Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, April 26, 2013

A Theory of Google Speech

James Grimmelmann, New York Law School, is publishing Speech Engines, in the Minnesota Law Review (Forthcoming). Here is the abstract.

Academic and regulatory debates about Google are dominated by two opposing theories of
what search engines are and how law should treat them. Some describe search
engines as passive, neutral conduits for websites’ speech; others describe them
as active, opinionated editors: speakers in their own right. The conduit and
editor theories give dramatically different policy prescriptions in areas
ranging from antitrust to copyright. But they both systematically discount
search users’ agency, regarding users merely as passive audiences.

A better theory is that search engines are not primarily conduits or editors,
but advisors. They help users achieve their diverse and individualized
information goals by sorting through the unimaginable scale and chaos of the
Internet. Search users are active listeners, affirmatively seeking out the
speech they wish to receive. Search engine law can help them by ensuring two
things: access to high-quality search engines, and loyalty from those search

The advisor theory yields fresh insights into long-running disputes about
Google. It suggests, for example, a new approach to deciding when Google should
be liable for giving a website the “wrong” ranking. Users’ goals are too
subjective for there to be an absolute standard of correct and incorrect
rankings; different search engines necessarily assess relevance differently.
But users are also entitled to complain when a search engine deliberately
misleads them about its own relevance assessments. The result is a sensible,
workable compromise between the conduit and editor theories.

Download the full text of the article from SSRN at the link.

April 26, 2013 | Permalink | TrackBack (0)

The Press Clause and Civil Discourse

Akilah N. Folami, Hofstra University School of Law, has published Using the Press Clause to Amplify Civic Discourse Beyond Mere Opinion Sharing, at 85 Temple University Law Review 269 (2013). The abstract follows.


The First Amendment unambiguously proclaims that “Congress shall make no law . . . abridging the freedom of speech, or of the press.” The First Amendment’s Speech Clause primarily bears the deliberative weight of protecting and maintaining the discursive space of America’s self-governing democracy. It has done so by indiscriminately protecting a broad array of expression from government intrusion. As a result, the Speech Clause has democratically legitimized such expression in America’s civic discourse. This legitimization is essential to a more deliberative democracy. The Speech Clause’s legitimizing function, however, has not helped to advance another essential element for a well-functioning deliberative democracy, namely, democratic competence. Instead, it has hurt it. Democratic competence relates to the cognitive empowerment of citizens within civic discourse and requires, at a minimum, deliberation-enhancing end-products and exchanges, grounded in factual truth and disclosure of corporate or government sponsorship when applicable. The protective scope of the Speech Clause has ironically contributed to the current floodgates in American civic discourse of the opposite—unsubstantiated commentary, rumor, and manipulative spin. Developments in technology, citizen journalism, and online blogging have exacerbated this cacophony and discourage the production of deliberation-enhancing end-products and exchanges. This Article turns to the Press Clause to advance democratic competence and to in turn amplify civic discourse beyond mere opinion sharing. It aims to do so by incentivizing the production and dissemination of deliberation-enhancing endproducts. In so doing, this Article proposes a new justification for the Press Clause, whose justification has long been the source of controversy and debate, and provides a reinvigorated way of looking at that Clause and its utility within the larger constitutional structure. This Article’s proposal leaves intact the Speech Clause’s expansive reach and legitimizing function, while proposing an alternate basis of constitutional protection for a narrower category of speech—deliberation-enhancing end-products. Moreover, using the Press Clause in this manner provides a constitutional framework through which exclusive privileges may be awarded to anyone who produces these qualifying end-products. These privileges can therefore be made available to others besides members of the traditional news media who are currently the primary beneficiaries of such privileges. Civic discourse can, as a result, be opened up without sacrificing the long-acknowledged value of deliberation enhancing end-products to civic discourse.

Neither the abstract nor the full text is currently available on SSRN.

April 26, 2013 | Permalink | TrackBack (0)

Limiting Student Speech On Campus

Steve Varel, Northern Illinois University College of Law, is publishing Limits on School Disciplinary Authority over Online Student Speech in volume 33 of the Northern Illinois University Law Review (2013). Here is the abstract.

