Media Law Prof Blog

The CIA Comes In From the Cold

From the AP: How Leon Panetta interacts with reality TV.

The Photojournalist and the Reality Show

From the New York Times, an article about the reality show husband who "wishes he had said no."

Sotomayor On Wikileaks, Free Speech and National Security

Justice Sonia Sotomayor says she believes the Wikileaks debate may end up before the Supreme Court at some point, since the issue is one of balancing free speech and national security. More here from the Guardian.

An Analysis of the Interaction Between Anonymous Speech Rights Online and the First Amendment on the 'Net

Migeul E. Larios has published ePublius: Anonymous Speech Rights Online at 37 Rutgers Law Record 36 (2010). Here is the abstract.

The First Amendment to the U.S. Constitution prohibits Congress from abridging the freedom of speech, yet the text of the Amendment does not expressly address the issue of anonymous speech rights. Historical records from state ratifying conventions and from the First Congress do not discuss anonymous expression. Still, anonymous speakers and their works played an immensely important role in the founding era and throughout American history. This essay explores the interplay between the right to speak anonymously and the freedom of speech on the Internet. It concludes that the First Amendment also protects the right of individuals to speak anonymously online.

Download the article from SSRN at the link.

FCC Petitions For Rehearing Of Second Circuit Fox "Fleeting Expletives" Ruling

The FCC has decided to appeal the 2d Circuit's ruling striking down its "fleeting expletives" policy on constitutional grounds. The agency is asking the court to reconsider its ruling, either via a three judge panel or en banc. Link to petition here.

Iran Restrains Reporting On Opposition Politicians

Iran has begun prohibiting media from independently discussing and reporting on candidates who ran against re-elected Iranian President Mahmoud Ahmadinejad. More here from the New York Times.

Swedish Prosecutor Still Asking Questions About Molestation Accusation Involving Wikileaks Founder

Swedish prosecutors are still investigating Wikileaks' Julian Assange concerning a molestation charge, but it is not a sex-related crime, according to this Guardian story. Last week's warrant for Mr. Assange's arrest on a rape charge was quickly withdrawn. Mr. Assange denies the remaining charge.

Singer Guilty For Not Informing Partners Of Her HIV-Positive Condition

A German court has sentenced singer Nadja Benaissa to two years probation after finding her guilty of aggravated assault for failing to inform men with whom she had unprotected sex that she is HIV-positive. The singer apologized and said she was "careless" during that period of her life. One of her former lovers is now HIV-positive.

Bloggers, Take Note--You're Businesspeople

So after the FTC laid out its guidelines to bloggers, the City of Philadelphia weighs in with its blogging tax. The municipality wants $300 per blogger, on the theory that blogging is a business.

The Image of the Leopold-Loeb Trial in Popular Culture

Edward Larson, Pepperdine University School of Law, has published An American Tragedy: Retelling the Leopold-Loeb Story in Popular Culture, at 50 American Journal of Legal History 119 (April 2008/2010). Here is the abstract. 

This Article scans the cultural history of an American tragedy: the Leopold and Loeb murder case. In what has widely been referred to as "the crime of the century," teenagers Richard Loeb and Nathan F. Leopold, Jr., under the counsel of the experienced and successful defense attorney Clarence Darrow, pled guilty to the 1924 abduction and murder of Bobby Franks, a child of a wealthy Chicago family. Due to Darrow's advocacy, both defendants were spared the death penalty, and given life sentences instead. Sensational details about the crime, the suspects, and the criminal proceedings were enthusiastically reported by the six daily newspapers published in Chicago during this time.

This Articles focuses on the evolution of several distinct personas of the suspected killers, three of which were created by the print media as they covered the story from confession to sentencing. One of the personas developed by newspaper articles was that of both suspects, but particularly Leopold, as self-conceived Nietzschean supermen, exempt from normal moral, ethical, and legal standards. Later, this persona was more fully developed in popular novels and major motion pictures based on the Leopold and Loeb story. The second persona developed by the print media is that of the precocious teenage thrill-seekers. This persona, which was seen to exemplify the indulged, immoral youth culture of the 1920s that was enjoyed by wealthy young men, was also later developed in artistic interpretations of the story of the crime. The print media also presented a third persona in its stories about the criminal proceedings against Leopold and Loeb. With the assistance of East Coast alienists who adopted a Freudian approach to psychology, as well as two physicians, defense attorney Darrow created and developed this third persona during the hearing - that of deeply disturbed youth who were emotionally unable to control their actions. Darrow used this image of Leopold and Loeb as deeply troubled boys to persuade the judge to not sentence the defendants to death. It has reappeared in later artistic presentations of the episode.

