October 16, 2009
More On Libel TourismThe Guardian's Roy Greenslade on California's libel tourism law.
Employers, Labor Activities, and the First Amendment
In Chamber of Commerce et al v. Edmund G. Brown, the Supreme Court offers one theory of judicial invalidation that protects employers' freedom of speech claims and reinvigorates federal preemption doctrine within the meaning of the National Labor Relations Act (NLRA). Prescinding from an architectonic conception of freedom of speech that is supported forcefully and explicitly by the First Amendment, the Court relies on preemption doctrine to invalidate two provisions of a California statute because the enactment constitutes regulation, which intrudes into a zone that is protected and reserved for market freedom. The Court properly upholds its previous stance permitting employers to speak directly to their employees about unionization, but supporters of this decision might do well to withhold their applause. This is so because the Supreme Court, consistent with precedent, has been reluctant to substantiate such rights energetically. The Chamber of Commerce Court breathes life into this pattern.
In addition to examining labor law preemption principles, I inspect the often-contestable conception of neutrality in light of the existence of scholarship advocating an expansion in state labor law innovation aimed at reducing employer rights. The penultimate purpose of such innovation seems clear enough: to increase the level of unionization in the United States and to restore collective action to its previously ascendant status. It is doubtful that this objective can be seen as a "neutral" one. Instead, this goal is delineated by the declining importance of labor unions in the United States and the mounting appeal of paternalistic intrusions into the market. In light of this goal, employers, when confronted with either legislative or judicial assertions of neutrality, should be forgiven for suffering from a prevenient sense of doom. This impression is often made tangible via partisan enactments and adjudication.
With the advent of postmodern discourse and the possibility that courts have become captive to progressive rhetoric that is not found within the Constitution, I argue that the Supreme Court should reconsider its reliance on the NLRA and preemption doctrine as the primary vehicle to vindicate employers' rights and should instead return to the Constitution itself as a basis for its defense of what has become increasingly difficult to defend: the free speech rights of employers and employees within a labor-management context. This approach is exemplified by recapturing the Supreme Court's understanding of Virginia Electric as an independent ground for relief. This case, decided before the Wagner Act was amended adding explicit protection of employers' speech, stands for the proposition that employer and labor union "attempts to persuade to action with respect to joining or not joining unions are within the First Amendment's guaranty."
Ultimately however, I argue that even a return to First Amendment principles will not be enough to protect employers' freedom of expression rights. Indeed, it is unlikely that a liberal democratic state can sustain its ostensibly neutral stance on anything, including union organizing unless it recaptures what is arguably missing in American society: a shared understanding of essentials, such as truth. It is not possible to live in a democratic society that papers over deeply antagonistic world-views, except temporarily. This quandary implies that endless elucidation may be the looming destination of all debates including the employer free speech wrangle.
Download the article from SSRN here.
TLC Files Lawsuit Against Jon GosselinTLC has decided to sue Jon Gosselin over his appearances on other shows, claiming breach of contract. The network recently renamed its popular reality show "Jon & Kate Plus Eight" simply "Kate Plus Eight." Read more here.
Video Game Speech and the Protection of Children
The dominant influence of mass media on children is recognized by experts across many disciplines including child development, communication theory, psychology, sociology and the medical profession. Numerous studies demonstrate potential harm to children from exposure to mass media and marketing sources. The prevalence of childhood obesity and increased violent behavior in adolescents are among the suggested negative effects. Nevertheless, courts have been reluctant to recognize such consequences, primarily on the basis of the First Amendment and free speech concerns. Indeed, in a significant line of cases the courts have invalidated every legislative effort to regulate children’s access to violent video games. This legal reluctance presents a major barrier to the real world application of and benefit from research conclusions regarding the impact of media violence and consumer culture on children. While research of this nature has supported attempts at industry self-regulation or voluntary compliance with ethical guidelines, such efforts have achieved little success.
