Saturday, February 27, 2010
Friday, February 26, 2010
Tiger Woods apparently thinks PETA's ad urging pet owners to spay and neuter their "little tigers" is no laughing matter. Well, PETA thinks pet population control is a serious issue, too--that's the point of the ad. In any case, the billboard campaign is on hold, now that Mr. Woods' lawyers are involved over ad language that reads "“Too Much Sex Can Be A Bad Thing . . . for little tigers too."
Thursday, February 25, 2010
The Times Higher Education reports that a dispute between two scholars will proceed to trial after one has refused to remove a negative review of the other's book. Dr. Joseph Weiler published a review of Dr. Karin Calvo-Goller's work The Trial Proceedings of the International Criminal Court (Brill, 2006). Dr. Calvo-Goller took exception to the review, written by Dr. Thomas Weigend and requested that it be removed. Dr. Weiler refused. Dr. Calvo-Goller eventually brought the matter before the French courts, and Dr. Weiler is now standing trial for defamation. Here's more from Dr. Weiler.
Robert Dee is suing the Daily Telegraph for labelling him the "World's Worst" tennis player. Mr. Dee says the newspaper's statements suggest "that he unreasonably and unrealistically persists in a career as a professional �tennis player which is an expensive waste of money and doomed to failure". In one article, the Telegraph reported that Mr. Dee lost 54 matches in a row. The player admits that bad run but says that he also had "modest success" at the game over the time period in Spain. His lawyer argues that such a categorization has also unfairly colored his employment prospects as a potential coach.
The newspaper, however, defends its statements and plans to call witnesses such as world tennis names Boris Becker and John Lloyd.
Other papers, including the Guardian, which have commented unfavorably on Mr. Dee's win record have already apologized to him and paid damages.
Read more about the trial here in an article in the Guardian.
Issued last fall, the Chief Justice John G. Roberts “Supreme Court Sluggers” trading card pictured on page 213 above is the first in what should be a very long series of “Sluggers” cards. The first Associate Justice card – of John Paul Stevens – will be out this spring. Others, of the sitting Justices and of their predecessors, will follow in the coming months and years. The Green Bag’s ambitions for this project are simple, if not small: (a) to develop and share comparable measurements of the work of every member of the Supreme Court since 1789; (b) to gradually expand and refine those measurements with an eye to making them as useful and interesting as possible; (c) to create informative, entertaining, and unorthodox yet respectful portraits of the Justices by first-rate artists; and (d) to present all of this material in a way that will be enjoyable for the producers, consumers, and subjects of the “Sluggers” cards. As an introduction to the “Sluggers” project, we offer here short descriptions of what went into the development of the front and back of the Chief Justice Roberts card. The front is a work of art that makes light-hearted connections between its subject and the game of baseball. The back is packed with statistics and sprinkled with quotations drawn from the subject’s judicial work.
Wednesday, February 24, 2010
An Italian court has convicted three Google executives of violating the Italian law of privacy and sentenced them to prison terms (suspended). It acquitted them and a fourth Google executive of violating defamation law. At issue was Google's failure to delete a video of a minor being abused by others; those individuals have since been tracked down and sentenced. Italian prosecutors said the video violated the young person's privacy. Google contends that putting responsibility on the company to monitor uploads by third parties would be overwhelming and says it will appeal. Here's more from the New York Times.
It is an uncontroversial fact of political life that the government sometimes must communicate with the public. For several years, however, the Supreme Court has used this uncontroversial fact as a justification for developing a First Amendment doctrine of government speech. This new doctrine does more than simply recognize the government's authority to speak out on matters of public policy; as envisioned by the Supreme Court, the doctrine also allows the government to silence or coerce the speech of those in the private sector who wish to speak out against the government. In much the same way that private speakers have long been given a First Amendment right to fend off government control of their speech, the government now has been afforded a First Amendment "right" to free speech as well. The question is whether this new "right" is necessary. Both the facts and theory of the Court's new government speech cases suggest that the answer to this question is no. For the most part, the cases in which the Court has resorted to its new government speech doctrine involve situations in which the government's ability to communicate with the public would not have been inhibited in any way if such a doctrine did not exist. The Court has even relied on its new government speech doctrine in several cases in which the government either was communicating ambiguously or not at all. It is a mystery why the government should be allowed to employ a First Amendment "right" to government speech against private speakers when the government has nothing to say. This Article addresses the Court's new government speech doctrine. After reviewing the cases in which the Court develops this doctrine, the Article concludes that these cases do not support the Court's increasingly expansive conception of government speech. These cases indicate instead that all of the legitimate purposes of government speech would be served just as effectively by a much more truncated conception of the government speech doctrine than by the broader version being developed by the Court. The Article concludes by proposing, in the alternative, that the government speech doctrine could be eliminated entirely without harming a single one of the government's legitimate objectives. It may be, in other words, that from a First Amendment perspective, the best government speech doctrine is no doctrine at all.
