Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Thursday, January 24, 2013

Freedom of Expression and Competing Interests In Different Legal Regimes

George C. Christie, Duke University School of Law, has published Freedom of Expression and Its Competitors at 31 Civil Justice Quarterly 466 (2012). Here is the abstract.

The recognition of an increasing number of basic human rights, such as in the European Convention on Human Rights, has had the paradoxical effect of requiring courts in the common-law world to consider whether the extensive protection given by the common law to expression that was not false or misleading must be modified to accommodate these newly recognized basic rights. The most important of these newly recognized rights is the right of privacy, although expression has other competitors as well, such as what might be called a right to be spared the emotional trauma caused by abusive language. This article examines the growing differences between the ways the courts in the United States and the United Kingdom have handled these conflicts. In the United Kingdom there is a growing body of law requiring speech that is challenged for invading some other recognized basic right to survive a judicial determination that the expression in question concerns some matter of legitimate public interest. For the moment the United States has not taken that route but, as the article points out, there are some hints in its more recent decisions on freedom of expression that the United States Supreme Court might modify its expansive view of the ambit of freedom of expression to permit some expression to be successfully challenged on the ground that it does not concern a matter of “public concern” — a development I would not welcome even if it narrowed the differences between the United States and Europe.
Download the article from SSRN at the link.


January 24, 2013 | Permalink | TrackBack (0)

Using Legislative Action To Protect Intellectual Property

Robert E. Thomas, University of Florida, Warrington College of Business Administration; Business Law & Legal Studies, and Cassandra Aceves, University of Michigan, Ann Arbor, have published Vanquish Copyright Pirates, Patent Trolls, and Content Counterfeiters: Protecting Intellectual Property Through Legislative Change. Here is the abstract.

The United States has gone from a net – and frequently illegal – importer of intellectual property (IP) to the World’s biggest IP supplier in a historically short time. During the past quarter century, IP holders have teamed with government entities to support international initiatives and legislation to combat the unauthorized acquisition of IP. These battles – which primarily targeted activity in developing and non-Western nations – were extremely successful. However, the intellectual property coalitions that fought these battles have splintered with copyright and patent holders pursuing initiatives that advance their divergent interests. This paper develops a theory of how IP interests groups employ legal and institutional mechanisms to exclude unauthorized use of their intellectual property and how the success of such actions varies with the strength of supporting and opposing coalitions. Initial gains came with comparative ease because a cohesive IP coalition faced little opposition. This coalition is now splintered with sub-IP interest groups facing differing levels of opposition. Until now, copyright interest groups has enjoyed the most success in enacting legislative change through the cohesiveness of their coalition. Patent interests groups, which are splintered, have struggled to obtain comparatively modest patent law reforms. However, with the failed push to implement ACTA and the success of the patent sector in getting the AIA enacted, results achieved by the respective interest groups have changed. The theory developed in this paper provides a framework for analyzing these interactions and identifies the likely nature and probable success of future IP legislative initiatives.

Download the paper from SSRN at the link.

January 24, 2013 | Permalink | TrackBack (0)

Wednesday, January 23, 2013

Hate Speech In the Hungarian Legal Regime

András Koltay, Peter Pazmany Catholic University; Hungarian Academy of Sciences, has published Hate Speech and the Protection of Communities in the Hungarian Legal System. Here is the abstract.

The Hungarian notion “gyűlöletbeszéd” is a literal translation of the applicable terminology (hate speech) originally used in the United States of America. According to Gábor Halmai, “this type of communication includes acts of speech by which the speaker — usually driven by prejudice or even hatred — expresses his or her opinion of various racial, ethnic, religious, or sexual groups in society, or of the member of such groups, which opinion may insult the members of the given group and may incite hatred in society against that group.” According to the Recommendation by the Council of Europe, “the term ‘hate speech’ shall be understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.” The term “hate speech” itself is not used in legislation; for the purposes of written law, this term is covered by the crime of incitement against a community (Article 269 of the Criminal Code), supplemented by the crimes of the use of symbols of despotism (Article 269/B of the Criminal Code), public denial of the sins of the National Socialist (Nazi) and Communist systems (Article 269/C of the Criminal Code), and violation of national symbols [Article 269/A of the Criminal Code]. Of course, these crimes are not specific to the media, meaning that they may be committed by means other than via the media, but they constitute certain limitations to the freedom of the press. Furthermore, the Press Freedom Act lays down various provisions against hateful expressions.

Download the paper from SSRN at the link.

January 23, 2013 | Permalink | TrackBack (0)

The Guardian On the Sunday Times' Case Against Lance Armstrong

The Guardian examines the Sunday Times' reasons for settling with Lance Armstrong over his libel case in 2004, litigation which cost the paper nearly one million pounds. Now that Mr. Armstrong has admitted to doping, the Times would like its money back.

January 23, 2013 | Permalink | TrackBack (0)

Tuesday, January 22, 2013

The Treatment of Hate Speech In the Israeli Legal Regime

Raphael Cohen-Almagor, Director, Middle East Study Group, University of Hull, has published Is Law Appropriate to Regulate Hateful and Racist Speech: The Israeli Experience at 27 The Israel Studies Review 41 (Winter 2012).

This article examines the tension between liberalism and Orthodoxy in Israel as it relates to censorship. The first section aims to explain Israel’s vulnerability as a multicultural democracy in a hostile region, with significant schisms that divide the nation. The next section presents the dilemma: should Israel employ legal mechanisms to counter hate speech and racism? The third section details the legal framework, while the fourth reviews recent cases in which political radicals were prosecuted for incitement to racism. The final section discusses cases in which football supporters were charged with incitement after chanting “Death to Arabs” during matches. I argue that the state should consider the costs and risks of allowing hate speech and balance these against the costs and risks to democracy and free speech that are associated with censorship.

Download the article from SSRN at the link.

January 22, 2013 | Permalink | TrackBack (0)

NLRB Tells Employers Their Employees Have Right To Discuss Working Conditions Via Social Media

Steven Greenhouse of the New York TImes reports on employer attempts to discourage negative online employee comments about working conditions and employer policies and the National Labor Relations Board's response. Mr. Greenhouse notes that the NLRB has judged many such attempts to be against the law. The agency "says workers have a right to discuss work conditions freely and without fear of retribution, whether the discussion takes place at the office or on Facebook." Here are links to the agency's recent reports on the issue.

Report No. 1 (link to PDF within press release)

Report No. 2 (link to PDF within press release)

Report No. 3 (link to PDF within press release)

January 22, 2013 | Permalink | TrackBack (0)

Sonia Sotomayor's Memoir

A review of Justice Sonia Sotomayor's My Beloved World, by the New York Times's Michiko Kakutani.

January 22, 2013 | Permalink | TrackBack (0)