That Started It All: Robertson v. The
Rochester Folding Box Company, 2014 HARVARD JOURNAL OF LAW AND GENDER 407,
452 (2014).
Edited Version:
See Robertson v. Rochester Folding Box Co., 64 N.E. 442 (N.Y. 1902); see also
Giovanna Shay, The Case That Started It All: Robertson v. The Rochester Folding Box
Company, 2014 HARV. J.L. & GENDER 407, 452 (tracing the modern, more expansive
meaning of the right of privacy to the Robertson dissent).
Explanation:
Rules
Explanation
Author’s Original:
2
Id. at 446. The words “photo,” “litho,” and “graphy” all have Greek origins,
meaning “light,” “stone,” and “writing,” respectively. See Franklin Coates, Ph.D.’s essay
Early Advances in Resist Technology and Processing in the collection LAW AND
TECHNOLOGY: A HISTORICAL PERSPECTIVE (CharlesWillson, Rene Dammel, and Albert
Reiser, eds., 2014).
Edited Version:
2
Robertson, 64 N.E. at 446. The words “photo,” “litho,” and “graphy” all have
Greek origins, meaning “light,” “stone,” and “writing,” respectively. See Franklin
Coates, Early Advances in Resist Technology and Processing, in LAW AND TECHNOLOGY:
A HISTORICAL PERSPECTIVE 22, 37 (CharlesWillson et al. eds., 2014).
Explanation:
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Author’s Original:
3
Robertson v. Rochester Folding Box Co., 64 N.E. at 450 (N.Y. 1902) (the majority
held that there was no right of privacy, and, once established as a legal doctrine, cannot
be confined to the publication of a likeness).
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EXAM NUMBER: #### BBE
Edited Version:
Robertson, 64 N.E. at 450 (“There is no cause of action for invasion of privacy; the
right of privacy, once established as a legal doctrine, cannot be confined to the
publication of a likeness.”).
Explanation:
Rules
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3
Author’s Original:
4
Id. at 451. Contra id. at 455 (“The right of privacy, or the right of the individual to
be let alone, is a personal right which is not without judicial recognition.”). The court
feared the unfettered application of a newly created right. See Robertson, 64 N.E. at 450
(“Such a right cannot be found in Blackstone, Kent, or any other of the great
commentators upon the law, and its existence was never asserted prior to 1890.”)
(emphasis in the original).
Edited Version:
4
Id. at 451. Contra id. at 455 (Gray, J., dissenting) (“The right of privacy, or the right
of the individual to be let alone, is a personal right which is not without judicial
recognition.”). The court feared the unfettered application of a newly created right. See
id. at 450 (majority opinion) (“Such a right cannot be found in Blackstone, Kent, or any
other of the great commentators upon the law, and its existence was never asserted prior
to 1890.”).
Explanation:
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Author’s Original:
5
The obverse phenomenon is “desuetude,” a doctrine that constructively invalidates
an obsolete statute—even one not formally repealed—because of the state’s prolonged
and predictable unwillingness to enforce it. See, e.g., Poe v. Ullman, 81 S. Ct. 1752,
1757 (1961). The doctrine is based on estopple theory.
The undeviating policy of nullification by Connecticut of its anticontraceptive laws since 1875 bespeaks more than prosecutorial
paralysis. “Deeply embedded traditional ways of carrying out
state policy[, or not carrying it out,] are often tougher and truer
law than the dead words of the written text.”
Id. (where the Court explained why it held the anti-contraceptive law unenforceable)
(quoting Nashville, C. & St. L. R. Co. v. Browning, 310 U.S. 362, 369 (1957))
(alteration in the original).
