Friday, June 22, 2012
An update on the "Sponsored Stories" settlement, from the New York Times. Changes to the settlement agreement require that Facebook disclose to users that clicking "Like" will allow the company to use their "like"nesses to advertise a product. Users also have a chance to opt out, an action which could cost the company millions in ad revenue.
The New York Times reports on the Supreme Court's Fox v. FCC ruling, issued June 21. Reactions to the ruling from the NYT here, Scotusblog here.
Thursday, June 21, 2012
Christopher S. Yoo, University of Pennsylvania Law School & University of Pennsylvania Annenberg School for Communication, University of Pennsylvania School of Engineering and Applied Science, has published Technologies of Control and the Future of the First Amendment at 53 William & Mary Law Review 747 (2011). Here is the abstract.
The technological context surrounding the Supreme Court’s landmark decision in FCC v. Pacifica Foundation allowed the Court to gloss over the tension between two rather disparate rationales. Those adopting a civil libertarian view of free speech could support the decision on the grounds that viewers’ and listeners’ inability to filter out unwanted speech exposed them to content that they did not wish to see or hear. At the same time, Pacifica also found support from those who more paternalistically regard indecency as low value (if not socially harmful) speech that is unworthy of full First Amendment protection. The arrival of filtering technologies has introduced a wedge between those who supported the constitutionality of indecency regulations out of a desire to enhance individual autonomy and those who wish to restrict speech in order to promote a particular vision of the public good. At the same time, commentators on the political left have begun to question whether continued support for the classic liberal vision of free speech may be interfering with the advancement of progressive values.
This Article offers a qualified defense of the libertarian vision of free speech. Deviating from the civil libertarian view would require a revolution in doctrine and would contradict the postulate of independent moral agency that lies at the heart of liberal theory. Although some suggested institutions for ascertaining the idealized preferences that individuals ought to have could justify allowing the government to override individuals’ actual preferences, such an approach is all-too reminiscent of the Rousseauian notion of being “forced to be free” and has never been accepted by the Supreme Court. Finally, claims that private censorship presents risks commensurate with public censorship fail to address the fact that liberal theory presupposes the existence of a private sphere into which the state cannot intrude, as well as the long tradition recognizing the special dangers associated with the coercive power of the state. Moreover, the rationales upon which the Supreme Court has relied to justify overriding individual preferences in broadcasting and cable have been undermined by technological change.
Download the article from SSRN at the link.
The Supreme Court has handed down its decision in Fox v. FCC, and as we could have expected, its decision is narrow. In a unanimous 8-0 opinion (Justice Sotomayor having recused herself), Justice Kennedy writing for the majority, the Justices held that the FCC's fleeting expletives policy provided no notice to broadcasters. However, the FCC continues to have the authority to regulate indecent speech on the airwaves.
Justice Kennedy wrote in part:
A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required. SeeConnally v. General Constr. Co., 269 U. S. 385, 391 (1926) (“[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law”); Papachristou v.Jacksonville, 405 U. S. 156, 162 (1972) (“Living under a rule of law entails various suppositions, one of which is that ‘[all persons] are entitled to be informed as to what the State commands or forbids’ ” (quoting Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939) (alteration in original))). This requirement of clarity in regulation is essential to the protections provided by the Due Process Clause of the Fifth Amendment. See United States v. Williams, 553 U. S. 285, 304 (2008). It requires the invalidation of laws that are impermissibly vague. A conviction or punishment fails to comply with due process if the statute or regulation under which it is obtained “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” Ibid. As this Court has explained, a regulation is not vague because it may at times be difficult to prove an incriminating fact but rather because it is unclear as to what fact must be proved. See id., at 306.
Even when speech is not at issue, the void for vagueness doctrine addresses at least two connected but discrete due process concerns: first, that regulated parties should know what is required of them so they may act accordingly; second, precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way. See Grayned v. City of Rockford, 408 U. S. 104, 108–109 (1972). When speech is involved, rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech.
