September 21, 2007
The Changing State of Media Regulation in Britain
Secretary of State of Culture, Media and Sport James Purnell addressed the Royal Television Society Cambridge Convention on September 13, and announced a new agenda concerning media regulation. He plans to assemble a group to think through how to achieve some new goals including deregulation as well as "universal access" to content, and address questions of content regulation. Analog signals are ending in Britain in 2012. Read Mr. Purnell's speech here.
China Releases New York Times Journalist After Three Years in Prison
China has released a New York Times journalist, whom it jailed three years ago after a very controversial trial that was protested around the world. Zhao Yan was charged both with fraud and with revealing state secrets. The national secrecy charges were dismissed, but he was convicted of the fraud charges. Mr. Zhao still works for the Times. Here's more from MSNNews.com.
Family Sues Virgin Mobile for "Grief and Humiliation" Over Photo
A Texas family has filed suit over Australia's Virgin Mobile's use of their daughter's photo in the company's current ad campaign. The company picked out the girl's photo from Flickr, the Yahoo-owned website, and incorporated it and current Virgin Mobile slogans in the ads. The slogans in question are "Dump Your Pen Friend" and "Free text virgin to virgin". The family claims that the company has now "damaged Alison's reputation and exposed her to ridicule from her peers and scrutiny from people who can now Google her". Read more here in an AP story. Here's more from the Melbourne Sun.
Tale of Another Socks
The BBC's director general, Mark Thompson, has called the decision to name a cat on the show Blue Peter "Socks" instead of the viewer choice ("Cookie") a "truly terrible idea." The show's director's, Richard Marson, has lost his job. No word from the cat, or T. S. Eliot.
September 20, 2007
Dan Rather Sues CBS, Viacom
Former CBS news anchor Dan Rather has sued CBS, Viacom, and CBS President Leslie Moonves for forcing him to leave the position he had held for over two decades in the aftermath of the questions raised over the story he did on President George W. Bush's National Guard service during the Vietnam conflict. Mr. Rather claims in the suit that "CBS intentionally caused the public and the media to attribute CBS' alleged bungling of the episode to Mr. Rather." Read more here in an AP story.
September 18, 2007
The Founders, Freedom of the Press, and the Copyright Clause
Edward Lee, Ohio State University College of Law, has published "Freedom of the Press 2.0" as Ohio State Public Law Working Paper No. 97. Here is the abstract.
In today's digital age, copyright law is changing. It now attempts to regulate machines. Over the past twenty years, and particularly with the advent of the Internet, copyright holders have increasingly invoked copyright law to regulate directly - indeed, even to prohibit - the manufacture and sale of technology that facilitates the mass dissemination of expressive works. Although the concerns of copyright holders about the ease of digital copying are understandable, the expansion of copyright law to regulate - and, in some cases, to prohibit - technologies raises a troubling question. Can the government regulate under copyright law technologies that facilitate the dissemination of speech, consistent with the First Amendment? If so, are there any limits to what the government can do? Or does copyright law have constitutional carte blanche to regulate technologies, without any First Amendment scrutiny? Because copyright law, dating back to the first Copyright Act of 1790, traditionally refrained from regulating technologies directly, these questions were scarcely considered before. But, today, these questions have vital importance as copyright law and other laws proposed in service of copyright holders contemplate even greater regulation of emerging technologies that are revolutionizing the ability of individuals to create expressive content on the Internet, in the “Web 2.0” culture of user-created content. However, despite their importance, these questions have escaped attention in legal scholarship. This Article attempts to answer these questions by tracing the historical development of the “freedom of the press” that led to the Framers' inclusion of the concept in the First Amendment. My core thesis is twofold: (i) the Framers understood the freedom of the press as the freedom of the printing press - a speech technology - to be free of intrusive governmental regulation, including restrictions on technology imposed under copyright law; and (ii) today, the Sony safe harbor operates as a “First Amendment safeguard” within copyright law that is designed to protect the freedom of the press and the development of speech technologies. All future attempts by Congress to regulate speech technologies under copyright law must answer to the Free Press Clause or the Sony safe harbor.
Download the entire paper from SSRN here.
German Court Denies Zundel Appeal
Author Ernest Zundel has lost a chance to appeal his conviction before the German Federal Court of Justice (Bundesgerichtshof). Mr. Zundel was convicted under a German law that forbids denying the existence of the Holocaust. He received a five year sentence.
Whoever publicly or in a meeting approves of, denies or renders harmless an act committed under the rule of National Socialism of the type indicated in Section 220a subsection (1) [genocide], in a manner capable of disturbing the public piece (sic) shall be punished with imprisonment for not more than five years or a fine. (translation by the Federal Ministry of Justice)
He had been convicted under a similar Canadian law; that law was ruled unconstitutional by the Canadian Supreme Court. Here's more from an AP story.
