November 24, 2007
Former CNN Reporter Loses Discrimination Lawsuit
Former CNN anchor Marina Kolbe has lost her wrongful termination suit against the network. Ms. Kolbe lost her position in 2003 at the age of 42. The jury found that CNN did not discriminate for reasons of age or sex in refusing to renew Ms. Kolbe's contract. Read more here in an AP story and here in an Atlanta Journal-Constitution story.
November 21, 2007
Judge Dismisses Defamation Suit Against Scientist/Commentator
Judge James Dunn has dismissed a defamation lawsuit against Bruce Flamm, the scientist who criticized the work of South Korean researcher Kwang-Yul Cha. Dr. Cha had filed the suit after Dr. Flamm critiqued the work of Dr. Cha and others on intercessory prayer published in 2001 and then additional research published in 2005. Dr. Cha accused Dr. Flamm of "fanaticism bordering on obsession." Judge Dunn ruled from the bench that Dr. Cha's suit was intended to stifle debate on matters of public concern. Read more here in a Los Angeles Times article.
Analyzing the Cartoon Controversy
Robert A Kahn, University of St. Thomas School of Law (Minnesota), has published "Why There Was No Cartoon Controversy in the United States," as University of St. Thomas Legal Studies Research Paper 07-28. Here is the abstract.
The publication of cartoons insulting the prophet Mohammed created a far greater controversy in Europe than it did in the United States. In the paper, I attempt to trace this difference to broader differences in the way Americans and Europeans think about offensive speech. While Americans have developed a language of “libertarian regret,” which allows them to criticize speech that they nevertheless concede the legal system must protect, Europeans are much more concerned about the threat posed by acts of intolerance. As a result, Europeans tended to view Muslim protests against the cartoons as a potential harbinger of totalitarianism. By contrast, most American commentators - while defending the right of the Danish paper to run the cartoons - were more likely to trace the Muslim opposition to the cartoons to religious sensitivities. In a concluding section of the paper, I link this to the European fears that Muslims will undermine secular norms.
Download the paper from SSRN here.
Access to Digital Media as a First Amendment Right
Hannibal Travis, Florida International University College of Law, has published "Of Blogs, eBooks, and Broadband: Access to Digital Media as a First Amendment Right," at 35 Hofstra Law Review 1519 (2007). Here is the abstract.
In an information society, wealth and power are increasingly linked to access to knowledge and control over telecommunications media. Struggles over access to digital media in particular are presenting uniquely contentious First Amendment problems. The creation of about 200 million blogs worldwide has triggered legal action and legislative reform aimed at alleged trademark infringement by bloggers and cybersquatters. Authors and publishers seek expanded rights to curtail unauthorized digital uses for which they are not being compensated, and have sued Google for digitizing and indexing tens of millions of the world's books and periodicals. Finally, Google, Yahoo!, Microsoft, and other Internet and e-commerce firms are trying to beat back plans by the nation's cable and telephone companies to finance upgrades to their networks by levying discriminatory fees on search engines, as well as on Internet content providers and aggregators. Internet users have often been on the losing side of these controversies, as the economic model increasingly adopted by the Supreme Court is that in order to reward corporations for collecting or disseminating information, its free flow in print and electronic form must often be impeded, and its cost to the user increased. This model threatens to empower broadband companies, copyright holders, and trademark owners to restrict the right of the public to utilize digital media for purposes of free speech.
This Article argues that digital media such as the broadband Internet, the World Wide Web, and the blogosphere should be at least as free as the press was at the time that the First Amendment was ratified in 1791. In other words, bloggers could not be enjoined or fined for tarnishing the trademarks or goodwill of their employers or other corporations, for trademark law did not prohibit trademark dilution or other non-competitive uses in 1791. Similarly, Web sites and search engines such as Google could not be restrained from digitizing, indexing, and providing short previews of books and periodicals, for copyright law in 1791 permitted abridgements, adaptations, reviews, and other value-added uses of copyrighted work. Finally, the cable and telephone companies would not be at liberty to levy discriminatory access fees upon digital media outlets, for their ability to monopolize local telecommunications networks is a legacy of anticompetitive state and federal exclusion of new entrants over the past century in violation of the First Amendment. The framers of the First Amendment would no more have countenanced an attempt by Congress and the federal courts to allow private entities enjoying the fruits of past official monopolies to restrain the freedom of speech over an essential facility such as the Internet than they would have endorsed the creation of a series of local book publishing or newspaper monopolies. The framers presumed that information would flow freely and cheaply to citizens and consumers, enabling them to ascertain their true interests without difficulty, and to make decisions accordingly. As Congress considered ratifying the First Amendment, Madison declared that by it the liberty of the press is expressly declared to be beyond the reach of this Government. The Supreme Court has construed most of the other amendments in the Bill of Rights to provide at least as much protection against infringement as existed under the common law in 1791.