Edited Version:
5
The obverse phenomenon is “desuetude,” a doctrine that constructively invalidates
an obsolete statute—even one not formally repealed—because of the state’s prolonged
and predictable unwillingness to enforce it. See, e.g., Poe v. Ullman, 367 U.S. 497, 509
(1961). The doctrine is based on estopple theory. “The undeviating policy of
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EXAM NUMBER: #### BBE
nullification by Connecticut of its anti-contraceptive laws since 1875 bespeaks more
than prosecutorial paralysis. ‘Deeply embedded traditional ways of carrying out state
policy[, or not carrying it out,] are often tougher and truer law than the dead words of
the written text.’” Id. (alteration in the original) (quoting Nashville, C. & St. L. R. Co. v.
Browning, 310 U.S. 362, 369 (1957)) (explaining why the Court held the anticontraceptive law unenforceable).
Explanation:
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Author’s Original:
6
Various laws define revenge porn generally as sexually explicit media that are
publicly shared online without the consent of the pictured individual. See Giovanna
Shay, The Case That Started It All: Roberson v. The Rochester Folding Box Company,
2014 HARV. J.L. & GENDER 407, 409 (2014); see also Steven Nelson, Federal Revenge
Porn Bill Will Seek to Shrivel Booming Internet Fad, BULLETIN OF CONTEMPORARY
LEGAL PROBLEMS, March 26, 2014, at 11, 13 (noting a number of competing
definitions).
Edited Version:
6
Various laws define revenge porn generally as sexually explicit media that are
publicly shared online without the consent of the pictured individual. See Shay, supra
note 1, at 409; see also Steven Nelson, Federal Revenge Porn Bill Will Seek to Shrivel
Booming Internet Fad, BULL. CONTEMP. LEGAL PROBS., Mar. 26, 2014, at 11, 13,
available at http://www.bcli.com/news/articles/2014/03/26/federal-revenge-porn-billwill-seek-to-shrivel-booming-internet-fad (noting a number of competing definitions).
Explanation:
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Author’s Original:
7
At least one study indicates that men are slightly more prone to becoming victims
of online revenge than women. SCOTT STROUD, THE DARK SIDE OF THE ONLINE SELF: A
PRAGMATIST CRITIQUE OF THE GROWING PLAGUE OF REVENGE PORN IN 2011 116
(2013). There have, of course, been some high-profile examples. See, e.g., Alexi
Friedman, “Dharun Ravi sentenced to 30 days in jail,” Star Ledger April 21, 2012, at A6
(reporting carceral punishment for a Rutgers student who distributed webcam footage of
his roommate engaging in same-sex sexual activity, leading thereafter to the roommate’s
suicide); Jim Bruner, “Bellingham student embroiled in Rep. Weiner Twitter scandal,”
The Seattle Times, page A1 (June 1, 2011). (chronicling conservative blogger Andrew
Breitbart’s publication of a suggestive picture Anthony Weiner sent to a 21 year old
Seattle woman).
Edited Version:
7
At least one study indicates that men are slightly more prone to becoming victims
of online revenge than women. SCOTT STROUD, THE DARK SIDE OF THE ONLINE SELF: A
PRAGMATIST CRITIQUE OF THE GROWING PLAGUE OF REVENGE PORN IN 2011, at 116
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EXAM NUMBER: #### BBE
(2013). There have, of course, been some high-profile examples. See, e.g., Jim Bruner,
Bellingham Student Embroiled in Rep. Weiner Twitter Scandal, SEATTLE TIMES, June 1,
2011, at A1 (chronicling conservative blogger Andrew Breitbart’s publication of a
suggestive picture Anthony Weiner sent to a twenty-one year old Seattle woman); Alexi
Friedman, Dharun Ravi Sentenced to 30 Days in Jail, STAR-LEDGER (Newark, N.J.),
Apr. 21, 2012, at A6 (reporting carceral punishment for a Rutgers student who
distributed webcam footage of his roommate engaging in same-sex sexual activity,
leading thereafter to the roommate’s suicide).
Explanation:
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Explanation
Author’s Original:
8
In their comprehensive book on this topic, Gelman and McCandlish explain that
revenge porn is legal in all states except three; 22 states, however, have introduced
legislation to outlaw it. Gelman, Robert B. and McCandlish, Stanton, Protecting Yourself
Online: The Definitive Resource on Safety, Freedom & Privacy in Cyberspace on page
144 (New York: HarperEdge 2013).
