Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Thursday, February 11, 2016

Student Reporters and Their First Amendment Rights

Writing for the Chronicle of Higher Education, Peter Schmidt discusses a push to protect student journalists.

February 11, 2016 | Permalink

Wednesday, February 10, 2016

Dimopoulos, Mitchell, and Voon on The Tobacco Industry and FOIA Laws

Georgina Dimopoulos, Andrew D. Mitchell, and Tania S. L. Voon, all of the University of Melbourne Law School, are publishing The Tobacco Industry's Strategic Use of Freedom of Information Laws: A Comparative Analysis in the Oxford University Comparative Law Forum (2016). Here is the abstract.

This paper attempts to derive lessons from the freedom of information (FOI) laws in the United Kingdom, New Zealand and the United States for achieving an appropriate balance between transparency and government openness on the one hand and preventing abuse of the FOI system by powerful industries on the other. The paper focuses on the strategic use by the tobacco industry of FOI in these countries, concluding that reforms could reduce undue financial and human resource burdens on governments in dealing with overly broad requests. The ability to reject or limit such requests, to more closely align the costs to the applicant with the costs of processing the request, and to take account of the nature and purpose of the request could prevent deliberate abuse of the system. This paper was finalised in September 2015.

Download the essay from SSRN at the link.

February 10, 2016 | Permalink

Campbell on Speech-Facilitating Conduct

Wesley J. Campbell, Stanford Law School, is publishing Speech-Facilitating Conduct in volume 68 of the Stanford Law Review (2016). Here is the abstract.

Free speech doctrine generally protects only expression, leaving regulations of nonexpressive conduct beyond the First Amendment’s scope. Yet the Supreme Court has recognized that abridgments of the freedom of speech “may operate at different points in the speech process.” This notion of protection for nonexpressive conduct that facilitates speech touches on many of the most contentious issues in First Amendment law — restrictions on photography and audiovisual recording, limits on campaign contributions, putative news gathering privileges for journalists, compelled subsidization of speech, and associational rights, to name just a few. Scholars, however, have generally approached these topics in isolation, typically focusing on downstream effects on speech as the touchstone for First Amendment coverage. The usual conclusion is that the Supreme Court’s decisions are in disarray. This Article argues that key features of doctrine are easily overlooked when employing a granular focus on particular rights. Instead, the Article presents an overarching framework that brings together, descriptively and normatively, otherwise disparate strands of free speech law. The guiding principle of this framework is that First Amendment coverage for nonexpressive conduct depends on whether the government uses a rule that targets speech (e.g., a special tax on newspapers), not on whether expression is indirectly burdened by particular applications of otherwise constitutional rules (e.g., a child labor law applied to newspapers). Applications of this “anti-targeting” principle vary by context, but the general concept offers a surprisingly comprehensive account of most Supreme Court decisions. Tracing the development of the anti-targeting principle also reveals an underappreciated shift in the way that the Court has dealt with claims based on nonexpressive conduct. This historical argument shows that the reasoning in many of the Court’s foundational cases — including Buckley v. Valeo, Branzburg v. Hayes, Abood v. Detroit Board of Education, and Roberts v. United States Jaycees — is now out of step with current doctrine.

Download the article from SSRN at the link.

February 10, 2016 | Permalink

Rotunda on the Right of Dissent and America's Debt to Herodotus and Thucydides

Ronald D. Rotunda, Chapman University School of Law is publishing The Right of Dissent and America's Debt to Herodotus and Thucydides at 1 Revista Estudos Institucionais (Journal of International Studies) 144 (2015). Here is the abstract.

The United States prides itself as a country that respects free speech, the right of all persons to criticize the government even in times of war. However, it was not always so. The events related to World War I brought the first cases raising free speech issues to the U.S. Supreme Court. While several justices, in particular, Oliver Wendell Holmes, praised free speech, the Court upheld all the Government prosecutions of dissidents. It has taken nearly a century since those cases for the Supreme Court to come full circle and now protect those who criticize the Government in time of war. When the Court changed its views to create the modern protections, it relied on philosophical justifications for free speech that go all the way back to the ancient Greeks, 2,400 years ago. The modern justification for free speech relies on these philosophers from ancient Greece. There is little new under the sun. While governments typically believe that, for the public good, they must censor speech and squelch dissenters in time of war, the Greeks believed that their free speech made them stronger, not weaker. There are those who argue it is more difficult for a democracy to go to war because it cannot conduct the war successfully if the people oppose it and dissenters remain free to criticize. That is a good thing, not a bad thing. In modern times, no democracy has warred against another. As Pericles reminds us, “[t]he great impediment to action is, in our opinion, not discussion, but the want of knowledge that is gained by discussion preparatory to action.” As other countries embrace democracy and protections for dissidents, our increased freedoms should bring us more peace and less war.