Opponents of net neutrality requirements have opined that the First Amendment rights of corporate owners of telecommunications infrastructure should trump the First Amendment rights of individual speakers and users of telecommunications media. Under this view, the foremost free speech interests on the Internet are those of broadband infrastructure owners, rather than the senders and recipients of Internet speech such as Web content, blogs, eBooks, or online videos. This line of argument misconceives both the distinctive character of the Internet and the purposes for which the First Amendment was enacted. The Internet and its principal applications such as the World Wide Web grew as rapidly as they did because they were designed to be open, flexible, and uninhibited by gatekeeper control. The high degree of concentration in the broadband market, the inability of many consumers to switch broadband carriers, and plans by broadband providers to discriminate among different sources of Internet content combine to threaten the Internet as an open, decentralized, low-cost communications platform. The First Amendment is not offended by regulations designed to ensure that firms awarded local telecommunications monopolies by the government exercise their power to restrict mass communication in a manner consistent with the public interest. The overriding purpose of the First Amendment is to ensure that readers, listeners, and viewers of public debates obtain access to a wide variety of facts and opinions so as to be able to discern the truth as best they can. Even privileging the speaker's perspective, surely the First Amendment interests of the creators, editors, and aggregators of Web sites, blogs, and online videos - rather than the supposed speech interests of the owners of the wires along which content travels - should prevail in the event of a conflict.
Download the article from SSRN here.
November 20, 2007
Stay Current With Blogposts From Variety's Strike Blog
Check out Variety's new blog dedicated to the WGA strike: Strike Vibe.
Jerry Springer--the Opera, and Blasphemy
The group Christian Voice is pursuing its attempt to hold Mark Thompson, the Director General of the BBC, and Jonathan Thoday, the director of the opera Jerry Springer--the Musical, for blasphemy, in an appellate court. A lower court has already dismissed the action. The group maintains that the opera depicts Jesus as a "sexual deviant." The BBC broadcast the work in 2005. The opera has been performed in the UK and in New York. Read more here. MediaPal@LSE posts about this story here.
I posted an earlier story about the BBC's broadcast of the opera here.
Freedom of the Press After 9/11
Keith Werhan, Tulane University School of Law, has published "Rethinking Freedom of the Press After 9/11" in the Tulane Law Review, volume 82 (2008). Here is the abstract.
This essay explores a familiar paradox: We need strong judicial protection of our expressive freedoms during periods when courts are least likely to protect them. The essay claims that the United States entered such a period after 9/11, and that we remain there still. More specifically, the essay argues that events since 9/11 reveal the importance of rethinking free press jurisprudence. In the 1970s and early 1980s, the Supreme Court reached a settlement of free press doctrine that provided extremely strong protection against prior restraints on publication, somewhat reduced, yet still strong, protection against the imposition of civil or criminal liability for publication, and little, if any, protection for such ancillary press rights as news-gathering. Events following 9/11 have revealed that this hierarchy may permit the federal government to disable the press from performing one of its core functions during a time of national crisis: informing “We the People” of the actions our officials are taking in our name to safeguard national security. A matrix of federal statutes makes criminal the receipt, possession, and disclosure of classified national security information to those who are not authorized to receive such information. While the Pentagon Papers decision made clear the difficulty the government would face in obtaining an injunction against press publication of classified information, current free press doctrine invites criminal prosecution against the press for receiving, possessing or disclosing classified information. Current doctrine also provides an alternative route for the government to suppress press publication of classified information. By convening a grand jury to prosecute the government employees who leak classified information to the press for publication, prosecutors can subpoena journalists to identify government leakers. The essay argues that free press doctrine should be strengthened to provide the press the same degree of protection against criminal prosecution for publishing classified national security information of high first amendment value that it currently receives against prior restraints on publication. The essay also argues that the justices should rethink its decision in Branzburg v. Hayes categorically denying journalists a confidential source privilege, and that they should create a strong default rule providing for such a privilege in the typical case where prosecutors enlist the aid of journalists to expose government employees who have leaked classified information for press publication.
Download the entire article from SSRN here.
The First Amendment and Commercial Speech
Edwin Baker, University of Pennsylvania Law School, has published "The First Amendment and Commercial Speech," in Liberte d'Expression en Europe et aux Etats-Unis, to be published by Dalloz. Here is the abstract.
After a quick summary of constitutional treatment of commercial speech, this essay outlines four reasons why commercial speech should be denied First Amendment protection. Working from the claim that the primary rationale for constitutional protection of speech is the mandate that government respect individual freedom or autonomy, the essay argues: 1) that the individual does not choose, but rather the market dictates the content of commercial speech; 2) that the commercial speech should be attributed to an artificial, instrumentally entity – the business enterprise – rather than the flesh and blood person whose liberty merits protection; 3) market exchanges involve the exercise of power, not the expression of values and solidarities, and exercises of power should always be subject to legal regulation. 4) The essay also recommends denying protection on the basis of a theory of speech freedom that focuses on protection of dissent.
Download the entire paper from SSRN here.
News Writers On Strike?
CBS News writers may be the next group to walk the picket line. They have voted to strike in a special election, but their vote must go through several more procedures before a walkout. The writers belong to the Writers Guild of America East. Read more here.
November 19, 2007
Enter "That Regan Woman"
Frank Rich discusses what Judith Regan says she can reveal about Bernard Kerik, Rudy Giuliani, secrets, and coverups here in a NYT editorial published November 18.