When, if ever, can a public secondary school in the United States legally discipline a student for the content of a personal website, a Facebook post, a text message, or an email that the student created or transmitted from an off-campus location? The U.S. Supreme Court has never addressed the issue, and the lower courts have split on it, providing a number of different answers to the question. In answering this question, this Comment distinguishes between two kinds of off-campus internet speech: (1) threats or incitements to violence that are never protected by the First Amendment in any context (“true threats”), and (2) other kinds of speech that the First Amendment would protect if the speaker were an adult in a public forum. This Comment argues that there should be limits on school disciplinary authority over both of these kinds of speech. Threats or incitements to violence serious enough to fall outside the scope of constitutional protection may always subject a speaker to criminal punishment. Therefore, this Comment argues that students should not additionally be subject to school discipline for such unprotected speech unless the speech has some connection (a “sufficient nexus”) to the school. This rule has the advantage of allowing schools to discipline students for threats related to the school while also preventing school authority from a limitless extension into matters so unrelated to the school that they should only be handled by authorities. In contrast to its position on unprotected “true threats,” this Comment argues that schools should never be allowed to discipline students for off-campus internet speech that would be protected by the First Amendment if it occurred outside the school context. In cases involving speech that occurred at school, the U.S. Supreme Court has stated, in Tinker v. Des Moines Independent Community School District and its progeny, that schools may discipline students for speech that causes “substantial disruption” to school activities. But this Comment argues that, since Tinker and its progeny were designed specifically for the school setting, the school speech rules articulated in Tinker and its progeny should never be applied to off-campus speech. Although others have made that argument, this Comment goes further by attempting to clearly define when speech occurs on campus and when it occurs off campus. It argues that speech that is originally created or transmitted off campus may only be considered on-campus speech if it is intentionally (re)communicated by the student while he or she is on campus. It further argues that the Spence v. Washington test for communicative conduct should be used to decide if internet speech was intentionally communicated on campus. This Comment concludes with a discussion of how the rule it proposes should apply in specific situations that schools are likely to face in the future.

Download the full text of the article from SSRN at the link.

April 26, 2013 | Permalink | TrackBack (0)

Thursday, April 25, 2013

Tobacco Warning Labels and the First Amendment

David Daniel Coyle, Emory University School of Law, has published Smoke and Mirrors: First Amendment Protection of Commercial Speech and the FDA's New Graphic Warning Labels for Tobacco. Here is the abstract.

In response to harms caused to public health by tobacco consumption, Congress passed the Family Smoking Prevention and Control Act. This Act required the FDA to issue regulations requiring that graphic warning labels be put on tobacco products and advertisements to accompany the already existing textual warnings. Several tobacco companies challenged the graphic warning label requirement as a First Amendment violation of their commercial speech rights. The Sixth Circuit in Discount Tobacco City & Lottery, Inc. v. United States, upheld the graphic warning label requirement, while the D.C. Circuit in R.J. Reynolds Tobacco Co. v. FDA, struck down the graphic warning labels as violations of the First Amendment.

This article explores the graphic warning labels in the context of the Supreme Court’s commercial speech, First Amendment precedents. This article questions the current commercial speech framework embodied by the tests laid down in Zauderer v. Office of Disciplinary Counsel of Supreme Court and Central Hudson Gas & Electric Corp. v. Public Service Commission, and ultimately suggests a new, more optimal framework. The new framework developed in this paper would apply strict scrutiny to government regulations restricting commercial speech, while applying a rational basis review to government regulations that compel truthful commercial disclosures so long as an information gap exists. Finally, this article contributes to the body of law and academic literature addressing commercial speech by arguing that the graphic warning labels should be upheld not only under Zauderer and Central Hudson, but also under the more optimal framework developed in this article.

Download the full text of the paper from SSRN at the link.


April 25, 2013 | Permalink | TrackBack (0)

Cameras In the Courtroom and Their Public Value

Cristina Carmody Tilley, Northwestern University School of Law, is publishing I Am a Camera: Scrutinizing the Assumption that Cameras in the Courtroom Furnish Public Value by Operating as a Proxy for the Public in the University of Pennsylvania Journal of Constitutional Law (forthcoming). Here is the abstract.

The debate over cameras in the courtroom has focused almost exclusively on the fair trial cost that may be imposed when cameras film proceedings. Far less attention has been paid to the benefit side of the ledger; that is, whether cameras are effective in realizing any of the public values identified by the Supreme Court as the justifications for public access to court proceedings. Camera proponents and policymakers tend to assume that cameras are beneficial because they allow the public to follow proceedings they could not otherwise attend. That assumption rests on the notion that the broadcast press is a proxy for the public. But communications studies literature suggests that the proxy is a myth. Research indicates that television news reports featuring live footage actually inhibit viewer recall and comprehension of the event being covered. If the broadcast press is not a proxy for the public, it is unclear whether cameras in the courtroom furnish public value. In fact, policies promulgated in reliance on that proxy may be unsound. The Article concludes that policymakers considering camera access rules would benefit from empirical assessment of the likelihood that cameras will furnish public value in order to conduct a thorough cost-benefit analysis of the issue.

Download the full text of the article from SSRN at the link.

April 25, 2013 | Permalink | TrackBack (0)

Copyright, the First Amendment, and Use of News Footage In Political Campaigns

Deidre A. Keller, Ohio Northern University College of Law, is publishing 'What He Said...': The Transformative Potential of the Use of Copyrighted Content in Political Campaigns, or, How a Win for Mitt Romney Might Have Been a Victory for Free Speech, in volume 16 of the Vanderbilt Journal of Entertainment and Technology Law (2013). Here is the abstract.