Download the article from SSRN at the link. Cross-posted to the Law and Humanities Blog.

February 10, 2016 | Permalink

Strum on the Legacy of Justice Brandeis

Philippa Strum, Woodrow Wilson International Center for Scholars, is publishing Speech and Democracy: The Legacy of Justice Brandeis Today ("Louis D. Brandeis 100: Then and Now" at Brandeis University, 2016). Here is the abstract.

Justice Louis D. Brandeis's concurrence in Whitney v. California, later adopted by the U.S. Supreme Court, made American speech law the most permissive in the world. Its premise was that speech is crucial to the participation of Americans in democratic governance, and that the right to free speech was ineluctably tied to the responsibility of citizens to participate in the public sphere. Given both the relative lack of Americans' involvement in the democratic process and the problems presented by hate speech and by Internet phenomena such as cyber-bullying, revenge porn, and terrorist recruitment, is the Brandeis formulation still relevant for the 21st century?

Download the paper from SSRN at the link.

February 10, 2016 | Permalink

Juette on Copyright and Freedom of Expression in Europe

Bernd Justin Juette, University of Luxembourg, has published The Beginning of a (Happy?) Relationship: Copyright and Freedom of Expression in Europe in volume 38 of The E.I. P. R. (2016). Here is the abstract.

The relationship between the right to freedom of expression and copyright at European level has only recently been addressed in two cases, one before the European Court of Human Rights (Ashby Donald v France) and one before the Court of Justice of the EU (Deckmyn v Vandersteen). The relationship between both fundamental rights is analysed by comparing the approaches of both European courts in striking the balance between both fundamental rights. Both courts have, so far, not given either right priority over the other, and both continue to grant Member States a wide margin of discretion to strike the balance at the national level.

The full text is not available from SSRN.

February 10, 2016 | Permalink

Tuesday, February 2, 2016

California Appellate Court Upholds Courtney Love "Twibel" Jury Verdict

A California appellate court has upheld a jury verdict in favor of singer Courtney Love Cobain that her "twibel" statements about a former attorney didn't defame her, because although they were false, Ms. Love did not make them with actual malice, the standard required by law. Specifically at issue were Ms. Love's Twitter comments that Ms. Holmes, her former attorney, had been "bought off."

"Viewing the evidence in the light most favorable to Cobain, we conclude that there is substantial evidence to support the jury's finding that although Cobain's statement was false and injurious, Holmes failed to establish by clear and convincing evidence that Cobain knew the statement was false or had serious doubt about the truth of the statement." Read the ruling here.

Read the Hollywood Reporter's story here.

February 2, 2016 | Permalink

Urquhart on Privacy and Freedom of the Press From Campbell To Leveson

Lachlan Urquhart, University of Nottingham School of Computer Science, is publishing Privacy and Freedom of the Press from 2004-2015: From Campbell to Leveson, in Law, Policy and the Internet (L. Edwards, ed.; Hart Publishing, forthcoming). Here is the abstract.

This chapter documents the developments in the English law of breach of confidence since the seminal Campbell v MGN case in 2004. In particular, we document the growth of the new action of ‘misuse of private information’. We conduct a largely doctrinal analysis of the case law by consolidating the complex, fragmented domain of principles and tests established by the courts. We situate these within the broader concerns around regulation of the UK print press, how this system is changing in light of the Leveson Inquiry, European Court of Human Rights (ECtHR) jurisprudence and the new Royal Charter on Self Regulation of the Press. We also look at the impact of new technologies on regulation of collection and distribution of the news. We briefly consider two examples, namely social media and superinjunctions, and use of drones to collect news.
Download the essay from SSRN at the link.

February 2, 2016 | Permalink

Kendrick on Shiffrin's "Speech Matters" (Princeton, 2014)

Leslie Kendrick, University of Virginia School of Law, is publishing How Much Does Speech Matter? in the Harvard Law Review. Here is the abstract.