These concerns are implicated here because, at the out-set, the broadcasters claim they did not have, and do not have, sufficient notice of what is proscribed. And leaving aside any concerns about facial invalidity, they contend that the lengthy procedural history set forth above shows that the broadcasters did not have fair notice of what was forbidden. Under the 2001 Guidelines in force when the broadcasts occurred, a key consideration was “ ‘whether the material dwell[ed] on or repeat[ed] at length’ ” the offending description or depiction. 613 F. 3d, at 322. In the 2004 Golden Globes Order, issued after the broadcasts, the Commission changed course and held that fleeting expletives could be a statutory violation. Fox I, 556 U. S., at 512. In the challenged orders now under review the Commission applied the new principle promulgated in the Golden Globes Order and determined fleeting expletives and a brief moment of indecency were action-ably indecent. This regulatory history, however, makes it apparent that the Commission policy in place at the time of the broadcasts gave no notice to Fox or ABC that a fleeting expletive or a brief shot of nudity could be actionably indecent; yet Fox and ABC were found to be in violation. The Commission’s lack of notice to Fox and ABC that its interpretation had changed so the fleeting moments of indecency contained in their broadcasts were a violation of §1464 as interpreted and enforced by the agency “fail[ed] to provide a person of ordinary intelligence fair notice of what is prohibited.” Williams, supra, at 304. This would be true with respect to a regulatory change this abrupt on any subject, but it is surely the case when applied to the regulations in question, regulations that touch upon “sensitive areas of basic First Amendment freedoms,” Baggett v. Bullitt, 377 U. S. 360, 372 (1964); see also Reno v. American Civil Liberties Union, 521 U. S. 844, 870–871 (1997) (“The vagueness of [a content-based regulation of speech] raises special First Amendment concerns because of its obvious chilling effect”).
The Government raises two arguments in response, but neither is persuasive. As for the two fleeting expletives, the Government concedes that “Fox did not have reason-able notice at the time of the broadcasts that the Com-mission would consider non-repeated expletives indecent.” Brief for Petitioners 28, n. 3. The Government argues, nonetheless, that Fox “cannot establish unconstitutional vagueness on that basis . . . because the Commission did not impose a sanction where Fox lacked such notice.” Ibid. As the Court observed when the case was here three Terms ago, it is true that the Commission declined to impose any forfeiture on Fox, see 556 U. S., at 513, and in its order the Commission claimed that it would not con-sider the indecent broadcasts either when considering whether to renew stations’ licenses or “in any other context,” 21 FCC Rcd., at 13321, 13326. This “policy of forbearance,” as the Government calls it, does not suffice to make the issue moot. Brief for Petitioners 31. Though the Commission claims it will not consider the prior indecent broadcasts “in any context,” it has the statutory power to take into account “any history of prior offenses” when setting the level of a forfeiture penalty. See 47 U. S. C. §503(b)(2)(E). Just as in the First Amendment context, the due process protection against vague regulations “does not leave [regulated parties] . . . at the mercy ofnoblesse oblige.” United States v. Stevens, 559 U. S. ___, ___ (2010) (slip op., at 18). Given that the Commission found it was “not inequitable to hold Fox responsible for [the 2003 broadcast],” 21 FCC Rcd., at 13314, and that it has the statutory authority to use its finding to increase any future penalties, the Government’s assurance it will elect not to do so is insufficient to remedy the constitutional violation.
In addition, when combined with the legal consequence described above, reputational injury provides further rea-son for granting relief to Fox. Cf. Paul v.Davis, 424 U. S. 693, 708–709 (1976) (explaining that an “alteration of legal status . . . combined with the injury resulting from the defamation” justifies the invocation of procedural safeguards). As respondent CBS points out, findings of wrongdoing can result in harm to a broadcaster’s “reputation with viewers and advertisers.” Brief for Respondent CBS Television Network Affiliates Assn. et al. 17. This observation is hardly surprising given that the challenged orders, which are contained in the permanent Commission record, describe in strongly disapproving terms the indecent material broadcast by Fox, see, e.g., 21 FCCRcd., at 13310–13311, ¶30 (noting the “explicit, graphic, vulgar, and shocking nature of Ms. Richie’s comments”), and Fox’s efforts to protect children from being exposed to it, see id., at 13311, ¶33 (finding Fox had failed to exercise “ ‘reasonable judgment, responsibility, and sensitivity to the public’s needs and tastes to avoid [a] patently offensive broadcas[t]’ ”). Commission sanctions on broadcasters for indecent material are widely publicized. See, e.g.,F. C. C. Fines Fox, N. Y. Times, Feb. 26, 2008, p. E2; F. C. C. Plans Record Fine for CBS, Washington Post, Sept. 24, 2004, p. E1. The challenged orders could have an adverse impact on Fox’s reputation that audiences and advertisers alike are entitled to take into account.
