Saturday, August 28, 2010
Friday, August 27, 2010
An Analysis of the Interaction Between Anonymous Speech Rights Online and the First Amendment on the 'Net
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.
Thursday, August 26, 2010
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 Assange's arrest on a rape charge was quickly withdrawn.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.
Wednesday, August 25, 2010
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.
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.
Tuesday, August 24, 2010
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.
Monday, August 23, 2010
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 moneywas 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.