Thursday, August 14, 2014
Martin Guggenheim, New York University School of Law, has published Violent Video Games and the Rights of Children and Parents: A Critique of Brown V. Entertainment Merchants Association in volume 41 of the Hastings Constitutional Law Quarterly (2014). Here is the abstract.
This Article closely examines the 2011 Supreme Court decision in Brown v. Entertainment Merchants Association, 131 S.Ct. 2729 (2011), which held that California’s effort to restrict children’s access to violent video games violated the First Amendment. The Article will show that the Supreme Court widely missed the mark in applying well-established First Amendment law to strike down California’s effort to limit a minor’s access to material reasonably deemed inappropriate by parents. The Court’s principal error was to mischaracterize the statute as a ban on the distribution of material deemed inappropriate by the Legislature. This allowed it to announce simplistically that the case was controlled by United States v. Stevens, 559 U.S. 460 (2010) which rejected “a freewheeling authority to declare new categories of speech outside the scope of the First Amendment,” 559 U.S. at 472, in declaring unconstitutional a federal statute that made it a crime to possess a depiction of animal cruelty if done “for commercial gain.”
Brown contains numerous flaws. If taken literally, it would broadly expand children’s First Amendment rights. But Brown is not really about children’s rights, it is more about allowing a wealthy corporate enterprise – the violent video industry, to continue sales to an important constituency, young males. In this Article, I demonstrate the many flaws in the majority’s opinion, including the irony that Justice Scalia gets to become a champion of children’s rights (for an extreme change). But my greatest criticism of Brown is the extent to which the Court ignores, even mocks, the plight of conservative parents who struggle with ways to keep material from their children that American law insists may not be generally banned but that reasonable parents may believe is nonetheless inappropriate for their children. I ultimately argue that a well-worded law (which the California statute was not) should be upheld as constitutional if its purpose was merely to prevent children from purchasing certain material themselves, without making it unlawful for children to have access to the materials with their parents’ permission (in much the same way minors currently may not access movie theatres).
Download the article from SSRN at the link.
Wednesday, August 13, 2014
András Koltay, Peter Pazmany Catholic University and the Hungarian Academy of Sciences, has published The Regulation of the Defamation of Public Figures in Europe, with Special Emphasis on the Hungarian Legal System in Media Freedom and Regulation in the new Media World (A. Koltay, ed., Budapest, Wolters Kluwer, 2014 (Forthcoming)). Here is the abstract.
This study presents the international background of the defamation of public figures. Then it provides a brief overview of the solutions applied in specific European countries, broken down by the most important problems. Later sections take a closer look at the Hungarian regulations and the jurisprudence of the Constitutional Court (CC) and ordinary courts, and examine the Strasbourg cases relating to Hungary, but with lessons for those outside the country too.
Download the essay from SSRN at the link.
Monday, August 11, 2014
Miiko A. Kumar and David Rolph, both of the University of Sydney Faculty of Law, have published An Appetite for Suppression: Non-Publication Orders, Open Justice and the Protection of Privacy in Perspectives on Privacy: Increasing Regulation in the USA, Canada, Australia and European Countries (Dieter Dorr and Russell L. Weaver, eds.; de Gruyter, 2014). Here is the abstract.
The principle of open justice is a fundamental doctrine of the common law. It is only departed from where it is strictly necessary to do so. Historically, then, merely because a court proceeding involved the public ventilation of private matters was not a sufficient basis for derogating from open justice. Recently, courts, legislatures and law reform bodies have been increasingly concerned about directly protecting privacy. The greater legal protections afforded to privacy have seen some challenges to the primacy of open justice. This chapter examines a number of recent cases in which high-profile litigants have attempted to obtain suppression or non-publication orders, in part to protect the privacy of their affairs from media scrutiny. It considers how the emerging tension between open justice and privacy might develop in the future and how it might be resolved.
Download the essay from SSRN at the link.
Friday, August 8, 2014
The FCC has announced it will begin hosting a series of Open Internet Roundtable Discussions to address concerns surrounding what it calls Internet openness. The agency notes that after the Verizon decision, its net neutrality rules are no longer an option. These Roundtables continue the process begun by the FCC's 2014 Open Internet NPRM (29 FCC Rcd 5561 (2014)).
The first Roundtable will be held in the Commission's Meeting room on September 16th, with subsequent Roundtables to be held on the 19th, and on dates in October (see the schedule at the link). The public is invited.
The FCC will also stream the sessions at http://www.fcc.gov/live.
Thursday, August 7, 2014
From the New York Times, an article discussing the disappearance and presumed detention of journalist Jacob Rezaian, his wife, and a photographer by the Iranian government. Mr. Rezaian, a dual Iranian/US citizen who works for the Washington Post, does not seeem to have been reporting on any sensitive or hot-button issues. Anthony Bourdain, who visited with Mr. Rezanian and his wife earlier this summer, commented on their situation for CNN here. According to the Washington Post, the U. S. goverment has indicated that it has no current information on Mr. Rezaian's situation.