With respect to ABC, the Government with good reason does not argue no sanction was imposed. The fine against ABC and its network affiliates for the seven seconds of nudity was nearly $1.24 million. See Brief for Respondent ABC, Inc., et al. 7 (hereinafter ABC Brief). The Government argues instead that ABC had notice that the scene in NYPD Blue would be considered indecent in light of a 1960 decision where the Commission declared that the “televising of nudes might well raise a serious question of programming contrary to 18 U. S. C. §1464.” Brief for Petitioners 32 (quoting Enbanc Programming Inquiry, 44 FCC 2303, 2307 (internal quotation marks omitted)). This argument does not prevail. An isolated and ambiguous statement from a 1960 Commission decision does not suffice for the fair notice required when the Government intends to impose over a $1 million fine for allegedly impermissible speech. The Commission, furthermore, had released decisions before sanctioning ABC that declined to find isolated and brief moments of nudity actionably indecent. See,e.g., In re Application of WGBH, 69 F. C. C. 2d, at 1251, 1255 (declining to find broadcasts contain- ing nudity to be indecent and emphasizing the difference between repeated and isolated expletives); In re WPBN/WTOM License Subsidiary, Inc., 15 FCC Rcd. 1838, 1840 (2000) (finding full frontal nudity in Schind- ler’s List not indecent). This is not to say, of course, that a graphic scene from Schindler’s List involving nude concentration camp prisoners is the same as the shower scene from NYPD Blue. It does show, however, that the Government can point to nothing that would have given ABC affirmative notice that its broadcast would be considered actionably indecent. It is likewise not sufficient for the Commission to assert, as it did in its order, that though “the depiction [of nudity] here is not as lengthy or repeated” as in some cases, the shower scene nonetheless “does contain more shots or lengthier depictions of nudity” than in other broadcasts found not indecent. 23 FCC Rcd., at 3153. This broad language fails to demonstrate that ABC had fair notice that its broadcast could be found indecent. In fact, a Commission ruling prior to the airing of the NYPD Blue episode had deemed 30 seconds of nude buttocks “very brief” and not actionably indecent in the context of the broadcast. See Letter from Norman Goldstein to David Molina, FCC File No. 97110028 (May 26, 1999), in App. to Brief for Respondent ABC Television Affiliates Assn. et al. 1a; see also Letter from Edythe Wise to Susan Cavin, FCC File No. 91100738 (Aug. 13, 1992), id., at 18a, 19a. In light of this record of agency decisions, and the absence of any notice in the 2001 Guidance that seven seconds of nude buttocks would be found indecent, ABC lacked constitutionally sufficient notice prior to being sanctioned.
The Commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent. Therefore, the Commission’s standards as applied to these broadcasts were vague, and the Commission’s orders must be set aside.
It is necessary to make three observations about the scope of this decision. First, because the Court resolves these cases on fair notice grounds under the Due Process Clause, it need not address the First Amendment implications of the Commission’s indecency policy. It is argued that this Court’s ruling in Pacifica (and the less rigorous standard of scrutiny it provided for the regulation of broadcasters, see 438 U. S. 726) should be overruled because the rationale of that case has been overtaken by technological change and the wide availability of multiple other choices for listeners and viewers. See, e.g., ABC Brief 48–57; Brief for Respondent Fox Television Stations, Inc., et al. 15–26. The Government for its part maintains that when it licenses a conventional broadcast spectrum, the public may assume that the Government has its own interest in setting certain standards. See Brief for Petitioners 40–53. These arguments need not be addressed here. In light of the Court’s holding that the Commission’s policy failed to provide fair notice it is unnecessary to reconsider Pacifica at this time.
This leads to a second observation. Here, the Court rules that Fox and ABC lacked notice at the time of their broadcasts that the material they were broadcasting could be found actionably indecent under then-existing policies. Given this disposition, it is unnecessary for the Court to address the constitutionality of the current indecency policy as expressed in the Golden Globes Order and sub-sequent adjudications. The Court adheres to its normal practice of declining to decide cases not before it. See, e.g., Sweatt v. Painter, 339 U. S. 629, 631 (1950) (“Broader issues have been urged for our consideration, but we adhere to the principle of deciding constitutional ques- tions only in the context of the particular case before the Court”).
