Thursday, July 24, 2014
RonNell Andersen Jones, Brigham Young University School of Law, is publishing Press Definition and the Religion Analogy in the Harvard Law Review Forum. Here is the abstract.
In a Harvard Law Review Forum response to Professor Sonja West's symposium article, "Press Exceptionalism," Professor RonNell Andersen Jones critiques Professor West's effort to define "the press" for purposes of Press Clause exceptions and addresses the weaknesses of Professor West's analogy to Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC in drawing these definitional lines. The response highlights distinctions between Press Clause and Religion Clause jurisprudence and urges a more functional approach to press definition.
Download the essay from SSRN at the link.
Read Professor West's article via SSRN here.
Heli Askola, Monash University Faculty of Law, is publishing `Taking the Bait? Lessons from a ‘Hate Speech' Prosecution, in the Canadian Journal of Law and Society (2014). Here is the abstract.
This article uses one case study to explore the use of criminal "hate speech" provisions against populist politicians. In a high-profile Finnish case, a populist politician was found guilty of hate speech after a 4-year criminal process. Though the prosecution was ultimately successful, the various problems with the case helped boost the political popularity of the accused, who was turned into a well-known public figure and Member of Parliament. The case might thus be seen to warn against tackling populist politicians through the criminal law. However, further analysis of the political context and a comparison with the Dutch prosecution against anti-immigration politician Geert Wilders complicate this conclusion. This article examines the consequences of hate speech prosecutions of politicians and sheds light on the conditions under which they can achieve (some of) their aims. The case also has lessons for other jurisdictions about when hate speech prosecutions of politicians are likely to be successful in terms of countering prejudice and disempowering those who spread it for electoral purposes.
The full text is not available from SSRN.
Wednesday, July 23, 2014
The ECtHR, Internet Publishers, and Reputational Injury Under the European Convention on Human Rights
Neville Cox, Trinity College (Dublin), has published Delfi AS v Estonia: The Liability of Secondary Internet Publishers for Violation of Reputational Rights Under the European Convention on Human Rights at 77 Modern Law Review 619 (2014). Here is the abstract.
In October 2013, the European Court of Human Rights in Delfi AS v Estonia upheld a decision of the Estonian Supreme Court to impose liability on the owners of an internet news portal for defamatory comments which had been posted on their website by anonymous third parties. This note suggests that the decision is important in the context of publications with a ‘public interest’ element to them, because it appears to afford more protection to the right to reputation (deriving from the Article 8 right to privacy) and less to freedom of expression than was formerly the case. It is further argued that the Court's emphasis on the positive obligation of states to protect this right to reputation may mean that the existing English law in this area, including, potentially section 5 of the Defamation Act 2013, is inconsistent with the ECHR jurisprudence.
The full text is not available from SSRN.
Tuesday, July 22, 2014
John Howells, University of Aarhus, and Ron D. Katznelson, Bi-Level Technologies, have published The Coordination of Independently-Owned Vacuum Tube Patents in the Early Radio Alleged Patent 'Thicket'. Here is the abstract.
It has been proposed that difficulties in negotiating cross-licenses under multiple, independently-owned and "overlapping" patents may lead entrepreneurs to hold-up or deter development of technology covered by such patents. The literature alleges these features were present in radio development during 1905-1920, with numerous allegations of an impasse in bargaining the necessary patent rights until these were ultimately incorporated in the RCA patent pool. This paper seeks to determine with new precision how entrepreneurs and managers actually managed patent rights in this scenario. Accordingly, we re-examine the legal trajectories and entrepreneurial exploitation of patents on early vacuum tube technology where Fleming's diode patent was alleged to have "overlapped" with De Forest's triode patents. We show, by means of the relevant historical record, patent claims, litigation records and other relevant law, how patent rights were resolved by the courts and by the immunity of suppliers to the government from patent infringement liability. We trace the cross-licensing agreements between the different radio interests and find that licensing was always chosen over hold-up and so enabled robust, state-of-the-art radio development.
Download the paper from SSRN at the link.
I note with sadness the tragic death of criminal law professor Dan Markel, professor of law at Florida State University College of Law. Professor Markel died on Saturday at a local hospital. Professor Markel was a noted scholar and teacher, and founder of the blog PRAWFSBLAWG. We will miss him greatly.
