August 4, 2008
Balkin on Media Access
Jack M. Balkin, Yale University Law School, has published, "Media Access: A Question of Design," in volume 76 of George Washington Law Review (2008). Here is the abstract.
This essay, written for a symposium in honor of Jerome Barron, asks what media access means in the age of the Internet. Twentieth century debates about media access presupposed a relatively small group of private media owners who tightly controlled access and who combined content delivery with content production. Today a central element of many telecommunications business models is providing widespread access to content delivery systems and encouraging mass participation in content production. That is because many business models increasingly depend on attracting user-generated content.
In 1967, Jerome Barron argued that First Amendment doctrines created by courts could help secure media access and promote public participation in mass media. Although First Amendment *values* remain important in shaping public policy and technological design, the First Amendment itself, at least as interpreted by courts, will do relatively little to promote these goals.
When people debate whether the First Amendment guarantees positive rights enforceable by courts, or rights of access to private media, they have probably already assumed a particular kind of media ecology, and taken existing business models and technology as a given. This is a mistake. Technology policy is prior to these rights questions. It is not prior logically or jurisprudentially, but practically. If the system of mass communications is designed correctly, better media access is already built into the system and into the existing models of business competition. The Internet by itself does not guarantee effective media access. It has to be built in a certain way: to facilitate openness and participation. Judges are not particularly good at this task.
The basic problem of media access is not constitutional in the legal sense, i.e., what the U.S. Constitution demands or forbids. Rather, it is "constitutional" in a technological and social sense: what kinds of technologies, business models, social formations, and user practices constitute the media ecology. To promote media access today, we must look beyond the boundaries of judicially created First Amendment rights; we must look instead to issues of technological design and to law's role in shaping and regulating technologies, business models, and end-user practices.
Download the essay from SSRN here.
Third Circuit: Media May Publish Names of Prospective Jurors
In U. S. v. Wecht, the Third Circuit has ruled that the media has a presumptive right to publish the names of prospective and empanelled jurors, absent some special finding that they should be kept anonymous. The Pittsburgh Post-Gazette had appealed the district judge's order to make the jury anonymous in a high-profile trial. The Court stated that the "experience and logic" test put forward in Press-Enterprise II "establishes the existence of a presumptive First Amendment right of access to obtain the names of both trial jurors and prospective jurors prior to empanelment of the jury." However, the appellate court rejected the media's challenge to the district judge's voir dire procedure, ruling that access to prospective jurors was likely to provide most of the relief the media sought. Here's commentary from Law.com; here's an article on the ruling from the Pittsburgh Post-Gazette.
The Image of the Israeli Supreme Court in the Media
Bryna Bogoch, Bar Ilan University, Interdisciplinary Department of Social Studies, and Yifat Holzman-Gazit, School of Law, Stanford Law School, have published "Mutual Bonds: Media Frames and the Israeli High Court of Justice," in 33 Law & Social Inquiry 53 (2008). Here is the abstract.
This study examines the coverage of the Supreme Court of Israel functioning as the High Court of Justice (HCJ) in the popular and elite press over a period marked by growing activism of the Israeli Supreme Court and an increasingly adversarial and critical media. Our results show that more prominent coverage of the HCJ over time, especially in the elite press, accentuates the salience of the Supreme Court in public life. In addition, the topics, the stages of the HCJ proceedings, the petitioners, and the outcome of the cases covered by the press, as well as the generally uncritical reporting of the Court decisions help create the frame of an autonomous, powerful Court that frequently opposes and restrains the government. We suggest that the pattern of media coverage of the HCJ benefits both the Court and the media: it reinforces the image of the media as a critical watchdog of the government, while at the same time it legitimates the Court's expansion of power and strengthens its image as an apolitical and independent institution.
Download the paper from SSRN here.
British Film Board Defends Rating Given To New Batman Movie
The British Board of Film Classification (BBFC) has given The Dark Knight, the new Batman film, a 12A rating, in spite of a scene that shows Batman beating up the Joker, which some say is too violent for younger viewers. The Board has received more than 80 complaints suggesting that the film should actually receive a higher rating, such as a 15. The BBFC response is that "a 12A rating states that a film should not "dwell on violence" and "does not emphasise injury or blood". In the scene complained of, "`the blows were "masked from the camera" and there was "no sign of injury"." The Board believes a higher rating, which would prevent younger viewers from seeing the film, would have resulted in many more complaints. Read a BBC story about the rating and the complaints here.
Egyptian Court Sentences Critic To Two Years in Prison
Saad Eddin Ibrahim, founder of the Ibn Khaldoun Centre for Development Studies, and a critic of the Egyptian government, has been sentenced to two years in prison for "defaming Egypt." Dr. Ibrahim is currently in the United States. He can appeal the sentence. He holds dual Egyptian and American citizenship. Read more here in an Agence France Presse report and here in a Reuters report.
Politics and Privacy in the UK
Norman Fowler writes about the double standard with regard to privacy when it comes to political figures here in today's Guardian.