Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, November 24, 2015

Child Participants In Reality TV Programming

Benjamin Shmueli, Bar-Ilan University Faculty of Law, is publishing Children in Reality TV: A Comparative and International Perspective in volume 25 of the Duke Journal of Comparative & International Law (2015). Here is the abstract.

The article addresses the proper balance between (a) preventing harm to children participating in reality TV and preventing injury to privacy, and (b) the freedom of expression of the participating children, the commercial freedom of speech of media outlets and advertisers, and the public’s right to watch these programs, which currently enjoy top ratings. It is generally believed that TV channels often exploit the desire of children and of their parents to become famous by participating in a reality show, without considering the price that the children and their families pay for participating. Is this indeed the case, and is the picture necessarily one-sided? Although the topic is relevant to many areas of law, legislation regarding the participation of children in general entertainment programs is scarce and is not particularly well suited for reality shows. The article attempts to assist in creating legislation or uniform regulation in the field while respecting the success these programs enjoy and the legal rights of the television channels that host them. This is balanced against the desire to prevent the field from being left wide open and the legal rights of the children from being infringed. The article accomplishes this, in part, by comparing the American approach to the British and French regulations and to the UN Convention of the Rights of the Child. The article presents three prototypes to introduce a balanced model that will achieve this goal: talent shows (e.g., “America’s Got Talent” or “MasterChef Junior”), parental training in child care by observing a family therapist in real time (e.g., “Nanny 911”), and competitive tasks within the framework of “Survival” for children (e.g., “Kid Nation”). A set of key parameters are presented for assessing the legitimacy of participation. The parameters include (1) assessment of the child’s genuine consent and of the complex question of the child’s wish and privacy with reference to the parent’s wish and desire for fame; (2) harm vs. benefit to the child, the family, and the public in the short and the long terms; (3) the effect of the duration of exposure; and (4) the age of the child. There is an ongoing debate concerning the relationship between damages and benefits of reality shows to participants and the public. This is especially true concerning programs featuring children. The starting point of the model presented in the article will be the need for striking a successful and proper balance between the rights, welfare, dignity, and privacy of the children, and other interests. In the current reality, it is not possible to prevent children from participating in these shows entirely, and the public has the liberty to watch such programs. However, such child participation should be limited as much as possible. The model will introduce several suggestions based on a distributive and deterrent approach, which reflect similar measures implemented in the French legislation and British regulations of Ofcom, the UK regulator for television and radio. The US has a long history of developing children’s rights and of protecting workers from exploitation. Regulating children’s participation in reality shows, thus developing children’s rights and protecting said children from worker exploitation, is the next and natural step in this direction.

Download the article from SSRN at the link.

November 24, 2015 | Permalink

Virtue, Freedom, and the First Amendment

Marc O. DeGirolami, St. John's University School of Law, is publishing Virtue, Freedom, and the First Amendment in the Notre Dame Law Review. Here is the abstract.

