Friday, August 2, 2013
Thursday, August 1, 2013
Perry Keller, King's College London, Dickson Poon School of Law, has published Re-Opening the Door to the First Amendment at 8 Amsterdam Law Forum 115 (2013). Here is the abstract.
Over the past half century, the European Court of Human Rights and other core European institutions have progressively developed a set of basic principles to govern media law across the continent. Through key court decisions and treaty changes, these principles have also been constitutionalised across the divide between European economic and human rights law and knitted together through concepts of necessity and proportionality. As a consequence, the once singular European Convention on Human Rights (ECHR) stands at the apex of a grand accumulation of European Union and Council of Europe instruments, which include not least the EU’s own Charter of Fundamental Rights. This body of law has moreover become familiar not just to European newspaper and broadcast editors, but also to online media providers based within and beyond Europe’s territorial boundaries.
This is undoubtedly a major achievement for the European project. Yet something profoundly important has been lost in the process. Where European legislators and judges might once have easily entered into an open discourse on the subject of freedom of expression with their American counterparts, there are now insurmountable barriers to this exchange. There are not only deep differences on key issues of substance, such as the proper limits for offensive expression in public places, but also on the principles of constitutional review. In short, there is a rift over freedom of expression at the heart of the liberal democratic world that resonates in all democratic states, although it is probably most acutely felt in the common law sphere.
Download the article from SSRN at the link.
Wednesday, July 31, 2013
Advertising Standards Authority Tells Channel 4 to Tighten Up Ads During Broadcasts of "The Big Bang Theory," Other Shows
Enrique Armijo, Elon University School of Law, has published Kill Switches, Forum Doctrine, and the First Amendment's Digital Future as Elon University Legal Studies Research Paper No. 2013-08. Here is the abstract.
Governments play an increasing role in providing digital speech spaces. This development has important implications for free expression. The movement of speech from physical public spaces to virtual ones has increased the capacity for State ex ante interference with speech, from targeted blocking of users, websites, and applications to turning off all or parts of communications networks. This Article argues that, contrary to the conclusions of most Speech Clause scholars, First Amendment law's public forum doctrine is ill-equipped to solve these problems, in part because the doctrine underprotects speech that is not made in shared physical space. Rather, when the government carries speech over its networks, it should be treated as a common carrier, barring both user-based and use-based discrimination over those networks. In addition, established First Amendment doctrines such as prior restraint, incitement, and the content-based vs. content-neutral distinction can adequately protect digital speech.Download the paper from SSRN at the link.
Tuesday, July 30, 2013
Marvin Ammori, Stanford Law School, Center for Internet & Society; New America Foundation, Open Technology Initiative, and Luke Pelican, have published Media Diversity and Online Advertising in volume 76 of the Albany Law Review (2012/2013). Here is the abstract.
The paper has three parts. First, we explore these competing interests and their role in American society and law. Second, we discuss how the internet altered the landscape in which these values exist, describing how policymakers and courts reconcile these interests in light of changing technology. Finally, we identify the balance that exists between privacy and advertising in the online age, and conclude by offering suggestions for how to maintain that balance while preserving the somewhat overlooked value of media diversity. In essence, we argue greater engagement is needed between the public, the advertising community, publishers, and privacy advocates. The Worldwide Web Consortium, Do Not Track Initiative, and other efforts are a good start and have shown some success, but clearly more must be done in promoting mutual understanding of the benefits of online advertising, the adverse consequences that advertising may have on privacy, and the importance of media diversity online. We hope this paper contributes to that discussion.
Download the article from SSRN at the link.
Ellery Robert Biddle, Harvard University, Berkman Center for Internet & Society, has published Rationing the Digital: The Politics and Policy of Internet Use in Cuba Today as Internet Monitor Special Report Series No. 1. Here is the abstract.
Download the paper from SSRN at the link.
Cuba has one of the lowest Internet penetration rates in the Western hemisphere and is routinely ranked among countries with the highest restrictions on Internet use in the world. But within both categories, it is something of a rare bird.
While the precise number of Internet users in the country is difficult to calculate, it is clear that a lack of infrastructure, combined with economic and political hurdles, has left access to the global Internet out of reach for most Cubans. But this may soon change. This spring, the country’s only telecommunications firm, the state-owned ETECSA, activated two undersea fiber optic cables that are set to drastically increase connection speeds in Cuba; the firm also opened over 100 cybercafes across the island. Officials have since made public promises to increase access and lower currently exorbitant fees for Internet use. This could fundamentally change the island’s information economy.
