May 27, 2011
Defining "Freedom of Speech" Under the First Amendment
Stuart Minor Benjamin, Duke University School of Law, has published Transmitting, Editing, and Communicating: Determining What 'The Freedom of Speech' Encompasses, at 60 Duke Law Journal 1673 (2011). Here is the abstract.
How much can one say with confidence about what constitutes "the freedom of speech" that Congress shall not abridge? In this Article, I address that question in the context of the transmission of speech - specifically, the regulation of Internet access known as net neutrality. This question has implications both for the future of economic regulation, as more and more activity involves the transmission of bits, and for First Amendment interpretation. As for the latter, the question is what a lawyer or judge can conclude without having to choose among competing conceptions of speech. How far can a basic legal toolkit go? Using that toolkit, I find that bare transmission is not speech under the First Amendment, and that most forms of manipulation of bits also would not qualify as speech. Adopting any of the leading conceptions of the First Amendment would narrow the range of activities covered by the First Amendment. But even without choosing among those conceptions we can reach some meaningful conclusions about the limited application of the First Amendment to Internet access providers.
Download the full text from SSRN at the link.
Commercial Speech and Health Policy
Lars Noah, University of Florida College of Law, has published Truth or Consequences?: Commercial Free Speech vs. Public Health Promotion (at the FDA), in volume 21 of Health Matrix (2011). Here is the abstract.
Fundamental tensions obviously exist between constitutional protections of commercial speech and efforts to safeguard the public's health. The First Amendment values autonomy, while public health promotion often reflects paternalistic impulses, not trusting citizens to make sensible lifestyle choices. In other domains where constitutional rights may conflict with public health efforts, the Supreme Court has shown a degree of flexibility. In commercial speech cases, however, it has become far less willing to find a middle ground; the Court's increasingly stringent application of Central Hudson's nexus prongs has effectively narrowed the range of substantial government interests that ultimately can pass muster. This symposium contribution focuses on efforts by the U.S. Food and Drug Administration to restrict the flow of information about medical technologies to physicians and patients. As it happens, the Supreme Court's first and last words on commercial speech protections have involved advertising by professionals who dispense prescription drugs, but the pharmacy compounding case Thompson v. Western States Medical Center, 535 U.S. 357 (2002), has received scant attention from commentators. Only after cutting through the majority's simplistic description of (or perhaps failure to comprehend) the FDA's complex regulatory regime can one appreciate the potentially far-reaching consequences of that decision, especially the Court's sub silentio application of the unconstitutional conditions doctrine in an intermediate scrutiny case. The robust version of commercial free speech doctrine that seems to prevail today could profoundly impinge upon the government's preferred methods for promoting the public's health. Insofar as it has gone beyond simply guarding against the dissemination of false or misleading information and seeks to promote broader public health goals (such as dampening excess demand for potentially hazardous products), the FDA must confront the Court's increasingly clear message that paternalistic speech regulation invariably offends the Constitution.
Download the article from SSRN at the link.
Courtney Love Sued Again For Defamatory Tweets
From the Hollywood Reporter: the law firm Courtney Love hired to represent her in matters concerning her husband's estate is suing her over tweets she made concerning one of the firm's attorneys. It seems that she fired the firm, unhappy with its representation, but then tried to rehire it, it declined, and the unfavorable tweets followed. The lawyer, Rhonda Holmes, says the tweets have injured her business reputation, and presumably her ability to attract clients.
May 26, 2011
Open Access To Scientific Publications
Lucie Guibault, University of Amsterdam Institute for Information Law, has published Owning the Right to Open Up Access to Scientific Publications in Open Content Licensing: From Theory to Practice (L. Guibault and C. Angelopoulos, ed.; Amsterdam University Press, 2011). Here is the abstract.
Whether the researchers themselves, rather than the institution they work for, are at all in a position to implement OA principles actually depends on the initial allocation of rights on their works. Whereas most European Union Member States have legislation that provides that the copyright owner is the natural person who created the work, the copyright laws of a number European countries, including those of the Netherlands and the United Kingdom, establish a presumption, according to which the copyright of works made in the course of employment belongs initially to the employer, which in this case would be the university. In France, a similar presumption applies to works created by employees of the State. Even if researchers are in a position to exercise the rights on their works, they may, nevertheless, be required to transfer these to a publisher in order to get their article or book published. This paper, therefore, analyses the legal position of researchers, research institutions and publishers respectively, and considers what the consequences are for the promotion of OA publishing in light of the principles laid down in the Berlin Declaration and the use of Creative Commons licenses.
