Friday, October 15, 2010
According to the Hollywood Reporter, the Bosnian government first granted, then denied actress Angelina Jolie permission to begin filming a project in the country. It gave as a reason her failure to submit the script of the film ahead of time. The project was to be Ms. Jolie's debut as a director. Representatives for Ms. Jolie say the script has now been submitted; presumably work on the movie will begin soon. More here from the BBC.
The Ninth Circuit has ruled that two Oregon statutes generally forbidding the exposure of sexually explicit material to children are overbroad and violate the First Amendment.
We consider here the constitutionality of a pair of Oregon statutes intended to stop child sexual abuse in its early stages. The statutes broadly take aim at practices of “luring” and “grooming” that expose minors to sexually explicit materials in the hopes of lowering their inhibitions against engaging in sexual conduct. The “furnishing” statute, Oregon Revised Statutes §167.054 (“section 054”), criminalizes providing children under the age of thirteen with sexually explicit material. The “luring” statute, §167.057 (“section 057”), criminalizes providing minors under the age of eighteen with visual, verbal, or narrative descriptions of sexual conduct for the purpose of sexually arousing the minor or the furnisher, or inducing the minor to engage in sexual conduct.
Appellants, a broad cross-section of booksellers; non-profit literary, legal, and health organizations; and a concerned grandmother (together, “Powell's Books”), argue that these statutes violate the First Amendment. In particular, Powell's Books claims, among other things, that the statutes are facially overbroad and criminalize a substantial amount of constitutionally protected speech. We agree.
Although the state argues that the statutes may be construed to narrowly focus on the sharing of hardcore pornography or material that is obscene to minors alone, its position is contradicted by the statutory text. Repeated reliance on the legislature's efforts to combat hardcore pornography cannot change the text of the statute. The legislative goal does not match the text of the statutes; the statutes’ undoing is their overbreadth. In their current form, the statutes sweep up a host of material entitled to constitutional protection, ranging from standard sexual education materials to novels for children and young adults by Judy Blume. Despite the legislature's laudable goals, we cannot rewrite the statute to conform to constitutional limitations.
...We address Powell's Books’ overbreadth challenge alone as it suffices to dispose of this case. In examining an overbreadth challenge, we follow a familiar sequential analysis. First, we construe the reach of the statutory provisions....Second, we inquire whether the statute criminalizes a “substantial amount” of expressive activity. Id. at 297. Finally, we consider whether the statute is “readily susceptible” to a limiting construction that would render it constitutional. ...We review de novo the denial of declaratory relief....We review denial of a permanent injunction for an abuse of discretion, but review the underlying determination of the statutes’ constitutionality de novo and the underlying findings of fact for clear error. ...The statutes cannot survive this inquiry. Contrary to the state's position, the statutes reach the distribution of far more material than hardcore pornography or material that is obscene to minors, and they implicate a substantial amount of constitutionally protected speech. In addition, the statutes are not subject to a limiting construction that would make them constitutional. For this reason, we conclude that Oregon Revised Statutes §§167.054 and 167.057 (except the “inducing” prong, which is not at issue here) are unconstitutionally overbroad and must be invalidated.
Thursday, October 14, 2010
A judge has ruled that the plagiarism lawsuit against J.K. Rowling may go forward, but only if the plaintiffs post cash and he indicated he thinks they are unlikely to succeed on the merits. The representatives of the late Adrian Jacobs are suing Ms. Rowling claiming she plagiarized Mr. Jacobs' book "The Adventures of Willy the Wizard."
Flap over an award winning poem, Stem C. The California Institute for Regenerative Medicine (CIRM) awarded this entry by Tyson Anderson a win but withdrew it after complaints that it was "blasphemous" from (among others) the California Family Council. More here from The Scientist. More coverage here from Forbes.
Read Concurring Opinions' Daniel Solove on why libel and privacy suits against the media are declining.
Comments on the Indian Broadcasting Services Regulation Bill 2007 and the News Broadcasting Standards Authority.
As long as corporations have the freedom to engage in political spending - a freedom expanded by the Supreme Court’s recent decision in Citizens United v. FEC - the law will have to provide rules governing how corporations decide to exercise that freedom. This paper, which was written for the Harvard Law Review’s 2010 Supreme Court issue, focuses on what rules should govern public corporations’ decisions to spend corporate funds on politics. Our paper is dedicated to Professor Victor Brudney, who long ago anticipated the significance of corporate law rules for regulating corporate speech.