The modern First Amendment embodies the idea of freedom as a fundamental good of contemporary American society. The First Amendment protects and promotes everybody’s freedom of thought, belief, speech, and religious exercise as basic goods — as given ends of American political and moral life. It does not protect these freedoms for the sake of promoting any particular vision of the virtuous society. It is neutral on that score, setting limits only in those rare cases when the exercise of a First Amendment freedom exacts an intolerable social cost. Something like this collection of views constitutes the conventional account of the First Amendment. This essay offers it two challenges. First, the development of the First Amendment over the past century suggests that freedom is not an American sociopolitical end. It is a means — a gateway out of one kind of political and legal culture and into another with its own distinctive virtues and vices. Freedom is not a social solution but instead gives rise to a social problem — the problem of how to allocate a resource in civically responsible ways, so as to limit freedom’s hurtful potential and to make citizens worthy of the freedoms they are granted. Only a somewhat virtuous society can sustain a regime of political liberty without collapsing, as a society, altogether. Thus the First Amendment of the conventional account has not maximized freedom for all people and groups. It has promoted a distinctive set of views about the virtuous legal and political society. Second, the new legal culture promoted and entrenched by the conventional account is increasingly finding that account uncongenial. In fact, the conventional account is positively harmful to its continued flourishing. That is because the new legal culture’s core values are not the First Amendment freedoms themselves but the particular conceptions of political and social equality and individual dignity that the conventional account has facilitated and promoted. Proponents of the new legal culture in consequence now argue for aggressive limits on First Amendment freedoms. One prominent group has invented a new legal category: “enumerated rights Lochnerism.” These scholars denigrate any First Amendment resistance to multiplying forms of expansive government regulation in the service of egalitarian aims as retrogressively libertarian. Another group argues for novel limits on the First Amendment in the form of balancing tests that would restrict speech that injures the dignity of listeners and religious exercise that results in vaguely defined and vaguely delimited harms to third parties. What unites these critics is the desire to swell features of the Court’s post-New Deal Fourteenth Amendment jurisprudence, and particularly the law concerning sex as a civil right, by protecting progressively expansive conceptions of equality and individual dignity. The critics see the conventional account of the First Amendment as an obstacle in the path of progress. Part I of this essay presents the conventional account of the First Amendment in three theses. It then critiques the conventional account in Part II by offering three revised theses, developed through the somewhat unusual route of exploring the First Amendment thought of the late political theorist and constitutional scholar, Walter Berns. Freedom, for Berns, gave rise to a problem — the problem of making men sufficiently virtuous to merit their freedom. It was a problem that he thought had been ignored or even forgotten by defenders of the conventional account of the First Amendment. But the problem of virtue and freedom has been remembered. Part III argues that contemporary defenders of the new legal culture have remembered the problem just as their own cultural and legal mores are ascendant. The new civic virtues — exemplified in multiplying anti-discrimination regulations for the protection of thickening conceptions of equality and individual dignity, particularly as those concepts relate to sexual autonomy — are those that were fostered by the conventional account of the First Amendment in tandem with significant components of the Supreme Court’s post-New Deal Fourteenth Amendment jurisprudence. And those civic virtues are already informing new criticisms of the conventional account and arguments about new limitations on the scope of religious freedom and freedom of speech. Berns’s arguments about freedom and virtue, it turns out, are highly relevant today since progressive opinion is no longer committed to First Amendment “absolutism.” The essay concludes with two speculations. First, it seems we are no longer arguing about whether to restrict freedom, but for what ends. If that is true, then those arguments should neither begin nor end with egalitarian and sexual libertarian fervor. Second, there is no account of the First Amendment that maximizes freedom for everyone — for all persons and groups. There is only the society that America was before the rise of the conventional account of the First Amendment and the society that it is becoming after it.

Download the article from SSRN at the link.

November 24, 2015 | Permalink

Monday, November 23, 2015

Jason Rezaian Verdict: Prison

According to Iranian media sources, the Washington Post's Jason Rezaian has been sentenced to prison. Word came through a spokesperson for the Iranian judiciary. He did not disclose details of the sentence. More here from the New York Times,  here from the Washington Post, background from CNN Money.

November 23, 2015 | Permalink

PEN Free Expression Digest Provides News of Interest to Media, Lawyers, Artists, Those Interested In Freedom of Expression

Follow PEN American's Free Expression Digest for news that affects journalists, artists, and others who speak out and become targets of government repression around the world. Sign up for PEN daily alerts here.


November 23, 2015 | Permalink

The Chilling Effect and Abortion Rights Speech

Michael C. Dorf, Cornell Law School, and Brandice Canes-Wrong, Princeton University Department of Political Science and Woodrow Wilson School of Public and International Affairs, and Massachusetts Institute of Technology, have published Measuring the Chilling Effect as Cornell Legal Studies Research Paper No. 15-36. Here is the abstract.

Supreme Court doctrine grants special protection against laws that “chill” protected speech, most prominently via the overbreadth doctrine. The overbreadth doctrine permits persons whose own speech is unprotected to challenge laws that infringe the protected speech of third parties. The Court has not generally applied overbreadth and the other speech-protective doctrines to other constitutional rights even though other rights could also be subject to a chilling effect. The case law simply assumes that the chilling effect only acts on the exercise of speech, and that this justifies treating speech differently from other rights. We tested these assumptions with respect to abortion rights. By comparing abortion rates with state laws over a two-decade-plus period, we found a statistically significant correlation between laws forbidding late-term abortions and the reduction of not only late-term but also “near-late-term” abortions, i.e., abortions in the roughly one month before the period in which abortions are forbidden. That effect persists even after controlling for potentially confounding variables, such as the number of abortion providers and pro-life public opinion. Moreover, the effect is not limited to the year of enactment or associated with failed policy initiatives, suggesting that the impact is due to the law itself rather than associated publicity. These findings are consistent with, and strongly suggestive of, a chilling effect on abortion providers and/or women seeking abortions. This result undermines the implicit assumption that the chilling effect is unique to laws regulating speech and vindicates the general proposition that laws can chill the exercise of constitutional rights beyond their literal coverage.

