September 25, 2009
Alternative Media and Student SpeechIn the aftermath of the Layshock and Donniger cases, FindLaw's Laura Hodes discusses school suits against students who criticize and/or comment, sometimes vociferously, on school policy and school officials.
Digital Copyright Problems of Orphan Works: A Comparative Law Perspective
This paper explores why copyright clearance issues currently hinder Australian public broadcasters from putting their program archives online, at a time when broadband offers new opportunities for public access. The difficulty of putting program archives online is an example of copyright “gridlock” preventing access to valuable cultural material.
The paper includes case studies of the BBC and NHK Japan who have conducted pilot online archive projects.
The article concludes that the current copyright regime - which is based on an “opt-in” model of individual permissions of all rights-holders, will not facilitate online access to public broadcaster archives on any comprehensive scale. It briefly considers how such access might be achieved if new compulsory statutory licensing schemes or “opt-out” models such as the Google Books Settlement are adopted.
Download the article from SSRN here.
An Analysis of the Proposal To Revive Fairness Doctrines
The First Amendment to the U.S. Constitution recognizes a laissez-faire policy toward speech and the press. The Framers of the Bill of Rights worried that the self-interest of politicians fostered suppression of speech. In contrast, some constitutional theorists have argued that the Constitution empowers, rather than restricts, the federal government to manage speech in order to attain the values implicit in the First Amendment.
The government managed broadcast speech for some time, in part through the Fairness Doctrine, which was said to promote balanced public debate and "an uninhibited marketplace of ideas." The history of the Fairness Doctrine confirms the validity of the concerns of the Framers of the First Amendment, because federal officials and their agents used and sought to use the Fairness Doctrine to silence critics of three presidencies. Broadcasters adapted to the Fairness Doctrine by avoiding controversial speech, thereby chilling public debate on vital matters.
The Federal Communications Commission is proposing to manage broadcast speech by imposing localism requirements, including content requirements and advisory boards to oversee managing stations. This proposal limits the editorial independence of license holders to serve the public interest. The history of the Fairness Doctrine suggests that federal officials who make and enforce such policies are more concerned with limiting political debate than they are with advancing local concerns or the public interest. Like the Fairness Doctrine, the FCC's localism initiative poses the risk of restricting speech. Our unhappy experience with the Fairness Doctrine suggests that imposing localism mandates on broadcasters is unlikely to serve the public interest in constitutional propriety and uninhibited political debate.Download the paper from SSRN here.
Lawyers For Dominique de Villepin Complain Over Sarkozy Statements, Say They'll File ChargesThe fireworks continue at the defamation trial of former French Prime Minister Dominique de Villepin. Current French President Nicolas Sarkozy apparently alleged that Mr. de Villepin is "guilty" of the charges, and Mr. de Villepin's attorneys now say they plan to file charges against Mr. Sarkozy for breaching the presumption of innocence from which their client should benefit. Read more here.
September 23, 2009
Examining the AETC v. Forbes Decision
In Arkansas Educational Television Commission v. Forbes (1998), the Supreme Court upheld the exclusion of an Independent congressional candidate from a televised debate organized by Arkansas’s taxpayer-funded public television network. By a vote of six to three, the majority reversed the Eighth Circuit Court of Appeals and affirmed the state’s power to sponsor the general election debate closed to all but the Democratic and Republican candidates. To resolve the case, the Court grappled with two key questions. The first was whether the debate on a state-controlled station constituted a 'public forum' for First Amendment purposes, and, second, whether the exclusion of Ralph Forbes from the debate constituted 'viewpoint discrimination.' The Court determined that the debate was a 'nonpublic' forum. The majority also saw no viewpoint discrimination in Forbes’s exclusion. Justice Kennedy, who authored the majority opinion, was principally moved by the trial jury’s finding that Forbes was rejected as a participant by the debate managers not because they disliked his politics but because they correctly deemed his candidacy to be 'not viable.' Thus, the AETC’s exclusion of Forbes was not political viewpoint discrimination but a 'reasonable, viewpoint neutral exercise of its journalistic discretion.' In his dissent, Jamin Raskin concludes that the Court decided both of these questions erroneously and that the Court should have found that Arkansas was required to permit Forbes, a balloted candidate who had nearly become lieutenant governor in the prior election, to participate in the debate.
