Wednesday, November 17, 2010
An attorney’s advice for navigating and, when necessary, challenging the law is essential to American democracy. Yet the constitutional protection afforded to this category of speech is not clear; indeed, some question whether it should be protected at all. While legal ethics scholars have addressed attorney speech in other circumstances, none has focused exclusively on the First Amendment protection for attorney advice, particularly in light of the Supreme Court’s recent attention to the matter. Nor have constitutional law scholars given this issue the attention it deserves, though they acknowledge that it presents an important and unresolved question within First Amendment jurisprudence.
This article is the first to offer a detailed analysis of free speech protection for advice rendered by an attorney. Attention to this topic is especially timely given the Supreme Court’s recent focus on advice bans in statutes that address bankruptcy abuse and antiterrorism. These cases illustrate important considerations regarding two previously unresolved questions in First Amendment jurisprudence: first, whether legal advice is protected under the First Amendment and second, if so, to what extent may the government constitutionally restrict legal advice.
Part I of the article reviews the Court’s recent opinions on the two advice bans, neither of which directly addressed the First Amendment’s application to advice rendered by attorneys, though both offer helpful illustrations of the important concerns at stake when the government legislatively constricts access to legal advice. Part II of the article reframes attorney speech precedent from other contexts and assesses relevant constitutional theory to support the conclusion that attorney advice deserves strong protection. Part III reflects on the circumstances in which an attorney’s advice may be constitutionally constrained, and concludes with a summary of mechanisms preferable to advice bans for addressing concerns about problematic legal advice.
Download the article from SSRN at the link.
This paper explores how changes in the ways in which information is consumed and disseminated by myriad individuals in myriad forms may impact data protection law in Canada. The author uses examples of blogs, Twitter and information maps to illustrate the problems which will inevitably arise when trying to discern which individuals and which information will properly fit into the journalistic purposes exception in Canadian data protection statutes. She suggests that exceptions for the collection, use or disclosure of personal information for journalistic purposes raise vital questions pertaining to the purpose and scope of these exceptions. Recent case law serves to illustrate the difficulties faced by decision-makers in defining the scope of these exceptions, particularly given the need to balance the public right to be informed with individual privacy rights. The author considers the journalistic purposes exceptions in light of the role of journalists by analyzing how reporters’ privilege cases, defamation law (“responsible journalism”) and ethical codes of conduct might affect and inform current Canadian case law. She compares how journalistic purpose exceptions are configured and applied in Australia and the United Kingdom. In the conclusion, the author considers the direction that data protection law in Canada should take. She suggests that a reasonableness test, which attempts to balance the various conflicting interests, should govern decisions on whether information is being provided for a journalistic purpose or for some “other” purpose.
It is time again to rethink defamation law. The law we know today saw its origin in feudal times, expanded to serve as a counterweight to the disruption occasioned by the printing press, and was constitutionalized in the low-participation age of broadcast and print mass media. The journalistic institutions that led the fight for constitutional reform are now in decline while online platforms optimized for high participation, such as blogs, social networks, and discussion forums, are in ascendency. In this age of the networked information economy, reputation occupies a very different role in the social order than it did even twenty years ago.
Using a recent defamation lawsuit filed by the actor Ron Livingston against a user of Wikipedia as a lens through which to examine defamation law's operation in our increasingly networked society, this Article argues that defamation law suffers from significant doctrinal and practical limitations that preclude it from achieving its goal of protecting reputation. Cognizant of these limitations, it offers some guidelines for reforming defamation law, suggesting that existing monetary remedies should be deemphasized while alternative approaches that seek to correct inaccurate information and provide opportunities for contextualization should be pursued.
The Article concludes that we should take as our touchstone that reputation is a societal interest and devise remedies that leverage the power of communities to deal with reputational harm. Although the global communication networks that are the hallmarks of our networked society have brought new reputational challenges, they also provide novel solutions to prevent and ameliorate those harms. One solution is to enlist, through legal and social incentives, the help of online intermediaries such as content hosts and search providers. These intermediaries play a central role in community governance and are often in a position to recognize and respond to reputational harms. By harnessing the power of communities to deter and mitigate reputational harm, we will be better able to balance the protection of reputation with society’s desire to maintain an environment for speech that is conducive to public engagement and vigorous debate.
