Friday, November 6, 2009
Thursday, November 5, 2009
A pervasive problem in public discourse is the seemingly increasing prevalence in public debate of demonstrably false factual propositions, such as the non-American birth of President Obama, the prior knowledge of President Bush of the September 11 attacks, the intentional creation of AIDS by physicians and pharmaceutical companies, the non-existence of the Holocaust, and the predictive accuracy of astrology. Yet although this phenomenon is a serious problem for public discourse, it is one that the First Amendment tradition fails to address. In relying on the implausible epistemic claims of “marketplace of ideas” and “search for truth” rationales for freedom of speech, the First Amendment tradition is embarrassed by the way in which falsity thrives even under conditions of widespread freedom of speech. Moreover, a close look at the landmarks of the free speech literature from Milton’s Areopagitica to the present shows that the problem of factual falsity was simply not the concern of those who created and fostered our free speech tradition. This is not to say that widespread government regulation of non-commercial factual falsity is wise or constitutionally permissible. It is to say, however, that making progress against the problem of public falsity will require recognizing that free speech doctrine and principles are only a small corner of a wise communications policy, and that such a policy will attempt to deal with widespread factual falsity in ways that the free speech tradition cannot.
Download the abstract from SSRN here.
Wednesday, November 4, 2009
Efforts to decrease the sexist aspects of online fora have been largely ineffective, and in some instances seemingly counterproductive, in the sense that they have provoked even greater amounts of abuse and harassment with a gendered aspect. And so, in the wake of a series of high profile episodes of cyber sexual harassment, and a grotesque abundance of low profile ones, a new business model was launched. Promising to clean up and monitor online information to defuse the visible impact of coordinated harassment campaigns, a number of entities began to market themselves as knights in cyber shining armor, ready to defend otherwise defenseless people whose reputations have been sullied on the Internet Of course these companies charge a fee and place particular emphasis on women who they recognize as potential clients. This article raises three concerns about these businesses. First, these companies have economic incentives to foster conditions online that perpetuate acts of online harassment, as the more harassment there is online, the greater the number of potential clients. These companies are also incentivized to create fora with hostile climates and to stir up trouble themselves. Second, these companies have economic incentives to oppose legal reforms that might enable online defamation and harassment victims to seek recourse from law enforcement agencies or through the courts. And finally, though they cloak themselves in the mantel of protectors of the innocent, their real agenda is to sell their services to wealthy corporations and individuals for far more nefarious purposes: to help bad actors hide negative information about themselves. This practice creates information asymmetries that can harm anyone who detrimentally relies on what they incorrectly assume to be the best available information and can lead to increases in the sorts of financial losses and personal vulnerability that access to unmanipulated Internet search results might otherwise reduce.
Download the article from SSRN here.
Scholars have struggled to explain our sprawling First Amendment doctrine – once described by Justice Stevens as “an elaborate mosaic of specific judicial decisions, characteristic of the common law process of case-by-case adjudication.” The position that has gained the most traction in recent scholarship has stressed the primacy of governmental motive – this school of thought argues that the degree of scrutiny to be afforded a challenged regulation is based on an assessment of the likelihood that the regulation reflects a governmental motive to burden disfavored speech or speakers.
This article offers a challenge to the purposivist account. It begins, in Part I, by considering the claims of the purposivists in light of the original meaning of the First Amendment. Although there is something of a scholarly consensus that the intentions of those who framed the First Amendment are impossible to determine, in recent years, originalist thinking about constitutional interpretation has made a dramatic move away from a jurisprudence based on the intentions of the framers or ratifiers and toward the original public meaning of constitutional text as the touchstone for constitutional interpretation. An inquiry into original public meaning offers a bit more clarity about the original meaning of the First Amendment that original-intention originalism was able to generate, and offers some reason to question the purposivist account.
Part II examines the purposivist account of First Amendment jurisprudence as it has evolved since the framing, illustrating the role of governmental purpose in First Amendment doctrine by considering a yet-unresolved issue that has divided the lower courts and commentators – the extent to which the First Amendment constrains the ability of the government to undertake investigations on the basis of the protected speech of the investigation’s target. Terrorism investigations, for example, can be triggered when the government becomes aware of political extremists as a consequence of their statements expressing approval of jihadist violence, or their attendance at events that condone such conduct, even though these activities are constitutionally protected under contemporary doctrine. The purposivist account suggests these “First Amendment investigations” must clear the hurdle of strict scrutiny because, in the absence of sufficient standards to limit the discretion of investigators, they are unacceptably likely to be infected by governmental hostility toward the target’s ideology. Indeed, history suggests that the risk that an impermissible motivation may accompany such investigations is quite real. Yet, subjecting the government’s decision to undertake an investigation to strict scrutiny is inconsistent with fundamental principles of First Amendment doctrine, and encounters powerful pragmatic objections as well. An inquiry into the extent to which the government has inhibited protected speech is an inevitable incident of any attractive and coherent account of the First Amendment; and because investigations do not pose the same threat to free speech as prohibitions, they do not require the same degree of scrutiny. The interaction between the First Amendment and criminal investigations inevitably involves an assessment of the justification for the investigation and the extent to which it inhibits constitutionally protected activity – precisely the kind of pragmatic balancing that the purposivists denounce. Indeed, the example of First Amendment investigations poses a challenge to any categorical or absolutist account of the First Amendment.