In Speech Matters (Princeton 2014), Seana Shiffrin explains why lying is wrong, why freedom of speech is right, and why those two views are compatible. This review lauds Shiffrin’s book for its creative and powerful coherence of vision. It lays its claims about both lying and free speech on the same foundation: on a view of sincere communication as a prerequisite for moral agency and moral progress. In this regard, Shiffrin’s book stands in sharp rebuke to the current trend, in the Supreme Court and elsewhere, of assuming that the freedom of speech must include a right to lie. Instead, Shiffrin argues, the reasons that we have freedom of speech are the same reasons that lying is rarely morally permissible. At the same time, the coherence of Shiffrin’s view also reveals a certain symmetry between Kantian accounts of lying and predominant views of free speech, one that not everyone will find salutary. In both, the importance of communication seems to override other interests, even other moral commitments. While Shiffrin articulates a compelling view of why free and authentic communication serves a distinct, indeed a singular, role in moral identity, the question remains whether that role requires quite so much protection, either against lying or in favor of free speech. Nevertheless, Shiffrin’s book puts forth an original and authoritative view on these questions, one that will challenge and instruct anyone interested in lying, free speech, or the communicative responsibilities we owe to ourselves and others.

Download the book review from SSRN at the link.

February 2, 2016 | Permalink

Groves on the Publicity Rights of College Athletes and First Amendment Rights of Other Parties

Roger M. Groves, Florida Coastal School of Law, is publishing 'Can I Profit from My Own Name and Likeness as a College Athlete?' The Predictive Legal Analytics of a College Player’s Publicity Rights vs. First Amendment Rights of Others in volume 48 of the Indiana Law Review (2015). Here is the abstract.

This Article is focused entirely on the battle between athlete’s NIL/publicity rights and the First Amendment rights of those who use those rights in their own works or products. The aforementioned publicity rights settlements predictably do not provide any admission of liability or wrongdoing by the NCAA or any other defendants. Therefore, the primary source of legal authority and precedent on the publicity rights issues reside in the Hart and Keller opinions discussed in this Article. In the three cases of import, Keller, Hart, and O'Bannon, the athletes abided by the NCAA rules that required that they refrain from taking advantage of their relative fame through licensing their NILs or otherwise being paid in any form, directly or indirectly from the sport. In all three cases, the NCAA and its licensee partners gained substantial revenue using the NILs of the athletes. Furthermore, in all three cases the athletes did not receive proceeds from the licensing or use of their NILs from the NCAA or its partners before or after the collegiate eligibility expired. This article provides a continuum of factors that help predict when the NCAA and licensed partners no longer have prevailing First Amendment rights over the publicity rights of collegiate athletes.

Download the article from SSRN at the link.

February 2, 2016 | Permalink

Monday, February 1, 2016

Bernstein on Abuse, Harassment, and Free Speech

Anita Bernstein, Brooklyn Law School, is publishing Abuse and Harassment Diminish Free Speech in volume 35 of Pace Law Review (2014). Here is the abstract.

A familiar dichotomy in the legal academy juxtaposes freedom against a contrasting value like security or equality. Applied to speech, the “freedom” half gets assigned to abusers and harassers while those who speak up against harm are perceived as censors or silencers. The dichotomy is unfair to the latter camp: Abuse and harassment threaten not only security and equality but freedom. As phenomena that have grown with the rise of social media, abuse and harassment drive individual speakers from the Internet; cause points of view to be lost to discourse; force attacked persons to spend scarce time and money in pursuit of physical safety; reinforce unjust and oppressive hierarchies; and generate emotional distress, which in turn impedes the production of new speech.

Download the article from SSRN at the link.

February 1, 2016 | Permalink

Rostron and Levit's Updated Chart on Law Journal Submissions, Expedites, and Rankings for Spring 2016

Allen Rostron and Nancy Levit, both of the University of Missouri (Kansas City), School of Law, have published Information for Submitting Articles to Law Reviews & Journals. Here is the abstract.

This document contains information about submitting articles to law reviews and journals, including the methods for submitting an article, any special formatting requirements, how to contact them to request an expedited review, and how to contact them to withdraw an article from consideration. It covers 204 law reviews. The document was updated in January 2016.
Download the article from SSRN at the link.

February 1, 2016 | Permalink

Friday, January 29, 2016

Steeves on Performing "Appropriate" Femininity on Social Media

Valerie Steeves, University of Ottawa, Criminology, has published 'Pretty and Just a Little Bit Sexy, I Guess': Publicity, Privacy, and the Pressure to Perform 'Appropriate' Femininity on Social Media in eGirls, eCitizens: Putting Technology, Theory and Policy into Dialogue with Girls' and Young Women's Voices (University of Ottawa Press, 2015). Here is the abstract.

In this chapter, I explore the qualitative findings of the eGirls Project to test these assumptions against the lived experiences of girls and young women living in Ontario, Canada. When the eGirls Project was initiated, one of the aims was to map the variety of ways that girls could perform emancipatory identities on social media.