Third, this opinion leaves the Commission free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements. And it leaves the courts free to review the current policy or any modified policy in light of its content and application.
Since the Court has refused to reconsider Pacifica, we can expect debate, and litigation, in this area of the law to continue.
Enrico Bonadio, City University London, the City Law School, and Lorraine Neale have published Joint Ownership of Films in the Absence of Express Terms (Slater v Wimmer) in the Journal of Intellectual Property Law & Practice (2012). Here is the abstract.
The Patents County Court in Slater v. Wimmer decided a case regarding a dispute as to ownership of copyright in a film. The Court reaffirmed that under Section 10(1A) of the Copyright Designs and Patents Act 1988 the producer and principal director are considered joint authors of the copyright in a film if they are different persons, and that consequently under Section 11(1) they are first joint owners of the copyright therein. It then held that in the absence of express contractual terms it is unnecessary to imply terms to the contrary. It followed that they require permission from the co-owner to exploit the work.
Download the article from SSRN at the link.
Andrew T. Kenyon, University of Melbourne Law School, Wee Loon Ng-Loy, National University of Singapore Faculty of Law, and Megan Richardson, Melbourne Law School, have published The Law of Reputation and Brands in the Asia Pacific in The Law of Reputation and Brands in the Asia Pacific (Andrew Kenyon, Wee Loon Ng-Loy and Megan Richardson, eds.; Cambridge University Press, 2012). Here is the abstract.
Efforts to expand the scope of legal protection given to reputation and brands in the Asia Pacific region have led to considerable controversy. Written by a variety of experts, the chapters in this book consider the developing law of reputation and brands in a fraught area.
Download the essay from SSRN at the link.
Wednesday, June 20, 2012
John M. Kang, St. Thomas University School of Law, has published Hustler V. Falwell: Worst Case in the History of the World, Maybe the Universe at 12 Nevada Law Review 582 (2012). Here is the abstract.
Should Hustler Magazine, that cesspit of obscene juvenilia and vicious snark, be entitled to publish a horrifically humiliating parody about you?
If you’re a public figure — if you are “intimately involved in the resolution of important public questions or, by reason of [your] fame, shape events in areas of concern to society at large” — then according to the Supreme Court in Hustler Magazine v. Falwell, yes.
Considering the emotional devastation that such a decision can unleash, the Court, one would expect, should have varnished its decision with a splendid justification. But it didn’t; not by a long shot. And while Hustler Magazine v. Falwell probably will not show up on anyone’s radar for the Worst Supreme Court Case Ever, the topic of the symposium for which this essay was composed, there are a couple of reasons for treating it as such.
One, in a startling act of moral indifference, the Hustler Court made public figures appallingly vulnerable to emotional injury, thereby violating basic expectations for moral decency.
Two, the Hustler opinion is, unlike many atrocious court opinions, still good law, and unlike, say, Bush v. Gore, there is no discernible segment of the population that has prudently dismissed the opinion as a sham.
And, three, dreadful though it is to acknowledge, my students have lauded, year after year, the Hustler opinion as eminently sensible and a logical victory for the Enlightenment. Perhaps needlessly sensitive to charges of didacticism, I have been reluctant to disturb my students’ rosy assumptions, but, running low on the resources of patience, and growing crankier with age, I am now eager to reform those assumptions. (I hasten to add, however, that none of what I say is meant to disparage the decision in Hustler, only its opinion, a distinction whose elaboration warrants another essay.)
Download the article from SSRN at the link.
