Saturday, August 21, 2010
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.
Friday, August 20, 2010
Thursday, August 19, 2010
Professor Joseph Weiler will soon stand trial for criminal libel in France for refusing to remove a book review from a website associated with an academic journal for which he serves as editor. His case has disturbing implications for all those who write, edit, and publish critical scholarly work. In this article, I explore those implications for Canadian scholars at home and as members of a global scholarly community. I assess the likelihood of success of a similar complaint under Canadian defamation law, and I consider the impact of libel chill and libel tourism. I conclude that although the defendant in such a case would have a good chance of prevailing under Canadian law through the defense of fair comment, a threat to academic freedom remains that requires action on the part of individuals and institutions committed to its preservation and enhancement.
Wednesday, August 18, 2010
Herr repeated use of the "N" word on her radio show earlier this month is pushing "Dr. Laura" (Laura Schlessinger) to end her talk radio show at the end of the year. She has been a radio host for three decades but when her contract ends this year, she says she will devote herself to her website.
Tuesday, August 17, 2010
The AP is out of talks with Pet Holdings--you know, the folks that bring you I Can Has Cheezburger and other noble time wasting amusements (although Time Magazine thinks there's meaning in the LOLCATS). According to the LA Times Technology Blog, the AP thinks cheezburger captions would ultimately be, well, non AP. The negotiations were a Failure.
Monday, August 16, 2010
Constitutional invalidation of laws limiting campaign financing in the 1980s faced two main obstacles in well established First Amendment law, both addressed in the opening passages of Buckley v. Valeo under the heading “General Principles”: the limits were imposed on money, not directly on speech; and they were not prohibitions but limits on amounts of money at levels that preserved the system of individual campaign financing. The first obstacle was removed by the famous conclusion that money is speech. The second was overcome without much fanfare at the time or since by reliance on what the majority described as an established First Amendment principle – government may not limit the quantity of protected speech.
Buckley, Citizens United v. FEC and all the protective campaign financing cases in between treat limits on the quantity of speech the same way they treat complete prohibitions or bans of speech – with strict scrutiny, no consideration of the adequacy of the allowed quantity or alternative avenues of speech (which are irrelevant under First Amendment strict scrutiny), and the eloquence that regularly accompanies invalidation of violations of the First Amendment.
It’s an appealing idea. Government shouldn’t dictate or restrict the amount or intensity of views expressed by speech that is protected by the First Amendment. A limit on the quantity of speech represses some quantum of speech and may reduce the clarity, depth, impact, and reach of the message. On the other hand, there are good reasons not to extend heightened constitutional protection to unlimited quantities of speech (or anything else).
But whatever the merits of the anti-quantity-limits principle, it’s not a principle at all, at least not in the sense that principles have general applicability. Outside of the campaign finance context, decisions regularly allow limits on the quantity of speech – even if directly imposed on protected speech itself – without mentioning any First Amendment principle prohibiting quantity limits and without applying strict scrutiny. Quantity limits on speech, whether direct or indirect, usually have been characterized as time, place and manner restrictions, and usually have been allowed, whatever the characterization, as long as they are reasonable.
Nor has the money-is-speech principle been applied throughout speech law, or applied at all outside of the campaign finance cases. Contributions of large amounts of money to support campaign speech – the cash itself, in addition to the actual speech – are fully protected speech and can’t be limited to protect the legitimacy and integrity of the electoral process; contributions of small amounts of money by ordinary people to support their speech, requested and given in public places, are an inconvenience that receives no protection and justifies limiting speech rights. Money is sometimes speech, sometimes annoying.
These First Amendment “principles” – the quantity of speech cannot be limited and money is speech – expanded free speech but have not been extended to other areas of speech law or to speakers who express themselves other than by spending large amounts of money. In the same period – the last three to four decades – the trend in speech law has more often been to contract free speech rights, and the new principles adopted in that process also have not been generally applied. For example, the secondary and incidental effects doctrines allow prohibition of speech if the government’s purpose is a secondary effect such as avoidance of crime, or if the regulation is aimed at a nonspeech element of the activity and the effect on speech is incidental. This seems to validate campaign finance limits, since the government is restricting amounts of money (or speech, if they are indistinguishable) not to repress anyone or any message but to protect the integrity and legitimacy of the electoral system.
