Academic literature on the topic 'Missouri. Court of Appeals (Western District)'

The State of Missouri forbids the expenditure of public funds “for the purpose of encouraging or counseling a woman to have an abortion not necessary to save her life.” This provision is part of a comprehensive scheme adopted by Missouri to advance its legitimate state interest in preferring childbirth over abortion by ensuring that state funds, facilities and personnel are not used to promote abortion.This provision was invalidated by the United States Court of Appeals for the Eighth Circuit on the grounds that the language “encourage or counsel” was “void for vagueness and violative of the right to privacy.” The district court had found that in addition to these two grounds, the provision violated the first amendment.

In Patel v. Midland Memorial Hospital & Medical Center, the U.S. Court of Appeals for the Fifth Circuit held that the defendant hospital did not violate the plaintiff's due process rights by suspending his clinical privileges without a pre-suspension hearing, where there were reasonable grounds for assuming that patient safety was at risk. Dr. P.V. Patel, a board-certified cardiologist, brought an action against Midland Memorial Hospital and several of its doctors, alleging that the suspension of his clinical privileges violated his right to a pre-suspension hearing; was the result of racial discrimination; and resulted in anticompetitive behavior in violation of antitrust laws. The U.S. District Court for the Western District of Texas granted Midland's motion for summary judgment. The parties filed cross appeals, Dr. Patel on the ground that there were genuine issues of fact for all of his claims, and Midland on the ground that, with the exception of the civil rights claim, it was immune from all of Dr. Patel's claims under the Health Care Quality Improvement Act of 1986 (HCQIA).

In 1985 two intelligence agencies of the South Korean Government announced that they had successfully disrupted a North Korean spy ring operating in the United States. Their press release, which was widely publicized in the Korean press, named Chang-Sin Lee as a North Korean agent associated with a spy ring at Western Illinois University, where Lee had been a student. The story was picked up and reported in the United States by six Korean-American newspapers and a public television station. When Lee sued for libel, the defendants relied upon the official report privilege, which gives absolute protection to the accurate republication of official government reports. The district court, holding that the privilege applied and that Lee had not overcome it by showing malice, dismissed the case. Plaintiff appealed to the U.S. Court of Appeals for the Second Circuit, which in a two to one decision reversed (per Ervin, J.) and held: that the official report privilege does not apply to the republication of official reports of foreign governments. Judge Kaufman, sitting by designation, dissented from the majority’s reversal of the district court’s grant of summary judgment.

Historically the impact of the printing press on Western culture is a truism. Print gave rise to the mass reproduction and circulation of information with wide reaching consequences in all fields: political, social, and economic. An aspect that this paper wishes to focus on is that this moment also saw the birth (and necessity) of copyright legislation, to administer and protect this new found ability to package and disseminate text. The term copyright itself, used freely in debates surrounding contemporary topics such as iTunes, DVD piracy, and file-sharing, is not only semantically anachronistic but, as will be shown, is an anachronistic problem. The history that it carries, through almost three hundred years, underscores the difficulties at the heart of copyright in the contemporary scene. Indeed the reliance on copyright in these debates creates an argument based on circular definitions relating to only the statutory conception of cultural rights. No avenue is really left to imagine a space outside its jurisdiction. This paper asserts that notions of the “culture industry” (as opposed to some other conception of culture) are also inherently connected to the some three hundred years of copyright legislation. Our conceptions of the author and of intellectual pursuits as property can also be traced within this relatively small period. As clarified by Lord Chief Baron Pollock in the English courts in 1854, “copyright is altogether an artificial right” that does not apply at common law and relies wholly on statute (Jeffreys v Boosey). Foucault (124-42) highlights, in his attack on Romantic notions of the author-genius-God, that the author-function is expressed primarily as a legal term, through the legal concepts of censorship and copyright. Copyright, then, pays little attention to non-economic interests of the author and is used primarily to further economic interests. The corporate nature of the culture industry at present amounts to the successful application of copyright legislation in the past. This paper suggests that we look at our conception of literary and artistic work as separate from copyright’s own definitions of intellectual property and the commercialisation of