Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, July 16, 2010

Disclosures After Citizens United

Lloyd H. Mayer, Notre Dame Law School, has published Disclosures About Disclosure, in volume 45 of the Indiana Law Review (2010). Here is the abstract.
An often overlooked aspect of the Supreme Court’s recent decision in Citizens United v. FEC is the sharply contrasting factual accounts regarding disclosure of independent election-related spending. For eight of the Justices, such disclosure is constitutionally defensible because it enables voters to make informed decisions. For Justice Thomas, however, such disclosure is constitutionally suspect because of its potential to result in retaliation and related chilling of First Amendment speech in the form of financial contributions. The continuing importance of these contrasting narratives can be found not only in the pending Supreme Court case of Doe v. Reed, in which the plaintiffs are challenging disclosure of referendum petition signers, but also in the debates in Congress and numerous state legislatures regarding whether to substantially expand disclosure requirements in the wake of Citizens United.

This article questions both factual assertions. Looking first at the informing voters claim, existing political psychology research reveals that whether contributor information provides helpful information to voters depends on what information is disclosed and how it is disseminated to voters. Knowing the identities of numerous smaller contributors is highly unlikely to aid voters, as compared to knowing the identities of larger donors who may be more well-known, and, possibly, knowing aggregate information about smaller contributors such as geographic and industry concentrations. Moreover, even the useful information is more likely to help voters if it is provided in a manner that facilitates their learning of it before the relevant election. As for the retaliation claim, there is sparse evidence that outside of certain specific contexts – civil rights groups during the 1950s and 1960s and communist and socialist parties today – there is much if any retaliation, much less retaliation that rises to a level that raises serious concerns, against contributors whose support becomes known through the existing disclosure rules. That said, the ever increasing access to such information through the Internet may change this conclusion.

While much remains unknown about the effects of political contributor disclosure, what is known suggests at least two changes that could result in better knowledge for voters and, for the first change, less exposure to retaliation or the risk of retaliation for smaller contributors. The first change would be to reduce the public disclosure of identifying information for smaller contributors, releasing only data relevant for aggregation purposes for such contributors. The second change would be to expand the disclosure of information regarding larger contributors through disclaimers on mass media and other large-scale communications that identify not only the group paying for such communications but the major funders of that group. These common sense strategies both match what we know about the effects of disclosure and may have the added benefit of relieving some of the constitutional tension in this area.
Download the article from SSRN at the link.

July 16, 2010 | Permalink | TrackBack (0)

The FTC's Blogger Endorsement Guidelines

James B. Astrachan, University of Baltimore School of Law, has published Transparency in the New Media in the volume for 2010 of The Daily Record. Here is the abstract.

This short article discusses new electronic media, such as social networking sites, blogs, chat rooms, etc., and their use for endorsing products when a reviewer using this media does not disclose a direct relationship with the product's advertiser, seller or manufacturer. This observation is clarified by the mention of the latest revision of the FTC's "Guides Concerning the Use of Endorsements and Testimonials in Advertising," effective December 1, 2009. The Guides explain to advertisers on how to ensure that endorsements are not false or misleading under the FTC Act. They drill down into what constitutes an endorsement. The Guides generally require that where there is a relationship between advertiser and endorser that is not inherently obvious, it must be disclosed.

Download the article from SSRN at the link.

July 16, 2010 | Permalink | TrackBack (0)

Rescuing the Media With Vouchers

Adam D. Thierer and Berin Michael Szoka, Progress & Freedom Foundation, have published The Wrong Way to Reinvent Media, Part 3: Media Vouchers, in 17 Progress & Freedom Foundation Progress on Point (2010). Here is the abstract.

In this installment, we will consider whether it is possible to steer citizens toward so-called “hard news” (“serious” journalism) - and get them to financially support it - through the use of “news vouchers” or “public interest vouchers”? We will argue that using the tax code to nudge people to support media - while less problematic than direct subsidies for the press - will likely raise serious issues regarding eligibility and be prone to political meddling. Moreover, the scheme is unlikely to succeed in encouraging people to direct more resources to hard news and will likely instead become a method of subsidizing other media content they already consume.

Donwload the article from SSRN at the link.

July 16, 2010 | Permalink | TrackBack (0)

Band Sued Over Use of Photo

A model's lawyer is getting his or her teeth into Vampire Weekend over this photo, which Kirsten Kennis says the band used without permission on its new album cover. Kennis says the 1983 pic release also has a forged signature. More at TMZ.

July 16, 2010 | Permalink | TrackBack (0)

Thursday, July 15, 2010

Jewish Law and Copyright

Neil W. Netanel, University of California, Los Angeles School of Law, and David Nimmer, Irell & Manella, have published Is Copyright Property? The Debate in Jewish Law , in 12 Theoretical Inquiries in Law (2011). Here is the abstract.