Ashutosh Avinash Bhagwat, University of California, Davis, School of Law, and Matthew Struhar are publishing Justice Kennedy's Free Speech Jurisprudence: A Quantitative and Qualitative Analysis in the
In the almost twenty-five years that Justice Anthony M. Kennedy has served on the United States Supreme Court, he has gained a reputation as being the foremost defender of free speech principles on the modern Court. In this paper, we seek to determine whether Justice Kennedy’s reputation as a defender of free speech principles is justified. To that end, we undertake both a quantitative and qualitative analysis of the Supreme Court’s free speech jurisprudence during the period of Justice Kennedy’s tenure on the Court (i.e., from February 11, 1988 through the present), with a view towards determining whether Justice Kennedy has been more likely to support free-speech rights than the Court as a whole. Our clear conclusion is that as a quantitative matter, Justice Kennedy is in fact substantially more likely to defend free speech claims than the Court as a whole, across a wide range of First Amendment disputes. In addition, an examination of his majority and separate opinions in free speech cases demonstrates that Justice Kennedy has during his tenure made important and lasting contributions to the law of freedom of speech, most of which have expanded rather than contracted First Amendment liberties.
Download the article from SSRN at the link.
Mary-Rose Papandrea, Boston College Law School, has published Social Media, Public School Teachers, and the First Amendment in volume 90 of the North Carolina Law Review (2012). Here is the abstract.
Education officials around the country are grappling with issues surrounding public school teachers’ use of social media. Typically concerned that social media makes it easier for teachers to engage in inappropriate communications with their students, officials have adopted guidelines that prohibit K-12 teachers from using social media to communicate with their students for noncurricular purposes. In addition, teachers are frequently punished for content they or others post on social media even when their students and the school community were not the intended audience. Current doctrine leaves unclear how much authority schools have to restrict their teachers’ use of social media to communicate with their students or to control what teachers post online.
This Article contends that these issues involving social media magnify pre-existing problems with the First Amendment doctrine governing public employees generally and teachers in particular and argues that the doctrine needs significant revisions and clarifications. The Court’s decision under Garcetti v. Ceballos to strip public employees of their First Amendment rights for speech made “as employees” pursuant to their official job duties should be construed narrowly so that it applies only when teachers communicate with their students for school-related purposes. Furthermore, teachers should not have to demonstrate that their speech involves a matter of public concern to be entitled to First Amendment protection. Instead, this Article argues that in cases involving noncurricular speech that relates to the workplace, courts should apply a robust version of the Pickering balancing test that recognizes the value of teacher expression even when it does not involve a matter of public concern and that does not permit a hostile community reaction to figure into the calculus. In cases involving non-school-related expression, this Article contends that courts should abandon the balancing test and instead give the speech presumptive constitutional protection that can be overcome only if school officials can demonstrate a significant nexus between that speech and the teacher’s fitness and ability to perform professional duties.
With the First Amendment doctrine governing public school teachers reformed in this way, broad social media bans that restrict or prohibit a teacher’s use of social media to communicate with students for non-school-related purposes would be unconstitutional, and the ability of school officials to punish teachers for their online expression would not be as virtually unlimited as it currently is.
Tuesday, June 19, 2012
From MSNBC.com's Red Tape Chronicles, a story about a new website from the Consumer Protection Financial Bureau. The website, the Consumer Complaint Database, allows consumers to report their unhappiness with credit card companies. The CPFB verifies whether there is a "relationship" between the consumer and the company.
Says Bureau director Richard Cordray, "(This) is a major milestone for consumers and all those who are interested in knowing more about their day-to-day experiences. We believe this is the first time that the general public has been able to see such individual-level consumer complaint data for financial products and services. … Anyone with access to the web will be able to review and analyze the information, and draw their own conclusions.” More here from CNN Money.
A Los Angeles trial court judge is allowing Jesse Eisenberg's lawsuit for false advertising and infringement of his right of publicity against Lionsgate to proceed. Mr. Eisenberg (The Social Network) has a cameo in the 2007 film Camp Hell, released some three years later. His name appears above the title on the DVD release and he alleges that Lionsgate is using his current fame to encourage sales of the movie. Lionsgate countered via an anti-SLAPP motion that Mr. Eisenberg's lawsuit constituted an attack on its First Amendment rights, and claimed that it was speaking on matters of public interest.
Judge Linda Lefkowitz held that Mr. Eisenberg's complaint is based in the commercial nature of the speech. Here's a link to the ruling, courtesy of the Hollywood Reporter.
Monday, June 18, 2012
The British Parliament has approved a new defamation bill that would codify existing common law privileges and move to eliminate libel tourism. Statutory defences include truth, honest opinion, fair comment, and the Reynolds defense. More here from the BBC. Here's a link to the text of the bill as introduced.