Edited Version:
8
In their comprehensive book on this topic, Gelman and McCandlish explain that
revenge porn is legal in all states except three; twenty two states, however, have
introduced legislation to outlaw it. ROBERT B. GELMAN & STANTON MCCANDLISH,
PROTECTING YOURSELF ONLINE: THE DEFINITIVE RESOURCE ON SAFETY, FREEDOM AND
PRIVACY IN CYBERSPACE 144 (2013).
Explanation:
Rules
Explanation
Author’s Original:
9
See Gelman & McMandlish, supra note 8, at 92. Some state statutes are fairly
robust. E.g., WIS. STAT. ANN. § 942.09 (3m)(a)(1) (West 2013) (may consider
aggravating circumstances in sentencing); 31 PA. CONS. STAT. ANN. § 190 (West 2012)
(criminal forfeiture penalties); N.J. STAT. § 2C:14-9(c) (2014) (up to one year per
offense).
Edited Version:
9
See id. at 92. Some state statutes are fairly robust. E.g., N.J. STAT. ANN. § 2C:149(c) (West 2014) (up to one year per offense); 31 PA. CONS. STAT. § 190 (2012) (criminal
forfeiture penalties); WIS. STAT. § 942.09 (3m)(a)(1) (2013) (may consider aggravating
circumstances in sentencing).
Explanation:
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EXAM NUMBER: #### BBE
Author’s Original:
10
Sound familiar? See generally supra notes 1–5 and accompanying text.
Edited Version:
0
Sound familiar? See generally supra notes 1–5 and accompanying text (providing
historical context for the common law’s tendency to lag behind technological advances).
Explanation:
Rules
Explanation
Author’s Original:
11
See id.; compare, e.g., People v. Reginald Barber, 42 Misc. 3d 1225, 1229 (2014)
(actions were reprehensible but not illegal), with Anita Clark v. Brendan R. McLane, 86
A.3d 6552, 6556 (2014) (sufficient evidence to warrant protective order).
Edited Version:
1
See supra notes 1–5 and accompanying text. Compare, e.g., Clark v. McLane, 86
A.3d 6552, 6556 (Me. 2014) (sufficient evidence to warrant protective order), with
People v. Barber, 42 Misc. 3d 1225, 1229 (N.Y. Crim. Ct. 2014) (actions were
reprehensible but not illegal).
Explanation:
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Explanation
Author’s Original:
12
Communications Decency Act, 47 U.S.C. § 230 et seq. (2012) (the “CDA”). The
CDA immunizes internet service providers from liability for displaying content created
by someone else. 47 U.S.C. at § 230–32 (2012). It also preempts state and local statutes
that are inconsistent with the federal law. 47 U.S.C. at §§ 230(e)(3)–(e)(16) (2012); see
Almeida v. Amazon.com, Inc., 425 F. Supp. 2d 605, 611 (2006); Zeran v. America
Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997); Green v. America Online, 318 F.3d 465,
470–71 (3d Cir.2003).
Edited Version:
2
Communications Decency Act, 47 U.S.C. §§ 230–244 (2012) (the “CDA”). The
CDA immunizes internet service providers from liability for displaying content created
by someone else. Id. §§ 230–232. It also preempts state and local statutes that are
inconsistent with the federal law. Id. § 230(e)(3)–(e)(16); see Green v. Am. Online, 318
F.3d 465, 470–71 (3d Cir. 2003); Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir.
1997); Almeida v. Amazon.com, Inc., 425 F. Supp. 2d 605, 611 (E.D. Tex. 2006).
