Thursday, March 3, 2011
During trials jurors are increasingly using cell phones and other devices capable of accessing the Internet. Courts are responding by amending court rules to explicitly ban these devices. This Article identifies weaknesses in the arguments against allowing jurors to conduct outside research, including Internet research, during civil trials. This Article reviews the current justifications for prohibiting jurors from accessing outside information during trial and concludes these justifications do not outweigh the need to give jurors the tools necessary for evaluating the issues arising during increasingly complex trials. In particular, a review of the scientific literature on the effects of outside information and pre-trial publicity on jury decision-making shows that some concerns about outside Internet research may be unwarranted. The Article also discusses how the concerns raised by Internet research are similar to the issues involving outside research through traditional print sources such as newspapers, statutes, and encyclopedias.
The full text is not available from SSRN.
Here is the abstract.
Download the article from SSRN at the link.
Wednesday, March 2, 2011
The Supreme Court has ruled, 8-1, that the First Amendment protects speakers on matters of public concern, even at funerals. It also held that in the case of Snyder v. Phelps, Mr. Snyder cannot recover for the tort of intrusion into seclusion because the picketers kept away from the actual funeral proceedings themselves.
The Free Speech Clause of the First Amendment can serve as a defense in state tort suits, including suits for intentional infliction of emotional distress. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50-51. Whether the First Amendment prohibits holding Westboro liable for its speech in this case turns largely on whether that speech is of public or private concern, as determined by all the circumstances of the case.
Shahbaz Bhatti, Pakistan's only Cabinet Minister of the Christian faith, has been assassinated, apparently for backing reform of the country's blasphemy laws. Mr. Bhatti was shot as he was being driven to work this morning. He died at the hospital. More here from BBC News.
A British judge has ruled that the media may attend a hearing in which the father of Steven Neary argues for the right to care for his 20-year-old autistic son. The judge noted that many of the details surrounding the case are already public. Normally, these cases, heard in the Court of Protection, are closed to the public, but the judge said, "Steven's circumstances are already in the public domain to a considerable extent. If the claims made by Mr Neary and the Official Solicitor are made out [win the verdict], the facts deserve to be known to the public. If they are not made out, it may be right for the record to be corrected." However, the judge reserved the possibility of closing the hearing if Mr. Neary showed substantial distress at the media's presence or at the attendant publicity.
No longer confined to isolated corners of the web, cyber hate now enjoys a major presence on popular social media sites. The Facebook group “Kill a Jew Day,” for instance, acquired thousands of friends within days of its formation, while YouTube has hosted videos with names like “How to Kill Beaners,” “Execute the Gays,” and “Murder Muslim Scum.” The mainstreaming of cyber hate has the troubling potential to shape public expectations of online discourse.
Internet intermediaries have the freedom and influence to seize this defining moment in cyber hate’s history. We believe that a thoughtful and nuanced intermediary-based approach to hate speech can foster respectful online discourse without suppressing valuable expression. To this end, we urge intermediaries to help address cyber hate by adopting accessible and transparent policies that educate users about their rights and responsibilities as digital citizens. Intermediaries’ options include challenging hateful speech by responding with counter-speech and empowering community members to enforce norms of digital citizenship.
Download the article from SSRN at the link.
In several states, citizens who videotaped police misconduct and distributed the videos via the Internet recently were arrested for violating state wiretapping statutes. These arrests highlight a clash between two key interests - the public’s desire to hold the officers accountable via exposure and the officers’ desire to keep the information private. The arrests also raise an oft-debated privacy law question: When should something done or said in public nevertheless be legally protected as private?
For decades, the answer has been: "There can be no privacy in that which is already public." However, given recent technological developments (e.g., cell phone cameras and YouTube), some scholars suggest that the law sometimes should restrict the exposure of truthful information shared in public. Like the police who claim to need privacy to do their job, these scholars claim that people need privacy in public in order to feel dignified and to feel comfortable developing new ideas. In their pragmatic balance, these privacy-related needs trump exposure-related benefits.
In this Article, I argue that these scholars have overstated privacy-related harms and understated exposure-related benefits. After documenting and correcting these errors, I show how the proper balance favors exposure over privacy in all but a few special cases. Ultimately, I conclude that the law should continue to protect the mass exposure of truthful yet embarrassing information via the "no privacy in public" rule. Otherwise, we risk sacrificing the many benefits of exposure - including those resulting from exposure of police misconduct - on the altar of a mythical right to obscurity.
Download the paper from SSRN at the link.
Tuesday, March 1, 2011
Germany's defense minister, Karl-Theodor zu Guttenberg, has resigned after holding out for several weeks amid allegations that he plagiarized his doctoral dissertation. Meanwhile, the London School of Economics is looking into charges that Saif Ghaddafi plagiarized his doctoral dissertation.
The President of CBS, Les Moonves, has finally addressed the Charlie Sheen brouhaha. Said Mr. Moonves today in San Francisco at a conference, "I wish he would have worked this hard to promote himself for an Emmy," and that although he did not want the standoff over whether "Two and a Half Men" would return to continue indefinitely, that for right now the hiatus is not a problem. "It is a show that repeats very well. Doing eight [fewer] originals saves us quite a bit of money."