Monday, August 4, 2014
Sinaloa Legislature Says It Will Repeal New Statute Prohibiting Mexican Media From Reporting On Crime
Based on criticism at home and abroad of a law passed last week, the Sinaloa (Mexico), legislature indicated yesterday it would repeal a measure that limited the ability of journalists to report on crime in the state. The BBC reported on the law and on reporters' reaction to the effects of that law here. The statute, effective beginning October 15 in the state of Sinaloa, was intended to help attack the power of the Sinaloa drug cartel. However, journalists said it would also prevent them from informing the public both about the actions of the drug lords and the actions of law enforcement. More here on the statute from the Latino Post, here from Global Post.
Gregory S. Gordon, University of North Dakota School of Law, has published The Forgotten Nuremberg Hate Speech Case: Otto Dietrich and the Future of Persecution Law in volume 75 of the Ohio State Law Journal (2014). Here is the abstract.
Among international jurists, the conventional wisdom is that atrocity speech law sprang fully formed from two judgments issued by the International Military Tribunal at Nuremberg (IMT): the crimes against humanity conviction of Nazi newspaper editor Julius Streicher, and the acquittal on the same charge of Third Reich Radio Division Chief Hans Fritzsche. But the exclusive focus on the IMT judgments as the founding texts of atrocity speech law is misplaced. Not long after Streicher and Fritzsche, and in the same courtroom, the United States Nuremberg Military Tribunal (NMT) in the Ministries Case, issued an equally significant crimes against humanity judgment against Reich Press Chief Otto Dietrich, who was convicted despite the fact that the charged language did not directly call for violence. So why is the Dietrich judgment, a relatively obscure holding, issued sixty-five years ago, so significant today, after the development of a substantial body of ad hoc tribunal jurisprudence on atrocity speech? It is because the seemingly antithetical holdings in Streicher and Fritzsche are more than just the subject of academic discourse. The next generation of atrocity speech decisions, it turns out, is at loggerheads about the relationship between hate speech and persecution as a crime against humanity. Trial chambers for the International Criminal Tribunal for Rwanda (ICTR) have found that hate speech, standing alone, can be the basis for charges of crimes against humanity (persecution). A trial chamber for the International Criminal Tribunal for the former Yugoslavia has reached the opposite conclusion. And surprisingly, these judicial decisions, like the academic commentary, have completely ignored the Dietrich judgment. This Article fills in this significant gap in the judicial and academic literature by historically situating Dietrich, elucidating its holding and relationship to the IMT and ad hoc tribunal decisions, explaining its significance for current and future hate speech cases (including those in Kenya, Burma and Sudan) and offering an explanation for why it has lain in obscurity for over six decades. The Article concludes that judicial reliance on the Dietrich judgment would extricate the law from the Streicher-Fritzsche jurisprudential gridlock and permit development of doctrine that is more coherent and human rights-oriented. It would also help illuminate an important but long overlooked chapter in legal history.
Download the article from SSRN at the link.
Tulisa Contostavlos, the singer accused of drug dealing based on evidence supplied by "fake sheikh" Mazher Mahmood, says she may sue him in civil court now that the case against her has collapsed. Mr. Justice McCreath halted the trial when he decided that the evidence Mr. Mahmood had presented to him was too tainted to allow the case to proceed. Roy Greenslade, a Guardian commentator, has quoted Mr. McCreath's ruling here. The judge says in part:
It should not be forgotten that Mr Mahmood is the sole progenitor of this case; the sole investigator; the sole prosecution witness; a man who has exercised his journalistic privilege to create a situation in which the identities of others involved in the investigation are unknown to the defence (or the prosecution or even to me); someone who appears to have gone to considerable lengths to get Ms Contostavlos to agree to involve herself in criminal conduct, certainly to far greater lengths than would have been regarded as appropriate had he been a police investigator.
None of that, taken on its own or taken together, was sufficient to allow me as a matter of law to halt this case. But there now must be added to the miix two very important factors.
First, there are strong grounds for believing that Mr Mahmood told me lies when he gave evidence to me on the 27th of June.
Secondly, there are also strong grounds for believing that the underlying purpose of these lies was to conceal the fact that he had been manipulating the evidence in this case by getting Mr Smith to change his account.
Mr. Mahmood, a Sun newspaper reporter, has used his "fake sheikh" disguise over the years in undercover investigations. The paper has now suspended him, pending investigation. More here from Reuters.
Thursday, July 31, 2014
Two former editors of the now shuttered tabloid News of the World are facing court dates. The Crown Prosecution Service is bringing charges against Neil Wallis and Jules Stenson for conspiracy it alleges they engaged in with former editor Andy Coulson and others to intercept voicemail of persons in the news between 2003 and 2007. Mr. Wallis was deputy editor of NotW, and Mr. Stenson was features editor of the paper.
Mr. Coulson was convicted on hacking charges earlier this year and sentenced to prison.
More here from the Guardian.
Tuesday, July 29, 2014
Three French TV networks have failed to obtain official approval to move some of their channels from pay to free television, after regulatory agency Conseil Supérieur de l’Audiovisuel (CSA) said it thought the market for advertising was insufficient to support free TV. The three networks, TF1, M6, and Vivendi (Canal +), are now apparently examining their financial options.
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.