Although Cuba is routinely listed alongside China, Iran, and Saudi Arabia as one of the most Internet-restrictive countries in the world, there is no conclusive evidence that the Cuban government practices widespread filtering. While a handful of websites related to dissident activity are blocked, Cubans who use the global Internet are able to browse the web and participate in digital communities without facing extensive content controls. But most don’t get this far. Although the country has an active national Intranet, access to the global Internet is availably mainly to those in high-skilled professional sectors and academia. The potential impact of digital media and the global Internet on Cuban society has been limited due to the lack of network access on the island. Yet this has not prevented the increasing circulation of digital media among the country’s nascent but growing community of tech-savvy citizens.
Monday, July 29, 2013
Micah L. Berman, Ohio State University, has published Manipulative Marketing and the First Amendment. Here is the abstract.
The conventional wisdom is that the Supreme Court’s First Amendment review of commercial speech restrictions has gradually become more and more stringent over time. Today, the Court’s commercial speech doctrine is deemed "an amalgam of strict scrutiny and intermediate scrutiny," leaning ever further in the direction of strict scrutiny. Many have speculated that the Supreme Court is on the verge of granting full First Amendment protection to commercial speech, eliminating the long-standing doctrinal distinction between commercial and non-commercial speech.
This conventional narrative is correct – but only to a point. What this narrative misses is that the Supreme Court’s review has become more rigorous over time, but only for a certain type of commercial speech regulation: laws that restrict non-misleading, informational advertising in order to influence consumer behavior. A majority of the Court sees this type of regulation as unwarranted – indeed offensive – governmental paternalism. However, the Court has been, and remains, far more willing to uphold regulations on commercial speech where the governmental purpose is not to keep information from consumers, but to protect the fairness of the commercial transaction. Indeed, the Court arguably views this latter purpose as the only legitimate reason for the government to regulate commercial speech.
The commercial speech doctrine is fundamentally based on the premise that advertising communicates information to consumers, allowing them to make more informed choices. Increasingly, however, common advertising techniques do not rely on communicating information; instead, they seek to influence consumers at a sub-conscious or emotional level. Behavioral and neurological research over the last several decades suggests that these sub-conscious cues can powerfully influence consumer choices, and this research provides the foundation for many modern marketing techniques. Marketers use such research to inform "the layout of stores, the music playing in the background, and the lighting. . . logos, colors, displays, and the look of the products" and much more. All of these marketing practices are intended to impair, not further, rational decision-making.
This article will argue that non-informational marketing practices intended to sub-consciously influence consumer decision-making are entitled to limited, if any, protection under the First Amendment. When the governmental purpose in regulating commercial speech is to prevent marketers from biasing consumer decision-making in their favor, there is a strong normative and doctrinal case that the courts’ review should be deferential.
The article will focus on a several examples of this type of manipulative marketing, with specific attention paid to New York City’s proposed restriction on tobacco product displays. Internal tobacco industry documents demonstrate that the "powerwalls" of tobacco products in retail stores (which are controlled by tobacco manufacturers through contracts with retailers) are carefully engineered to manipulate consumer perceptions and decision-making. These displays communicate little, if any, substantive information about the products, but they have a measurable impact on youth perceptions about the popularity and safety of tobacco products, leading to increased willingness to experiment with tobacco. For adult smokers, and particularly those attempting to quit, tobacco displays trigger powerful cravings that can overpower rational decision-making and prompt impulse purchases. Although courts have been skeptical of restrictions on informational tobacco advertising, I argue that there are strong First Amendment arguments for upholding restrictions on non-informational, misleading advertising techniques such as the tobacco "powerwalls."
Download the full text of the paper from SSRN at the link.
Neil Weinstock Netanel, University of California School of Law, has published First Amendment Constraints on Copyright after Golan v. Holder, in volume 60 of the UCLA Law Review (2013).
Commentators have depicted the Supreme Court's January 2012 ruling in Golan v. Holder as a far-reaching repudiation of First Amendment limits on Congress's power to expand copyright and diminish the public domain. However, Golan imposes potentially significant First Amendment constraints on copyright protection even while granting fairly broad First Amendment immunity to Copyright Act amendments. It does so by effectively adopting Melville Nimmer's "definitional balancing" approach to resolving the tension between copyright and the First Amendment, an approach that Frederick Schauer has labeled "definitional-absolutism" because it requires an absolute First Amendment privilege for protected speech. As Golan applies that approach, neither Congress nor courts may "disturb" copyright law's idea/expression dichotomy or fair use privilege without running afoul of the First Amendment. Accordingly, following Golan, Copyright Act provisions and proposed legislation that would diminish one or both of those free speech safeguards remain vulnerable to First Amendment challenge. Examples include the anti-circumvention provisions of the DMCA and proposed legislation, such as the now-defunct SOPA, that would impose broad liability on Internet intermediaries. Further, Golan requires that courts interpret and apply the idea/expression dichotomy and fair use privilege in a manner that truly safeguards First Amendment rights.
Download the Article from SSRN at the link.
Sunday, July 28, 2013