Is copyright a property right? That question raises a host of thorny theoretical issues regarding the foundational underpinnings of both copyright and property. The notion that if copyright is “property,” it will or should resemble a perpetual, absolute, pre-political property right, has repeatedly infused judicial proceedings, legislative enactments, and public debate in both common law and civil law countries as well.

Like their common law and civil law counterparts, Jewish law jurists have engaged in protracted debate about whether copyright is a property right. Recent decades have seen numerous rabbinic court decisions, responsa (rulings in disputes or advisory opinions coupled with a lengthy exegesis on Jewish law in answer to questions posed), scholarly articles, and blog entries on such issues as whether it is permissible, without license from the author or publisher, to republish a book after the rabbinic printing privilege has expired; to copy and distribute software or sound recordings; to perform music in wedding halls; to make copies for classroom use; and to download songs from the Internet. And like in secular law, but for somewhat different reasons, the characterization of copyright as “property” has significant doctrinal consequences for resolution of these controversies in Jewish law.

There are numerous, and at times profound, differences in the terminology, form of argument, doctrinal specifics, and overarching legal framework of Jewish law and secular law in this area and others. Nonetheless, the arguments within the Jewish law debate have some intriguing parallels with those of secular law copyright. In fact, one finds the direct, if largely unstated, influence of secular copyright just below the surface in the debate about whether copyright is property in Jewish law.

Download the article from SSRN at the link.

July 15, 2010 | Permalink | TrackBack (0)

"John Doe" Posters and Israeli Law

Michael Birnhack, Buchmann Faculty of Law, Tel Aviv University, has published Unmasking Anonymous Online Users in Israel, at 2 Hukim: Journal on Legislation 51-131 (2010). Here is the abstract.

What should be the legal rule as to unmasking anonymous online users? The typical case is defaming content, generated by anonymous users. The Article discusses this burning issue in the Israeli context, in a comparative manner and within three intertwined frameworks. First, I explore the meaning of anonymity and argue that it is worthy of legal protection both as an instance of the principle of free speech (similar to American jurisprudence), and as an instance of privacy (closer to the European jurisprudence). Second, I argue that free speech should be an organizing principle in regulating the digital environment. The internet offers a unique discursive space. Any proposed rule should be evaluated as to its direct and indirect impact on free speech. Third, the regulation of online anonymity should be located within a broader framework of law and technology, which is attentive to the dynamic inter-relationship between the two.

The Article analyzes the development of the legal rule in Israeli court regarding the unmasking of anonymous users, including the recent decision (April 2010) of the Supreme Court in the case of Mor v. Barak Online, Ltd., in which the Court ruled that current Israeli law lacks a proper procedural frame to enable courts to order the unmasking of users, the result being that courts lack authority to issue such orders. I propose a procedure in which the ISPs first and the courts later, if needed, serve as an intermediary between the offended party and the anonymous user, so to maximize the privacy and free speech of the user, of potential users, while minimizing potential abuse of the unmasking procedure and enabling redress in due cases.

Download the article from SSRN at the link.

July 15, 2010 | Permalink | TrackBack (0)

Wednesday, July 14, 2010

Reaction To the "Fleeting Expletives" Decision

From the New York Times, an article on the 2nd Circuit unanimous decision regarding the FCC's "fleeting expletives" policy.

July 14, 2010 | Permalink | TrackBack (0)

Tuesday, July 13, 2010

Second Circuit Strikes Down "Fleeting Expletives" Policy On Constitutional Grounds

The Second Circuit has ruled in favor of Fox Broadcasting and other media and against the FCC in the "fleeting expletives" case. Said the Court,

We now hold that the FCC’s policy violates the First Amendment because it is unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here. Thus, we grant the petition for review and vacate the FCC’s order and the indecency policy underlying it.


[T]he absence of reliable guidance in the FCC’s standards chills a vast amount of protected speech dealing with some of the most important and universal themes in art and literature. Sex and the magnetic power of sexual attraction are surely among the most predominant themes in the study of humanity since the Trojan War. The digestive system and excretion are also important areas of human attention. By prohibiting all “patently offensive” references to sex, sexual organs, and excretion without giving adequate guidance as to what “patently offensive” means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive. To place any discussion of these vast topics at the broadcaster’s peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment.

For the foregoing reasons, we strike down the FCC’s indecency policy. We do not suggest that the FCC could not create a constitutional policy. We hold only that the FCC’s current policy fails constitutional scrutiny. The petition for review is hereby GRANTED.

July 13, 2010 | Permalink | TrackBack (0)

A British Media Blog (sorry--that should read "English Media Law" Blog)

Interesting blog that covers British media: Inforrm's Blog (for International Forum for Responsible Media). It's sponsored by the Guardian.