Download the article from SSRN at the link.

November 23, 2015 | Permalink

Wednesday, November 18, 2015

E-Books, Online Book Retailers, and the Decline of Independent Booksellers

Richard Gilbert, University of California, Berkeley, is publishing E-Books: A Tale of Digital Disruption in the Journal of Economic Perspectives. Here is the abstract.

E-book sales surged after Amazon introduced the Kindle e-reader at the end of 2007 and accounted for about one quarter of all trade book sales by the end of 2013. Amazon’s aggressive pricing led to allegations that e-books were bankrupting brick-and-mortar book booksellers. Amazon’s commanding position as a bookseller also raises concerns about monopoly power and publishers are concerned about Amazon’s power to displace them in the book value chain. I find little evidence that e-books are primarily responsible for the decline of independent booksellers. I also conclude that entry barriers are not sufficient to allow Amazon to set monopoly prices. Publishers are at risk from Amazon’s monopsony (buyer) power and they adopted agency pricing in an effort to promote retail competition and reduce Amazon’s influence as an e-retailer. Although challenged by the Department of Justice, agency pricing may yet prevail in some form as an equilibrium pricing model for e-book sales.

Download the article from SSRN at the link.

November 18, 2015 | Permalink

Copyright and the Challenges of Digital Technology

Peter K. Yu, Texas A&M University School of Law, is publishing The Copy in Copyright in Intellectual Property and Access to Im/Material Goods (Jessica C. Lai and Antoinette Maget Dominice, eds.; Elgar Publishing , 2016). Here is the abstract.

Since their inception, copyright and proto-copyright laws have been developed around the concept of "copy," which primarily referred to printed book manuscripts in the reign of Queen Anne. Although copyright began mostly as a right vested in copies, and therefore a right to prevent others from multiplying copies, the emphasis has now been dramatically shifted to the act of copying itself. The terms "copy" and "copies" have also been slowly re-conceptualized to respond to changing technology and to expand the scope of copyright protection. Taking a historical perspective, the first half of this chapter recounts the use of the concept of "copy" by the Stationers’ Company and in the Statute of Anne. It also addresses two different sets of challenges to this foundational concept. The first set focuses on the seminal case of White-Smith Music Publishing Co. v Apollo Co., the first major challenge to this concept on the other side of the Atlantic. The second set concerns the efforts in the mid-1990s to update the concept to meet the needs of the digital environment, which inevitably involves both material and immaterial copies. The second half of this chapter examines four areas in which digital technology has posed major challenges to the concept of "copy": reproduction, distribution, public performance and making available. These four areas are chosen because they correspond to the different rights in the bundle of rights covered within the copyright system. They also highlight questions involving material copies and the distinction between material and immaterial goods. The chapter concludes with six observations concerning the future development of copyright law in the digital environment.

Download the essay from SSRN at the link.

November 18, 2015 | Permalink

Tuesday, November 17, 2015

Graham and Kasich Ask For Equal Time After Trump's "SNL" Appearance

Republican Presidential contenders Lindsey Graham and John Kasich are asking for equal time from NBC, based on an FCC "equal time" rule because Donald Trump recently hosted the NBC show "Saturday Night Live." More here from The Hollywood Reporter.

Short-lived Democratic Presidential candidate Lawrence Lessig had also asked for equal time after Hillary Clinton had appeared on "SNL."

November 17, 2015 | Permalink

"Information as Speech" and the First Amendment

Kyle Langvardt, University of Detroit Mercy School of Law, is publishing The Doctrinal Toll of 'Information as Speech' in volume 47 of the Loyola University Chicago Law Journal (2015). Here is the abstract.