culture. From Hogarth to File-Sharing The case of ‘DVD Jon’ is instructive. In 1999, Jon Lech Johansen, a Norwegian programmer, drew the ire of Hollywood by breaking the encryption code for DVDs (in a program called DeCSS). More recently, he has devised a program to circumvent the anti-piracy system for Apple’s iTunes music download service. With this program, called PyMusique, users still have to pay for the songs, but once these are paid for, users can use the songs on all operating systems and with no limits on copying, transfers or burning. Johansen, who publishes his wares on his blog entitled So Sue Me, was in fact sued in 1999 by the Motion Picture Association of America (MPAA) for copyright infringement. He argued that he created DeCSS as part of developing a DVD player for his Linux operating system, and that copying DVD movies was an ancillary function of the program for which he could not be held responsible. He was acquitted by an Oslo district court in early 2003 and again by an appeals court later that year. During this time many people on the internet found novel ways to publish the DeCSS code so as to avoid prosecution, including many different code encryptions incorporated into jpeg images (including the trademarked DVD logo, owned by DVD LLC) and mpeg movies, as an online MUD game scenario, and even produced in the form of a haiku (“42 Ways to Distribute DeCSS”). The ability to publish the code in a format not readily prosecutable owes less to encryption and clandestine messages than it does to anachronistic laws regarding the wholly legal right to original formats. Prior to 1709, copyright or licensing related to the book publishing industry where the work as formatted, pressed and disseminated was more important to protect than the text itself or the concept of the author as the writer of the text. Even today different copyrights may be held over the different formatting of the same text. The ability for hackers to attack the copyright legislation through its inherent anachronism is more than smart lawyering or a neat joke. These attacks, based on file sharing and the morphing fluid forms of information (rather than contained text, printed, broadcast, or expressed through form in general), amount to a real breach in copyright’s capability to administer and protect information. That the corporations are so excited and scared of these new technologies of dissemination should come as no surprise. It should also not be seen, as some commentators wish to, as a completely new approach to the dissemination of culture. If copyright was originally intended to protect the rights of the publisher, the passing of the Act of Anne in 1709 introduced two new concepts – an author being the owner of copyright, and the principle of a fixed term of protection for published works. In 1734, William Hogarth, wanting to ensure profits would flow from his widely disseminated prints (which attracted many pirate copies), fought to have these protections extended to visual works. What is notable about all this is that in 1734 the concept of copyright both in literary and artistic works applied only to published or reproduced works. It would be over one hundred years later, in the Romantic period, that a broader protection to all artworks would be available (for example, paintings, sculpture, etc). Born primarily out of guild systems, the socio-political aspect of protection, although with a passing nod to the author, was primarily a commercial concern. These days the statute has muddied its primary purpose; commercial interest is conflated and confused with the moral rights of the author (which, it might be added, although first asserted in the International Berne Convention of 1886 were only ratified in Australia in December 2000). For instance, in a case such as Sony Entertainment (Australia) Ltd v Smith (2005), both parties in fact want the protection of copyright. On one day the DJ in question (Pee Wee Ferris) might be advertising himself through his DJ name as an appropriative, sampling artist-author, while at the same time, we might assume, wishing to protect his own rights as a recording artist. Alternatively, the authors of the various DeCSS code works want both the free flow of information which then results in a possible free flow of media content. Naturally, this does not sit well with the current lords of copyright: the corporations. The new open-source author works contrary to all copyright. Freed Slaves The model of the open source author is not without precedent. Historically, prior to copyright and the culture industry, this approach to authorship was the norm. The Roman poet Martial, known for his wit and gifts of poetry, wrote I commend to you, Quintianus, my little books – if I can call them mine when your poet recites them: if they complain of their harsh servitude, you should come forward as their champion and give your guarantees; and when he calls himself their master you should say they are mine and have been granted their freedom. If you shout this out three or four times, you will make their kidnapper (plagiario) feel ashamed of himself. Here of course the cultural producer is a landed aristocrat (a situation common to early Western poets such as Chaucer, Spencer and More). The poem, or work, exists