Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

A Member of the Law Professor Blogs Network

Tuesday, April 15, 2014

Berlusconi To Serve a Year of Community Service Rather Than Prison Time

A Milanese court has agreed that Silvio Berlusconi may serve a year of community service in lieu of four years in prison because of his age. The former Italian Prime Minister and owner of a media empire had been sentenced to four years for tax fraud. He is still banned from participating in politics for two years.  More here from the Hollywood Reporter, 

April 15, 2014 | Permalink | TrackBack (0)

Monday, April 14, 2014

Pulitzer Prize Board Announces Winners For 2014

The Pulitzer Prize Board has named its winners for 2014. On the list: The Guardian US and the Washington Post won for public service, for coverage of the Edward Snowden story, the Boston Globe won the breaking news prize for its coverage of the Boston Marathon bombing, and the New York Times won in two categories: Breaking News Photography (Tyler Hicks) and Feature Photography (Josh Haner). The Tampa Bay Times won the award for Local Reporting (Will Hobson and Michael LaForgia).

April 14, 2014 | Permalink | TrackBack (0)

D.C. Magistrate Judge Asks EFF, Feds For Further Assistance With Technical Issues In Cell Phone Disclosure Case

U.S. Magistrate Judge John Facciola has asked the Electronic Frontier Foundation to serve as amicus curiae in a case involving the federal government's request for the disclosure of historic cell site location information (CLSI). The judge noted that nearly 90 publicly available opinions exist on the issue and that these opinions "are impossible to reconcile." Therefore, he has asked the EFF and the federal government to "provide the Court with a list of specific topics, issues, or questions that will help it probe into the relevant factual issues." Read the ruling here.

April 14, 2014 | Permalink | TrackBack (0)

Anti-Stalking Legislation In the UK

Robin Callender Smith, University of London, Humanities, Social Sciences, and Law, has published Protection of Harassment Act 1997: From Anti-Stalking Crimes to Celebrity Privacy Remedies, at 5 Queen Mary Law Journal 23 (Spring 2014). Here is the abstract.
Anti-stalking legislation in the UK - created by the Protection from Harassment Act 1997 (PHA) which had its legislative roots as an anti-Domestic Violence measure - has become a potent weapon in the privacy armoury of the royal family andcelebrity celebrities generally.  This development has created inevitable Article 8 and Article 10 tensions. There is an unusual duality within this Act that allows for criminal prosecutions and civil actions - on what are essentially the same facts - to proceed in parallel.
Much of the phone-hacking activity alleged against Rupert Murdoch’s News International daily and Sunday newspapers - currently being tried at the Old Bailey in London - could have been prosecuted under this Act.  There is no clearly-articulated public interest defence within the Act. Queen Elizabeth II has, for the last five years, warned photographers and the UK’s media that she may use either the civil or criminal aspects of this law to enforce her privacy rights…and Harry Styles (of the boy band One Direction) has recently used the Act to keep paparazzi on scooters away from him.  Restraining Orders can be imposed even when criminal prosecutions fail. English law has accommodated the privacy paradox (the more famous you are, the more you want your privacy) - both through legislative adjustments and developing case law - in flexible ways that have allowed the PHA’s remedies to mature potently over the last 15 years in line with the ECHR’s Article 8 and Article 10 tensions.
From starting life an anti-stalking measure it has become one of the weapons of choice for celebrities seeking to protect their privacy from the media and paparazzi….but it is not just a one-way street. Carina Trimingham, the bi-sexual partner of the disgraced former English Cabinet Minister and MP Chris Huhne - unsuccessfully used the Act to sue a national newspaper which repeatedly (over 250 times) mentioned her bi-sexuality in news articles about Chris Huhne. Issues within this Act straddle the borderline between Article 8 privacy rights and Article 10 rights to freedom of expression in ways which only celebrities and the media could have had the resources to develop and explore in English law.
Download the article from SSRN at the link.

April 14, 2014 | Permalink | TrackBack (0)

Al-Jazeera Restructuring, Laying Off Employees

From the Hollywood Reporter: Al-Jazeera America, launched last year, is laying off "dozens" of employees, mostly, it says, due to reorganzation.  The network, in partnership with Time Warner Cable, is available in millions of US homes. More here on the network's history and brand from the Los Angeles Times.