Explanation:
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Explanation
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EXAM NUMBER: #### BBE
Author’s Original:
United States Bill of Rights, Amendment 1 (September 25, 1789) (“Congress shall
make no law abridging the freedom of speech.”). But see Aubrey Burris, Hell Hath No
Fury Like a Woman Porned: Revenge Porn and the Need for a Federal Nonconsensual
Pornography Statute, in LAW AND TECHNOLOGY: A HISTORICAL PERSPECTIVE 108, 128
(CharlesWillson, Rene Dammel, and Albert Reiser, eds., 2014).
Edited Version:
3
U.S. CONST. amend. I (“Congress shall make no law . . . abridging the freedom of
speech . . . .”). But see Aubrey Burris, Hell Hath No Fury Like a Woman Porned:
Revenge Porn and the Need for a Federal Nonconsensual Pornography Statute, in LAW
AND TECHNOLOGY, supra note 2, at 108, 128.
Explanation:
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13
Author’s Original:
14
The majority of federal circuits have interpreted the CDA as providing broad
federal immunity for any cause of action that would make service providers liable for
content originating with a third-party user of the service. See America Online, Inc., 129
F.3d at 330; Batzel v. Smith, 333 F.3d 1018, 1026–27 (9th Cir. 2003). But see National
Broadcasting Services v. GTE Corp. Inc., 347 F.3d 655, 660 (7th Cir.2003).
Edited Version:
4
The majority of federal circuits have interpreted the CDA as providing broad
federal immunity for any cause of action that would make service providers liable for
content originating with a third-party user of the service. See Batzel v. Smith, 333 F.3d
1018, 1026–27 (9th Cir. 2003); Zeran, 129 F.3d at 330. But see Nat’l Broad. Servs. v.
GTE Corp., 347 F.3d 655, 660 (7th Cir.2003).
Explanation:
Rules
Explanation
Author’s Original:
15
Compare 47 U.S.C. § 230(e)(3) (2012) (CDA immunity preempts corresponding
state laws), with WIS. STAT. § 942.09 (3m)(a)(1) (2013) (criminal penalties apply); see
generally LAW AND TECHNOLOGY: A HISTORICAL PERSPECTIVE (collecting essays); see
Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997); but see Robertson, 64
N.E. at 449. See also Alexi Friedman, STAR LEDGER at A6 (criminal penalties attached).
Edited Version:
5
See Zeran, 129 F.3d at 330; see also Friedman, supra note 7 (criminal penalties
attached). Compare 47 U.S.C. § 230(e)(3) (CDA immunity preempts corresponding state
laws), with WIS. STAT. § 942.09 (3m)(a)(1) (criminal penalties apply). But see Robertson
v. Rochester Folding Box Co., 64 N.E. 442, 449 (1902). See generally LAW AND
TECHNOLOGY, supra note 2 (collecting essays).
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Rules
EXAM NUMBER: #### BBE
Explanation
Author’s Original:
16
See, e.g., Bruner, supra note 7; Burris, supra note 13, at 128; Clark v. McLane, 86
A.3d 6552, 6656 (Me. 2014); Alemeida, 425 F. Supp. 2d at 611; Zeran, supra note 12, at
330; WIS. STAT. § 942.09 (3m)(a)(1).
Edited Version:
6
See, e.g., WIS. STAT. § 942.09 (3m)(a)(1); Zeran, 129 F.3d at 330; Alemeida, 425 F.
Supp. 2d at 611; Clark, 86 A.3d at 6656; Burris, supra note 13, at 128; Bruner, supra
note 7.
Rules
Explanation
For the last 4 footnotes, you merely need to provide the corrected versions. You do not
need to provide an explanation for your edits unless you think information is missing or
something is otherwise unclear (in which case feel free to provide a brief clarification). In
some instances, you’ll need an original source to provide the correct cite form for that
source. Conveniently, you can to access those sources by clicking on the live links
embedded in the footnotes in this part of the exercise. Those sources are also on the
website (with the templates) in case you have trouble opening them by link. (And here’s a
hint: don’t be surprised if some of the sources referenced in footnotes 17–20 are used in
footnotes 1–16.)
Author’s Original:
17
Litigation strategies are equally in flux. In 2014, for example, in GoDaddy.com v.