Download the essay from SSRN at the link.

January 29, 2016 | Permalink

Thursday, January 28, 2016

FCC Chair Wants To Open Up Cable Box Market

FCC Chair Tom Wheeler wants to unleash consumers from their cable boxes.  In this piece for Re/Code, he writes in part that the cost of paying for a set-up box adds significantly to the cost of cable subscriptions and he thinks it's time for the FCC to address that issue.

One way to do that effectively, says Mr. Wheeler, is to allow third party manufacturers, like Google, Apple, and Microosoft, to provide consumers with boxes and other devices that would allow them to get cable services without paying their cable companies for those services. Here's a link to a fact sheet on the proposal.

More here from NPR.


January 28, 2016 | Permalink

Wednesday, January 27, 2016

Randazza on Freedom of Expression and Morality Based Impediments to the Enforcement of Intellectual Property RIghts

Marc J. Randazza, Randazza Legal Group and World Intellectual Property Organization (WIPO), is publishing Freedom of Expression and Morality Based Impediments to the Enforcement of Intellectual Property Rights in volume 16 of the Nevada Law Journal (2016). Here is the abstract.

In the case of intellectual property rights (IPRs), some nations erect barriers to the protection of IPRs on the basis of "morality." This paper will examine the implications of morality-based impediments to the enforcement of IPRs and their supportability under international agreements. There are significant freedom of expression issues to consider when we think about "morality" getting in the way of intellectual property rights. If that description doesn't make you run to download it, it manages to include an academic discussion of "Cumfiesta", "Screw You", "Nut Sack Ale", and Japanese porn being stolen in Taiwan. Beat that.

Download the article from SSRN at the link.

January 27, 2016 | Permalink

Tuesday, January 26, 2016

Kolber on Views of First Amendment Thought Privacy

Adam J. Kolber, Brooklyn Law School, is publishing Two Views of First Amendment Thought Privacy in the University of Pennsylvania Journal of Constitutional Law. Here is the abstract.

For centuries, our thought privacy has been reasonably well protected by the difficulty of deciphering other people’s thoughts. This natural protection is in jeopardy, however, as emerging technologies improve our ability to, loosely speaking, read minds. When these methods get cheaper and more accurate, the state may seek to monitor and regulate thought in ways previously impossible. The First Amendment undoubtedly protects thought privacy, but current law leaves open two very different levels of protection: On one view, thought is only protected when intertwined with expression. If so, we have rather limited First Amendment freedom of thought, since thought often goes unexpressed. Alternatively, thought may be protected independent of expression. If so, we have more expansive First Amendment freedom of thought. I explore these views by considering blackjack players who “count cards.” Card counters perform mental calculations on publicly available information — the cards dealt in plain sight — in order to turn the odds in their favor. Even though card counting does not obviously implicate expression, I argue that the First Amendment plausibly gives us the right to count cards in our own minds. More controversially, I argue that the Amendment may even protect the right to count cards when combined with an overt action, such as betting in a casino. A criminal prohibition on betting while counting cards might constitute impermissible thought-content discrimination by permitting bettors to make the basic calculations required to play blackjack but not the more accurate calculations used to count cards. It is difficult, however, to predict whether courts would recognize thought-content discrimination and, if they would, how they would cabin its scope.

Download the article from SSRN at the link.

January 26, 2016 | Permalink

Froomkin on Anonymity and Identification

A. Michael Froomkin, University of Miami School of Law, has published From Anonymity to Identification at 1 Journal of Self-Regulation and Regulation 121 (2015). Here is the abstract.

This article examines whether anonymity online has a future. In the early days of the Internet, strong cryptography, anonymous remailers, and a relative lack of surveillance created an environment conducive to anonymous communication. Today, the outlook for online anonymity is poor. Several forces combine against it: ideologies that hold that anonymity is dangerous, or that identifying evil-doers is more important than ensuring a safe mechanism for unpopular speech; the profitability of identification in commerce; government surveillance; the influence of intellectual property interests and in requiring hardware and other tools that enforce identification; and the law at both national and supranational levels. As a result of these forces, online anonymity is now much more difficult than previously, and looks to become less and less possible. Nevertheless, the ability to speak truly freely remains an important ‘safety valve’ technology for the oppressed, for dissidents, and for whistle-blowers. The article argues that as data collection online merges with data collection offline, the ability to speak anonymously online will only become more valuable. Technical changes will be required if online anonymity is to remain possible. Whether these changes are possible depends on whether the public comes to appreciate and value the option of anonymous speech while it is still possible to engineer mechanisms to permit it.