in the economy of the gift. The author-function here is also not the same as in modern times but was based on the advantages of reputation and celebrity within the Roman court. Similarly other texts such as stories, songs and music were circulated, prior to print, in a primarily oral economy. Later, with the rise of the professional guild system in late medieval times, the patronage system did indeed pay artists, sometimes royal sums. However, this bursary was not so much for the work than for upkeep as members of the household holding a particular skill. The commercial aspect of the author as owner only became fully realised with the rise of the middle classes in the eighteenth and nineteenth century and led to the global adoption of the copyright regime as the culture industry’s sanction. Added to this, the author is now overwhelmingly a corporation, not an individual, which has expanded the utilisation of these statutes for commercial advantage to, perhaps, an unforeseen degree. To understand the file-sharing period, which we are now entering at full speed, we cannot be confused by notions found in the copyright acts; definitions based on copyright cannot adequately express a culture without commercial concerns. Perhaps the discussion needs to return to concepts that predate copyright, before the author-function (as suggested by Foucault) and before the notion of intellectual property. That we have returned to a gift economy for cultural products is easily understood in the context of file-sharing. But what of the author? Here the figure of the hacker suggests a movement towards such an archaic model where the author’s remuneration comes in the form of celebrity, or a reputation as an exciting innovator. Another model, which is perhaps more likely, is an understanding that certain material disseminated will be sold and administered under copyright for profit and that the excess will be quickly and efficiently disseminated with no profit and with no overall duration of protection. Such an amalgamated approach is exemplified by Radiohead’s Kid A album, which, although available for free downloads, was still profitable because the (anachronistic) printed version, with its cover and artwork, still sold by the millions. Perhaps cultural works, the slaves of the author-corporation, should be granted their freedom: freedom from servitude to a commercial master, freedom to be re-told rather than re-sold, with due attribution to the author the only payment. This is a Utopian idea perhaps, but no less a fantasy than the idea that the laws of copyright, born of the printing press, can evolve to match the economy today that they purport to control. When thinking about ownership and authorship today, it must be recalled that copyright itself has a history of useful fictions. References Michel Foucault; “What Is an Author?” Twentieth-Century Literary Theory. Eds. Vassilis Lambropoulos and David Neal Miller. Albany: State UP of New York, 1987. 124-42. “42 Ways to Distribute DeCSS.” 5 Jun. 2005 http://decss.zoy.org/>. Jeffreys v Boosey, 1854. Johansen, Jon Lech. So Sue Me. 5 Jun. 2005 http://www.nanocrew.net/blog/>. Citation reference for this article MLA Style Phillips, Dougal, and Oliver Watts. "Copyright, Print and Authorship in the Culture Industry." M/C Journal 8.2 (2005). echo date('d M. Y'); ?> <http://journal.media-culture.org.au/0506/06-phillipswatts.php>. APA Style Phillips, D., and O. Watts. (Jun. 2005) "Copyright, Print and Authorship in the Culture Industry," M/C Journal, 8(2). Retrieved echo date('d M. Y'); ?> from <http://journal.media-culture.org.au/0506/06-phillipswatts.php>.

Special Care Notice This article contains images of deceased people that might cause sadness or distress to Aboriginal and Torres Strait Islander readers. Introduction Like many cities, Perth was founded on wetlands that have been integral to its history and culture (Seddon 226–32). However, in order to promote a settlement agenda, early mapmakers sought to erase the city’s wetlands from cartographic depictions (Giblett, Cities). Since the colonial era, inner-Perth’s swamps and lakes have been drained, filled, significantly reduced in size, or otherwise reclaimed for urban expansion (Bekle). Not only have the swamps and lakes physically disappeared, the memories of their presence and influence on the city’s development over time are also largely forgotten. What was the site of Perth, specifically its wetlands, like before British settlement? In 2014, an interdisciplinary team at Edith Cowan University developed a digital visualisation process to re-imagine Perth prior to colonisation. This was based on early maps of the Swan River Colony and a range of archival information. The images depicted the city’s topography, hydrology, and vegetation and became the centerpiece of a physical exhibition entitled Re-imagining Perth’s Lost Wetlands and a virtual exhibition hosted by the Western Australian Museum. Alongside historic maps, paintings, photographs, and writings, the visual reconstruction of Perth aimed to foster appreciation of the pre-settlement environment—the homeland of the Whadjuck Nyoongar, or Bibbulmun, people (Carter and Nutter). The exhibition included the narrative of Fanny Balbuk, a Nyoongar woman who voiced her indignation