The courts over the past two decades have reached a near-consensus that computer code, along with virtually every flow of data on the Internet, is “speech” for First Amendment purposes. Today, newer information technologies such as 3D printing, synthetic biology, and digital currencies promise to remake whole other spheres of non-expressive economic activity in the Internet's image. The rush to claim First Amendment protections for these non-expressive but code-dependent technologies has already begun with a lawsuit claiming First Amendment privileges for the Internet distribution of 3D-printable guns. Many similar suits will surely follow, all pursuing the common dream of a future-shocked Lochner for a highly-informatized and thoroughly-deregulated economy. This Article argues that the theory of these lawsuits poses little genuine risk to the regulatory state. Instead, the threat is to the clarity and strength of core First Amendment principles. In theory, courts will test regulations of technologies such as digital currencies under the same strict standards that define mainstream First Amendment doctrine. But pragmatic concerns about the government's ability to regulate economic affairs will put pressure on the same courts to dilute those standards in practice. Over time, these diluted strains will find their way back to the mainstream of First Amendment litigation. The Article concludes with recommendations to mitigate the damage.

Download the article from SSRN at the link.

November 17, 2015 | Permalink

Monday, November 16, 2015

Liability For Anonymous Online Defamation

Ronen Perry and Tal Zarsky, both of the University of Haifa Faculty of Law, have published Who Should Be Liable for Online Anonymous Defamation? at 82 University of Chicago Law Review Dialogue 162 (2015). Here is the abstract.

The paper discusses the question of liability for online anonymous defamation. Its main theoretical contribution lies in recognizing that the legal response to online anonymous defamation should be viewed and analyzed as a combination of two components. The first is the ability (or inability) to bring an action against the platform enabling the defamatory statement, which we call “the content provider.” Such an action may require modification of substantive law, namely recognition of some sort of indirect liability. The second component is the ability (or inability) to bring an action against the anonymous user, whom we call “the speaker.” Such an action does not require modification of substantive defamation law, but entails adaptation of procedural law, namely establishing a de-anonymization process. Because this framework provides two potential defendants, and each can be either liable or non-liable, there seem to be four possible liability regimes: (1) neither the speaker nor the content provider is liable; (2) only the speaker is liable (exclusive direct liability); (3) only the content provider is liable (exclusive indirect liability); and (4) both may be liable. To our knowledge, the first option does not exist in any jurisdiction, and for a good reason. The Essay thus rejects the other three (adopted in the US, Israel, and the EU respectively), and advocates an outside-the-box solution — the principle of “residual indirect liability.”
Download the article from SSRN at the link.

November 16, 2015 | Permalink

UK's New Defamation Act Has Been In Effect Nearly Two Years, and Traditional Defamation Suits Down, But Those Based on Social Media Up

According to The Guardian, defamation actions in the UK based on social media statements are rising slightly, even though a new Defamation Act that went into force last year has caused the total number of defamation lawsuits to drop.  Generally, businesses now seem to shy away from filing defamation suits, but individuals now file defamation suits based on social media interactions. One commentator, lawyer Harry Kinmonth, noted that such an increase is not surprising. People are more likely to find themselves the subject of Twitter or Facebook stories than traditional newspaper stories, and social media stories spread more quickly. More here from The Guardian.

November 16, 2015 | Permalink

Negotiating Rights To Use Spatial Data

Teresa Scassa, University of Ottawa, Common Law Section, is publishing Navigating Legal Rights in Spatial Media in Understanding Spatial Media (Kitchin, Lauriault, & Wilson, eds., Sage Publishing, 2016). Here is the abstract.

The collection or generation of spatial data is often the result of a significant investment of time, money and labour. As a result, compilations of spatial data have been routinely treated as a form of property. The propertization of data allows an owner to construct fences around the data so as to exclude unauthorized uses. There have been significant debates over access to and use of spatial data resources, particularly those that are in the hands of governments. Many (though not all) governments assert intellectual property rights over their data, and do so as a means of control. The open data movement has pushed for a relinquishment of this control, and this has resulted in the release of government datasets under licenses that contain few if any restrictions. The rapidly evolving data landscape and the ways in which the data revolution is changing both the delivery of government services and the kind and quantity of data generated by these services are poised to transform how ownership of and access to data is negotiated between data owners and data users. In the context of public services, ownership and control issues will be complicated by the presence of private sector companies who partner in the collection and generation of data. This chapter considers the interrelationship between claims to property rights in data and rights to access and use that data in a rapidly changing data environment.