Hollie Toups, a group of women brought a class action suit in the Texas Court of
Appeals against an Internet service provider. See 429 S.W.3d 752 (2014). The plaintiffs
argued that because the provider profited from hosting a website that contained
“sexually explicit photographs of plaintiffs posted without their permission or consent,”
GoDaddy was jointly liable for the foreseeable damages caused. 429 S.W.3d 752, 753
(2014). GoDaddy filed a motion to dismiss, arguing it was immunized from liability by
the Communications Decency Act. Id. at 753; see 47 U.S.C. § 230(e)(3) (2012). The trial
court denied the motion, however, and certified 2 issues for interlocutory appeal. Id. at
754. Other plaintiffs have tried different strategies. See e.g. Clark v. McLane, 86 A.3d
6552, 6656 (Me. 2014) (in which the court issued a protective order). See also Gelman
& McMandlish, supra note 8, at 92.
Edited Version:
7
You supply the edited version.
Author’s Original:
18
See, generally, Aubrey Burris, Hell Hath No Fury Like a Woman Porned, in LAW
AND TECHNOLOGY, supra note 2 (arguing that the First Amendment does not preclude
criminalizing revenge porn); see also SCOTT STROUD, THE DARK SIDE OF THE ONLINE
SELF, supra note 7, at 116; see Communications Decency Act, 47 U.S.C. § 230 et seq.
(2012)] compare Bruner, SEATTLE TIMES, supra note 7, at A1, and Friedman, STAR
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EXAM NUMBER: #### BBE
LEDGER, supra note 7, at A6, with GoDaddy.com, supra note 17, at 752 (adjudicating
class action brought by women claiming damages caused by explicit images of them
posted to a website).
Edited Version:
8
You supply the edited version.
Author’s Original:
19
See BUZZFEED, ACLU Sues Over Arizona’s “Revenge Porn” Law, Sept. 23, 2014,
11:08 PM (“The Phoenix New Times published photographs from an art show that
contains nude images. The ACLU believes the alternative weekly—and perhaps anyone
who picks up a copy—could be prosecuted.”); Phillip Araujo, City Reporter, TIMES (Los
Angeles), page 12 (“‘Today’s sentence makes clear there will be severe consequences
for those that profit from the exploitation of victims online.’”); Shay, supra note 1, at
409; Robertson, 64 N.E. at 446; Coates, supra note 2, at 37; Zeran, 129 F.3d at 330; U.S.
CONST. amend. I; WIS. STAT. § 942.09 (3m)(a)(1); STROUD, supra note 7, at 116;
Alemeida, 425 F. Supp. 2d at 611; 47 U.S.C. § 230(e)(3); Poe v. Ullman, 367 U.S. 497,
509 (1961).
Edited Version:
9
You supply the edited version.
Author’s Original:
20
Electronic Distributor of Reproduction Merchandise, Inc. v. Electrical Distributing
of Reproductive Merchandising, Inc., 47 So. 3d 677 (Ala. 2011).
Edited Version:
20
You supply the edited version. (Ironic, huh?)
Page 9 of 9
EXAM NUMBER: #### BBE
2015 Writing Competition for
Boston College Law School Student Publications
PREFERENCE SHEET
Rank your preferences on the lines below. Note that you need not rank all five; in
fact, rank only those publications for which you will accept a staff position should it be
offered. THE PREFERENCE SHEET WILL NOT BE GIVEN TO THE
STUDENT EVALUATORS: YOU WILL BE JUDGED SOLELY ON THE
QUALITY OF YOUR WORK.
1st Choice:
2nd Choice:
3rd Choice:
4th Choice:
5th Choice:
(NOTE: If you are in the second year of a joint degree program, or are otherwise
using an exam number that was NOT issued at the beginning of this academic year,
please make sure to requisition a new exam number from Academic Services—
otherwise, you may be using an exam number that has been reassigned to another
student.)
When you are done, attach this document to an email, and send it to BlueBook@bc.edu.