April 14, 2014 | Permalink | TrackBack (0)

Thursday, April 10, 2014

Fifth Circuit Denies Request For Writ; Paper Told To Turn Over Names of Anonymous Posters

The Fifth Circuit has refused to grant a writ of mandamus allowing the Times-Picayune to keep private the names of anonymous individuals who commented on a 2008 article concerning Stacey Jackson, the former head of New Orleans Affordable Homeownership, a NOLA nonprofit, and an investigation into her tenure there. After her indictment, her attorney requested information concerning the identities of the posters. What makes the identities of the posters particularly vital to the defense is that there's some question about whether the anonymous commentators here might have been prosecutors or members of law enforcement. In March 2012 information surfaced that a former Assistant U.S. Attorney had been posting anonymously about another investigation, and he admitted he had posted anonymously about other cases. (There has been other fallout, including some that touched the prosecution of NOPD officers involved in the Danizer Bridge shootings, resulting in the grant of a new trial for the defendants).

The Times Picayune argued in its motion that requiring it to turn over the names of the commentators "insufficiently protects the right under the First Amendment to engage in anonymous speech." However, prosecutors in the case and Ms. Jackson's attorneys have argued that the comments might have been made by federal prosecutors prior to Ms. Jackson's indictment. The Fifth Circuit did not find that the trial court's balancing of the free speech rights of the commentators against the defendant's due process interests "was clearly and indisputably erroneous"; the information would be reviewed in camera.

U. S. District Judge Mary Ann Lemmon gave the paper until noon on April 10 to turn over the requested information.




April 10, 2014 | Permalink | TrackBack (0)

Wednesday, April 9, 2014

Senate Judiciary Committee Hearings On Comcast/Time Warner Merger

Variety reports on the ongoing Senate Judiciary Committee hearings concerning the Comcast/Time Warner merger. Senator Al Franken (no stranger to the entertainment industry) had sharp questions for Comcast executive vice president David Cohen concerning possible increases in monthly consumer cable bills. CSPAN coverage here.

See coverage here of David Cohen's appearance on CSPAN's program The Communicators (aired March 27, 2014).

April 9, 2014 | Permalink | TrackBack (0)

Tuesday, April 8, 2014

Communications About Rights Speech

Timothy Zick, William & Mary Law School, has published Rights Speech as William & Mary Law School Research Paper No. 09-275. Here is the abstract.

Freedom of speech has a complex and dynamic relationship with a number of other constitutional rights.  This Article discusses one aspect of that relationship.  It identifies and analyzes laws and regulations affecting rights speech – communications about or concerning the recognition, scope, or exercise of constitutional rights.  As illustrative examples, the Article focuses on regulation of speech about or concerning the right to abortion and the right to bear arms.  In these areas, government frequently manages, structures, and limits how individuals discuss constitutional rights.  For example, various laws compel physicians to convey information about abortion and its effects, restrict sidewalk counseling near abortion clinics, limit public and press access to gun records, and ban lobbying relating to gun control with government funds.  The Article identifies rights speech as an important sub-class of political speech; discusses the various ways in which rights speech regulations affect constitutional rights discourse; examines the factors that have led governments to impose such regulations in the abortion and arms contexts; and identifies the First Amendment and other constitutional harms that flow from governmental regulation of rights speech.  The Article closes with some thoughts regarding how we might ensure that the First Amendment continues to serve as an effective mediating mechanism in future debates about constitutional rights.


Download the paper from SSRN at the link.

April 8, 2014 | Permalink | TrackBack (0)

Hate Speech Laws

James Allan, University of Queensland, T. C. Beirne School of Law, has published Hate Speech Law and Disagreement as University of Queensland TC Beirne School of Law Research Paper No. 14-15 and in Constitutional Commentary. Here is the abstract.

In this Constitutional Commentary review piece, Allan considers Jeremy Waldron's arguments for hate speech laws in Waldron's book THE HARM IN HATE SPEECH. Allan finds them all lacking and ultimately unpersuasive. The review is not premised on a parsing of precedents. It considers Waldron's case from first principles.


