Friday, June 5, 2009
The American tradition of free individual expression exists side-by-side with its Fourteenth Amendment commitment to equality. In the area of hate speech, the libertarian notion of free expression comes into tension with the aspiration of equal dignity. While it is evident that maintaining equality means that government has no power to treat the speech of similarly situated persons differently, potential interpersonal friction exists where the speech of one person threatens the rights or safety of another. With the expansion of the Internet, new regulatory challenges more frequently arise because of the global reach of hate propaganda transmitted from the United States, where it is legal, and streamed into countries, like France, where such communications are criminal offenses.
The global reach of supremacist ideology creates a challenge to world democracies. Societies committed to pluralism are obligated to safeguard individual expression while promoting egalitarian principles against harming others' safety and dignity. Consequently, as much as American society extols freedom of speech, there are many instances in which competing interests, such as retaining a good reputation in one's community, place restraints on public communications. Where one person wishes to express false statements about another, defamation law sides not with the desire for inaccurate catharsis but with the protection of reputation. The preference for an "individual's right to the protection of his own good name 'reflects no more than our basic concept of the essential dignity and worth of every human being.'" Public policy favors the interest of libeled individuals over that of anyone wishing to intentionally or negligently spread fallacy. So too where words are likely to result in the immediate breach of the peace. The Supreme Court has found that the government has a countervailing social interest in order and morality that justifies some limitations on speech.
This Article opens with an analysis of hate speech in a democratic society. The first topic to investigate is the role of speech in our constitutional democracy. The current Supreme Court cases that affect the status of hate speech are then reviewed and critiqued. Finally, the Article contrasts the American approach to destructive messages with the European and Canadian models.
Download the article from SSRN here.
Forty years ago, at a time when the media was experiencing enormous professional change and a surge of subpoena activity, First Amendment scholar Vincent Blasi investigated the perceptions of members of the press and the impact of subpoenas within American newsrooms in a study that quickly came to be regarded as a watershed in media law. That empirical data is now a full generation old, and American journalism faces a new critical moment. The traditional press once again finds itself facing a surge of subpoenas and once again finds itself at a time of intense change — albeit on a different trajectory — as readership and public reputation plummet. As the dialogue on this complicated topic once again reaches full volume, intensified by a series of hotly contested federal reporter’s privilege bills, the question of the appropriate legal rule again is inextricably intertwined with the question of the real-world impact of subpoenas on the operations of the media. This 'law-in-action' article aims to offer the legislators and policymakers of today what Blasi offered them four decades ago. It reports the results of a large-scale empirical study, presenting both quantitative and qualitative assessments of the effects that subpoenas have on daily newspapers and local television news operations, and re-explores the questions of changing legal climate and media awareness of legal protection. The article concludes that media subpoenas have a substantial impact on newsgathering, warranting federal legislative attention. But it also concludes that the traditional press is ill-informed of the contours of its own legal protection, which may compound the difficulties the media experiences in this area.
Download the article from SSRN here.
Thursday, June 4, 2009
Simon Singh is appealling a defamation ruling against him. The co-author of Trick or Treatment, a study of pseudoscience and alternative medicine, lost a case against the British Chiropractic Association brought based on an article he had written for The Guardian that discussed the practice of chiropractic medicine. The BCA objected to his characterization of chiropractic. Says the Guardian,
In the article, Singh criticised the BCA for claiming that its members could use spinal manipulation to treat children with colic, ear infections, asthma, sleeping and feeding conditions, and prolonged crying. Singh described the treatments as "bogus" and based on insuffcient evidence, and criticised the BCA for "happily promoting" them.
At a preliminary hearing last month to decide the meaning of the article, Mr Justice Eady ruled that the wording used by Singh implied that the BCA was being consciously dishonest. Singh has denied that he intended any such meaning.
Mr. Singh and his lawyers say they will fight the case through the English courts, and if necessary, take the case to the European courts. The Guardian is supporting him, although it notes on its website, "We supported Simon and funded his legal advice when the case was brought against him. The recommended legal advice was to settle out of court and we offered to pay for the British Chiropractic Association's costs should he choose to follow this course of action."
Richelle Olson, Executive Director of Desert Valley Charities, is suing Sacha Baron Cohen and NBC Universal over an incident which she alleges occured during the filming of his new movie "Bruno." Ms. Olson says that during one scene, she was injured when Mr. Cohen, playing the part of Bruno, participating in a bingo game, began using foul language. She tried to take the microphone away from him, and he resisted. She was injured, both by Mr. Cohen and by members of the crew. She is suing for assault, battery, and loss of marital relations, among other things. Read more here in a BBC story, and here in a Detroit Free Press story. Here's more from TMZ.com. See also here.
Mr. Cohen and his previous film "Borat" were the subject of numerous lawsuits.
