Friday, October 9, 2009
'Sexting' and other teen autopornography are becoming a widespread phenomenon, with perhaps 20% of teenagers admitting to producing nude or semi-nude pictures of themselves and an ever greater proportion, perhaps as many as 50%, having illegally received such pictures from friends and classmates. It is, moreover, beginning to result in criminal prosecutions, and the statutory penalties are severe. Given the reality of changing social practices, mores and technology utilization, today’s pornography laws are a trap for unwary teens and operate, in effect, to criminalize a large fraction of America’s young people. As such, these laws and prosecutions represent a stark example of the contradictions that can occur when governmental policies and initiatives built on past truths and values collide with new and unanticipated social phenomena.
The focus of anti-pornography enforcement in recent years has been the child pornography laws. The landmark cases of New York v. Ferber and Osborne v. Ohio have established and defined a categorical exclusion that denies First Amendment protection to sexually explicit visual depictions of minors. Even though Ferber and Osborne may not strictly speaking require a conclusion that sexting and other autopornography are unprotected speech, at least some lower courts and prosecutors appear to regard them that way.
By contrast, the language and reasoning of the more recent case of Ashcroft v. Free Speech Coalition gives strong reason to believe that the scope of the categorical exclusion for child pornography should be closely aligned with the governmental objectives that Ferber and Osborne relied on - which would mean constitutional protection for teen sexting and autopornography that occur on the teens’ own initiative. Ashcroft strongly implies, though does not quite say, that the categor¬ical exclusion should be limited to materials that are produced by means of criminal child abuse and exploitation. Also, current standards of strict scrutiny for content-based regulations, if applied, would probably prevent (on the present state of the studies and research) self-produced teen materials from being subsumed into the Ferber categorical exclusion. How this issue will be decided, however, remains to be seen.
Download the paper from SSRN here.
Thursday, October 8, 2009
Increasingly more “ordinary” Americans are choosing to share their life experiences with a public audience. In doing so, however, they are revealing more than their own personal stories, they are exposing private information about others as well. The face-off between autobiographical speech and information privacy is coming to a head, and our legal system is not prepared to handle it.
In a prior article, I established that autobiographical speech is a unique and important category of speech that is at risk of being undervalued under current law. This article builds on my earlier work by addressing the emerging conflict between autobiographical speech and information privacy. Both interests foster personal autonomy and encourage participation in public debate, and both interests seek to give individuals the power to control if, when and how their personal information is shared with the world. The conflict between speech and privacy has proven to be a pervasive and especially difficult problem, and prior attempts to balance the two interests - through the lens of property or contract law - have failed.
In this article, I propose a new, workable framework to resolve the conflict by reexamining the tort of public disclosure of private facts. This analysis reveals that the current over-emphasis on whether the information disclosed was “newsworthy” is misplaced and likely unconstitutional. The tort’s protection of individual privacy, however, can be reconciled with the First Amendment by interpreting the “offensiveness” element to include an examination of the purpose of the disclosure. A number of courts have implicitly adopted this view and, in doing so, are reflecting community norms that disclosures made for sufficient justifications - such as sharing newsworthy information or, I submit, engaging in autobiographical speech - are not highly offensive. Disclosures made for purely voyeuristic reasons, however, are highly offensive.
This “justified disclosure” approach encompasses community norms and expectations in a way that is more predictable and fair than other proposed frameworks. It further promises to be applicable not just to the conflict between autobiographical speech and information privacy but to broader disputes involving privacy and speech.Download the paper from SSRN here.
Wednesday, October 7, 2009
The Harvard Journal of Sports and Entertainment Law has launched and is issuing a Call For Submissions. See below for the letter from EIC Ashwin Krishnan and Submissions Editor Josh Podoll.
September 29, 2009
On behalf of the editorial board, it is my distinct pleasure to announce the formation of the Harvard Journal of Sports and Entertainment Law (JSEL). JSEL will provide the academic community, the sports and entertainment industries, and the broader legal profession with scholarly analysis and research related to the legal aspects of the sports and entertainment communities.
JSEL, published under the auspices of
, is accepting articles, essays, book reviews, notes, and comments regarding legal and/or public policy issues from academics and legal practitioners for its upcoming inaugural issue in Spring 2010. JSEL is one of the few journals in the Harvard Law School that focuses exclusively on legal topics related to sports and entertainment. United States
As you are probably aware, legal topics that affect sports and entertainment include antitrust law, civil procedure, constitutional law, contract law, corporate law, copyright law, labor law, and real estate law. In addition, there are many other legal topics that have an impact on the sports and entertainment industries, or otherwise have an application to sports and entertainment.
Submissions are being accepted on a rolling basis. To be considered for our first issue, due to be published in Spring 2010, please send completed submissions no later than November 15, 2009. An indication of your interest before that date would also be greatly appreciated.
All submissions must be sent to Josh Podoll, Submissions Editor, as an attached Microsoft Word document via email to firstname.lastname@example.org. Please visit our website for further details regarding the submissions process at www.HarvardJSEL.com. Also, please feel free to contact Josh regarding any questions you may have concerning citation format, topic, or other issues involving the submissions process. If you know of other scholars, practitioners, or students whose work seems appropriate for our journal, please encourage them to submit their work to JSEL.
We look forward to receiving your submissions!
Tuesday, October 6, 2009
In 2005, the Australian Government conducted a review of copyright legislation and the exception of fair dealing. Following this review, the framework of the existing fair dealing exemptions was retained, with the addition of a new exception of fair dealing for the purpose of parody or satire. Debate on the topic was posited within the traditional framework of commercial producer and consumer. The surge of user-generated digital content, and the novel issues surrounding such content, only emerged in the periphery. This article will examine the potential scope of fair dealing exemptions applied to user-generated digital content. Emphasis is placed on the ‘grey zone’ of user-generated content: those works that push the boundaries of copyright law into unchartered territory. As parody and satire constitute a novel area in Australian copyright law, less restrained by prior court decisions, the article places emphasis on fair uses within user-generated content for these purposes.
Monday, October 5, 2009
The growth of internet telephony or Voice over Internet Protocol (VoIP) services has led to questions by policymakers and legislators over the regulation of VoIP. In this article, the authors consider the extent to which VoIP services are protected from an EU/US perspective and the concerns arising from the current legislative framework, mainly from privacy perspective. The second part considers VoIP services in general. The third part examines the European framework and in particular, the current categorisation of VoIP services, before considering the privacy perspective, taking into account the Directive on Privacy and Electronic Communications 2002/58 and the general Data Protection Directive 95/46. The fourth part will consider the US framework in protecting the privacy of communications, asserting that the federal courts and legislatures should act to explicitly protect VoIP oral internet communications. The final part will conclude by discussing the principal areas that still need to be addressed.
Download the article from SSRN here.