Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

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Thursday, June 6, 2013

The Free Speech Clause and Emerging Technologies

Jorge R. Roig, Charleston School of Law, is publishing Emerging Technologies and Dwindling Speech in volume 16 of the University of Pennsylvania Journal of Constitutional Law (2013). Here is the abstract.

Inspired in part by the recent holding in Bland v. Roberts that the use of the “Like” feature in Facebook is not covered by the Free Speech Clause, this article makes a brief foray into the approach that courts have taken in the recent past towards questions of First Amendment coverage in the context of emerging technologies. Specifically, this article will take a closer look at how courts have dealt with the issue of functionality in the context of First Amendment coverage of computer source code. The analysis of this and other recent experiences, when put in a larger context, reflects a continuing dissatisfaction on the part of both courts and legislatures with the current Supreme Court doctrine on First Amendment coverage. From this discussion, we can also derive some meaningful normative insights regarding the interplay between emerging technologies and First Amendment coverage doctrine. Finally, this article hopes to serve as a stepping stone in a more profound and long term pursuit of a comprehensive theory of constitutional individual rights coverage issues that might serve us well as the future brings unexpected changes in our society.

Download the article from SSRN at the link.

June 6, 2013 | Permalink | TrackBack (0)

Bring On the Shield

NYT Executive Editor Bill Keller on the necessity for a federal shield law.

June 6, 2013 | Permalink | TrackBack (0)

Wednesday, June 5, 2013

The First Amendment and Subway Speech

Engy Abdelkader, University of Pennsylvania, is publishing 'Savagery' in the Subways: Anti-Muslim Ads, the First Amendment, and the Efficacy of Counterspeech in the Asian American Law Journal (2013). Here is the abstract.

From San Francisco to Washington, D.C. to Detroit to Chicago to New York, anti-Muslim hate placards have recently appeared on government-owned transit systems in cities around the country. Anti-Muslim hate groups designed, funded and placed the inflammatory advertisements, representing a well-orchestrated campaign to demean and attack the minority Muslim community. The ads have culminated in hate crime charges in the subway pushing death of an immigrant of South Asian descent, diverse manifestations of counter official and private speech and First Amendment litigation in at least three jurisdictions where well-meaning transit officials attempted to prevent the ads’ placement. Interdisciplinary in its orientation, this essay first contemplates anti-Muslim sentiment in the U.S. more than a decade following the tragic events surrounding 9/11. Then, it describes three variant strands of the hate ads after identifying the anti-Muslim activists responsible for them. The essay thereafter engages in a comparative analysis of the First Amendment litigation that followed upon the heels of seemingly well-intentioned government censorship of the odious speech in New York, Detroit and Washington, D.C. These vignettes are woven together with a singular analytic thread: the effectiveness of counterspeech by officials and private entities as the preferred self-help remedy of first instance. Ultimately, the piece illustrates that while counterspeech is admittedly not without flaw, it nevertheless represents an effective non-judicial means for empowering individuals, educating communities and undermining harmful or threatening expression including the anti-Muslim hate speech here.

Download the article from SSRN at the link.

June 5, 2013 | Permalink | TrackBack (0)

Comparing U.S. and European Approaches To Privacy Law

Richard J. Peltz-Steele, University of Massachusetts, Dartmouth, has published The New American Privacy in volume 44 of the Georgetown Journal of International Law (2013). Here is the abstract.

Conventional wisdom paints U.S. and European approaches to privacy at irreconcilable odds. But that portrayal overlooks a more nuanced reality of privacy in American law. The free speech imperative of U.S. constitutional law since the civil rights movement shows signs of tarnish. And in areas of law that have escaped constitutionalization, such as fair-use copyright and the freedom of information, developing personality norms resemble European-style balancing. Recent academic and political initiatives on privacy in the United States emphasize subject control and contextual analysis, reflecting popular thinking not so different after all from that which animates Europe’s 1995 directive and 2012 proposed regulation. For all the handwringing in the United States over encroachment by anti-libertarian EU regulation, a new American privacy is already on the rise.

Download the article from SSRN at the link.

June 5, 2013 | Permalink | TrackBack (0)

An Analysis of Brown v. Entertainment Merchants Association

Daniel Butler is publishing Avoiding the First Amendment's Crosshairs: An Analysis and Critique of the Legal Strategies Used in Brown v. Entertainment Merchants Association in the University of Miami Law Review. Here is the abstract.

An analysis and critique of the legal strategies employed by the state of California in the context of first amendment law as related to video games.

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

June 5, 2013 | Permalink | TrackBack (0)

Tuesday, June 4, 2013

Ah, Film Tax Credits!