over the “usurping of her beloved home ground” (Bates, The Passing 69) by flouting property lines and walking through private residences to reach places of cultural significance. Beginning with Balbuk’s story and the digital tracing of her walking route through colonial Perth, this article discusses the project in the context of contemporary pressures on the city’s extant wetlands. The re-imagining of Perth through historically, culturally, and geographically-grounded digital visualisation approaches can inspire the conservation of its wetlands heritage. Balbuk’s Walk through the City For many who grew up in Perth, Fanny Balbuk’s perambulations have achieved legendary status in the collective cultural imagination. In his memoir, David Whish-Wilson mentions Balbuk’s defiant walks and the lighting up of the city for astronaut John Glenn in 1962 as the two stories that had the most impact on his Perth childhood. From Gordon Stephenson House, Whish-Wilson visualises her journey in his mind’s eye, past Government House on St Georges Terrace (the main thoroughfare through the city centre), then north on Barrack Street towards the railway station, the site of Lake Kingsford where Balbuk once gathered bush tucker (4). He considers the footpaths “beneath the geometric frame of the modern city […] worn smooth over millennia that snake up through the sheoak and marri woodland and into the city’s heart” (Whish-Wilson 4). Balbuk’s story embodies the intertwined culture and nature of Perth—a city of wetlands. Born in 1840 on Heirisson Island, Balbuk (also known as Yooreel) (Figure 1) had ancestral bonds to the urban landscape. According to Daisy Bates, writing in the early 1900s, the Nyoongar term Matagarup, or “leg deep,” denotes the passage of shallow water near Heirisson Island where Balbuk would have forded the Swan River (“Oldest” 16). Yoonderup was recorded as the Nyoongar name for Heirisson Island (Bates, “Oldest” 16) and the birthplace of Balbuk’s mother (Bates, “Aboriginal”). In the suburb of Shenton Park near present-day Lake Jualbup, her father bequeathed to her a red ochre (or wilgi) pit that she guarded fervently throughout her life (Bates, “Aboriginal”).Figure 1. Group of Aboriginal Women at Perth, including Fanny Balbuk (far right) (c. 1900). Image Credit: State Library of Western Australia (Image Number: 44c). Balbuk’s grandparents were culturally linked to the site. At his favourite camp beside the freshwater spring near Kings Park on Mounts Bay Road, her grandfather witnessed the arrival of Lieutenant-Colonel Frederick Irwin, cousin of James Stirling (Bates, “Fanny”). In 1879, colonial entrepreneurs established the Swan Brewery at this significant locale (Welborn). Her grandmother’s gravesite later became Government House (Bates, “Fanny”) and she protested vociferously outside “the stone gates guarded by a sentry [that] enclosed her grandmother’s burial ground” (Bates, The Passing 70). Balbuk’s other grandmother was buried beneath Bishop’s Grove, the residence of the city’s first archibishop, now Terrace Hotel (Bates, “Aboriginal”). Historian Bob Reece observes that Balbuk was “the last full-descent woman of Kar’gatta (Karrakatta), the Bibbulmun name for the Mount Eliza [Kings Park] area of Perth” (134). According to accounts drawn from Bates, her home ground traversed the area between Heirisson Island and Perth’s north-western limits. In Kings Park, one of her relatives was buried near a large, hollow tree used by Nyoongar people like a cistern to capture water and which later became the site of the Queen Victoria Statue (Bates, “Aboriginal”). On the slopes of Mount Eliza, the highest point of Kings Park, at the western end of St Georges Terrace, she harvested plant foods, including zamia fruits (Macrozamia riedlei) (Bates, “Fanny”). Fanny Balbuk’s knowledge contributed to the native title claim lodged by Nyoongar people in 2006 as Bennell v. State of Western Australia—the first of its kind to acknowledge Aboriginal land rights in a capital city and part of the larger Single Nyoongar Claim (South West Aboriginal Land and Sea Council et al.). Perth’s colonial administration perceived the city’s wetlands as impediments to progress and as insalubrious environments to be eradicated through reclamation practices. For Balbuk and other Nyoongar people, however, wetlands were “nourishing terrains” (Rose) that afforded sustenance seasonally and meaning perpetually (O’Connor, Quartermaine, and Bodney). Mary Graham, a Kombu-merri elder from Queensland, articulates the connection between land and culture, “because land is sacred and must be looked after, the relation between people and land becomes the template for society and social relations. Therefore all meaning comes from land.” Traditional, embodied reliance on Perth’s wetlands is evident in Bates’ documentation. For instance, Boojoormeup was a “big swamp full of all kinds of food, now turned into Palmerston and Lake streets” (Bates, “Aboriginal”). Considering her cultural values, Balbuk’s determination to maintain pathways through the increasingly colonial Perth environment is unsurprising (Figure 2). From Heirisson Island: a straight track had led to the place where once she had gathered jilgies [crayfish] and vegetable food with the women, in the swamp