Tuesday, November 16, 2010
In 2009, Oregon enacted a law allowing employees to opt out of company meetings for the communication of the company’s position on religion or political issues including union representation. The law was immediately challenged as a violation of free speech and as preempted by the National Labor Relations Act. The suit was dismissed on ripeness grounds; and so these issues remain judicially to be addressed. This article argues that the right not to be subjected to captive audition is deeply rooted in the protection of human dignity. It is recognized as much in the laws of Germany, Spain, Japan, Brazil, Argentina, and New Zealand; that is, across a variety of legal families and cultures. Viewed from that perspective, the Oregon law is in no way discordant with an employee’s right of freedom of speech nor preempted by the Labor Act.
Download the article from SSRN at the link.
The Hollywood Reporter is announcing the death of publicist Ronni Chasen early this morning. She was apparently shot and killed while driving in Beverly Hills. She was returning home from attending a movie premiere. More here from THR, here from the Los Angeles Times.
Students often compare their schools unfavorably to prisons, most often in a tone of rueful irony. By contrast, judicial opinions about freedom of speech within government-run institutions compare schools and prisons without irony or even hesitation. This Article considers whether the analogy between school and prison in free speech cases is evidence that the two institutions share a joint mission. At a macro-level, there is an undeniable structural similarity between the constitutional speech rules for schools and prisons. At a micro-level, however, there are subtle but significant differences between the two. The differences arise primarily from the judiciary’s belief that differences exist between the purposes of schools and prisons - although, somewhat ominously, the differences appear even more subtle when comparing schools to jails. Just as judicial beliefs about social reality affect constitutional outcomes, the constitutional rules in turn affect social reality. Courts should be wary of language that equates schools with penal institutions, lest the analogy become a self-fulfilling prophecy.
Download the article from SSRN at the link.
From Eric P. Robinson, Esq., Deputy Director, Donald W. Reynolds National Center for the Courts and Media
CALL FOR PAPERS
With the support of the Donald W. Reynolds Foundation, the Donald W. Reynolds Center for Courts and Media, based at National Judicial College and the Donald W. Reynolds School of Journalism at the University of Nevada, Reno, is pleased to announce the creation of the
Reynolds Courts and Media Law Journal
We will begin publishing in 2011, and are seeking legal and scholarly articles on the interaction of the courts and the media, and the impact and implications of this interaction. Examples of possible article topics include, but are not limited to:
* Media access to court proceedings (including cameras, new media in the courtroom)
* Conflicts between First Amendment and Sixth Amendment principles and values
* Impact of social and new media on court proceedings
* Process and implications of online access to court records and proceedings
* Analysis of specific examples and cases of court-media conflict situations
Judges, attorneys, journalists and professors are invited to submit (via e-mail) ideas, proposals or drafts for articles of up to 30,000 words (including text and footnotes). The journal will be published in print and online.
Electronic submissions in Microsoft Word format strongly preferred. Association of Legal Writing Directors (ALWD) or Blue Book legal citation format is preferred; other social science citation formats are also accepted, but citations must be in footnotes, not endnotes or parentheticals.
Submissions, ideas and questions should be sent to firstname.lastname@example.org.
Under the National Labor Relations Act, as interpreted by the courts and the National Labor Relations Board (Board) over the last sixty years, employers have been permitted to give captive audience speeches at work to employees contemplating unionization. Employees must attend such meetings, cannot question the employer representative, and may not have the union come to the workplace to present opposing views. Not surprisingly, these speeches are one of the most effective anti-union weapons that employers currently have in their arsenal. Now that the Board has both a quorum and a sizable Democratic majority, this Essay considers if, and how, the Obama Board might limit the rights of employers to engage in captive audience speeches during union organizational campaigns.