Former Connecticut Senator Christopher Dodd will be the new head of the Motion Picture Association of America (MPAA), succeeding Dan Glickman. Interim head Robert Pisano is likely to remain with the organization.
We just can't seem to get enough of the Charlie Sheen meltdown and its legal and economic consequences. Really, it's become a cottage industry in less than a week. Recall that Mr. Sheen originally said Mr. Lorre's success was all because of Mr. Sheen. Here's more...Warner Brothers says it will pay the crew of TAHM for the "lost episodes" and Charlie says that decision is because of him. Onward: Charlie told ABC it could have an exclusive interview, then drifted off to NBC and CNN. As for Mr. Sheen's wants, apart from returning to work and more recognition...he wanted $3 million an episode if and when the series ramps up again. He then noted to CNN's Piers Morgan that the figure was "negotiable." Further, Mr. Sheen's lawyer Marty Singer has prepared a demand letter; otherwise the plan is to sue CBS for $320 million for "mental anguish." One entertainment lawyer says Mr. Sheen will have a difficult time proving his case based on what has been published in the media. And Mr. Sheen's longtime publicist, Stan Rosenfeld, has quit. After this circus, is Mr. Sheen employable? Opinions differ.
Chuck Lorre, the executive producer of Two and a Half Men, who at first decided to keep fairly quiet about Mr. Sheen's attacks on him, responded in a vanity card published last night after the show "Mike and Molly" aired. (original here).
I understand that I'm under a lot of pressure to respond to certain statements made about me recently. The following are my uncensored thoughts. I hope this will put an end to any further speculation.
I believe that consciousness creates the illusion of individuation, the false feeling of being separate. In other words, I am aware, ergo I am alone. I further believe that this existential misunderstanding is the prime motivating force for the neurotic compulsion to blot out consciousness. This explains the paradox of our culture, which celebrates the ego while simultaneously promoting its evisceration with drugs and alcohol. It also clarifies our deep-seated fear of monolithic, one-minded systems like communism, religious fundamentalism, zombies and invaders from Mars. Each one is a dark echo of an oceanic state of unifying transcendence from which consciousness must, by nature, flee. The Fall from Grace is, in fact, a Sprint from Grace. Or perhaps more accurately, "Screw Grace, I am so outta here!"
Not entirely clear who's "outta here." Mr. Sheen? Mr. Lorre? The show? Or maybe, at this rate, the viewers.
Designer John Galliano, already in trouble over an assault in Paris earlier this week, has now been fired from his post at Christian Dior over remarks he made to some young women outside a Paris cafe in December. The exchange, recorded on a cell phone, including Galliano saying "I love Hitler" and "People like you would be dead. Your mothers, your forefathers, would all be f****** gassed." Here's more from the New York Times.
Julian Assange has filed to trademark his name for purposes of "public speaking" and "entertainment," according to reports. Meanwhile, he is awaiting the outcome of an appeal of a judge's decision that he be extradited to Sweden to face sexual assault charges.
Monday, February 28, 2011
RPost, a U.S. provider of email services, is suing SwissPost in a Zurich court for patent infringement. This is RPost's second lawsuit against the Swiss company, which is publicly owned; last year's lawsuit requested a U.S. court to grant an injunction against SwissPost for patent infringement as well.
Over the past decade, governments at all levels have moved with alacrity to engage with their citizens online, launching thousands of government websites, including blogs, discussion boards, and other online platforms that solicit public participation. When government engages with the public online, however, it raises difficult questions about the limits of the government’s ability to control its own message, to subsidize the speech of others, and to restrict private parties from speaking.
Courts typically apply the First Amendment’s public forum doctrine to answer these questions, but that doctrine is ill-suited to deal with online forums because it has not kept pace with the changes in public discourse in our increasingly networked world. To overcome the public forum doctrine’s shortcomings, courts are looking to the recently minted government speech doctrine to deal with conflicts over speech on government websites. Unlike the public forum doctrine, which is premised on the idea that all citizens have an equal right to speak in the public forum and a right to equal treatment from the government, the government speech doctrine is based on the assumption that government not only can, but must, privilege some viewpoints over others.
The government speech doctrine, however, suffers from a disturbing circularity. The Supreme Court’s current test, which turns on whether the government "effectively controlled" the message being conveyed, simply requires that the government be effective in doing the very things that are the subject of a plaintiff’s First Amendment challenge. Indeed, the more aggressive the government is in controlling speech, the greater will be its entitlement to claim special treatment under the government speech doctrine.
Echoing Justice Souter’s concurrence in Pleasant Grove City v. Summum, I argue that the government speech doctrine should be grounded in meaningful governmental accountability. That is to say, the doctrine should ensure that recipients of government speech have enough information about the government’s expressive activities that they will be capable of holding the government accountable when it overreaches. Fortunately, the government already has access to the tools it needs to be transparent about its expressive activities online. The real question is whether the government has the will to do so and whether the law provides sufficient incentives when that will is lacking.
Download the article from SSRN at the link.