Download the essay from SSRN at the link.

April 8, 2014 | Permalink | TrackBack (0)

Monday, April 7, 2014

Media Lobbying in a Democracy

Jacob H. Rowbottom, University of Oxford Faculty of Law, is publishing Politicians, the Press and Lobbying in the Journal of Media Law (2013). Here is the abstract.

The Leveson Report highlighted the extent to which newspapers have lobbied government in relation to media policy, and put forward proposals to make government/media relations more transparent. This article considers whether media lobbying poses any specific concerns in a democracy. In addressing this question, it draws a comparison with political finance and also asks whether lobbying relationships can undermine the watchdog function of the press. The article goes on to consider whether the transparency rules are an effective measure in tackling these concerns, or whether other types of control may be necessary.

Download the article from SSRN at the link.

April 7, 2014 | Permalink | TrackBack (0)

AP Reporter Dies In Afghanistan While Covering Election

Coverage here from the New York Times, on the death of AP reporter Anja Niedringhaus, shot and killed by Afghan police officers, while she was covering the Afghan election. A colleague, Kathy Gannon, was wounded. More here from the BBC.

April 7, 2014 | Permalink | TrackBack (0)

Thursday, April 3, 2014

EU Adopts Net Neutrality

From the New York Times: The EU is setting new rules that guarantee net neutrality for the 28 member states of the European Union. The European Parliament has voted to support the new regime, which ends roaming charges by Christmas 2015. Read European Commissioner Neelie Kroes's statement on Net Neutrality here. 

More about the new regulation and the Connected Continent/Digital Agenda for Europe here.

More here from ZDNet.


April 3, 2014 | Permalink | TrackBack (0)

Wednesday, April 2, 2014

WGA and Producers Reach Agreement

From the Hollywood Reporter: The Writers Guild and the studios appear to have reached an agreement, apparently without the kind of bitterness that marked negotiations in 2007/2008 and 2011. More here.

Next up: negotiations between SAG/AFTRA and the AMPTP.

April 2, 2014 | Permalink | TrackBack (0)

Tuesday, April 1, 2014

French Law and the Limits of Free Expression On Twitter

Francois Delerue, European University Institute, has published The French Twitter Case: A Difficult Equilibrium between Freedom of Expression and its Limits  at 10 Digital Evidence and Electronic Signature Law Review 193.  Here is the abstract.

The French Twitter case (Tribunal de Grande Instance de Paris, Ordonnance de référé, 24 janv. 2013, n° 13/50262, n° 13/50276, UEJF et a. c/ Twitter Inc. et Sté Twitter France and Cour d’Appel de Paris, 12 June 2013, Twitter Inc. et Twitter France c/ UEJF et a.) shows the difficulties experienced by courts, national authorities and companies, in relation to an international activity, and to find an equilibrium between freedom of expression and its limits, notably in the respect of public order. Moreover, it also shows that in a significant number of cases on the Internet, the application of the French law depends on the goodwill of the companies or the authorities of a foreign state.

The full text is not available from SSRN.

April 1, 2014 | Permalink | TrackBack (0)

Monday, March 31, 2014

Spanish Voiceover Artists Agree To Consider Deal; Will Continue To Dub Popular TV Series

From the Hollywood Reporter: Spanish voiceover artists have ended a strike and agreed to consider a deal that allows dubbing to continue for popular shows like Game of Thrones, The Big Bang Theory and Modern Family. The Spanish strike had prevented new episodes from airing while the artists and local networks attempted to negotiate a new deal based on rates for the work. Spain continues to dub tv and movies; other EU countries do not dub English language works at the rate Spanish companies do.

March 31, 2014 | Permalink | TrackBack (0)

Examining Copyright Theory as Applied To the Internet

Jonathon Penney, Harvard University Berkman Center for Internet & Society; Citizen Lab, University of Toronto; University of Oxford, Oxford Internet Institute, has published Copyright's Media Theory and the Internet in Intellectual Property Law for the 21st Century: Interdisciplinary Approaches (B. Courtney Daogoo, Mistrale Goudreau, Madelaine Saginur, and Theresa Scassa, eds., 2014).  Here is the abstract.