The College of Law has posted a remembrance page here.
Monday, July 21, 2014
A French judge has ordered a food blogger to pay damages of 2500 Euros for a negative review she posted about a restaurant, Il Giardino, in the trendy resort town of Cap-Ferret, after the restaurant owners sued saying the review damaged their business. Blogger Caroline Doudet's supporters raised the money to pay the fine for her and negative comments about the restaurant owners' actions seem to have backfired. More comment here from Arretsurimages (in French).
Ronan Perry and Tal Zarsky, both at the University of Haifa, Faculty of Law, have published Liability for Online Anonymous Speech: Comparative and Economic Analyses in volume 5 of the Journal of European Tort Law (2014). Here is the abstract.
This is a pre-edited draft of of an article presented in the special session of the Annual Conference on European Tort Law. The article examines various models for handling the problem of online anonymous defamation from comparative and economic perspectives. The comparative analysis reveals four main paradigms. The US model bars content providers’ indirect liability, but facilitates identification of the speaker. The Israeli model recognises content providers’ fault-based liability but does not provide procedural tools for identifying the speaker. The EU framework enables the victim to request identification of the speaker, and at the same time bring an action against the content provider. Although there is variance among Member States, this model seems to comply with the relevant Directives and European court decisions. The recently-adopted English model (‘residual indirect liability’) enables the victim to pursue a claim against the speaker and, if the speaker is unavailable, imposes liability on the content provider. From an economic perspective, the main problem with exclusively direct liability is the special effort in identifying and pursuing the anonymous speaker. Additional, yet probably less serious, problems are the high likelihood of judgment-proof defendants and high transaction costs which prevent a contractual transfer of the burden to the content provider when it is the cheapest cost avoider. The drawbacks of exclusively indirect liability are the relatively high cost of precautions, the fact that content providers do not capture the full social benefit of their activity, and the asymmetric legal response to errors with respect to ‘defamatoriness.’ Concurrent liability of the speaker and the content provider overcomes the high cost of identifying and pursuing anonymous speakers, and the problem of judgment-proof defendants. It also induces content providers to facilitate identification of anonymous speakers, increasing the likelihood of internalisation by primary wrongdoers. But concurrent liability has potentially conflicting effects on deterrence, and may result in an aggregation of the implementation costs of both direct and indirect liability. The residual indirect liability regime eliminates (or at least reduces significantly) the need for monitoring, and prevents over-deterrence associated with unaccounted benefits and asymmetric response to errors. It also incentivises content providers to reduce the cost of identifying anonymous wrongdoers, and does not raise the characteristic problems of multiple-defendants. This model may raise some difficulties but they seem either insignificant or solvable, making the English model (with some modifications) the most efficient.
Download the article from SSRN at the link.
John D. Inazu, Washington University, Saint Louis, School of Law, is publishing More is More: Strengthening Free Exercise, Speech, and Association in the Minnesota Law Review. Here is the abstract.
Prominent scholars have suggested that one important means of strengthening the First Amendment is by limiting its protections to “core” interests. Philip Hamburger has asserted the argument most forcefully. His generalized worry is that expanding the coverage of First Amendment rights can shift absolute protection of a defined core to contingent “balancing” for all claims asserted under those rights. In Hamburger’s words, “more is less.” We can think of cautions like these as arguments for rights confinement. On this view, legal doctrine will be most resilient to cultural pressures when it is construed narrowly. But the interplay between doctrine and cultural views suggests that rights confinement is an unproven, and indeed, unprovable, theory. Sometimes rights expansion will increase rights protection. Sometimes “more is more.”
This Article explores the choice between rights expansion and rights confinement, and the influence of cultural views on that choice. It focuses on the rights of free exercise, speech, and association. Part I describes the inclination toward rights confinement in First Amendment scholarship. Part II critiques Hamburger’s “more is less” claim in the free exercise context and suggests that although Hamburger correctly diagnoses a weakened free exercise right, he fails to establish rights expansion as its cause. Parts III and IV offer an alternative explanation for the weakened free exercise right: shifting cultural views about religious liberty and the government interests with which it intersects. Part V discusses why cultural views may play differently for rights expansion of the rights of speech and association. Part VI considers the implications of the relationship between cultural views and First Amendment rights for a contemporary constitutional challenge: private, noncommercial groups that resist antidiscrimination norms.Download the article from SSRN at the link.