Wednesday, June 3, 2009
For about a day, the U. S. Government accidentally posted online a list of civilian nuclear sites and information about the programs administered there. After inquiries from the media, the list disappeared. The government, still trying to determine how the list was released, is assuring the public that no military information was included. The list was marked "confidential."
Although Home Secretary Jacqui Smith has said she is stepping down, radio host Michael Savage apparently intends to pursue a libel action against her. Ms. Smith had refused to allow Mr. Savage entry into the UK because his views are unacceptable to the government.
Tuesday, June 2, 2009
In the 1972 case of Branzburg v. Hayes, the Supreme Court held that the First Amendment does not protect journalists who refuse to reveal their confidential sources or news gathering product in response to a federal grand jury subpoena. That decision has remained vital for 35 years and has reverberated through a number of recent high-profile cases. Despite some form of protection in nearly every state court, reporters haled before a federal judge may have no recourse save prison. Devastating as Branzburg has been for the so-called journalist's privilege, its negative impact has been far broader. Branzburg is one of Supreme Court's earliest news gathering decisions and arguably the most influential.
While the press has been very successful in persuading the courts to find First Amendment protection for its editorial product, it has been far less successful with regard to protection for news gathering. The Branzburg precedent epitomizes the frustration of the press in attempting to secure First Amendment, or even statutory, protection for news gathering, and this article explores one of the primary reasons for that failure: the inability of the diverse elements that comprise the press to agree on the appropriate scope of such protection. In particular, the article tells the little-known story of the dispute between the New York Times and its reporter, Earl Caldwell, whose pursuit of a testimonial privilege ultimately led to the Branzburg decision.
Download the article from SSRN here.
Should traditional knowledge - the understanding or skill possessed by indigenous peoples pertaining to their culture and folklore and their use of native plants for medicinal purposes - receive protection as intellectual property? This Article examines nine major arguments from the moral, political and legal philosophy of property for intellectual property rights and contends that, as applied to traditional knowledge (TK), they justify at most a modest package of rights under domestic and international law. The arguments involve desert based on labor; firstness; stewardship; stability; moral right of the community; incentives to innovate; incentives to commercialize; unjust enrichment, misappropriation and restitution; and infringement and dilution. These arguments do, however, support “defensive” protection for TK: that is, halting the use of TK by nonindigenous actors in obtaining patents and copyrights. These arguments also support the dissemination of TK on the internet and via other digital media and the selective use of trademarks. The force of these conclusions resides in the importance of a vibrant public domain, and the absence of any plausible limiting principle that would allow more robust rights in TK for indigenous groups without permitting equally robust rights for nonindigenous groups.
Download the article from SSRN here.
The notoriously reclusive J. D. Salinger has filed a lawsuit over the book 60 Years Later, which is listed as "pre-pub" by Amazon.com, and has as its author the pseudonymous "J.D. California." 60 Years Later, published by Nicotext, is described as a "sequel" to Catcher in the Rye. Mr. Salinger claims that he holds the copyright to the book and the characters in Catcher in the Rye, and does not want to write a sequel.
Amazon gives this bio of "J. D. California."
Born in California to a Swedish mother and an American father, where John David's parents were working for a traveling circus company, John David was named after the state in which he was born. John David's writing career started as a freelance travel writer for several international magazines, as well as several short film scripts. The former gravedigger and Ironman triathlete has been captivated by the story of Mr.C for years. After finding a well-travelled copy of The Catcher in the Rye in an abandoned cabin in rural Cambodia, the iconic characters within saw John through the most maniacal of tropical fevers and chronic isolation. Years later he was finally able to return the favour, holding the fate of Mr.C in his inspired hands with 60 Years Later: Coming through the Rye.
Monday, June 1, 2009
Sports reporter Alaa Abdul-Wahab has died in a bomb attack in Mosul. He worked for the Baghdadiya TV station, based in Cairo. Sources report that a bomb was attached to his vehicle. Two other reporters were wounded. In another incident in Baghdad, other journalists were wounded in a similar attack. Read more here.
Wikipedia has banned some editors apparently associated with the Church of Scientology and all IP addressed associated with the Church from editing Church entries in an attempt to end an on-going dispute over portrayals of the Church in the online resource. Both critics and supporters have engaged in changing the entries over the past four years. Read more here and here.
Since the mid 1990s, Indonesia has significantly reformed its intellectual property laws. These reforms were effected to bring Indonesia’s laws into line with the World Trade Organisation’s Trade Related Aspects of Intellectual Property (TRIPs) Agreement, which requires WTO members to provide minimum standards of intellectual property protection within their domestic legal systems. However, many features of Indonesia’s economic, social, cultural and legal order appear to contradict fundamental precepts of intellectual property. This article argues that, at this stage in its development at least, Indonesia’s best interests are not particularly well served by the higher levels of protection required under TRIPs.Download the essay from SSRN here.