Download the essay from SSRN at the link.

November 16, 2015 | Permalink

Thursday, November 12, 2015

Prescriptive and Jurisdictional Limits To the "Right To Be Forgotten"

Geert Van Calster, K. U. Leeven, has published Regulating the Internet. Prescriptive and Jurisdictional Boundaries to the EU's 'Right to Be Forgotten.' Here is the abstract.
Discussion of a European Union (‘EU’) imposed so-called ‘right to be forgotten’ or RTBF follows judgment of the European Court of Justice (‘CJEU’) in Google Spain. RTBF is clearly not quite what the CJEU had in mind or held in the judgment. However the term has captured public imagination. I too therefore in this article will employ the term as shorthand for the Court’s ruling in Google Spain. The case has led to suggestions of ‘exterritorial reach’ of Google Spain or the ‘global reach’ of the RTBF, coupled with accusations that the EU oversteps its ‘jurisdictional boundaries’. This follows especially the order or at least intention, by the French and other data protection agencies, that Google extend its compliance policy to the .com webdomain. This contribution focuses on the jurisdictional implications of the judgment. I do not review the merits of the case on data protection, human rights (particularly: freedom of expression and freedom to receive information), or other grounds. Jurisdiction being at the core of the discussion, I recall in Part I core notions of jurisdiction in traditional international law. Much of current analysis of Google Spain in my view suffers from conceptual confusion. Rules and principles of private and public international law are thrown into one spaghetti bowl of ideas which leads to opaque advice. At a first level of analysis, it is important therefore clearly to separate private from public international law in the discussion of internet regulation. This, it is hoped, will enable us to see the implications of the ruling more clearly, even if it requires summary review of the overall international regime on jurisdiction. Google Spain concerns litigation in civil and commercial matters. In essence it pitches one private individual, a natural person, against another, a corporation. The implication of a regulator (the Spanish data protection authority), does not materially affect the nature of the relationship at stake. The litigation and the consequential compliance by Google lie squarely in the area of private international law. That is arguably different for the follow-up extension, as noted above, of Google’s RTBF compliance policy, to websites with suffixes ex-EU, in particular, the .com extension. Once core issues of jurisdiction clarified at both public and private international law levels in respectively parts I and II of this contribution, I will draw conclusions from both areas, for the specific issue of the territorial reach of the RTBF in part III. The aim of current paper is not to present a done and dusted jurisdictional model for the regulation of the internet and, in wider sense, of the E-Economy. Rather, I hope to encourage relevant debate on the issues under consideration. There is more to the extension of the RTBF rule than scholarship has so far suggested.
Download the article from SSRN at the link.

November 12, 2015 | Permalink

Wednesday, November 11, 2015

Balancing Data Protection and Journalistic Freedom In the EU Regime

David Erdos, University of Cambridge Faculty of Law, Trinity Hall, has published European Regulatory Interpretation of the Interface between Data Protection and Journalistic Freedom: An Incomplete and Imperfect Balancing Act? Here is the abstract.

Directive 95/46 required European Economic Area Member States to ensure a careful balancing between the inherently conflicting values of data protection and journalistic freedom of expression. Unfortunately, however, this was often not achieved during the transposition of the Directive into local law. At the same time, both Directive 95/46 and the Art. 7 of the EU Charter mandated Member States to set up supervisory Data Protection Authorities (DPAs) which in practice dominate the data protection landscape. In the light of this, EEA DPAs were surveyed on their understanding of the right to subject access and the practice of undercover political journalism, with the responses then compared to provisions in local data protection law. The results demonstrated that DPAs do seek a balance in this area even against contrary statute. Nevertheless, the balancing achieved often remains incomplete, normatively contestable, opaque and precarious. It is argued that, following the likely replacement of Directive 95/46 with a new Regulation, these challenges must be tackled through a combination of both legislative and regulatory action.

Download the article from SSRN at the link.

November 11, 2015 | Permalink

Is the "Right To Be Forgotten" Censorship?

Paulan Korenhof, Tilburg University Institute for Law, Technology, and Society, and Ludo Gorzeman, Indpenedent Scholar, have published Who Is Censoring Whom? An Enquiry into the Right to Be Forgotten and Censorship. Here is the abstract.