Download the article from SSRN at the link.

January 26, 2016 | Permalink

Barnhizer on Freedom of Speech at Universities

David Barnhizer, Cleveland-Marshall College of Law, has published 'Fire Away': I Have No Right to Not Be Insulted as Cleveland-Marshall Legal Studies Paper No. 290. Here is the abstract.
Universities are the institutions responsible for advancing our freedom of thought and discourse through the work of independent scholars and the teaching of each generation of students. But for several decades, universities and other educational institutions have increasingly set up rules aimed at protecting individuals and groups from criticism that those individuals and groups consider insensitive, offensive, harassing, intolerant and disrespectful, critical of their core belief systems or threats to their agendas. Even though it has been claimed that disadvantaged interest groups have a right to use one-sided tactics of intolerance against those they consider to be responsible for their misfortunes in a democracy this is a fundamentally wrong policy that ultimately tears apart the social fabric. I believe that many of the outraged reactions to speakers’ phrasing in many areas where “outrage” is voiced are insincere and done primarily or exclusively for purposes of gaining political advantage. This “fake offensiveness” -- “or OMG I am so hurt and offended” -- occurs because it is the ammunition by which interest groups gain political advantage. Yet universities, our supposed hotbeds of free and critical thinking, are co-conspirators in suppressing the intellectual independence and stifling the values they are supposed to be instilling in their students. The Renaissance and the Enlightenment were intended to free us from centuries of darkness and ignorance in ways that allowed the full flourishing of humanity. Unfortunately it turns out that we are less as a species than hoped and considerably less interested in open-minded freedom of thought and expression. Albert Schweitzer argued decades ago: “The past has, no doubt, seen the struggle of the free-thinking individual against the fettered spirit of a whole society, but the problem has never presented itself on the scale on which it does to-day, because the fettering of the collective spirit…by modern organizations, [by] modern unreflectiveness, and [by] modern popular passions, is a phenomenon without precedent in history.” The situation has rapidly degraded since Schweitzer spoke. There are several causes. In part the decline is due to the emergence of the Internet and related communications technologies. Although they offer incredible tools for the management and dissemination of knowledge, they have unfortunately bestowed power on fanatics and ideologues. In doing so we have opened an electronic “Pandora’s Box” full of hate, vitriol and ignorance. A result is the rapid fragmentation of society into aggressive actors and indignant cults. This has produced a social and political balkanization dominated by single-interest groups that are intent on achieving narrow agendas. These groups and political activists operate without any willingness to consider how their interests fit within the dimensions of an overall community where balance is necessary and compromise is not weakness but the “glue” that holds us together.
Download the article from SSRN at the link.

January 26, 2016 | Permalink

Walden on Press Regulation in a Converged Environment

Ian Walden, Queen Mary University, London, School of Law, has published Press Regulation in a Converged Environment as Queen Mary School of Law Legal Studies Research Paper No. 217/2016. Here is the abstract.

With the Leveson Inquiry, the Royal Charter and a forthcoming revision of the Communications Act 2003, the need to re-design the existing regulatory framework for the press in a converging media environment is becoming increasingly apparent. This contribution considers the need for a regulatory scheme for the press and the difficulties of preserving freedom of expression while protecting and balancing other fundamental rights.
Download the article from SSRN at the link.

January 26, 2016 | Permalink

Monday, January 25, 2016

Peukert on Public Domain Doctrine in German and EU Law

Alexander Peukert, Goether University Frankfurt, Faculty of Law; Cluster of Excellence Normative Orders, is publishing A Doctrine of the Public Domain in The Innovation Society and Intellectual Property (Josef Drexl, ed.; Edward Elgar Publishing, 2016) (EIPIN Series). Here is the abstract.

The article, which summarizes key findings of my German book ‘Die Gemeinfreiheit. Begriff, Funktion, Dogmatik’ (‘The Public Domain: Theory, Function, Doctrine’), asks whether there are any provisions or principles under German and EU law that protect the public domain from interference by the legislature, courts and private parties. In order to answer this question, it is necessary to step out of the intellectual property (IP) system and to analyze this body of law from the outside, and – even more important – to develop a positive legal conception of the public domain as such. By giving the public domain a proper doctrinal place in the legal system, the structural asymmetry between heavily theorized and protected IP rights on the one hand and a neglected public domain on the other is countered. The overarching normative purpose is to develop a framework for a balanced IP system, which can only be achieved if the public domain forms an integral part of the overall regulation of information.

Download the essay from SSRN at the link.

January 25, 2016 | Permalink