Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, April 13, 2012

UK TV FIrst: STV To Film Sentencing

STV will be allowed into the courtroom to film the sentencing of David Gilroy for the murder of Suzanne Pilroy on April 18. The camera-in-the-courtroom event will be a first for UK TV, and is authorized by Lord Judge and Lord President Lord Hamilton, the senior judge who presides over Scotland's judiciary. STV will be the pool camera for the UK networks. Mr. Gilroy was found guilty last month.

April 13, 2012 | Permalink | TrackBack (0)

Thursday, April 12, 2012

Federal Judge Nixes Colorado Tax Statute Because of Reporting Requirements

A U. S. District Court Judge has ruled that a Colorado statute enacted in 2010 intended to encourage out of state sellers to tell their customers that they owe in state sales tax is unconstitutional because "the veil provided by the words of the act and the regulations is too thin to support the conclusion that the act and the regulations regulate in-state and out-of-state retailers even-handedly." The online retailer Amazon and other sellers had opposed the law. Other states which have similar laws include California and New York. Because Amazon has been so outspoken about this kind of tax statute, it has been dubbed the "Amazon tax" law.

April 12, 2012 | Permalink | TrackBack (0)

An ECJ Decision on the Meaning of "Communication To the Public"

Enrico Bonadio, City University London, the City Law School, and Mauro Santo, M&R Europe, Intellectual Property Legal Advisors, Milan, have published 'Communication to the Public' in FAPL v QC Leisure and Murphy v Media Protection Services (C-403/08 and C-429/08) at European Intellectual Property Review (4) 277 (2012). Here is the abstract.

On 4 October 2011 the Court of Justice of the European Union released its decision in FAPL v QC Leisure and Murphy v Media Protection Services (Joined Cases C-403/08 and C-429/08). Amongst the many aspects dealt with, the Court gave its interpretation of ‘communication to the public’ under Article 3(1) of the Info Society Directive and concluded that the showing of live Premier League matches in pubs does amount to such communication.

Download the article from SSRN at the link. Here is a link to the case discussed.

April 12, 2012 | Permalink | TrackBack (0)

Wednesday, April 11, 2012

All Together Now...

The Society of Professional Journalists (well, some of its members) and students from Columbia's Journalism School perform the SPJ's Code of Ethics (with artistic license) set to music

April 11, 2012 | Permalink | TrackBack (0)

Tuesday, April 10, 2012

The First Amendment and Holder v. Humanitarian Law Project

David Cole, Georgetown University Law Center, has published The First Amendment’s Borders: The Place of Holder v. Humanitarian Law Project in First Amendment Doctrine, at 6 Harvard Law & Policy Review 148 (2012). Here is the abstract.

In Holder v. Humanitarian Law Project, the Supreme Court’s first decision pitting First Amendment rights against national security interests since the terrorist attacks of September 11, 2001, the Court appears to have radically departed from some of the First Amendment’s most basic principles, including the maxims that speech may not be penalized because of its viewpoint, that even speech advocating crime deserves protection until it constitutes incitement, and that political association is constitutionally protected absent specific intent to further a group’s illegal ends. These principles lie at the core of our political and democratic freedoms, yet Humanitarian Law Project seems to contravene all three. This article assesses the place of Humanitarian Law Project in First Amendment jurisprudence. It argues that the decision departs so dramatically from precedent that it was wrongly decided. But it also maintains that if the decision is to do least damage to First Amendment freedoms going forward, and if it is to be construed as far as possible in harmony with its precedents, three limiting features of the decision are essential to understanding its rationale. 

At issue in Humanitarian Law Project was whether the government could make it a crime to engage in speech advocating only lawful, peaceful activity, when done in coordination with or for a foreign organization labeled “terrorist.” In Humanitarian Law Project, the Court properly ruled that the government may prohibit speech advocating lawful, peaceful activity based on its content only where it can satisfy the demanding standard that governs when laws prohibit speech on the basis of its content. But the Court’s application of that scrutiny bore no resemblance to any other speech case in the modern era and employed reasoning and reached results that are sharply inconsistent with substantial precedent. Where it had previously protected even direct advocacy of crime, it now denied protection to advocacy of peace and human rights. Where it had previously held that strict scrutiny placed a heavy burden on the government to demonstrate with concrete evidence that its specific speech prohibitions were necessary to further a compelling end, here it sua sponte advanced arguments that the government never made; said no evidence was necessary to support its speculations; and deferred to a legislative finding and an executive affidavit that did not even address the necessity of prohibiting speech, and were not based on any actual evidence. Where it had previously ruled that a desire to suppress particular viewpoints was enough to render a law presumptively invalid, here it took the government’s viewpoint-based motive in suppressing messages of legitimacy as a reason to uphold, not to strike down, the law. And where it had previously protected the right to associate with groups having both lawful and unlawful ends, and recognized that the right included the freedom to act in concert with one’s associates, in Humanitarian Law Project it reduced the right to an empty formalism. 

Such dramatic departures from precedent suggest that the decision was wrongly decided. But until it is overturned, we must live with it. And that puts a premium on considering whether its rationale can be limited. The Court itself offered three possible avenues of limitation, but offered no explanation for why those avenues were doctrinally significant. None of the three distinguishing features the Court identified is sufficient to reconcile the result with First Amendment precedent. But if the case is to be harmonized as much as possible with precedent, its application should be limited to situations in which all three of the factors identified by the Court are present - namely, when the government is prohibiting only speech coordinated with or directed to foreign organizations that have been subjected to diplomatic sanctions for compelling national security reasons. Short of outright reversal, such a reading provides the most persuasive ground for restricting the damage Humanitarian Law Project does to First Amendment doctrine.

Download the article from SSRN at the link.


April 10, 2012 | Permalink | TrackBack (0)