Update: Hugh Tomlinson, Editor of Informm, writes to tell me that Inforrm is part of The Guardian's Legal Network, but is not sponsored by that paper. It also concentrates on media law, and on English, as opposed to Scots or Irish, law. Thanks for the clarifications.

Ha! First time I've been wrong all year. Cheeky-smiley-034 

July 13, 2010 | Permalink | TrackBack (0)

International Law and Free Speech Protections

William J. Magnuson has published The Responsibility to Protect and the Decline of Sovereignty: Free Speech Protection Under International Law, in volume 43 of the Vanderbilt Journal of Transnational Law (2010). Here is the abstract.

State sovereignty has long held a revered post in international law, but it received a blow in the aftermath of World War II, when the world realized the full extent of atrocities perpetrated by the Nazis on their own citizens. In the postwar period, the idea that individuals possessed rights independent of their own states gained a foothold in world discussions, and a proliferation of human rights treaties guaranteeing fundamental rights followed. These rights were, for the most part, unenforceable, though, and in the 1990s, a number of humanitarian catastrophes (in Kosovo, Rwanda, and Somalia) galvanized the international community to develop a doctrine to protect the fundamental rights of all individuals. The resulting “responsibility to protect” individuals from genocide, ethnic cleansing, and crimes against humanity stood as a radical rejection of the prewar concept of state sovereignty and assured that states could no longer hide behind the shield of territorial integrity. But the doctrine created another disconnect in international law: it picked out only a few fundamental rights for protection, leaving citizens to rely on the whim of their states to protect their other rights. This Article argues that this state of the law is no longer sustainable, as it is still beholden in important ways to the now-eroded concept of state sovereignty. The responsibility to protect should be expanded to include protection of fundamental rights in general and the freedom of speech in particular. The inclusion of the freedom of expression in the pantheon of protected rights is broadly consistent with the moral, legal, and consequentialist arguments in favor of the international norm of responsibility to protect. Moreover, an expansive reading of the obligation to intervene, particularly in nontraditional ways, will increase the legitimacy of the international system.

Download the article from SSRN at the link.

July 13, 2010 | Permalink | TrackBack (0)

FCC Named "Most Improved" Fed Agency In Survey

The newly released 2010 OPM Viewpoint Employee Satisfaction Survey has tagged the FCC as the "most improved" government agency. FCC Chair Julius Genachowski seems pleased. In a statement released July 12th he said,

I am delighted that the FCC has been recognized as the 'most improved' federal agency. The survey reflects the hard work being done throughout the agency to make the FCC a model of excellence in government.

The FCC’s reform agenda, which builds on the impressive strides made by Commissioner Copps as acting chairman, includes creating new opportunities for employees to provide feedback; improving employee communication through technology and new media; and focusing on leadership development and opportunities for employees. I applaud the work of the FCC management and staff and look forward to more great things to come.

July 13, 2010 | Permalink | TrackBack (0)

Director Pleads Guilty To Lying About Hiring PI

Director John McTiernan has pled guilty to lying about hiring PI Anthony Pellicano; he'll face sentencing in October. More here from the Hollywood Reporter.

July 13, 2010 | Permalink | TrackBack (0)

Speech and the Establishment Clause

Claudia E. Haupt, George Washington University Law School, has published Mixed Public-Private Speech and the Establishment Clause, (forthcoming) in the Tulane Law Review. Here is the abstract.

Determining responsibility for speech is important for two reasons: to address rights to forum access and to identify whether Establishment Clause limits apply. Private speakers may demand rights of access to a public forum, and in such a forum they may articulate their message free from viewpoint restrictions. Private speech, moreover, is not subject to Establishment Clause limits. If the speech is government speech, the Free Speech Clause does not apply, and the government may articulate its message to the exclusion of all other speakers. If the government speech has religious content, it may run afoul of the Establishment Clause. This Article proposes an “effective control” framework to determine Establishment Clause responsibility in cases where public and private actors jointly engage in speech. Between the end-points of purely governmental and purely private speech, it places such speech on a mixed speech continuum. After introducing the framework, this Article demonstrates how the theory of “effective control” functions in a variety of contexts implicating the Establishment Clause, including permanent and temporary displays, prayer in public schools, access to public school property, and legislative prayer. In some instances, discussed as “truly hybrid speech” in this Article, the effective control inquiry fails to identify a unilaterally responsible party. In these limited cases, this Article argues that the speech is sufficiently private for forum access purposes – meaning that the speakers may claim a right to forum access – and at the same time sufficiently governmental for Establishment Clause purposes, creating a secular forum in certain narrowly defined speech contexts.

Download the article from SSRN at the link.

July 13, 2010 | Permalink | TrackBack (0)

Monday, July 12, 2010

Trademarks and Freedom of Expression

Robert Burrell, University of Queensland, T.C. Beirne School of Law, and Dev Saif Gangjee, London School of Economics, have published Trade Marks and Freedom of Expression: A Call for Caution, as University of Queensland TC Beirne School of Law Research Paper 10-05. Here is the abstract.