The 'right to be forgotten' has been labelled as censorship and disastrous for the freedom of expression. In this paper, we will claim that effecting the right to be forgotten with regard to search results is a 'censorship' on the level of the retrieval of information. We will however also claim it is the least heavy yet most effective means to get an overall minimum amount of censorship, while additionally enabling people to evolve beyond their past opinions. We will show that in applying something like a 'right to be forgotten,' it is not a question of just 'censoring' search engines, but that seen from a broader perspective we -- as society -- will inevitably have to choose between three types of 'censorship': (1) censorship of original sources, that is on the level of information storage; (2) censorship on the level in which information is encoded in the first place; or (3) censorship on the level of information retrieval. These three levels on which 'censorship' can take place are the three basic elements of the memory process; whether biological, electronic, or hybrid with the use of mnemonic technologies. Applying censorship as a means of 'forgetting' in the collective hybrid memory of the Web enables us to counter -- at least partially -- a possible suppressing functioning of the Web as a 'Panonticon over Time.'

Download the article from SSRN at the link.

November 11, 2015 | Permalink

Tuesday, November 10, 2015

A Response To Six Essays About "When the State Speaks, What Should It Say?"

Corey L. Brettschneider, Brown University, Department of Political Science, and Fordham University School of Law, has published Democratic Persuasion and Freedom of Speech: A Response to Four Critics and Two Allies. Here is the abstract.

This article is a response to six essays from a symposium about my book, "When the State Speaks, What Should It Say? How Democracies Can Protect Expression and Promote Equality." In the book I offer an account of liberal democracy that combines the "neutralist’s" protection of rights with the feminist's and "prohibitionist's" concern for the equal status of citizens. I call this third view of liberalism and free speech "value democracy." When the State Speaks offers an account of "democratic persuasion" that requires the state to protect all viewpoints from coercion or prohibition. But when it "speaks" in statements by public officials, when it educates, when it uses its spending power, and when it confers the tax privileges of nonprofit status, the state must affirmatively take the side of upholding free and equal citizenship. Democratic persuasion, I argue, is not just something that the state is permitted to do. It is a matter of political obligation. Our constitutional jurisprudence, including the doctrine of viewpoint neutrality, must be tailored to permit the state to pursue its duty of democratic persuasion. At the same time, democratic persuasion places limits on state speech. It prohibits the state from speaking in ways that undermine its commitment to the values of freedom and equality. Several of the essays in this symposium attempt to push my view toward one of the opposing poles of neutralism or prohibitionism. On the more neutralist side, Steve Calabresi worries that I have abandoned traditional liberal commitments to respect the independence and autonomy of religious citizens. Although he endorses much of value democracy, he wants to see greater reticence in democratic persuasion to limit its application to religious organizations. While Calabresi accepts a central role in liberal democracy for a more reserved form of democratic persuasion, Andrew Koppelman denies that the state has a duty to pursue democratic persuasion. At most for him, it is a "second best" set of tools for the state to use in some circumstances, especially given his skepticism about whether it is necessary or effective. Robin West and Sarah Song push in the opposite direction of prohibitionism. On their view, I am right to seek to persuade citizens to change hateful viewpoints. They share my commitment to a political theory that challenges discrimination and seeks to promote ideals of equality in the family and civil society. But they worry that I have not gone far enough in my account. West believes that democratic persuasion does not act strongly enough to protect equality. Song questions how I might respond to critics, like Susan Okin and other liberal feminists, who argue that the state should promote more extensive changes in civil society than is permissible in democratic persuasion. In response to these critics, I suggest that value democracy and democratic persuasion offer a third way forward in thinking about the role of values in liberalism. I attempt to show that value democracy strikes what Calabresi aptly calls "the golden mean" between neutralism and prohibitionism. My defense and elaboration of value democracy and democratic persuasion are aided by essays from Frank Michelman and Josiah Ober. I begin by highlighting how Michelman’s essay underscores the strengths of my view that a legitimate state has an obligation to engage in democratic persuasion. His focus on legitimacy offers an important reply to theorists who want to see greater reticence in democratic persuasion, including Calabresi and Koppelman. Ober’s essay responds powerfully to concerns about the effectiveness of democratic persuasion and its respect for citizens. Finally, I address West’s and Song’s calls for a more radical form of democratic persuasion, suggesting that the cautionary arguments from Calabresi and Koppelman can be used to push back against West and Song.