Part III considers the pragmatic structure of First Amendment doctrine. Part III contends that current doctrine reflects the centrality of pragmatic balancing, with the metaphor of a free marketplace of ideas providing the essential metric to govern the balancing inquiry. Regulations likely to distort the marketplace of ideas impose particularly heavy costs to First Amendment values, thereby requiring particularly powerful justifications. To be sure, the purposivists are right that balancing can be dangerously indeterminate, but First Amendment doctrine handles this objection with a highly structured approach to balancing based on a series of categorical judgments about the likelihood that a challenged regulation will distort the marketplace of ideas.
Structured balancing, however, breaks down when it becomes difficult to assess the likelihood that challenged government conduct will suppress disfavored speech or speakers. A prime of example of this problem is presented by First Amendment investigations, which can be performed in a responsible and discrete fashion unlikely to chill the exercise of First Amendment rights, or in an abusive and oppressive fashion. When it comes to First Amendment investigations, ad hoc balancing is the only tenable approach.
Download the paper from SSRN here.
Tuesday, November 3, 2009
Although many contend that human rights law is a justification for intellectual property rights, precisely the opposite is true. Human rights law is far more a limit on intellectual property rights than a rationale for such regimes. In a variety of ways, human rights law requires states to take specific, concrete steps to limit the effects of intellectual property rights in order to protect international human rights. This powerful and emancipatory dimension of human rights law has unfortunately been overshadowed by those who claim human rights as a basis for granting exclusive rights.
The U.N. Committee on Economic, Social, and Cultural Rights – the body created to monitor state compliance with the terms of an international treaty called the International Covenant on Economic, Social, and Cultural Rights – is in the process of drafting a General Comment that will interpret the “right to take part in cultural life,” a right protected under Article 15(1)(a) of the treaty. This submission was designed to provide the Committee with an overview of some of the ways in which intellectual property rights can affect this right and what states may be required to do to protect the ability of individuals to participate in cultural life.
Jon Ronson and former colleague John Sergeant are now battling over proper credit over the book The Men Who Stare at Goats. Mr. Sergeant claims that he did much of the ground work in locating people interviewed in the story, and that Mr. Ronson presents that person as himself. Mr. Sergeant resents that implication, saying the agreement was for the material to be used in a documentary. Says Mr. Sergeant, "I never formally agreed for the material I unearthed to be used in other media," he added, "and I was extremely uncomfortable when it was, especially when I was airbrushed out of things. Ewan McGregor is playing this character who finds the story. [Jon] presents that person as [himself] but really, it is me." Read more here in an article from the Independent.
The Daily Mail is apologizing and will pay actress Kate Winslet twenty-five thousand pounds in damages for printing a story that alleged that she lied about how much she exercises. Ms. Winslet's attorney told Mr. Justice Eady that the paper "caused her [client] a great deal of distress." Ms. Winslet pronounced herself pleased with the result. Read more here in a BBC story.
Monday, November 2, 2009
This article examines the music industry, and particularly its reaction to the file-sharing phenomenon, through the prism of the agent-principal problem. The file-sharing phenomenon shined a spotlight on the divergence of interests between the creators of music and their ultimate representatives in copyright debates, the recording industry. The economic interests of creators are focused on maximizing revenues from their works. Record companies, in contrast, are not content with their share in the revenue pie, rather are interested in maximizing their control over the exploitation of such works, in order to secure the dominant position they currently hold in the market. The constitution, however, is designed to protect creators’ incentives to create, not the market-controlling position of record companies.
The Article analyzes the measures taken to combat file-sharing, and concludes that the source of the resistance to file sharing is not its effect on revenues as outwardly claimed by the recording industry, but rather its potential to decentralize the control over music distribution and use. In that sense, the war against file-sharing is an extreme expression of the agency problem stated above. At the same time, the article points to the potential of file-sharing to minimize agency costs, by creating a more balanced power-relationship within the music industry, and concludes that legitimizing file-sharing may produce circumstances which are most likely to be consistent with the interests of both creators and society at large.
A jury has awarded more than $16 million to the family of a woman who died after drinking too much water, the effects of trying to win a contest run by radio station KDND in Sacramento. Defendant Entercom Sacramento, owner of the station, had argued that the deceased, Jennifer Strange, was contributorily negligent for failing to stop participating in the contest. Compare with the Weirum case (539 P. 2d. 36 (Calif.1975).
Federal internet policy is emerging from the net neutrality debate with a clear commitment to vague principles. What began as a scuffle over configuring routers grew into a dizzying scramble to defend the internet as we know it -- and it turned out, nobody knows it quite the same way. Still, the discourse over net neutrality has been productive. From its initial ambiguity, it blossomed into a rich literature on innovation policy and the future of communications in our democracy. It inspired deep thinking on the core dynamics that make the Internet worth defending.
While the politics remain unsettled, Congress has charged the new FCC to help develop a national broadband plan. And, in the next month, the FCC will begin rulemaking to enshrine as formal rules the 4 internet principles. It will also add 2 new principles: non-discrimination and transparency. Together, these 6 principles are part of the FCC’s announced program to preserve the Internet’s openness. The vague principles will be given a richer form.
In this paper, we focus on achieving the new "transparency" principle. The Chairman asserted that "providers of broadband Internet access must be transparent about their network management practices." This transparency demands a technical and specific disclosure. We propose such a disclosure regime.
Our disclosure’s immediate goal is neither improved consumer choice nor more effective regulatory oversight. Instead, tracking the incentives that function in open source software collaborations, our disclosure is aimed at high level network users, what we term with no doubt flattering vainglory, the "internet vanguard". Our disclosure is aimed at those with pecuniary, personal and reputational interests to track, react to, and defend open networks; strengthening a balance, even an ecosystem, between network managers’ tendency to centralize and users’ tendency to innovate freely at the periphery.
Download the paper from SSRN here.