The disconnect between law and social science has led scholars like Professor Barbara Bennett Woodhouse to propose a reframing of the issues. She calls for a paradigm shift from family law’s traditional approach of the parent-child-state triangle to recognize the influence of what she terms 'mass-media marketing.' She proposes a new 'a child-centered approach to environmental ethics,' or, in her words 'ecogenerism,' and suggests that those who advocate for protection of children from the harms of mass media and marketing have much to learn from the environmental law and ethics movement.
Woodhouse’s proposal offers an appealing perspective for those who support regulation of children’s access to harmful media. The real issue, however, is whether ecogenerism will evolve from academic theory to actual practice. This article tests her theory by revisiting the line of violent video game cases to evaluate whether her ecogenerist perspective can achieve any real change in the courts’ conclusions. Particular attention is devoted to challenges presented by First Amendment free speech protections, with a primary focus the Ninth Circuit’s recent decision in Video Software Dealers v. Schwarzenegger to invalidate a California statute prohibiting the sale or rental of violent video games to minors, a decision that Governor Schwarzenegger has petitioned the United States Supreme Court to review. While some speculate that the Supreme Court is unlikely to grant review given the uniform position of other courts on this issue, this article reveals that a ecogenerist perspective would contend that the Court ought to grant review precisely for that reason. Moreover, without a definitive ruling from the Supreme Court on the issue of whether extreme, graphic violence constitutes protected speech, lower courts likely will continue to strike down legislative restrictions on children’s access to violent video games notwithstanding the negative effects documented by the social science. Should the Court decline to take the case or uphold the Video Software Dealers statute, the article concludes by proposing recommendations for future research and regulatory efforts from an ecogenerist perspective.
October 15, 2009
Reaction To the New FTC Blogger Policy
From the New York Times, an article about reaction to the Federal Trade Commission's new blogger policy.
The Rhetoric of Advertising
This essay takes a stand in the brewing legal academic debate over the consequences of advertising. On one side are the semiotic democratists, scholars who bemoan the ability of advertisers to take control of the meanings that they create through trademark law and other pro-business legal rules. On the other side are those who are more sanguine about the ability of consumers to rework advertising messages and point to several safety valves for free expression existing in the current advertising regulation regime. My take on this debate is that the participants have failed to address the impact of advertising on personal development. Particularly important to this discussion is the recent trend of using targeted niche marketing to appeal to particular social groups. Using social identity theory - an influential psychological theory positing that identities develop through categorization and comparison of ourselves with the social groups around us - I argue that modern advertising has a tremendous and unrecognized influence on our sense of self. My chief example of the impact of niche marketing on identity formation is the recent targeting of the gay and lesbian market. By constructing the gay market in a particular way, advertisers shrink the identity models available for individuals grappling with whether to self-categorize themselves as gay. Advertisers have forced an essentialist model of gay sexuality on consumers while painting the gay market as white, male, healthy, and affluent. At the same time, advertisers have invaded gay cultural space, co-opting gay political symbols and taking over once relatively ad-free community spaces. Meanwhile, this targeted marketing threatens to split the gay community apart by emphasizing lines of difference that are based on class and taste and socioeconomic station. All of these practices threaten the processes that psychologists using social identity theory deem crucial to developing a healthy sense of self. I suggest that the real focus in the debate over legal regulation of advertising should be not on First Amendment protections for artists and activists, but on training our minds to be more aware of advertising’s growing influence on our psyches.
October 14, 2009
ASA: PETA Poster Misleading With Regard To H1N1 Source
The ASA noted the poster referred to a number of diseases, two of which were known to have originated from eating meat and two that did not. Although we understood the intention was to refer to livestock and meat production rather than just eating meat, we considered that the message was, at best, ambiguous. We noted PETAs argument that there had been an extensive Government health education programme and media coverage about how the swine flu virus was spread, however we considered that that did not absolve PETA of their responsibility to ensure their ads did not mislead, or be likely to mislead.