If the issue arises in a representation election case, the Board might expand the Peerless Plywood doctrine to prohibit captive audience speeches for a longer period of time before an election. On the other hand, If a union raises the captive audience speech issue in a case alleging a Section 8(a)(1) unfair labor practice, the Board might reexamine its precedent under Section 8(c) and consider when exactly employer captive audience speech tactics become coercive under Exchange Parts and Gissel. This approach would require a more searching inquiry into the content of the speech. It might also lead the Board to adopt a presumption of employer coercion where employees are unable to leave such a meeting or ask questions of the employer’s speaker. An employer would be able to rebut such a presumption under a modified form of the Struksnes polling standards that would make clear the purpose of such meetings and assure employees against retaliation for not adhering to the employer’s anti-union message.
Download the article from SSRN at the link.
This article argues that the courts should deny qualified immunity to public college and university officials who are sued in their personal capacity for violating a student’s First Amendment right to freedom of speech. Qualified immunity shields public officials from personal liability under 42 U.S.C. § 1983 for the violation of a federal constitutional or statutory right insofar as the right in question is not “clearly established” by the law.
The article argues that the expressive rights of students at public colleges and universities are clearly established for purposes of qualified immunity, and that, therefore, courts should reject qualified immunity for two broad categories of First Amendment violations on campus: the enactment of facially unconstitutional speech codes, which chill campus dialogue and the free exchange of ideas by their very existence, and the censorship and punishment of particular instances of constitutionally protected student speech and expressive activity.
The article argues that student plaintiffs would then be able to use Section 1983 suits to vindicate their right to freedom of speech by pursuing monetary damages from individual administrators. Faced with the prospect of paying damages out of their own pockets, administrators would be forced to rethink their policies and practices toward student expression and would be more likely to respect student speech rights, thus allowing a true “marketplace of ideas” to flourish on campus.
The Free Press Clause enjoys less practical significance than almost any other constitutional provision. While recognizing the structural and expressive importance of a free press, the Supreme Court has never recognized explicitly any right or protection as emanating solely from the Press Clause. Recently in the Court’s Citizens United decision, Justices Stevens and Scalia reignited the 30-year-old debate over whether the Press Clause has any function separate from the Speech Clause.
The primary roadblock to recognizing independent meaning in the Press Clause is the definitional problem - who or what is the “press”? Others have attempted to define the press, but the ubiquitous instinct toward constitutional overprotection has resulted in overly broad definitions that include potentially everyone. These over-inclusive definitions have failed because they attempt to transfer our constitutionally overprotective approach to the Speech Clause to the Press Clause. The net result has been, ironically, fewer constitutional press rights rather than more.
This article attempts to break that cycle by arguing that the way to give long-overdue meaning to this important piece of constitutional text is to embrace press exceptionalism through a narrow definition of the “press.” By adopting an overly protective approach to the Press Clause we have been sucked into a constitutional feedback loop - an expansive definition of the press means virtually complete overlap between press and speech and thus no meaningful way to interpret the Press Clause. Awakening the Press Clause, therefore, requires a definition of the press that is sufficiently narrow. This article furthermore submits that the definitional problem is manageable because line-drawing perfectionism is not required thanks to the fallback protections of the Speech Clause.
Download the article from SSRN at the link.
Monday, November 15, 2010
From the Hollywood Reporter: Brownmark Films, creators of the popular video "What What (In the Butt)" which has received more than 33 million hits on YouTube, is suing Paramount, South Park Digital Studios, Comedy Partners, MTV, and Viacom over South Park's parody of the video in its episode "Canada on Strike." THR notes that the case may turn on whether South Park's use is fair use, and interpretive enough, or whether it is too close to the Brownmark Films original. THR offers both versions, and as lagniappe, a Don Draper version. Here's a link to a discussion of the issue with the creators of the original video.
The Azerbaijani government has not yet released reporter Eynulla Fatullayev, despite a European Court of Human Rights ruling that it had wrongly charged and imprisoned him. Among the NGOs criticizing the Azerbaijanis is Human Rights Watch, which has released a report on Mr. Fatullayev's treatment.