In addition to the three personas developed in the print media, the Article also discusses two other personas that have evolved since the original events took place in 1924. Toward the end of the twentieth century, the sexual aspect of Leopold's and Loeb's relationship was subject to increased scrutiny. With this came the development, through plays, movies and other artistic portrayals of the events leading up to the crime, of a gay persona for both Leopold and Loeb; particularly, a persona of repressed lovers. Finally, Leopold himself, in telling his own story through magazine articles and a popular autobiography, created for himself a new persona: that of a model prisoner who deserved parole.

The highly publicized crime, prosecution, and punishment of Leopold and Loeb have served as a seemingly endless source of material and inspiration for American writers, dramatists, and social commentators. Because of continued interest in these events, they, together with attorney Clarence Darrow, have remained celebrities whose stories have inspired novelists, playwrights, poets, essayist and artists well into the new century. Perhaps more than any other trial in American history, the Leopold and Loeb case has served as an ongoing inspiration for the American imagination.

 

Download the article from SSRN at the link.

 

Professor Larson is also the author of Summer For the Gods: The Scopes Trial and America's Continuing Debate Over Science and Religion (Basic Books, 1997) and other works.

Viewer Classification of Violent Images

Thomas D. Barton, California Western School of Law, has published Entertainment, Art, and the Social Sorting of Violent or Cruel Images. Here is the abstract. 

 

The adverse social and psychological consequences of media violence have never been conclusively verified, but the risks are troubling. Legal efforts to address those risks have been largely futile, as recently demonstrated by United States v. Stevens, in which the U.S. Supreme Court struck down federal legislation that sought to eliminate “crush” and other animal cruelty videos. The power to regulate these images under existing First Amendment exceptions, or by a new theory, is nonetheless evident. That eight Justices did not more strongly explore the legal possibilities reflects social reality: that the viewing public does not clamor for government regulation of violent or cruel images.

This Essay explains the relatively muted social response to the risks of media violence by positing viewers’ unconscious sorting of violent images into three categories: “entertainment;” “art;” or “offense/threat.” Only images perceived as offensive or threatening generate social and moral pressure for stronger legal regulation. Since relatively few images are so perceived, free speech concerns generally trump calls for censorship.

But why are so few violent images deemed offensive? What qualities or contexts cause violent images to be perceived as either harmless “entertainment” or as socially valuable “art?” That exploration uncovers deep intertwining of cultural values, artistic appreciation, and moral disengagement. Can and should the law undertake to re-shape cultural values by regulating such images? Have sex and violence become culturally legitimated as artistic expressions of our freedom or humanity?

This Essay’s attention to the social and psychological sorting of violent images may sharpen the focus of legal reform efforts. Yet even where public censorship remains unwise, stronger self-awareness of the phenomenon and criteria of the sorting process may make private viewing choices more thoughtful.

The full text is not currently available on SSRN.

Banning the Press,Coach? You Might Want To Rethink That

From the Chronicle of Higher Education, why bans on the press may be counterproductive for coaches.

Defamation On Facebook: Part Two

Julie Hilden discusses defamation on Facebook: Part 2 of a 2 part analysis. Read part 1 here.

The Effects of Embedded Advertising

Zahr Said Stauffer, University of Virginia School of Law, has published Embedded Advertising and the Venture Consumer, in volume 89 of the North Carolina Law Review (2010). Here is the abstract.