where Perth railway station now stands. Through fences and over them, Balbuk took the straight track to the end. When a house was built in the way, she broke its fence-palings with her digging stick and charged up the steps and through the rooms. (Bates, The Passing 70) One obstacle was Hooper’s Fence, which Balbuk broke repeatedly on her trips to areas between Kings Park and the railway station (Bates, “Hooper’s”). Her tenacious commitment to walking ancestral routes signifies the friction between settlement infrastructure and traditional Nyoongar livelihood during an era of rapid change. Figure 2. Determination of Fanny Balbuk’s Journey between Yoonderup (Heirisson Island) and Lake Kingsford, traversing what is now the central business district of Perth on the Swan River (2014). Image background prepared by Dimitri Fotev. Track interpolation by Jeff Murray. Project Background and Approach Inspired by Fanny Balbuk’s story, Re-imagining Perth’s Lost Wetlands began as an Australian response to the Mannahatta Project. Founded in 1999, that project used spatial analysis techniques and mapping software to visualise New York’s urbanised Manhattan Island—or Mannahatta as it was called by indigenous people—in the early 1600s (Sanderson). Based on research into the island’s original biogeography and the ecological practices of Native Americans, Mannahatta enabled the public to “peel back” the city’s strata, revealing the original composition of the New York site. The layers of visuals included rich details about the island’s landforms, water systems, and vegetation. Mannahatta compelled Rod Giblett, a cultural researcher at Edith Cowan University, to develop an analogous model for visualising Perth circa 1829. The idea attracted support from the City of Perth, Landgate, and the University. Using stories, artefacts, and maps, the team—comprising a cartographer, designer, three-dimensional modelling expert, and historical researchers—set out to generate visualisations of the landscape at the time of British colonisation. Nyoongar elder Noel Nannup approved culturally sensitive material and contributed his perspective on Aboriginal content to include in the exhibition. The initiative’s context remains pressing. In many ways, Perth has become a template for development in the metropolitan area (Weller). While not unusual for a capital, the rate of transformation is perhaps unexpected in a city less than 200 years old (Forster). There also remains a persistent view of existing wetlands as obstructions to progress that, once removed, are soon forgotten (Urban Bushland Council). Digital visualisation can contribute to appreciating environments prior to colonisation but also to re-imagining possibilities for future human interactions with land, water, and space. Despite the rapid pace of change, many Perth area residents have memories of wetlands lost during their lifetimes (for example, Giblett, Forrestdale). However, as the clearing and drainage of the inner city occurred early in settlement, recollections of urban wetlands exist exclusively in historical records. In 1935, a local correspondent using the name “Sandgroper” reminisced about swamps, connecting them to Perth’s colonial heritage: But the Swamps were very real in fact, and in name in the [eighteen-] Nineties, and the Perth of my youth cannot be visualised without them. They were, of course, drying up apace, but they were swamps for all that, and they linked us directly with the earliest days of the Colony when our great-grandparents had founded this City of Perth on a sort of hog's-back, of which Hay-street was the ridge, and from which a succession of streamlets ran down its southern slope to the river, while land locked to the north of it lay a series of lakes which have long since been filled to and built over so that the only evidence that they have ever existed lies in the original street plans of Perth prepared by Roe and Hillman in the early eighteen-thirties. A salient consequence of the loss of ecological memory is the tendency to repeat the miscues of the past, especially the blatant disregard for natural and cultural heritage, as suburbanisation engulfs the area. While the swamps of inner Perth remain only in the names of streets, existing wetlands in the metropolitan area are still being threatened, as the Roe Highway (Roe 8) Campaign demonstrates. To re-imagine Perth’s lost landscape, we used several colonial survey maps to plot the location of the original lakes and swamps. At this time, a series of interconnecting waterbodies, known as the Perth Great Lakes, spread across the north of the city (Bekle and Gentilli). This phase required the earliest cartographic sources (Figure 3) because, by 1855, city maps no longer depicted wetlands. We synthesised contextual information, such as well depths, geological and botanical maps, settlers’ accounts, Nyoongar oral histories, and colonial-era artists’ impressions, to produce renderings of Perth. This diverse collection of primary and secondary materials served as the basis for creating new images of the city. Team member Jeff Murray interpolated Balbuk’s route using historical mappings and accounts, topographical data, court records, and cartographic common sense. He determined that Balbuk would have camped on