Leslie Kendrick, University of Virginia School of Law, has published Free Speech and Guilty Minds in volume 115 of the Columbia Law Review (2014). Here is the abstract.
It is axiomatic that whether speech is protected turns on whether it poses a serious risk of harm — in Holmes’s formulation, a “clear and present danger.” If this is correct, then the state of mind, or intent, of the speaker should be irrelevant. Yet First Amendment law makes speaker’s intent a factor in the protection of many different kinds of speech. This Essay offers an account of why and how speaker’s intent matters for speech protection. It argues that strong intuitions work against imposing strict liability for speech. These intuitions are best explained by an interest in speaker’s intent. An autonomy-based account of free speech provides reasons for this interest. Such an account also suggests what kind of intent is necessary before a given speaker may be subject to regulation. Elucidating speaker’s intent thus explains a mysterious aspect of First Amendment law and uncovers a new argument for autonomy theories of free speech.
Download the article from SSRN at the link.
Friday, July 11, 2014
George Clooney, still angry over a Daily Mail story that alleged the mother of his fiancee opposes his forthcoming marriage to her daughter, has now responded to the tabloid's printed apology, saying that the apology is no apology at all. The original story suggested that his future mother-in-law did not like the idea of the proposed marriage for religious reasons. Mr. Clooney objected that such an insinuation was both false and dangerous, because it is the sort of story that tends to incite violence. The paper offered an apology, which has not satisfied Mr. Clooney.
Tuesday, July 8, 2014
The UK's high court has ruled that journalists may report all matters relating to the divorce of Sir Christopher and Lady Hohn, an immensely wealthy couple in the midst of an epic battle over the conditions of that divorce. The only matters that media may not reveal concern finances, except for those details that have already been released. Attorneys for Sir Christopher had asked for a ban on publication, because information, particularly about his business affairs, could affect those holdings directly if it appears in the press.
Sir Christopher runs in The Children's Investment hedge fund, itself worth over 4 billion pounds. Lady Hohn is asking for half of the couple's property, which could total as much as 500 million pounds. More here from the Guardian.
Law Firm Files Defamation Action Against Former Client Who Posted Unflattering Review on Yelp---And Didn't Pay Fees
A Texas law firm has filed a defamation lawsuit in response to the disparaging review of its services a former client posted on Yelp. The client, Joseph A. Browning, claims that the content of his post is accurate and has refused to pay the firm's fees. The firm, Grissom & Thompson, of Austin, says it has no recourse now that Mr. Browning refuses to pay, but also wants him to remove the post. More here in an article in the Texas Lawyer. Read the firm's complaint here. For interested readers, the Browning review is still available on Yelp, but I won't link to it; you can easily find it by searching for it online.
Mr. Browning is not the first person to be sued over a Yelp review. Last February, both a woman who reviewed a local contractor's work, and the contractor who then responded to her review, were found liable for defamation.
Monday, July 7, 2014
Various British media, including the BBC and the Guardian, are critizing Google's implementation of the ECJ ruling, Google v. Costeja González. The court's opinion requires that search engine companies delete links to outdated, irrelevant, or incorrect information retrieved through searches if a private individual so requests, based on the EU's data protection directive which was at issue in the case.
Google admits that its attempts to comply with the ruling so far have led to some stumbles as it has struggled to apply the principles laid down in the case. It has received thousands of requests to delete links, and has assigned paralegals, not lawyers, to assess the requests. Some media outlets, however, say that deletion of links means that readers have difficulty in finding media content. In addition, some requests for removal come not from parties who have the right to request removal, but from third parties.
The bad news continues for Andy Coulson, former editor at the now shuttered tabloid News of the World. After being convicted for conspiracy last week and receiving an 18-month-sentence, he is now facing a perjury charge before a Scottish court.
The perjury charge arises from testimony Mr. Coulson gave as a defense witness in a 2010 proceeding for Tommy Sheridan, a Scottish politician.
Anthony Cumia of the radio show "Opie and Anthony" is out of a job after he tweeted a number of racially insensitive statements about an incident in New York's Times Square. He says a woman attacked him there after objecting to being pictured in a photograph that he took while in the iconic area. The owners of Sirius Radio fired him for the statements, calling them "racially charged" and "hate-filled." More here from The Hollywood Reporter, here from the New York Times.