Embedded advertising –marketing that promotes brands from within entertainment content—is a thriving, rapidly changing practice. Analysts estimate that embedded advertising expenditures could exceed $10 billion in 2010. The market continues to grow even as traditional advertising revenues contract. The relatively few legal scholars who have studied embedded advertising believe that it is under-regulated. Ineffective regulation, they claim, is deeply troubling because corporations may with legal impunity deceptively pitch products to trusting viewers. Critics charge that embedded advertising creates “hyper-commercialism,” distorts consumers’ tastes, taints the artistic process, and erodes faith in public discourse. This Article argues that the critics are wrong. Sponsorship disclosure law under the Communications Act of 1934 and related regulations is indeed largely ineffective, in part because the media industry has consolidated considerably and in part because media content is now created and consumed in diverse ways unimaginable to the drafters. The law was conceived for yesterday’s marketplace, but also for yesterday’s consumer. The media consumer today is what this Article calls a “venture consumer.” Often, she knows what she wants, knows where to get it, and is aware of the risks and costs involved. The mismatch between the consumer imagined by regulators and the contemporary consumer means that expanded regulation of embedded advertising according to current reform proposals could end up harming consumers more than helping them. Moreover, embedded advertising is not especially amenable to effective regulation, given the incentives for artists and advertisers to collaborate in the production of entertainment content. In light of the difficulty of correcting the regime’s flaws and the consumer interests threatened by expanded regulation, the Article concludes that the consumer is better served if the law is maintained as-is rather than expanded through the proposed reforms.

Download the article from SSRN at the link.

Muslim Employee Sues Disney Over Dress Code

Muslim, and new U.S. citizen Imane Boudial is suing Disney over its dress code. Ms. Boudial says the company won't let her wear the hijab at her job as a restaurant hostess at its California theme park. CNN's Don Lemon interviews her here. More here from a local L.A. tv station.

The Media and the Presidential Campaign of 2008: A Symposium

Janai S. Nelson, Saint John's University School of Law, has published Symposium Foreword – Making History: Race, Gender, and the Media in the 2008 Elections as St. John's Legal Studies Research Paper No. 10-0188. Here is the abstract.

 

The 2008 elections abound with historic milestones. Never before has a Black candidate been elected to lead a non-Black majority nation. Even before Obama’s presidential victory, however, history was being made. Obama’s success as a minority candidate in the primaries also was unprecedented. The Obama campaign’s use of new media technologies to revitalize political activism among youth, engage the public at large, and raise enormous, record-breaking sums of money

was unlike that of any political campaign to date.

But the milestones achieved in the 2008 elections certainly did not belong to Obama alone. The 2008 elections also marked the first time that a Latino candidate, Governor Bill Richardson of New Mexico, sought the presidential nomination of a major political party. In addition, the role of Latino voters in determining the outcome of a national election in the United States had never before been so scrutinized or numerically significant. The prominence of women – both as candidates and constituents – in the 2008 elections likewise was unprecedented. While women have competed for (and secured) presidential nominations as early as 1872, it was not until the 2008 primaries, over 135 years later, that the first woman, now Secretary of State Hillary Rodham Clinton, came close to securing the nomination of a major political party. Governor Sarah Palin of Alaska also achieved a first within the Republican Party as its first female nominee for Vice President. Likewise, Cynthia McKinney and Rosa Clemente headed the first all women-all minority ticket for president and vice president, respectively, as the nominees of the Green Party. Never before have women played such integral and defining roles in a United States presidential contest. Against this dynamic backdrop, in the final weeks of the 2008 election season, the Ronald H. Brown Center for Civil Rights and Economic Development2 and its newly affiliated publication, the St. John’s Journal of Legal Commentary,3 assembled distinguished scholars, practitioners, government officials, and political commentators for a two-day symposium entitled “Making History: Race, Gender, and the Media in the 2008 Elections”.

 

Download the article from SSRN at the link.

Charges Against Assange Dropped

From CNN: The chief prosecutor has revoked an arrest warrant for Julian Assange, indicating he is "no longer wanted" for rape charges in Sweden. More here from the New York Times.

Wikileaks Founder Assange Sought Over Rape, Molestation Charges In Sweden

CNN reports that Swedish law enforcement has arrested Wikileaks founder Julian Assange in absentia after it received complaints of rape and molestation. CNN did not report who made the charges; that information is apparently not forthcoming from Swedish authorities. Mr. Assange responded via Twitter, ""The charges are without basis and their issue at this moment is deeply disturbing."

According to the Swedish tabloid Expressen, Mr. Assange may surrender soon.

Food Network Faces Lawsuit Over New Chef Show

Private Chefs, Inc. is suing the Food Network over its new show, Private Chefs of Beverly Hills. PCI says it pitched an idea for such a show back in 2002, calling it "Celebrity Dish," but FN wasn't interested. Here's a link to the complaint. More on the story from The Hollywood Reporter.

Tea and Sympathy? More Like Bread and Water--A View of the Dr. Laura Departure From Across the Pond

The Independent reports on Dr. Laura's rapid exit from her radio show, and publishes the "N" word she used, without asterisks.