From the Hollywood Reporter: applications for California state film tax credits are up eighteen percent over last year. Meanwhile, the film tax credit so popular in Louisiana is under some scrutiny after a 2013 Louisiana Legislative Auditor's report  found that tax credits issued cost the state millions in lost tax revenue, an outcome which was not anticipated by the legislature.

Some reports suggest that generally, state film tax credits don't pay their own way, or actually cost money to states that offer them.

June 4, 2013 | Permalink | TrackBack (0)

The Defense of Free Speech Around the World

Robert A. Kahn, University of St. Thomas School of Law (Minnesota), has published 'First Amendment' Pioneers in a European Land of Hate Speech Bans: Flemming Rose, Geert Wilders and Liberté Pour L’Histoire as U. of St. Thomas (Minnesota) Legal Studies Research Paper No. 13-18. Here is the abstract.

Are global defenses of free speech possible? Or are such arguments necessarily local? To answer this question, this paper focuses on three European opponents of hate speech laws – Flemming Rose, Geert Wilders, and the French historians of Liberté pour l’histoire, a group opposed to Frances’ recent memory laws. Do these writers draw on experience of the United States in opposing hate speech bans? Or do they draw on specifically European (native) arguments? This installment focuses on Danish Cartoon publisher Flemming Rose (the full project will also include Wilders and the French historians). An examination of Rose’s recent memoir, The Tyranny of Silence (2010), shows that Rose draws quite heavily on his experiences living in the Soviet Union to craft a samizdat theory of hate speech regulation that shifts the focus from the harm hate speech can inflict on society to the harm hate speech regulation poses on the speaker him or herself. He also, despite temptation, lacks the skepticism typical of the American response to speech. Indeed, Rose barely mentions the American free speech canon in his book excerpt. Taken as a whole, Rose’s speech theory suggests the power of an adage borrowed from Tip O’Neil – all theories of hate speech regulation are local.

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

June 4, 2013 | Permalink | TrackBack (0)

Monday, June 3, 2013

The First Amendment and Hot News Today

Joseph A. Tomain, Florida Coastal School of Law, has published First Amendment, Fourth Estate & Hot News: Misappropriation is Not a Solution to the Journalism Crisis in the 2012 volume of the Michigan State Law Review. Here is the abstract.

Journalism is a public good. The Framers understood the importance of a free press in a self-governing society and embedded a structural right for freedom of the press in the First Amendment. There is a journalism crisis. Symptoms of the crisis include layoffs of journalists, diminishing content in newspapers and shuttering of newspapers. The rise of online technologies has exacerbated the crisis, mainly by siphoning advertising revenue away from traditional news organizations to free classified advertisement websites such as Craigslist, search engines and myriad other non-journalistic online endeavors. The internet, however, is not the main cause of the journalism crisis. Concentration of media ownership and the influence of advertising revenue on traditional news content are the primary causes of the journalism crisis. 

Recently, there has been renewed interest in the hot news misappropriation doctrine as a potential solution to the journalism crisis. Not only will this doctrine fail to help resolve the journalism crisis, it will perpetuate a twentieth-century news business model – a model of concentrated ownership dependent on direct advertising revenue. In addition to explaining that hot news perpetuates the journalism crisis, this Article shows that there are constitutional and practical obstacles to the legal viability of the hot news doctrine. The constitutional obstacle is the First Amendment guarantee of free speech. The practical obstacle is the difficulty in proving the utilitarian factor required to establish a hot news claim. The Article concludes by describing alternative solutions to the journalism crisis, including why taxation of all online advertising and using some portion to fund non-profit members of the institutional press is appealing from both normative and pragmatic perspectives.

Download the article from SSRN at the link.

June 3, 2013 | Permalink | TrackBack (0)

Political Advertising, the European Court of Human Rights, and Free Speech

Jacob H. Rowbottom, University of Oxford Faculty of Law, has published Animal Defenders International: Speech, Spending and a Change of Direction in Strasbourg, in the Journal of Media Law (2013). Here is the abstract.

This paper looks at the decision of the Grand Chamber of the European Court of Human Rights in Animal Defenders International, in which the Court found the UK's ban on political advertising on the broadcast media not to violate freedom of expression. In addition to examining the Court's reasoning, the paper considers the previous decisions on political advertising, compares the ECtHR's approach to that taken by the US Supreme Court in Citizens United, and outlines the main differences in the dissenting opinions. The final paper will appear in the Journal of Media Law.

Download the paper from SSRN at the link.

June 3, 2013 | Permalink | TrackBack (0)