We considered that some readers might infer from the poster, and in particular the claim "MEAT KILLS" in conjunction with the claim "Go vegetarian", that eating meat caused swine flu. We concluded that the poster was likely to mislead and could cause undue fear and distress to some readers.
The poster breached CAP Code clauses 7.1 (Truthfulness) and 9.1 and 9.2 (Fear and distress).
The poster must not appear again in its current form.
FCC ANNOUNCES THE PUBLIC LAUNCH OF THE ELECTRONIC COMMENT FILING SYSTEM (ECFS) VERSION 2.0
From the FCC:
Since 1998, the Federal Communication Commission’s Electronic Comment Filing System (ECFS) has successfully served the Commission’s goal of providing consumer access and transparency to the rulemaking process. The FCC has now upgraded and enhanced the ECFS and will present the changes at a public forum at FCC Headquarters on Friday, October 23, from 9:30 to 11:00 AM. The presentation will be held in the Commission Meeting Room.
ECFS was originally launched in October 1998 as a mechanism to allow electronic submission and query of rulemakings before the Commission. The system tracks all open proceedings and contains all formal rulemaking items and comments from 1992 to the present.
With the 2.0 upgrade, ECFS will including many new features, including fully Section 508 compliance; the ability for users to file multiple documents to multiple rulemakings in a single submission; advanced search and query of rulemakings; ability to extract comments; RSS (Really Simple Syndication) feeds; and the ability to export data results to Excel or PDF formats.
The FCC will hold a public presentation on Friday, October 23, from 9:30 to 11:00 AM in the Commission Hearing Room to provide information about the upgraded system and to give citizens an opportunity to discuss the future uses and capabilities of the FCC’s comment filing system.
The presentation will be conducted by Bill Cline, Chief of the Reference Information Center. Please have proper identification and allow sufficient time for the security check into the building.
October 13, 2009
Tobacco Company Seeks Access To Historian's Unpublished Manuscript
The Chronicle discusses attempts by R.J. Reynolds Tobacco to obtain access to an unpublished work by Stanford's Robert Proctor. Dr. Proctor is an expert witness in a lawsuit against the company; R. J. Reynolds thinks material in the manuscript will be helpful in its cross-examination of the historian of science. Dr. Proctor is fighting the tobacco company's subpoena.
Dr. Proctor coined the term "agnotology," a term meaning the cultural production of ignorance.
October 12, 2009
What Happened To Dan Rather's Suit Against CBSFindLaw's Julie Hilden on why the court ultimately dismissed Dan Rather's breach of contract lawsuit against CBS.
Carly Simon Sues Starbuck's Music Label Over Album SalesCarly Simon is suing Starbuck's over the poor sales of her album, "This Kind of Love," which is available via the coffee company's stores. Ms. Simon says the company failed to promote the album, and that failure has contributed to her financial difficulties. Read more here.
Speech, Filters, and the Internet
In recent years, a growing number of commentators have raised concerns that the decisions made by Internet intermediaries - including last-mile network providers, search engines, social networking sites, and smartphones - are inhibiting free speech and have called for restrictions on their ability to prioritize or exclude content. Such calls ignore the fact that when mass communications are involved, intermediation helps end users to protect themselves from unwanted content and allows them to sift through the avalanche of desired content that grows ever larger every day. Intermediation also helps solve a number of classic economic problems associated with the Internet. In short, intermediation of mass media content is inevitable and often beneficial. Calls to restrict intermediation have also largely overlooked the longstanding tradition reflected in the Supreme Court’s First Amendment jurisprudence with respect to other forms of electronic communication recognizing how intermediaries’ exercises of editorial discretion promote free speech values. The debate also ignores the inauspicious/dubious history of past efforts to regulate the scope of electronic intermediaries’ editorial discretion, which were characterized by the inability to develop coherent standards, a chilling effect on controversial speech, and manipulation of the rules for political purposes.