This inconsistency and selectivity of rules, principles and approaches has characterized the law of free speech, and civil rights law generally, over the past several decades. The result in the law of free speech has been: (1) enlargement of the speech rights available to wealthy and otherwise favored people, and to their preferred form of doing business, corporations; (2) restriction of the speech rights available to people of ordinary means and to various dissenters; and (3) a free-speech barrier to public access to the media and to important electoral, economic and social reforms.
Google Book Search (GBS) has captured the attention of many commentators and government officials, but even as they vigorously debate its legality, few of them have marshaled new facts to estimate its likely effects on publishing and other information markets. This Article challenges the conventional wisdom propounded by the U.S. and German governments, as well as Microsoft and other competitors of Google, concerning the likely economic impact of mass book-digitization projects. Originally advanced by publishing industry lobbying groups, the prevailing account of mass book-digitization projects is that they will devastate authors and publishers, just as Napster and its heirs have supposedly devastated musicians and music labels. Using the impact of GBS on the revenues and operating incomes of U.S. publishers believing themselves to be the most-affected by it, this Article finds no evidence of a negative impact upon them. To the contrary, it provides some evidence of a positive impact, and proposes further empirical research to identify the mechanisms of digitization’s economic impact.
The debate surrounding the GBS settlement is important to students, writers, researchers, and the general public, as it may decide whether a federal appellate court or even the U.S. Supreme Court allows the best research tool ever designed to survive. If the theory of Microsoft and some publishing trade associations is accepted, the courts may enjoin and destroy GBS, just as Napster was shut down a decade ago.
The Article aims at a preliminary estimate of the economic impact of mass digitization projects, using GBS as a case in point. It finds little support for the much-discussed hypothesis of the Association of American Publishers and Google’s competitors that the mass digitization of major U.S. libraries will reduce the revenues and profits of the most-affected publishers. In fact, the revenues and profits of the publishers who believe themselves to be most aggrieved by GBS, as measured by their willingness to file suit against Google for copyright infringement, increased at a faster rate after the project began, as compared to before its commencement. The rate of growth by publishers most affected by GBS is greater than the growth of the overall U.S. economy or of retail sales. Thus, the very publishers that have sued Google have seen their revenues grow faster than retail sales or the U.S. economy as a whole (measured by gross domestic product). This finding parallels some of the research that has been done since the Napster case on the economic impact of peer-to-peer file sharing on sales of recorded music. Future studies may provide a more granular estimate of the economic impact of frequent downloads or displays of pages of particular books on the sales of such books.
Download the article from SSRN at the link.
From the Virginia Sports and Entertainment Law Journal
The Virginia Sports and Entertainment Law Journal (VaSE) is currently seeking articles for publication in its Fall 2010 and Spring 2011 issues. If you have a completed article or are currently working on an article, please consider VaSE.
VaSE focuses on all aspects of both sports and entertainment law. Published biannually by students and the University of Virginia Law School since 1999, the Journal features articles written by sports and entertainment law professors, as well as those written by experienced practitioners in both fields.
As an established sports and entertainment law journal at a “Top-10” law school, VaSE strives to be at the forefront of academic scholarship in these areas. In Spring 2011VaSE anticipates hosting a Sports and Entertainment Law Symposium. The Symposium will bring together prominent speakers from the sports and entertainment fields, providing an engaging and informative day for all participants.
All submissions to VaSE should be sent to Sabeha Hylton, Articles Development Editor, via email to email@example.com, as an attached Microsoft Word document. Please feel free to contact Ms. Hylton for more information about the Journal (including the contents of past issues) and the submission process.