Under existing corporate-law rules, corporate political speech decisions are subject to the same rules as ordinary business decisions. Consequently, political speech decisions can be made without input from shareholders, a role for independent directors, or detailed disclosure - the safeguards that corporate law rules establish for special corporate decisions. We argue that the interests of directors and executives may significantly diverge from those of shareholders with respect to political speech decisions, and that these decisions may carry special expressive significance from shareholders. Accordingly, we suggest, political speech decisions are fundamentally different from, and should not be subject to the same rules as, ordinary business decisions.
We assess how lawmakers could design special rules that would align corporate political speech decisions with shareholder interests. In particular, we propose the adoption of rules that (i) provide shareholders a role in determining the amount and targets of corporate political spending; (ii) require that political speech decisions be overseen by independent directors; (iii) allow shareholders to opt out of - that is, either tighten or relax - either of these rules; and (iv) mandate disclosure to shareholders of the amounts and beneficiaries of any political spending by the company, either directly or indirectly through intermediaries. We explain how such rules can benefit shareholders. We also explain why such rules are best viewed not as limitations on corporations’ speech rights but rather as a method for determining whether a corporation should be regarded as wishing to engage in political speech. The proposed rules would thus protect, rather than abridge, corporations’ First Amendment rights.
We also discuss an additional objective that decisional rules concerning corporations’ political speech decisions may seek to serve: protecting minority shareholders from forced association with political speech that is supported by the majority of shareholders. We discuss the economic and First Amendment interests of minority shareholders that lawmakers may seek to protect. We suggest that decisional rules addressing political spending opposed by a sufficiently large minority of shareholders are likely to be constitutionally permissible, and we discuss how such rules could be designed by lawmakers.
Download the article from SSRN at the link.
Director Remy Couture faces "moral corruption" charges in a Montreal court for films available on his website RemyFX.com. The filmmaker's trial began October 13 after objections and allegations began arriving that "children [were] being murdered" and other horrors were being perpetrated on screen. Mr. Couture defends his films by saying they are fantasy. He has pled not guilty. "I believe it's a waste of time. A waste of time for me, and for society. It's a waste of money, too. Because I'm not a criminal. I have no record. I'm a special-effects artist. . .I find this a bit of an embarrassment for Quebec, that this time wouldn't be spent on real cases. But they're going ahead," said Mr. Couture.
Wednesday, October 13, 2010
Before every broadcast, the producers of Sunday morning talk shows must answer two basic questions: (1) what views will be represented on our show? and (2) who will present those views? When the topic involves policy and politics and the guest is a Member of Congress – as it often is – the answer to the first question has important implications for what millions of interested viewers learn about what matters in American policy and politics, and the answer to the second question is equally important for what those viewers learn about who matters in American politics.
This article examines how the talk shows answer the second question – the one about who matters. In short, the answer is that in 2009 the talk shows told us (by their selection of congressional guests) that the people who matter are disproportionately white, male, senior, and Republican – disproportionate not just when compared to the American population overall, but also when compared to the population of Congress itself.
Download the article from SSRN at the link.
The Conference of Court Public Information Officers report on new media and the courts finds that more than one-third of state court judges and magistrates responding to a survey use social media profile sites like Facebook, while less than 10 percent of courts as institutions use social media for public outreach and communication. After a year of study and online collaboration, the report reveals a judicial branch that clearly recognizes the importance of understanding new media but is proceeding cautiously with concerns about effects on ethics, court proceedings and the ability to support public understanding of the courts.
The report predicts that in the coming years, courts will re-examine state codes of conduct for judges and judicial employees, model jury instructions, rules on cameras in the courtroom and other areas. It makes other predictions and also recommends further research and specific steps for the judicial community to continue to respond productively to new media.
The project was first suggested at the CCPIO 18th Annual Meeting in August 2009 in St. Paul, Minn. A proposal for pursuing the research was approved by the CCPIO board in September. About 120 judges, journalists, public information officers, court managers and academics participated in sharing ideas and information about new media and the courts on the online social media site Ning.com from November 2009 to August 2010. (See Appendix A for a list of members.) A framework for the research was presented and discussed at a workshop in Columbus, Ohio, in February 2010. A series of discussions was held with students and faculty at the E.W. Scripps School of Journalism in spring 2010. The National Center for State Courts (NCSC) assisted in the development and administration of a national survey of judges, magistrates and court administrators conducted in June 2010.
A draft of the final report was presented to the membership of CCPIO at its 19th Annual Meeting in Atlanta, Aug. 9 to 11, 2010. And the final report was released online and to the media Aug. 26, 2010.