In the United States, the debate over communications issues as disparate as network neutrality and public broadcasting seems to be carried out in a constitutional vacuum. While an effective response to these issues might call for some affirmative action by the government, the First Amendment is framed as a negative - government shall make “no law” infringing the freedom of speech.
This paper explores the very different system that results from a constitution that is phrased in the affirmative, guaranteeing freedom of the press and broadcasting. The German post-war constitution was built on the ashes of a fascist dictatorship that had misused mass communications; its post-war constitution was structured to make such a catastrophe as unlikely as possible in the future.
Broadcasting in particular was claimed for the project of democracy. In a dozen or so seminal cases from 1961 to the present, the German Constitutional Court has linked the electronic media to “opinion-building” in both the personal and public spheres. As in the United States, the German Court has been vigilant in detecting and forbidding government actions that might chill this process. Unlike the United States, however, the German Court has also seen potential dangers to speech emanating from the private sector, and required German legislators to take affirmative steps to protect speech - the free flow of information and opinion in society - against such dangers. The German Court’s jurisprudence provides a theoretical framework rich in implications for a world where - increasingly, and in different ways - information is power.
Tuesday, February 23, 2010
First reports on the Simon Singh libel case are trickling in. The Lord Chief Justice pronounced himself "baffled" that if the British Chiropractic Association has evidence that chiropractic works the Association simply hasn't produced it. Here's background from The Times and from Dr. Singh himself. American Public Media's Marketplace also has coverage.
The panel hearing the case is eminent: besides the Lord Chief Justice, it consists of Lord Neuberger and Lord Justice Sedley.
Freedom of expression is looking less and less like a settled issue. Challenges to it have lately arisen from the right, from the left, from Muslim perspectives, and even in the name of protecting children online. These challenges seem to share an underlying concern, namely that we must balance free expression against the psychic hurt that some expressions will provoke. Often these critiques are couched in language that draws or appears to draw, on the law and economics movement. Yet the cost-benefit analyses advanced to support restrictions on expression are incomplete, subjective, and self-contradictory.
Several examples help to illustrate this point, including flag-desecration laws, hate-speech laws in the United Kingdom and Canada, U.S. college and university speech codes, the Cairo Declaration on Human Rights in Islam, and the Megan Meier Cyberbullying Prevention Act, currently before the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security. Although seemingly unrelated, these measures rely on a common assumption, namely that governments should provide emotional well-being to their citizens, even at the expense of free expression. This assumption discounts the emotional well-being of other citizens, neglects countervailing social considerations, and hands arbitrary power to governments.
The result is not more happiness, but a race to the bottom, in which aggrieved groups compete endlessly with one another for a slice of government power. Philosopher Robert Nozick once observed that utilitarianism is hard-pressed to banish what he termed utility monsters - that is, individuals who take inordinate satisfaction from acts that displease others. Arguing about who hurt whose feelings worse, and about who needs more soothing than whom, seems designed to discover - or create - utility monsters. We must not allow this to happen.
Instead, liberal governments have traditionally relied on a particular bargain, in which freedom of expression is maintained for all, and in which emotional satisfaction is a private pursuit, not a public guarantee. This bargain can extend equally to all people, and it forms the basis for an enduring and diverse society, one in which differences may be aired without fear of reprisal. Although world cultures increasingly mix with one another, and although our powers of expression are greater than ever before, these are not sound reasons to abandon the liberal bargain. Restrictions on free expression do not make societies happier or more tolerant, but instead make them more fractious and censorious.
Download the essay from SSRN at the link.