June 16, 2008
Expressing Emotion, Protecting the Expression of Emotion
R. George Wright, Indiana University, Indianapolis School of Law, has published "An Emotion-Based Approach to Freedom of Speech." Here is the abstract.
Free speech law often protects emotional expression. However, we lack an understanding of the scope and limits of protection for emotional expression. This Essay seeks to make progress toward such an understanding because a better understanding and grasp of the nature of emotion itself is crucial to achieving this goal. If we can arrive at an improved understanding of emotions and how they can be expressed, we will be better able to explain when we do and do not constitutionally protect the expression of emotion.
Download the paper from SSRN here.
A New Model For Reviewing Sexually Explicit Material On the Internet
Patrick M. Garry, University of South Dakota School of Law, has published "A New First Amendment Model for Evaluating Content-Based Regulation of Internet Pornography: Revising the Strict Scrutiny Model to Better Reflect the Realities of the Modern Media Age," in volume 6 of Brigham Young University Law Review (2007). Here is the abstract.
In the modern media age, the number of media venues, along with the types of information and programming those venues carry, is exploding. Nowhere is that explosion more evident than with the Internet. On the positive side, the Internet offers a wealth of information and communications opportunities. But, on the negative side, it brings a boundless store of harmful material within easy access of children. In recognition of the destructive effects of such material - especially obscenity and pornography - Congress on several occasions has tried to curb the accessibility of this material to children. The Supreme Court, however, has struck down these attempts using a strict scrutiny approach.
Part I of this Article outlines the case against the Court's current use of strict scrutiny. This approach hinges on a single factor: whether or not a regulation of speech hinges on a content distinction. Once such a distinction is found, the law is almost always struck down, regardless of the speech burdens actually imposed by the law, whether the subject speech is in plentiful supply in other media venues, or whether the laws would result in a banishment of certain ideas from the public discourse. This myopic focus on content discrimination is outmoded in today's multimedia world and prohibits regulations of speech even when the burdens imposed by the law are slight and the speech remains available and accessible in the broader marketplace of ideas.
Part II of the Article proposes a new judicial model for evaluating content-based laws regulating media programming that is not political speech. This new model examines the actual burdens placed on the subject speech. It also considers perhaps the most vulnerable freedom in the current media environment - the freedom of the unwilling recipient to avoid unwanted and offensive media speech. Furthermore, the new model - a variation of the intermediate scrutiny approach now used for so-called content-neutral regulations of speech - takes into account and incorporates the realities of the modern media world. It does so by recognizing that there is a vast array of media channels through which any one type of speech can flow, and that a restriction of speech in one venue may not rise to the level of an unconstitutional censorship.
Download the article from SSRN here.
New Parody Raises Questions of Copyright Law
The hot new parody "Goodnight Bush" is apparently quite funny--at least to people who like political parody. But it also raises questions of fair use, since it's quite obviously a take-off on the honored children's classic "Goodnight, Moon." "Goodnight Bush"'s publisher, Little, Brown, says fair use protects the publication. "Goodnight, Moon"'s publisher HarperCollins has no comment--no, not yet. Good morning, lawyers? Read more here.
AP, Website In Fight Over Use of AP Content
The AP is in a fight with the Drudge Retort over that site's use of the AP's material, and has issued takedown notices over the copyright violations. The news service claims that the site uses far more of the AP's content than fair use allows. Here's the site's response.
British Medical Commentator Accused of Plagiarism
British physician and journalist Dr. Raj Persaud has acknowledged plagiarism in the publication of his book From the Edge of the Couch, which appeared in 2003. His case is set for a hearing soon. According to the BBC, problems first came to light several years ago with the publications of articles under Dr. Persaud's in Progress in Neurology and Psychiatry and the British Medical Journal, which other researchers challenged as plagiarized or insufficiently sourced. Here's more from the Guardian, from 2005, and from today's paper, in which the paper discusses the plagiarism and the pending charges.
Spectator Apologizes For Alterations In Book Review
The Spectator has apologized for editing a book review of Stephen Robinson's The Remarkable Life of Bill Deedes that omitted reference to the ownership of the Daily Telegraph, for which Lord Deedes worked, as well as the ownership of the Spectator. The author of the review, Sir Peregrine Worsthorne, complained about the edits before they were made and after publication to the Press Complaints Commission. The changes in wording made it seem as though Lord Deedes was referring to his colleagues as a "stinking mob" when in actuality he was referring to the management of the paper in those terms. The Spectator printed the apology on June 14. Read more here.
The Looming Presence of Product Placement
Ravi Somaiya of the Guardian discusses the increasing importance of product placement on American tv; Charlie Brooker suggests that the British media should really exploit it (well, he's not really serious--or is he?)