the high ground of the southern part of Lake Kingsford rather than the more inundated northern part (Figure 2). Furthermore, she would have followed a reasonably direct course north of St Georges Terrace (contrary to David Whish-Wilson’s imaginings) because she was barred from Government House for protesting. This easier route would have also avoided the springs and gullies that appear on early maps of Perth. Figure 3. Townsite of Perth in Western Australia by Colonial Draftsman A. Hillman and John Septimus Roe (1838). This map of Perth depicts the wetlands that existed overlaid by the geomentric grid of the new city. Image Credit: State Library of Western Australia (Image Number: BA1961/14). Additionally, we produced an animated display based on aerial photographs to show the historical extent of change. Prompted by the build up to World War II, the earliest aerial photography of Perth dates from the late 1930s (Dixon 148–54). As “Sandgroper” noted, by this time, most of the urban wetlands had been drained or substantially modified. The animation revealed considerable alterations to the formerly swampy Swan River shoreline. Most prominent was the transformation of the Matagarup shallows across the Swan River, originally consisting of small islands. Now traversed by a causeway, this area was transformed into a single island, Heirisson—the general site of Balbuk’s birth. The animation and accompanying materials (maps, images, and writings) enabled viewers to apprehend the changes in real time and to imagine what the city was once like. Re-imagining Perth’s Urban Heart The physical environment of inner Perth includes virtually no trace of its wetland origins. Consequently, we considered whether a representation of Perth, as it existed previously, could enhance public understanding of natural heritage and thereby increase its value. For this reason, interpretive materials were exhibited centrally at Perth Town Hall. Built partly by convicts between 1867 and 1870, the venue is close to the site of the 1829 Foundation of Perth, depicted in George Pitt Morrison’s painting. Balbuk’s grandfather “camped somewhere in the city of Perth, not far from the Town Hall” (Bates, “Fanny”). The building lies one block from the site of the railway station on the site of Lake Kingsford, the subsistence grounds of Balbuk and her forebears: The old swamp which is now the Perth railway yards had been a favourite jilgi ground; a spring near the Town Hall had been a camping place of Maiago […] and others of her fathers' folk; and all around and about city and suburbs she had gathered roots and fished for crayfish in the days gone by. (Bates, “Derelicts” 55) Beginning in 1848, the draining of Lake Kingsford reached completion during the construction of the Town Hall. While the swamps of the city were not appreciated by many residents, some organisations, such as the Perth Town Trust, vigorously opposed the reclamation of the lake, alluding to its hydrological role: That, the soil being sand, it is not to be supposed that Lake Kingsford has in itself any material effect on the wells of Perth; but that, from this same reason of the sandy soil, it would be impossible to keep the lake dry without, by so doing, withdrawing the water from at least the adjacent parts of the townsite to the same depth. (Independent Journal of Politics and News 3) At the time of our exhibition, the Lake Kingsford site was again being reworked to sink the railway line and build Yagan Square, a public space named after a colonial-era Nyoongar leader. The project required specialised construction techniques due to the high water table—the remnants of the lake. People travelling to the exhibition by train in October 2014 could have seen the lake reasserting itself in partly-filled depressions, flush with winter rain (Figure 4).Figure 4. Rise of the Repressed (2014). Water Rising in the former site of Lake Kingsford/Irwin during construction, corner of Roe and Fitzgerald Streets, Northbridge, WA. Image Credit: Nandi Chinna (2014). The exhibition was situated in the Town Hall’s enclosed undercroft designed for markets and more recently for shops. While some visited after peering curiously through the glass walls of the undercroft, others hailed from local and state government organisations. Guest comments applauded the alternative view of Perth we presented. The content invited the public to re-imagine Perth as a city of wetlands that were both environmentally and culturally important. A display panel described how the city’s infrastructure presented a hindrance for Balbuk as she attempted to negotiate the once-familiar route between Yoonderup and Lake Kingsford (Figure 2). Perth’s growth “restricted Balbuk’s wanderings; towns, trains, and farms came through her ‘line of march’; old landmarks were thus swept away, and year after year saw her less confident of the locality of one-time familiar spots” (Bates, “Fanny”). Conserving Wetlands: From Re-Claiming to Re-Valuing? Imagination, for philosopher Roger Scruton, involves “thinking of, and attending to, a present object (by thinking of it, or perceiving it, in terms of something absent)” (155). According to Scruton, the feelings aroused through imagination can prompt creative, transformative experiences. While environmental