Tuesday, October 12, 2010
Why would anyone prosecute the Danish Cartoons? Even as North Americans and Europeans debated whether the cartoons should have been commissioned by the Jyllands Posten or republished elsewhere, most agreed that prosecutions were totally out of line in a liberal Western state. And, yet, there were prosecutions in both France and Canada. While each prosecution ultimately failed from a legal perspective, both cases also operated on the level of symbolic politics. Here the results were mixed. While the Muslim groups that sued Charlie Hebdo won a partial victory when a French court conceded that the turban cartoon was, standing alone, offensive to Muslims, the Canadian Human Rights prosecution against Ezra Levant ended with the entire system of human rights proceedings on trial. This paper tells the story of these two cases.
Download the paper from SSRN at the link.
FCC Commissioner Statements On the Signing of the Equal Access To Access To 21st Century Communications Act
“The 21st Century Communications and Video Accessibility Act is the most significant disability law in two decades. The law’s provisions were endorsed in the FCC’s National Broadband Plan. They will bring communication laws into the 21st Century, providing people with disabilities access to new broadband technologies and promoting new opportunities for innovation.
“Most importantly, the new law will ensure that people with disabilities are not left behind and can share fully in the economic and social benefits of broadband. The law will enable people with disabilities to participate in our 21st century economy.
“It is thanks to the bipartisan efforts of the legislation’s sponsors Representative Markey and Senator Pryor and the bipartisan commitment of Chairmen Representative Waxman and Senator Rockefeller and ranking members Representative Barton and Senator Hutchison that this update to our nation’s disability laws has become a reality. Subcommittee Chairmen Representative Boucher and Senator Kerry and ranking members Representative Stearns and Senator Ensign are also to be commended for their tireless work.
“The FCC, with the tremendous leadership of longtime advocate Karen Peltz Strauss, looks forward to working with consumer, industry, and government stakeholders as we assume the responsibility of ensuring the effective implementation of this landmark legislation.”
Today, I was very pleased to witness President Obama sign The Equal Access to 21st Century Communications Act. This law will substantially advance an important principle that Congress wove into the fabric of communications policy years ago: That individuals living with disabilities should be able to use the same communications services that are available to all other Americans. This legislation is a strong step toward that reality.
The Americans with Disabilities Act and the Hearing Aid Compatibility Act served to provide people with disabilities access to voice telephony services, but our rapid technological advances demand regulatory adaptation. Today, due to tremendous innovation and investment, Americans are seeking much more than just voice service from their mobile handsets. As this Act recognizes, consumers now expect access to video programming on their mobile phones, net books and other portable devices, and access to VoIP telephone service on their computers. This Act will give the Commission greater statutory authority to adopt rules that will offer people living with disabilities greater access to video programming, and the most advanced voice and data services on the market, irrespective of the communications platform being used to deliver those services. It also gives the Commission authority to reinstate its video description rules and to take measures to ensure people with disabilities have the information they need during times of emergency.
I was also pleased to see that the Act directs the Commission to provide relay service support for the distribution of customer premises equipment to make telecommunications and related services accessible by individuals who are deaf and blind. This is truly landmark legislation on behalf of the deaf and blind community with regard to access to communications services.
I understand that broad consensus among groups representing people living with disabilities and members of our communications industry played a critical role to having Congress consider and pass this legislation as quickly as it did. I commend this effort. This is a terrific example of how industry consensus and collaboration can play such a vital role in speeding much needed services to all Americans.
Monday, October 11, 2010
Skirmish over. The "Deadliest Catch" captains are back, and we presume are planning to go back out to sea. Captains Sig Hansen and Johnathan and Andy Hillstrand had been at odds with the Discovery Network over Discovery's lawsuit against them over another show, the spinoff "Hillstranded." Discovery will abandon that litigation. More here.
Sunday, October 10, 2010
Second thoughts about first thoughts, the differences between print and online, and what remains, here from the NYT opinion pages.
Additionally, one of Howard Kurtz's guests on Reliable Sources today waxed eloquent about the media's problems with getting it right the first time. Diane Dimond says she discovered great inaccuracy in the press's reporting about the famous Salahi "White House dinner crashing" incident while she was doing research for her book, Cirque du Salahi (CreateSpace, 2010), primarily because journalists did not verify the information they were passing on. But she also notes that the Salahis also did not respond to requests from the media for comment, on the advice of lawyers. Ms. Dimond mentions that in a number of recent cases, the mainstream press have gotten "the story" wrong.
Is the urge to get the story first getting in the way of getting the story right? And is pressure from the blogosphere increasing the need to get the story first?