Over recent years there has been growing interest in the relationship between trade marks and free speech. United States academics have argued that we should look to freedom of expression principles to curb the expansion of trade mark rights and this suggestion is being taken increasingly seriously in other jurisdictions. While sharing concerns about the overreach of trade mark law, we express caution about the advisability of looking to freedom of expression to solve the problem. Specifically, we argue that this focus concedes too much in terms of the reach of trade mark law, is unlikely to prove effective (at least outside of the United States) and carries with it the danger that the relationship between trade marks and speech will become overly simplified.

Download the paper from SSRN at the link.

July 12, 2010 | Permalink | TrackBack (0)

Taxing the Adult Film Industry In the EU

Uladzislau Belavusau, European University Institute and University of California, Berkeley, has published Sex in the Union: EU Law, Taxation and the Adult Industry, at 4 European Law Reporter 144-150 (2010). Here is the abstract.
In March of 2010 the ECJ rendered what appeared to be a routine judgment in the realm of taxation. The objects of the levying were films, which are displayed in individual cubicles on a pay per minute basis. The Court excluded such display from the tax benefits enjoyed by other categories of cinema. However, this illusion of a traditional internal market dispute easily disappears if one sexes up the decision, in which judges were essentially confronted with a subtle legal concept of «cinema» and its controversial constituent, pornographic movies. In the best of Victorian traditions, the Court omits any reference to the very word sex, which raises certain concerns about the adequacy of the rhetorical construction of this 21st century decision and its strikingly puritan judicial appraisal of sexuality.

Download the article from SSRN at the link.

July 12, 2010 | Permalink | TrackBack (0)

Imagery and Its Consequences

Gregory Scott Parks, District of Columbia Court of Appeals, and Danielle C. Heard, Stanford University School of Humanities & Sciences, have published 'Assassinate the Nigger Apes' [1]: Obama, Implicit Imagery, and the Dire Consequences of Racist Jokes. Here is the abstract. 

In 1994, Congress passed legislation stating that Presidents elected to office after January 1, 1997, would no longer receive lifetime Secret Service protection. Such legislation was unremarkable until the first Black President - Barack Obama - was elected. From the outset of his campaign until today, and likely beyond, President Obama has received unprecedented death threats. These threats, we argue, are at least in part tied to critics and commentators’ use of symbols, pictures, and words to characterize the Obama as a primate, in various forms - including cartoonist Sean Delonas’ controversial New York Post cartoon. Against this backdrop and looking to history, cultural critique, federal case law, as well as cognitive and social psychology, we explore how the use of seemingly harmless imagery may still be racially-laden and evoke violence against its object.

[1] Morgan v. McDonough, 540 F.2d 527, 531 (1st Cir.1976) (holding in a school desegregation case, that White students harassed Black students by chanting "assassinate the nigger apes"); see also infra notes 99 to 103 and accompanying text.

Download the paper from SSRN at the link.

July 12, 2010 | Permalink | TrackBack (0)

William & Mary Institute of Bill of Rights Law Supreme Court Preview

The William & Mary Institute of Bill of Rights Law announces the case for its Supreme Court Preview this year; it's Schwarzenegger v. Entertainment Merchants Association. Here's a link to the Institute's website discussing the event.

July 12, 2010 | Permalink | TrackBack (0)

World Cup Over; Cephalopod Cedes Stage

With the media watching, Paul the Psychic Octopus munched on a mussel, his record untarnished, and retired from the business of picking soccer teams. Apparently the Sea Life Aquarium has decided he's earned his pension. More from the Associated Press here.  Meanwhile, various folks are pressing claims to his ownership. More from the Christian Science Monitor. Maybe he should just get his own show.

July 12, 2010 | Permalink | TrackBack (0)

ScienceBlogs Drops Blog FoodFrontiers

ScienceBlogs has dropped one of its blogs, FoodFrontiers, after some readers and other bloggers complained that the blog was not independent enough. Pepsi started the blog, and Pepsi employees wrote it.

July 12, 2010 | Permalink | TrackBack (0)

English Court Hands Down Sentences For Music Piracy

In an important case for the recording industry, an English court has sentenced three men to prison for violating the Copyright Designs and Patents Act 1988. Malcom and Peter Wylie received sentences of between 9 months and 3 years; William Ross received a 9 month suspended sentence. He was apparently unaware that the Wylies' operations were illegal. The Wylies downloaded music from the Internet or copied music from CDs and distributed it to entertainment venues in northern England. The British Recorded Music Industry and Phonographic Performance Limited, two organizations which collect royalties for the music industry, were involved in the prosecution.

More here from the Hollywood Reporter and here from JournalLive.

July 12, 2010 | Permalink | TrackBack (0)