conservation tends to rely on data-driven empirical approaches, it appeals to imagination less commonly. We have found, however, that attending to the present object (the city) in terms of something absent (its wetlands) through evocative visual material can complement traditional conservation agendas focused on habitats and species. The actual extent of wetlands loss in the Swan Coastal Plain—the flat and sandy region extending from Jurien Bay south to Cape Naturaliste, including Perth—is contested. However, estimates suggest that 80 per cent of wetlands have been lost, with remaining habitats threatened by climate change, suburban development, agriculture, and industry (Department of Environment and Conservation). As with the swamps and lakes of the inner city, many regional wetlands were cleared, drained, or filled before they could be properly documented. Additionally, the seasonal fluctuations of swampy places have never been easily translatable to two-dimensional records. As Giblett notes, the creation of cartographic representations and the assignment of English names were attempts to fix the dynamic boundaries of wetlands, at least in the minds of settlers and administrators (Postmodern 72–73). Moreover, European colonists found the Western Australian landscape, including its wetlands, generally discomfiting. In a letter from 1833, metaphors failed George Fletcher Moore, the effusive colonial commentator, “I cannot compare these swamps to any marshes with which you are familiar” (220). The intermediate nature of wetlands—as neither land nor lake—is perhaps one reason for their cultural marginalisation (Giblett, Postmodern 39). The conviction that unsanitary, miasmic wetlands should be converted to more useful purposes largely prevailed (Giblett, Black 105–22). Felicity Morel-EdnieBrown’s research into land ownership records in colonial Perth demonstrated that town lots on swampland were often preferred. By layering records using geographic information systems (GIS), she revealed modifications to town plans to accommodate swampland frontages. The decline of wetlands in the region appears to have been driven initially by their exploitation for water and later for fertile soil. Northern market gardens supplied the needs of the early city. It is likely that the depletion of Nyoongar bush foods predated the flourishing of these gardens (Carter and Nutter). Engaging with the history of Perth’s swamps raises questions about the appreciation of wetlands today. In an era where numerous conservation strategies and alternatives have been developed (for example, Bobbink et al. 93–220), the exploitation of wetlands in service to population growth persists. On Perth’s north side, wetlands have long been subdued by controlling their water levels and landscaping their boundaries, as the suburban examples of Lake Monger and Hyde Park (formerly Third Swamp Reserve) reveal. Largely unmodified wetlands, such as Forrestdale Lake, exist south of Perth, but they too are in danger (Giblett, Black Swan). The Beeliar Wetlands near the suburb of Bibra Lake comprise an interconnected series of lakes and swamps that are vulnerable to a highway extension project first proposed in the 1950s. Just as the Perth Town Trust debated Lake Kingsford’s draining, local councils and the public are fiercely contesting the construction of the Roe Highway, which will bisect Beeliar Wetlands, destroying Roe Swamp (Chinna). The conservation value of wetlands still struggles to compete with traffic planning underpinned by a modernist ideology that associates cars and freeways with progress (Gregory). Outside of archives, the debate about Lake Kingsford is almost entirely forgotten and its physical presence has been erased. Despite the magnitude of loss, re-imagining the city’s swamplands, in the way that we have, calls attention to past indiscretions while invigorating future possibilities. We hope that the re-imagining of Perth’s wetlands stimulates public respect for ancestral tracks and songlines like Balbuk’s. Despite the accretions of settler history and colonial discourse, songlines endure as a fundamental cultural heritage. Nyoongar elder Noel Nannup states, “as people, if we can get out there on our songlines, even though there may be farms or roads overlaying them, fences, whatever it is that might impede us from travelling directly upon them, if we can get close proximity, we can still keep our culture alive. That is why it is so important for us to have our songlines.” Just as Fanny Balbuk plied her songlines between Yoonderup and Lake Kingsford, the traditional custodians of Beeliar and other wetlands around Perth walk the landscape as an act of resistance and solidarity, keeping the stories of place alive. Acknowledgments The authors wish to acknowledge Rod Giblett (ECU), Nandi Chinna (ECU), Susanna Iuliano (ECU), Jeff Murray (Kareff Consulting), Dimitri Fotev (City of Perth), and Brendan McAtee (Landgate) for their contributions to this project. The authors also acknowledge the traditional custodians of the lands upon which this paper was researched and written. References Bates, Daisy. “Fanny Balbuk-Yooreel: The Last Swan River (Female) Native.” The Western Mail 1 Jun. 1907: 45.———. “Oldest Perth: The Days before the White Men Won.” The Western Mail 25 Dec. 1909: 16–17.