FCC Media Bureau Finds That Time Warner Cable Subject To Effective Competition In Six Communities in New York State
The FCC Media Bureau has found that Time Warner Cable is subject to "effective competition" in six communities in New York (Chili, Churchville, Clarkson, Gates, Hamlin, and Henrietta). According to FCC regulations, only cable companies that are not subject to effective competition may be regulated. In its ruling, the agency held that under its two part test,
Turning to the first prong of this test, it is undisputed that the Communities are “served by” both DBS providers, DIRECTV and DISH, and that these two MVPD providers are unaffiliated with Petitioner or with each other. A franchise area is considered “served by” an MVPD if that MVPD’s service is both technically and actually available in the franchise area. DBS service is presumed to be technically available due to its nationwide satellite footprint, and presumed to be actually available if households in the franchise area are made reasonably aware of the service's availability. The Commission has held that a party may use evidence of penetration rates in the franchise area (the second prong of the competing provider test discussed below) coupled with the ubiquity of DBS services to show that consumers are reasonably aware of the availability of DBS service. The “comparable programming” element is met if a competing MVPD provider offers at least 12 channels of video programming, including at least one channel of nonbroadcast service programming and is supported in this petition with citations to the channel lineups for both DIRECTV and DISH. Also undisputed is Petitioner’s assertion that both DIRECTV and DISH offer service to at least “50 percent” of the households in the Communities because of their national satellite footprint. Accordingly, we find that the first prong of the competing provider test is satisfied.
The second prong of the competing provider test requires that the number of households subscribing to MVPDs, other than the largest MVPD, exceeds 15 percent of the households in a franchise area. Petitioner asserts that it is the largest MVPD in the Communities. Petitioner sought to determine the competing provider penetration in the Communities by purchasing a subscriber tracking report from the Satellite Broadcasting and Communications Association that identified the number of subscribers attributable to the DBS providers within the Communities on a zip code plus four basis.
Based upon the aggregate DBS subscriber penetration levels that were calculated using Census 2000 household data, as reflected in Attachment A, we find that Petitioner has demonstrated that the number of households subscribing to programming services offered by MVPDs, other than the largest MVPD, exceeds 15 percent of the households in the Communities. Therefore, the second prong of the competing provider test is satisfied for each of the Communities.
In January 2010, the Supreme Court in Citizens United v. Federal Election Commission overturned Austin v. Michigan Chamber of Commerce and the portion of McConnell v. Federal Election Commission that restricted independent corporate expenditures, as codified in section 203 of the Bipartisan Campaign Reform Act. Specifically, Citizens United invalidated laws forbidding corporations and unions from using general treasury funds for “electioneering communication,” political advocacy transmitted by broadcast, cable, or satellite communication in the period leading up to a federal election. The effect of Citizens United was to protect the right of corporations, no less than individual American citizens, to fund and distribute political advocacy. The Citizens United holding is controversial for many reasons, not the least of which is that it takes a hard-line approach that unapologetically privileges speech, even while tacitly acknowledging the potential for negative effects. This Article challenges the Citizens United decision on several grounds. First, I dispute the majority’s claim that corporate spending does not result in “corruption.” Second, I assert that the potential for corruption poses a real and serious threat to democratic elections and that preventing this corruption is therefore a vital governmental interest justifying restraints on “speech.” Finally, I adopt the majority’s free speech priority and propose that even if the First Amendment is the only legitimate consideration, corporate spending is harmful because it chills speech in a manner not contemplated by the Court.
Download the article from SSRN at the link.
This Article will detail how the UK has responded to the greater risks posed by illegal online content by successively extending the reach of the substantive criminal laws and by taking preventative measures. It will focus on the example of laws on obscene content on the internet and associated online behaviour and in particular on the 'grooming' offences, the law on extreme pornography and virtual child abuse images. An assessment of these offences against the 'harm principle' is made and while the internet's role in facilitating such offences is acknowledged, the article argues that in some respect the legislation has overshot the mark.
Download the paper from SSRN at the link.
Sunday, November 14, 2010
From the New York Times Sunday Magazine (Nov. 14, 2010), a piece on Alberto Gonzalez, cyberheister extraordinaire. He helped the federal government, and then he didn't. Said his sentencing judge, "What I found most devastating was the fact that you two-timed the government agency that you were cooperating with, and you were essentially like a double agent.”
Will legislators be concerned about what these kinds of studies seem to reveal? Neuroscience researchers say they are analyzing brain responses to more sophisticated marketing techniques, the "latest incarnation," says one scholar, of attempts to influence consumers to purchase.