Download the text from SSRN at the link.
Anonymity On the Net and the Iranian Uprising
Nassim Nazemi, Northwestern University School of Law, has published DMCA § 512 Safe Harbor for Anonymity Networks Amid a Cyber-Democratic Storm: Lessons from the 2009 Iranian Uprising in volume 106 of the Northwestern University Law Review (2011). Here is the abstract.
In the summer of 2009, the world watched as Iranians took the online services that some of us have come to regard as tools of procrastination - services like Twitter, Facebook, and YouTube - and turned them into the tools of cyber-democratization. The grassroots effort that came to be known as Iran’s Green Movement materialized from a flurry of tweets, status updates, and online videos. And when the Iranian government banned foreign journalists, grainy cell phone footage of peaceful street protests and the government’s brutal response filled the void and kept the world informed. Iconic images like the bloodied, awe-struck face of Neda Agha-Soltan captivated U.S. audiences and turned legions of casual observers into activists.
Download the full text from SSRN at the link.
That "Desperate Housewives" Lawsuit
An article in the Independent on Nicolette Sheridan's lawsuit against the producers of Desperate Housewives over the fate of her character in that show discusses past attempts by actors and viewers to influence the outcomes of plots. Remember that Sir Arthur Conan Doyle had to bring Sherlock Holmes back from the dead, even though he had killed him off in the short story, "The Final Problem." Readers missed the brilliant but annoying detective, and Doyle resurrected him, first in the novel The Hound of the Baskervilles, and then explained Holmes' return in "The Adventure of the Empty House."
May 25, 2011
Judges' and Lawyers' Blogs In China
Anne Sy Cheung, University of Hong Kong Faculty of Law, has published Exercising Freedom of Speech Behind the Great Firewall: A Study of Judges' and Lawyers' Blogs in China at 52 Harvard International Law Journal Online (np) 2011). Here is the abstract.
In order to better understand the relationship between the power of the Internet and the exercise of free speech in China, this study has chosen to examine the blogs of 42 judges and 13 public interest lawyers in the period between January 1, 2007 and December 31, 2008. Both judges and lawyers represent two unique groups of professionals, where the former are often perceived to be government representatives while the latter are seen as guardians of people’s welfare. The focus of the study, therefore, is on an analysis of these two groups of legal elites and how they have made use of their unique roles to open up a professional public sphere on the Internet and to act as a go-between in coordinating a match between the state and the people. Through passing on messages of contention and dissatisfaction from the people to the ruler, and in reminding both of them of the significance of law, the legal and political boundaries set by the authorities are being pushed, challenged, and renegotiated.
Drawing on existing literature on boundary contention and the Chinese cultural norm of fencun (decorum), this study highlights the paradox of how one has to fight within boundaries so as to expand the contours of the latter for one’s ultimate freedom. Judging from the content of the collected postings, one finds that, in various degrees, critical voices can be tolerated. What emerges is a responsive and engaging form of justice which endeavors to address grievances in society, and to resolve them in unique ways both online and offline.
The full text is not available.
Wikileaks and National Security
Kate Kovarovic, American University College of Law, has published When the Nation Springs a [Wiki]Leak: The 'National Security' Attack on Free Speech, at 14 Touro International Law Review 273 (2011).
The WikiLeaks website has dominated global media headlines since June 2010, when it first released a series of documents speaking to national security issues. Since then, WikiLeaks administrators have overseen two further series of document releases, most recently in November 2010. Public condemnation of the website has only grown in this time, and both the website and its administrators have come under intense scrutiny in recent months. However, scholars and politicians have been far too quick to condemn the website for the illegality of its actions, often pushing for prior restraint of the documents under the national security exception to free speech. Although this exception has long been accepted under both domestic and international law, these politicians and scholars have improperly applied the standards of this principle. In more closely examining U.S. legal history relating to the national security exception, it is clear that the WikiLeaks website continues to function within its legal boundaries. This Article details the evolution of the national security exception in both national and international law, and later analyzes this principle in the context of the WikiLeaks releases. The Article then closes by exploring possible methods of inducing greater cooperation between government and media.
Download the article from SSRN at the link.
The FCC and ISP Interconnection Disputes
Rob Frieden, Pennsylvania State University, College of Communications, and Pennsylvania State University, Dickinson School of Law, has published Rationales For and Against FCC Involvement in Resolving Internet Service Provider Interconnection Disputes. Here is the abstract.