Despite copyright’s expansion into new online spheres and technological contexts, and the increasingly interdisciplinary nature of copyright scholarship, intellectual property scholars, particularly those interested in digital copyright, have offered little exploration of methodology and methodological issues, and scholarship offers even fewer methodological investigations and debates. This area of Internet related legal research remains, like others, without established “texts, theories, and methodologies.” This chapter aims to address some of that void, by offering an exploration of the problems that can arise when applying certain legal doctrines to online contexts, through a case study of the “chilling effects doctrine” — a legal doctrine that holds that certain laws and regulatory schemes can “chill” or deter people from engaging in certain kinds of legal (and possibly desirable) activities — as its emergence or “transplantation” into debates about copyright enforcement online. The case study provides a helpful point of entry into a broader methodological discussion about applying legal norms to media. Specifically, the author draws on insights from other disciplines and research fields to unpack and scrutinize the chilling effects doctrine and it methodological, empirical, and normative assumptions.


Download the essay from SSRN at the link.

March 31, 2014 | Permalink | TrackBack (0)

The Press Clause and Civil Discourse

Akilah Folami, Hofstra University School of Law, has published Using the Press Clause to Amplify Civic Discourse Beyond Mere Opinion Sharing in 85 Temple Law Review (2013). Here is the abstract.

The First Amendment unambiguously proclaims that “Congress shall make no law...abridging the freedom of speech, or of the press.” The First Amendment’s Speech Clause primarily bears the deliberative weight of protecting and maintaining the discursive space of America’s self-governing democracy. It has done so by indiscriminately protecting a broad array of expression from government intrusion. As a result, the Speech Clause has democratically legitimized such expression in America’s civic discourse. This legitimization is essential to a more deliberative democracy. The Speech Clause’s legitimizing function, however, has not helped to advance another essential element for a well-functioning deliberative democracy, namely, democratic competence. Instead, it has hurt it. Democratic competence relates to the cognitive empowerment of citizens within civic discourse and requires, at a minimum, deliberation-enhancing end-products and exchanges, grounded in factual truth and disclosure of corporate or government sponsorship when applicable. The protective scope of the Speech Clause has ironically contributed to the current floodgates in American civic discourse of the opposite — unsubstantiated commentary, rumor, and manipulative spin. Developments in technology, citizen journalism, and online “blogging” have exacerbated this cacophony and discourage the production of deliberation-enhancing end-products and exchanges.

This Article turns to the Press Clause to advance democratic competence and to in turn amplify civic discourse beyond mere opinion sharing. It aims to do so by incentivizing the production and dissemination of deliberation-enhancing end-products. In so doing, this Article leaves intact the Speech Clause’s expansive reach and legitimizing function, while proposing an alternate basis of constitutional protection for a narrower category of speech — deliberation-enhancing end-products. Moreover, using the Press Clause in this manner provides a constitutional framework through which exclusive privileges may be awarded to anyone who produces these qualifying end-products. These privileges can therefore be made available to others besides members of the traditional news media who are currently the primary beneficiaries of such privileges. Civic discourse can, as a result, be opened up without sacrificing the long-acknowledged value of deliberation-enhancing end-products to civic discourse.

Download the article from SSRN at the link.

March 31, 2014 | Permalink | TrackBack (0)

Thursday, March 27, 2014

Spanish Voiceover Actors On Strike, Putting New Episode Of Popular US Shows On Hold

Spanish actors who handle the voiceover work for such popular shows as Game of Thrones and The Big Bang Theory are currently on strike, which means that recent episodes of the most current episodes of these hits are backlogged, forcing the national networks to show reruns. Talks to secure more pay and better working conditions for the actors have hit snags, and some shows have actually featured new actors doing the voicovers. More here from The Guardian.

March 27, 2014 | Permalink | TrackBack (0)

Wednesday, March 26, 2014

Near v. Minnesota, Injunctions and Prior Restraint Doctrine

Doug Rendleman, Washington & Lee University School of Law, has published The Defamation Injunction Meets the Prior Restraint Doctrine as Washington & Lee Legal Studies Paper No. 2014-8. Here is the abstract.