Download the article from SSRN at the link.

November 10, 2015 | Permalink

Monday, November 9, 2015

Protecting Student Journalist Speech

Sonja West, University of Georgia School of Law, has published Student Press Exceptionalism at 2 Education Law & Policy Review 130 (2015). Here is the abstract.

Constitutional protection for student speakers is an issue that has been hotly contested for almost 50 years. Several commentators have made powerful arguments that the Court has failed to sufficiently protect the First Amendment rights of all students. But this debate has overlooked an even more troubling reality about the current state of expressive protection for students — the especially harmful effect of the Court’s precedents on student journalists. Under the Court’s jurisprudence, schools may regulate with far greater breadth and ease the speech of student journalists than of their non-press classmates. Schools are essentially free to censor the student press even when the speech at issue is truthful, legally obtained, non-disruptive, and about matters of public concern. As a constitutional matter, the lack of protection for student journalists should be alarming. This is because the suppression of student journalists not only potentially violates the First Amendment’s Free Speech Clause (as does the censorship of other student speech), but it also infringes on the constitutional guarantee of a free press. Unlike their non-press peers, student journalists fulfill distinctive roles that the Supreme Court has repeatedly recognized as constitutionally valuable. And like reporters outside of the school setting, these young journalists face high risks of government oppression and manipulation if left unprotected. Official censorship of student journalists thus raises numerous First Amendment concerns that should demand heightened — not weakened — court scrutiny.

Download the article froM SSRN at the link.

November 9, 2015 | Permalink

Price Moot Court Administration Announces Conference On Future of the Internet To Be Held November 23-24

From the Price Moot Court Administration:

The University of Oxford’s Programme in Comparative Media Law and Policy (PCMLP) is hosting a major conference on the future of the internet on November 23rd and 24th in Oxford. Those of you in the UK, or passing through Europe, may be interested in attending. This event is organized in collaboration with Peking University, Tencent, and Stanford University, and will bring together some of the major leaders in the field of internet law and policy to discuss and debate topics such as digital rights, hate speech online, smart cities and Internet governance and development. The conference draws primarily on the strengths of the three universities involved, and their networks, bringing together a unique collection of scholars and students, government officials, corporate executives, and civil society representatives. The goal is to inform research and strengthen the understanding of alternative viewpoints with a focus on the US, Europe and China, as well as global challenges.
This is an extraordinary opportunity to debate and discuss the future of the Internet. The first day of the event (November 23rd) will be hosted at the Magdalen College Auditorium- registration is free but space is limited. For more information and to register please visit: .

Please contact Danit Gal with any questions: .

Best wishes, PCMLP and the Price Moot Administration

November 9, 2015 | Permalink

Wednesday, November 4, 2015

Approaches To Internet Defamation: The Canadian and U.S. Regimes

Antonin I. Pribetic, Himelfarb Proszanski, and Marc J. Randazza, Randazza Legal Group, have published 'War of the Words': Differing Canadian and American Approaches to Internet Defamation at 2015 Annual Review of Civil Litigation 403. Here is the abstract.

This article provides a comparative analysis of differing approaches to Canadian and American internet defamation law. It begins with a discussion of the elements of a cause of action and available defences. It then canvasses jurisdiction and choice of law issues. Following a review of notice requirements and limitation periods, it provides the mechanics for unmasking anonymous defendants – John Doe applications, Norwich Pharmacal orders, injunctive relief. Finally, the paper outlines the key legal issues in the recognition and enforcement of Canadian and American cyberlibel judgments abroad, within the context of the libel tourism debate.

Download the article from SSRN at the link.

November 4, 2015 | Permalink

Tuesday, November 3, 2015

Prominent German Journalist Attacked In Street Over Column

Journalist Helmut Schuemann, who writes for the Tagesspiegel, says he was physically attacked last Friday by several people who did not like the column he wrote about the increase in expressions of anti-Islamic feelings among certain groups in Germany.  He said in a post on Facebook that the attack will not stop him from speaking out.

More here from the paper The Local.


November 3, 2015 | Permalink