Thursday, July 3, 2014
Randall Miller and Jody Savin, owners of Unclaimed Freight Productions, and Jay Sedrish, executive producer of the film "Midnight Rider," have been charged with involuntary manslaughter and criminal trespass in the death of Sarah Elizabeth Jones, a camera assistant working on the film who was on the railroad tracks in February of this year when an oncoming train struck and killed her. Prosecutors in Wayne County, Georgia, announced the charges today.
The three face up to 10 years in prison on the involuntary manslaughter charge. More on the criminal action here from the Atlanta Journal Constitution.
Ms. Jones' parents have also filed a wrongful death action against Unclaimed Freight Productions, its owners, Mr. Sedrish, and Gregg Altman, the subject of the film. More here from the AJC, here from The Wrap.
European Union regulators have given Telefonica the go-ahead to acquire mobile company E-Plus. The merger allows Germany's third and fourth largest cell phone companies to compete with rivals T-mobile and Vodaphone. Madrid-based Telefonica arranged to purchase E-plus for nearly $12 billion earlier this year. More here from the New York Times, here from the Guardian.
The New York Court of Appeals has struck down a local law which criminalizes cyberbullying, holding that it still prohibits a range of speech that the First Amendment of the U.S. Constitution protects.
In People v. Marquan M., the court held that Albany County Local Law No. 11 of 2010, § 1 criminalized not just cyberbullying, the intended problem, but also ""any act of communicating . . . by mechanical or electronic means . . . with no legitimate . . . personal . . . purpose, with the intent to harass [or] annoy. . . another person."
Said the court in part:
On its face, the law covers communications aimed at adults, and fictitious or corporate entities, even though the county legislature justified passage of the provision based on the detrimental effects that cyberbullying has on school-aged children. The county law also lists particular examples of covered communications, such as "posting statements on the internet or through a computer or email network, disseminating embarrassing or sexually explicit photographs; disseminating private, personal, false or sexual information, or sending hate mail." But such methods of expression are not limited to instances of cyberbullying — the law includes every conceivable form of electronic communication, such as telephone conversations, a ham radio transmission or even a telegram. In addition, the provision pertains to electronic communications that are meant to "harass, annoy . . . taunt . . . [or] humiliate" any person or entity, not just those that are intended to "threaten, abuse . . . intimidate, torment . . . or otherwise inflict significant emotional harm on" a child. In considering the facial implications, it appears that the provision would criminalize a broad spectrum of speech outside the popular understanding of cyberbullying, including, for example: an email disclosing private information about a corporation or a telephone conversation meant to annoy an adult.
The court found that it could not sever the relevant portion in order to save the law; doing so would not still not cure the issues with its constitutionality.
As we have recently made clear, the First Amendment protects annoying and embarrassing speech (see e.g. People v Golb, __ NY3d __, 2014 NY Slip Op 03426 [May 13, 2014]; People v Dietze, 75 NY2d at 52-53), even if a child may be exposed to it (see Brown v Entertainment Merchants Assn., 131 S Ct at 2736), so those references would also need to be excised from the definitional section. And, the First Amendment forbids the government from deciding whether protected speech qualifies as "legitimate," as Albany County has attempted to do (see Snyder v Phelps, __ US __, 131 S Ct 1207, 1220 , quoting Erznoznik v Jacksonville, 422 US 205, 210-211 ; cf. People v Shack, 86 NY2d at 536-537). It is undisputed that the Albany County statute was motivated by the laudable public purpose of shielding children from cyberbullying. The text of the cyberbullying law, however, does not adequately reflect an intent to restrict its reach to the three discrete types of electronic bullying of a sexual nature designed to cause emotional harm to children. Hence, to accept the County's proposed interpretation, we would need to significantly modify the applications of the county law, resulting in the amended scope bearing little resemblance to the actual language of the law. Such a judicial rewrite encroaches on the authority of the legislative body that crafted the provision and enters the realm of vagueness because any person who reads it would lack fair notice of what is legal and what constitutes a crime. Even if the First Amendment allows a cyberbullying statute of the limited nature proposed by Albany County, the local law here was not drafted in that manner. Albany County therefore has not met its burden of proving that the restrictions on speech contained in its cyberbullying law survive strict scrutiny.
Wednesday, July 2, 2014