In Near v. Minnesota, the Supreme Court added the injunction to executive licensing as a prior restraint. Although the Near court circumscribed the injunction as a prior restraint, it approved criminal sanctions and damages judgments. The prior restraint label resembles a death sentence. This article maintains that such massive retaliation is overkill.
A judge’s injunction that forbids the defendant’s tort of defamation tests Near and prior restraint doctrine because defamation isn’t protected by the First Amendment. Arguing that the anti-defamation injunction has outgrown outright bans under the prior restraint rule and the equitable Maxim that “Equity will not enjoin defamation” turns out to be formidable. This article examines the Sullivan v. New York Times privileges in defamation, their tension between truth and falsity, and their limitations on compensatory and punitive damages. It tests the injunction against damages by examining several Equitable doctrines: the inadequacy prerequisite-irreparable injury rule, the injunction as preventive relief, the temporary restraining order, the preliminary injunction, the injunction bond, the juryless injunction trial, the task of drafting an injunction to avoids vagueness and over-breadth, the use of motions to modify-dissolve an injunction, and the declaratory judgment, and contempt, compensatory, coercive, or criminal, including the collateral bar rule. It weighs important prior restraint scholarship, including Professor Emerson’s and Professor Blasi’s.
The administration of the prior restraint doctrines has expanded its operation beyond the policy reasons that gave it birth. This article concludes that the differences between damages and an injunction don’t warrant different treatment. In Balboa Island VillageInn v. Lemen, the California Supreme Court approved a targeted injunction that forbids a defendant from repeating proved defamation. Influential scholars beginning with Roscoe Pound and including more recently Professors Redish, Jeffries, Schauer, and Ardia have eroded the prior restraint doctrines’ reasoning and application.
The procedure leading to an injunction can be augmented by requiring prior notice, adversary adjudication, and narrow drafting. A properly adjudicated and drafted injunction that specifically forbids defendant’s defamation will prevent harmful torts without threatening free-speech values. The article closes by asking for abolition of the Maxim and suspension or qualification of the prior restraint doctrine for defamation.

Download the paper from SSRN at the link.

March 26, 2014 | Permalink | TrackBack (0)

Tuesday, March 25, 2014

Government Reclassification of Documents and the FIrst Amendment

Jonathan Abel, Stanford Law School, Constitutional Law Center, is publishing Do You Have to Keep the Government's Secrets?: Retroactively Classified Documents, the First Amendment, and the Power To Make Secrets Out of the Public Record in volume 163 of the University of Pennsylvania Law Review (2015). Here is the abstract.

Retroactive classification is a little-known national security power that allows the government to declassify a document, release it to the public, and then classify it later on — even if the document remains accessible in the public domain. This means you could receive a document today and be prosecuted tomorrow for not giving it back. Drawing on original interviews, historical documents, and other primary sources, this Article provides the first in-depth account of this phenomenon, which threatens the freedom of speech, the freedom of the press, and the separation of powers, but has received only glancing scholarly attention. 

The Article begins with examples of retroactive classification, which has targeted material ranging from congressional testimony on the missile-defense system to half-century-old documents at the National Archives. It then examines how the rules that are supposed to limit retroactive classification’s sweep are incapable of doing so in the Internet Age. The Article next asks: Can the government punish someone for disregarding a retroactive classification order? Despite significant statutory and First Amendment concerns, the Article concludes that the answer is yes. Retroactive classification can be enforced by criminal prosecution.

The Article also situates the phenomenon of retroactive classification in the broader debate about the government’s ability to control information in the public domain. As the Article shows, retroactive classification of sorts occurs in many contexts outside of national security law, such as when the government attempts to prevent the publication of social security numbers, police officers’ home addresses, and other sensitive information it has made available in the public record.

Finally, the Article examines the separation of powers implications of retroactive classification. Paradoxically, members of Congress are both more protected from and more vulnerable to retroactive classification than members of the public.

In an era when the government possesses so much sensitive information, and that information is so susceptible to disclosure, retroactive classification suggests that there are only the weakest of legal constraints on the government’s ability to control information in the public record.
Download the article from SSRN at the link.

March 25, 2014 | Permalink | TrackBack (0)