———. “Derelicts: The Passing of the Bibbulmun.” The Western Mail 25 Dec. 1924: 55–56. ———. “Aboriginal Perth.” The Western Mail 4 Jul. 1929: 70.———. “Hooper’s Fence: A Query.” The Western Mail 18 Apr. 1935: 9.———. The Passing of the Aborigines: A Lifetime Spent among the Natives of Australia. London: John Murray, 1966.Bekle, Hugo. “The Wetlands Lost: Drainage of the Perth Lake Systems.” Western Geographer 5.1–2 (1981): 21–41.Bekle, Hugo, and Joseph Gentilli. “History of the Perth Lakes.” Early Days 10.5 (1993): 442–60.Bobbink, Roland, Boudewijn Beltman, Jos Verhoeven, and Dennis Whigham, eds. Wetlands: Functioning, Biodiversity Conservation, and Restoration. Berlin: Springer-Verlag, 2006. Carter, Bevan, and Lynda Nutter. Nyungah Land: Records of Invasion and Theft of Aboriginal Land on the Swan River 1829–1850. Guildford: Swan Valley Nyungah Community, 2005.Chinna, Nandi. “Swamp.” Griffith Review 47 (2015). 29 Sep. 2015 ‹https://griffithreview.com/articles/swamp›.Department of Environment and Conservation. Geomorphic Wetlands Swan Coastal Plain Dataset. Perth: Department of Environment and Conservation, 2008.Dixon, Robert. Photography, Early Cinema, and Colonial Modernity: Frank Hurley’s Synchronized Lecture Entertainments. London: Anthem Press, 2011. Forster, Clive. Australian Cities: Continuity and Change. Oxford: Oxford UP, 2004.Giblett, Rod. Postmodern Wetlands: Culture, History, Ecology. Edinburgh: Edinburgh UP, 1996. ———. Forrestdale: People and Place. Bassendean: Access Press, 2006.———. Black Swan Lake: Life of a Wetland. Bristol: Intellect, 2013.———. Cities and Wetlands: The Return of the Repressed in Nature and Culture. London: Bloomsbury, 2016. Chapter 2.Graham, Mary. “Some Thoughts about the Philosophical Underpinnings of Aboriginal Worldviews.” Australian Humanities Review 45 (2008). 29 Sep. 2015 ‹http://www.australianhumanitiesreview.org/archive/Issue-November-2008/graham.html›.Gregory, Jenny. “Remembering Mounts Bay: The Narrows Scheme and the Internationalization of Perth Planning.” Studies in Western Australian History 27 (2011): 145–66.Independent Journal of Politics and News. “Perth Town Trust.” The Perth Gazette and Independent Journal of Politics and News 8 Jul. 1848: 2–3.Moore, George Fletcher. Extracts from the Letters of George Fletcher Moore. Ed. Martin Doyle. London: Orr and Smith, 1834.Morel-EdnieBrown, Felicity. “Layered Landscape: The Swamps of Colonial Northbridge.” Social Science Computer Review 27 (2009): 390–419. Nannup, Noel. Songlines with Dr Noel Nannup. Dir. Faculty of Regional Professional Studies, Edith Cowan University (2015). 29 Sep. 2015 ‹https://vimeo.com/129198094›. (Quoted material transcribed from 3.08–3.39 of the video.) O’Connor, Rory, Gary Quartermaine, and Corrie Bodney. Report on an Investigation into Aboriginal Significance of Wetlands and Rivers in the Perth-Bunbury Region. Perth: Western Australian Water Resources Council, 1989.Reece, Bob. “‘Killing with Kindness’: Daisy Bates and New Norcia.” Aboriginal History 32 (2008): 128–45.Rose, Deborah Bird. Nourishing Terrains: Australian Aboriginal Views of Landscape and Wilderness. Canberra: Australian Heritage Commission, 1996.Sanderson, Eric. Mannahatta: A Natural History of New York City. New York: Harry N. Abrams, 2009.Sandgroper. “Gilgies: The Swamps of Perth.” The West Australian 4 May 1935: 7.Scruton, Roger. Art and Imagination. London: Methuen, 1974.Seddon, George. Sense of Place: A Response to an Environment, the Swan Coastal Plain, Western Australia. Melbourne: Bloomings Books, 2004.South West Aboriginal Land and Sea Council and John Host with Chris Owen. “It’s Still in My Heart, This is My Country:” The Single Noongar Claim History. Crawley: U of Western Australia P, 2009.Urban Bushland Council. “Bushland Issues.” 2015. 29 Sep. 2015 ‹http://www.bushlandperth.org.au/bushland-issues›.Welborn, Suzanne. Swan: The History of a Brewery. Crawley: U of Western Australia P, 1987.Weller, Richard. Boomtown 2050: Scenarios for a Rapidly Growing City. Crawley: U of Western Australia P, 2009. Whish-Wilson, David. Perth. Sydney: NewSouth Publishing, 2013.

This chapter discusses the case of Board of Regents of the University of Oklahoma v. National Collegiate Athletic Association. Arguments in the case focused on whether the NCAA was acting illegally under the Sherman Anti-Trust Act of 1890 by monopolizing all college football television contracts. In September 1982, Judge Juan Burciaga of the Federal District Court for Western Oklahoma decided in favor of the plaintiffs, concluding that the NCAA was a “classic cartel. ... exercising almost absolute control over the supply of college football which is made available to the networks, to television advertisers, and ultimately to the viewing public.” The judge concluded that the NCAA violated antitrust law by acting in restraint of trade in three ways: fixing prices of telecasts; creating boycotts of networks excluded from its contracts and threatening boycotts of its own members that might engage in alternative television contracts; and placing an artificial limit on televised college football. The NCAA took the case to the Supreme Court. However, on June 27, 1984, the Supreme Court upheld verdicts of the District and Appeals Courts.