Second Circuit Upholds Lower Court Ruling Against American Citizen Who Violated Order Not to Travel to Iraq
The Second Circuit has upheld a district court order against a plaintiff/appellant, Judith Karpova, who visited Iraq in 2003 as "an ordained minister to bear witness to the effect on Iraq's people of economic sanctions, as a professional writer and journalist sending letters or reports to the Jersey Journal, a daily newspaper in Jersey City, New Jersey, and as a human shield to prevent destruction of civilian infrastructure in the event of renewed hostilities" even though several executive orders and Treasury Department regulations stated quite clearly that these activities were forbidden. In response, she was fined $6700. She sued to set aside the fine, claiming that it was in violation of the APA and the First and Fifth Amendments and the Iraqi Sanctions Act.
The court rejected all of her arguments. With regard to the claim that Ms. Karpova was a journalist, the Second Circuit ruled that "
The case is Karpova v. Snow, U.S.C.A. 2d Cir. 2007, 06-0104-cv.
Similarly, even if plaintiff is correct that some of the transactions she engaged in in Iraq related to journalistic activities and thus were exempted from sanction by § 575.207, remand on that basis would be futile. By way of background, § 575.207 provides that transactions "[r]elating to journalistic activity by persons regularly employed in such capacity by a newsgathering organization" are not sanctionable, and § 575.416(b)(1) clarifies that certain freelance journalists are covered by § 575.207's exemption. Karpova's argument is that her solicitation of funds, her travel to Iraq, and her purchase of food all related to her freelance journalistic activity, and thus were not sanctionable under the regulations. Unfortunately, the Agency did not provide much explanation on this issue; it merely noted in the Prepenalty Notice that Karpova acted as a freelance journalist while in Iraq, but failed to address in its final decision whether she qualified as a journalist under § 575.416 and whether these transactions were covered by this exception. Yet, plaintiff overlooks § 575.416(c), which notes that "[a]uthorized travel transactions are limited to those incident to travel for the purpose of collecting and disseminating information for a recognized newsgathering organization, and do not include travel transactions related to any other activity in Iraq" (emphasis added). Karpova admits that among her activities within Iraq were excursions to "defend Iraqi civilian infrastructure from bombing." Such activity clearly would not fall within the journalistic exception, and thus we are confident the Agency would reach the same conclusion even were we to determine that some of Karpova's activities in Iraq were exempted by the journalistic exception."
With regard to the Free Speech claim, the court said, "Under the First Amendment, a restriction against traveling to a specified country is "an inhibition of action," not speech.... As the Zemel Court explained, many restrictions on action could "be clothed by ingenious argument in the garb of decreased data flow.".... Yet such arguments are to no avail since the First Amendment guarantees a citizen the right to speak and publish, but does not guarantee an unrestrained right to gather information....Karpova was fined because of her actions in violating the travel regulations, not for her speech. Consequently, her First Amendment rights were not violated."
Read the entire opinion here.
September 17, 2007
Pitching Fake Shows
Lee Kern writes about the fun and profit involved in pitching fake tv concepts to real media here in the Media Guardian. But in a world where Stephen Colbert can be confused with real journalists (indeed some people think he is a real journalist), and where a recent Dutch tv show set off a whirlwind of protest until its producers revealed it was a hoax, are the responses Mr. Kern got any surprise?
Hip Hop Within the Public Sphere
Akilah Folami, Hofstra University School of Law, has published "From Habermas to `Get Rich or Die Tryin': Hip Hop, the Telecommunications Act of 1996, and the Black Public Sphere," in volume 12 of the Michigan Journal of Race & Law at p. 235 (2007). Here is the abstract.
This Article explores the manner in which gangsta rappers, who are primarily young urban Black1 men, navigate the mass media and rap's commercialization of the gangsta image to continue to provide seeds of political expression and resistance to that image. While other scholars have considered the political nature of rap in the context of the First Amendment, this Article's approach is unique in that it is the first to explore such concepts through the lenses of Habermas' ideal public sphere and those of his critics. While many have written gangsta rap off as being commercially co-opted or useless given its misogyny, violence, and unbridled exhortation to material consumption, “political” expression, resistance and social commentary can still be found therein. This resistance and social commentary can be found when gangsta rap is analyzed within the broader framework of the public sphere, particularly given the invisibility and marginalization of Black men in much public space in America, and the entangled relationship between gangsta rappers, the market, and the mass media.
In addition, this Article is the first to consider the Telecommunications Act of 1996 within the context of hip hop and its contribution to the proliferation of gangsta rap and to dissuading the voices of more “positive” rappers that would contest such gangsta rap. Contrary to Habermas' view that the law facilitates communication in the public sphere, and between the public sphere and the dominant society, the Telecommunications Act has contributed to stifling discourse within the hip hop community by increasing and solidifying corporate media conglomeration and control of the nation's radio airwaves. This conglomeration has been instrumental in creating the dominant gangsta image that has become, for the most part, the defacto voice of contemporary hip hop culture. In order to achieve the participatory democracy that Habermas and others envisioned, a wider understanding of political expression and resistance must be embraced, and the law, specifically, the Telecommunications Act, must not inhibit the articulation of alternative voices within the hip hop community that might resist, or provide a counter-hegemonic expression, to gangsta rap, and the resulting, gangsta image.
Download the entire article from SSRN here.