Download the article from SSRN here.
September 22, 2009
Former French P.M. Goes On Trial For Defamation Of Current French President
Former French Prime Minister Dominique de Villepin's defamation trial has begun. The politician is charged with defaming current French President Nicolas Sarkozy over the "Clearstream" scandal. Both served in the Chirac government. On the first day, Mr. de Villepin accused the President of political motives in pursuing the charges. If convicted, the former Prime Minister could receive jail time, but would probably get a suspended sentence. More here, here, here, and here.
September 21, 2009
DOJ on the Google SettlementThe Department of Justice's statement of interest concerning the Google Settlement.
FCC Chair Announces Position on Net Neutrality
Federal Communications Commission (FCC) Chairman Julius Genachowski outlined the concrete actions he believes the Commission must take to preserve the free and open Internet at a speech today at The Brookings Institution.
“The Internet is an extraordinary platform for innovation, job creation, investment, and opportunity. It has unleashed the potential of entrepreneurs and enabled the launch and growth of small businesses across America,” said Chairman Genachowski. “It is vital that we safeguard the free and open Internet.”
The Commission previously embraced four open Internet principles affirming that consumers must be able to access the lawful Internet content, applications, and services of their choice, and attach non-harmful devices to the network. These four principles guide the FCC’s existing case-by-case enforcement of communications law.
In today’s speech, Chairman Genachowski proposed the addition of two new principles. The first would prevent Internet access providers from discriminating against particular Internet content or applications, while allowing for reasonable network management. The second principle would ensure that Internet access providers are transparent about the network management practices they implement. The Chairman also proposed clarifying that all six principles apply to all platforms that access the Internet.
Chairman Genachowski will seek to begin the process of codifying the Commission’s existing four open Internet principles, along with the two additional principles, through a Notice of Proposed Rulemaking (NPRM) at the October meeting. The NPRM will ask for input and feedback on the proposed rules and their application, such as how to determine whether network management practices are reasonable, what information broadband providers should disclose about their network management practices and how the rules apply to differing platforms, including mobile Internet access services.
“I look forward to working with my Commission colleagues on this important initiative,” Chairman Genachowski said. “Commissioners Copps, McDowell, Clyburn, and Baker each bring a unique and important perspective to the complex issues at stake and I look forward to getting their input and insight when we kick-off the rulemaking process next month.”
As part of Chairman Genachowski’s commitment to openness and transparency, the FCC launched a new website, www.openInternet.gov to encourage public participation.
Lawyers, Judges, and the First Amendment
Here, FindLaw's Julie Hilden wades into the deep waters of lawyers who blog about judicial behavior. Notes Ms. Hilden,
Recently, The New York Times covered the case of Florida attorney Sean Conway, who suffered a reprimand from the Florida Bar when he called a judge an "Evil, Unfair Witch" on a blog frequented by criminal defense attorneys such as himself.
Importantly, Conway's harsh, childish words were coupled with some reasoned substantive points....The case went to the Florida Supreme Court, where the ACLU submitted an amicus brief supporting Conway. Despite strong arguments by the ACLU, the Florida Supreme Court still affirmed the Bar's imposition of a reprimand and a $1200 fine based on Conway's remarks. (Conway agreed to that punishment, most likely simply so that he could avoid a worse penalty, such as suspension or disbarment.)
The case raises an important question: Can state bars constitutionally forbid attorneys from blogging their negative opinions about judges, or do they infringe First Amendment rights by doing so?
The blog referred to in the New York Times piece isn't the only one on which judges might find themselves rated. Others are Underneath Their Robes and The Robing Room, both devoted to the federal judiciary. On NPR's Talk of the Nation last week, guest commentators discussed lawyer rating of judges as part of a larger conversation on social media in courtrooms.