Internet Service Providers (“ISPs”) provide end users with access to and from the Internet cloud. In addition to providing the first and last mile carriage of traffic, ISPs secure upstream access to sources of content via other ISPs typically on a paid (transit), or barter (peering) basis. Because a single ISP operates in two separate segments of traffic routing, both the terms and conditions of network interconnection and the degree of marketplace competition can vary greatly. In this double-sided market, ISPs typically have many transit and peering opportunities upstream to content providers, but downstream end users may have a limited choice of ISP options for first and last mile Internet access. Regardless of the scope of retail Internet access competition, consumers generally select only one ISP to handle all traffic requirements.
The variability of competitiveness in the market for upstream and downstream Internet access has motivated some stakeholders to claim that federal government agencies, such as the Federal Communications Commission (“FCC”), should intervene to remedy market failures and existing or potential anticompetitive practices. The so-called Network Neutrality debate has focused largely on the retail, ISP-to-end user link with advocates claiming that ISPs have the ability and incentive to favor affiliates in the delivery of traffic to subscribers.
The Network Neutrality debate occasionally addresses upstream routing discrimination, but the likelihood of anticompetitive practices are tempered by the fact that consumers and retail ISPs have access to a competitive marketplace for long haul carriage of Internet traffic. Notwithstanding such upstream competition, content eventually routes through a single retail ISP to end users. Advocates for regulatory intervention have expressed new concerns that the process used to secure upstream access to content, may suffer from the same sort of discrimination or anticompetitive practices as allegedly has occurred at the retail level.
Recently a long haul ISP, Level Three, sought FCC intervention to resolve a traffic dispute with Comcast. Level Three had contracted with Netflix to serve as a primary Content Delivery Network (“CDN”) distributor of online movies thereby substantially increasing the volume of traffic that Level Three needs retail ISPs like Comcast to deliver to its subscribers. In response to the increase in terminating traffic generated by Level Three, Comcast imposed a surcharge. Level Three objected to it being singled out for a surcharge asserting that Comcast had installed an Internet toll booth for only certain traffic that happens to compete with Comcast’s pay per view cable television service.
Under ordinary circumstances when the volume of traffic between Internet peers changes and becomes unbalanced, the carrier generating more traffic than it receives bears the financial obligation to compensate the terminating carrier. However peering ISPs typically seek to balance out the traffic if possible in lieu of resorting to a monetary settlement. For CDNs that concentrate on the downstream delivery of content, an offsetting upstream flow of traffic may not be available to forestall a surcharge. However in the dispute between Level Three and Comcast, Level Three operates a large transcontinental network that could handle more upstream traffic from Comcast had Comcast elected to offset the Netflix downstream traffic volume.
Level Three appears to want the FCC to resolve the traffic dispute by prohibiting Comcast from imposing a surcharge, on top of the Internet access charges Comcast’s subscribers pay. Comcast frames the issue narrowly as a peering matter between an upstream ISP and the ISP providing last mile termination.
This paper will examine the terms and conditions under which Internet carriers switch and route traffic for each of several links between a source of content, e.g., Netflix, and the delivery of that content to consumers via a retail ISP. The paper concludes that for each networking element commercial terms and conditions apply and that the FCC may lack direct statutory authority to intervene based on its determination that the largely unregulated information service classification applies to much of what constitutes Internet access. Additionally the FCC may appropriately forebear from regulating disputes regarding long haul telecommunications capacity, like that offered by carriers such as Level Three, because sufficient competition favors industry self-regulation. Similarly for peering disputes upstream from a retail ISP the marketplace appears sufficiently competitive for ISPs to pursue remedies free of regulatory intervention.
Despite substantial reasons not to intervene, the FCC nevertheless might have to clarify its understanding of what subscribers of retail ISP services can expect to receive. Under truth in billing and other consumer safeguards the Commission might require ISPs to explain what a subscription guarantees not only in terms of transmission speed and downloading capacity, but also what subscribers can expect their ISPs to do when receiving content requiring downstream termination. The paper concludes that both Netflix customers and retail ISP subscribers expect their service providers to guarantee delivery of movies and all sorts of Internet traffic respectively. For physical delivery of DVDs Netflix must pay the U.S. Postal Service and for delivery of streaming bits Netflix must pay that Level Three. But for Internet traffic involving two or more ISPs, the paper examines whether other retail ISPs providing last mile delivery of content violate their service commitments to subscribers by demanding additional payment from upstream carriers.