In January 2012 Mitt Romney’s campaign received a cease and desist letter from NBC charging that use of news footage casting opponent Newt Gingrich in a negative light constituted a copyright violation, violation of the right of publicity of the news anchor (Tom Brokaw), and false endorsement under the Lanham Act. This is just latest such charge and came amidst similar allegations against Gingrich and Bachmann during the primary season and in the wake of similar allegations against both the McCain and Obama campaigns in 2008. In fact, such allegations have plagued political campaigns as far back as Reagan’s in 1984. 

The existing literature considering such allegations in the context of political campaigns is almost entirely devoid of a consideration of the uses in question as political speech, protected by the First Amendment. Rather, scholars tend to consider only whether such uses constitute fair use. Courts have considered this question very rarely and tend to limit their consideration to the fair use issue as well. Because these cases rarely progress to decisions, there is little to be said of the way courts handle these issues but much to be said about the way courts ought to. This piece endeavors to engage in the thought experiment of laying out the analysis a court ought to engage in in the case that will never be concerning the Romney/NBC dispute. Ultimately, the piece will argue that in these circumstances, where the copyrighted content is marshaled in advancing a political message, copyright ought to yield to the First Amendment despite prior jurisprudence indicating that copyright infringement cases are largely exempt from First Amendment scrutiny.

Download the full text of the article from SSRN at the link.

April 25, 2013 | Permalink | TrackBack (0)

Wednesday, April 24, 2013

Trademarking After the Marathon Bombings

The phrase "Boston Strong" is so popular that the U.S. Patent and Trademark Office has already received two different applications to trademark it. However, trademark lawyers suggest that the USPTO may not grant such an application. The phrase is geographically descriptive (it contains a city name) and it doesn't refer to a particular brand. More here from the National Law Journal. 

April 24, 2013 | Permalink | TrackBack (0)

Tuesday, April 23, 2013

The Free Press at the Polls

Trong Le, University of Iowa College of Law, has published The Press’s Right of Access to Polling Places: Does Democracy Die Ten Feet Behind Closed Doors? Here is the abstract.

The Third Circuit recently held in PG Publishing Company v. Aichele that a Pennsylvania statute did not violate the press’s constitutional rights by prohibiting media to access polling places. This decision conflicts with the Sixth Circuit’s decision in Beacon Journal Publishing Company, Inc. v. Blackwell. In Beacon Journal, the Sixth Circuit held that by prohibiting the press to access polling places, an Ohio statute violated the press’s constitutional rights. This Note examines this circuit split and argues that the Third Circuit misapplied the “experience and logic” test. Additionally, this Note advocates that courts should adopt a narrow definition of the press when allowing the press to access polling places.

Download the full text of the paper from SSRN at the link.

April 23, 2013 | Permalink | TrackBack (0)

Monday, April 22, 2013

The ECJ's Philips/Nokia Cases Decision

Frederick M. Abbott, Florida State University College of Law, is publishing Respect for Copyright Sovereignty in Transit: The European Court of Justice Decision in the Joined Philips/Nokia Cases in the Journal of Intellectual Property Rights, National Institute of Scientific Communication and Information Resources (NISCAIR), CSIR, India (forthcoming May 2013). Here is the abstract.


The decision by the ECJ in Philips/Nokia is welcome on a number of grounds. The Court affirmed that each country has the sovereign authority to make and apply IP rules for its own territory, and that applying IP rules governing the domestic market of transit countries would impair that authority. The Court rejected the production fiction approach that had been adopted by the Dutch Supreme Court, and advocated by Phillips and the Belgian government in the joined Philips/Nokia proceeding. Critically, the Court grounded its decision in the EC Treaty and the Treaty on the Functioning of the European Union (TFEU). The ECJ effectively acknowledged (though without expressly referring to it) Article V of the GATT regarding freedom of transit, and the role this provision plays in facilitating international trade. The ECJ reference to the TFEU constrains EU options in the context of present efforts to amend the EU IP Border Regulation.The ECJ distinguished the level of proof or evidence that would justify seizure and temporary detention from the level of proof or evidence that is needed to establish infringement in a substantive enforcement proceeding. The types of evidence that may justify suspicion are broader than the concrete evidence that is needed to make out a case of infringement based on intention to divert. The ECJ placed a significant burden of proof on a right holder seeking the destruction or abandonment of goods “in transit” based on a substantive finding of infringement against the consignor/exporter of those goods. False transit must be proven with concrete evidence.
Download the article from SSRN at the link.

April 22, 2013 | Permalink | TrackBack (0)