Download the paper from SSRN at the link.
May 24, 2011
The Mass Media As a Source of Law In China
Tahirih V. Lee, Florida State University College of Law, has published Media Products as Law: The Mass Media as Enforcers and Sources of Law in China. Here is the abstract.
In the People’s Republic of China (“PRC”), the texts of major national statutes (falu) and regulations (guiding) are published in the primary Chinese Communist Party newspaper, The People’s Daily (Renmin ribao) and on government-run websites. Clearly these publications are “law” in the sense that they are officially enacted as laws, but what about other media transmissions? Print and broadcast media operated by the state also contain reports of official interpretations of the law, and reports about the implementation of law and about matters that are regulated by PRC law. Can these media transmissions also be considered law?
This article attempts to determine whether and how the print and television media in the PRC function as law. I survey law as a subject in mass media in the PRC to determine whether, as a historical and institutional matter, products of PRC media might be considered part of China’s “legal system” or “sources of law.” It is not difficult to make the case that state-run media are part of the legal system of China, particularly when the current apparatus is placed in historical context. It is more of a stretch, however, to argue that media transmissions are authoritative sources of law. Courts in China do not cite them in published opinions, nor do China’s legal experts view them as authoritative in a formal sense. When Chinese law is viewed in its historical and institutional context, however, it becomes clear that media transmissions about law carry a great deal of authoritative weight.
Though no one else has published the argument that connects media to law in this way, the theories of several sociologists provide support for the notion that law achieves its power by the way that it is communicated in society to individuals. Taken together, the ideas of Emile Durkheim, Michel Foucault, Edward Epstein, and Carole Nagengast depict law as something that is broadcast to shape behavior. This view helps to situate law within Chinese society and makes it easier for us to understand the authoritativeness of any type of official communication about law in China.
I use a case study to examine the hypothesis that the mass media in China both enforce the law and provide authoritative sources of law. The study is comprised mainly of a discursive analysis of transmissions of the state-run news agency Xinhua, two major legal newspapers run by branches of the Ministry of Justice, and other official materials. Two random samples of transmissions are used, each of which include popular and internal Party treatises, all of which touch on the regulation of procreation, marriage, divorce, and care of the elderly. The media transmissions in the second sample, which was published eleven to twelve years later, differed from those in the first sample in their greater attention to the attractiveness of the publication’s format. The purpose of both transmissions was to provide both examples of behavior that complied with the law and that transgressed it. Also in both samples, the media transmissions interpreted and amplified the relevant law in ways that signaled the mid-1990s tight control of the PRC central government over “political” matters, and a new sharing of control over “economic” matters by both the PRC central government and local entities officially recognized by the government.
The text is not available from SSRN.
Balancing Commercial Speech and Consumers' Right To Know
Jessie Smith Nibley, University of Pennsylvania Law School, has published Commercial Freedom of Speech vs. Consumers' Right to Know: Milking the First Amendment for All It's Worth. Here is the abstract.
The FDA's antagonism toward mandatory disclosure by food producers of information consumers want has left states to institute their own laws and policies to ensure consumers can make purchasing decisions based on all of the facts they deem important. However, these state laws face First Amendment challenges by food manufacturers who fear that consumers may shun their products if given too much information about certain foods and how they are produced. The First Amendment interests of consumers and food producers are thus at odds and must be balanced. This paper examines the approaches of two Circuits addressing state labeling regimes for recombinant bovine somatotropin (rBST) and concludes that, although rational basis review (rather than intermediate scrutiny under Central Hudson) is the appropriate standard of scrutiny, consumers' right to know satisfies either test and is therefore sufficient to trump food producers' First Amendment right not to disclose information about their products.
Download the paper from SSRN at the link.
May 23, 2011
Geert Wilders Hate Speech Trial To Continue
A Dutch court has ruled against MP Geert Wilders' attorney's attempt to halt his trial, ruling that charges that the court is biased against the defendant are unfounded. Mr. Wilders' lawyer had alleged that a court official had tried to influence a witness and pushed to bring Mr. Wilders to trial. Mr. Wilders faces charges of hate speech directed at Muslims. More here from Dutch News.
Lafayette, They Are Here
From the NYT: The French media are here to cover the Dominique Strauss Kahn trial. Culture shock.
Twitter Vs. the Courts
From the New York Times, a report on how the British use of so-called superinjunctions has collided with social media, in this case Twitter. A British court has granted a soccer player a superinjunction (a very far reaching gag order) but Twitter users have defied it. What result?